Elysee Theagene v. Alberto R. Gonzales, Attorney General

Elysee Theagene petitions the court for review of the Board of Immigration Appeals’ final order of removal, arguing that (1) he is a citizen of the United States; (2) the BIA erred in granting á motion to reconsider its own decision that he was eligible for withholding of deportation; (3) the BIA erred in applying an intervening en banc decision to Petitioner’s case on reconsideration; and (4) the BIA incorrectly applied the holding in that intervening decision to Petitioner’s case. In a memorandum disposition filed August 27, 2003, we found that we lacked jurisdiction over the nationality claim because the claim had not been raised during the administrative proceedings. We also held that the remaining claims lacked merit. Theagene filed a petition for rehearing raising substantial questions regarding our jurisdiction to hear his nationality claim. We granted the petition, and, after briefing by both parties, we conclude that we have jurisdiction to review Theagene’s nationality claim. However, because service in the armed forces is not itself sufficient to ground a claim for nationality, and because Theagene’s other claims also lack merit, we deny the petition for review.

I.…

concurring in part and dissenting in part:

I concur in the result. I agree with all but part 11(A) of the opinion because I disagree with that important section on jurisdiction.

As in many asylum cases, the outcome here is a sad one. A man who served honorably in our armed forces during wartime, and whose only connection with Haiti is that he was born there, will be sent back, with no apparent way to earn a living and no ability even to speak the language. But as the majority concludes, there is nothing we can do about that.

The majority’s jurisdictional argument, however, is mistaken. Administrative pro *1114 ceedings like those in our immigration courts exist because the large volume of cases requires specialized courts that handle nothing else and can resolve the cases within a reasonable time. Theagene was haled into such a court because he was convicted of burglary in a dwelling 2 — conduct that gets aliens deported from our country. 3 The immigration court had jurisdiction, however, only if Theagene was an alien. He could have. avoided the removal order, despite his aggravated felony, merely by establishing that he was not an alien.

We are now reviewing the BIA’s…

411 F.3d 1107 Elysee THEAGENE, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 02-71224. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 17, 2003. Filed June 15, 2005. COPYRIGHT MATERIAL OMITTED Jaime Jasso, Esq., California Alien Rights Project, for petitioner. Robert D. McCallum, Jr., Assistant Attorney General, Richard M. Evans, Assistant Director, Michelle R. Slack, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, for respondent. 1 On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aiu-krt-rgg. 2 Before: KLEINFELD and WARDLAW, Circuit Judges, and POGUE, ** International Trade Judge. 3 POGUE, International Trade Judge. 4 Elysee Theagene petitions the court for review of the Board of Immigration Appeals' final order of removal, arguing that (1) he is a citizen of the United States; (2) the BIA erred in granting a motion to reconsider its own decision that he was eligible for withholding of deportation; (3) the BIA erred in applying an intervening en banc decision to Petitioner's case on reconsideration; and (4) the BIA incorrectly applied the holding…