FINDLEY v. BARR (2020)

SUMMARY ORDER

Petitioner Andrew Keith Findley, an alleged native and citizen of Jamaica, petitions for review of a July 21, 2017 decision of the BIA denying his motion to reopen his removal proceeding. In re Andrew Keith Findley, No. A XXX XX3 376 (B.I.A. Jul. 21, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We ordinarily review the BIA's denial of a motion to reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006), but when there is an issue of nationality, we review the claim de novo,¹ see Jaen v. Sessions, 899 F.3d 182, 185-86 (2d Cir. 2018); Gil v. Sessions, 851 F.3d 184, 186 (2d Cir. 2017). The Immigration and Nationality Act (“INA”) addresses judicial review of nationality claims. “If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A). If, however, there is a “genuine issue of material fact” about the petitioner's nationality, “the court shall transfer the proceeding to the district court ․ for a new hearing on the nationality claim and a decision on that claim.” Id. § 1252(b)(5)(B). In determining whether a petitioner has raised a material factual dispute, we apply “the same principles employed on a [Federal Rule of Civil Procedure] 56 motion for summary judgment.” Duarte-Ceri, 630 F.3d at 91; see also Agosto v. INS, 436 U.S. 748, 754, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978) (“We may reasonably assume that, in using the language from Rule 56 as the standard for granting de novo district court hearings on citizenship claims, Congress intended the language to be interpreted similarly to that in Rule 56.”).

We easily conclude that Findley has raised a genuine issue of material fact concerning his nationality. The agency's determination of alienage was based in substantial part on evidence contained in a Form I-213. A Form I-213 is an official record that an immigration officer prepares when processing an individual suspected of being an alien unlawfully present in the United States. See, e.g., Bauge v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). We have held that an I-213 is “presumptively reliable,” because it “contain[s] guarantees of reliability and trustworthiness that are substantially equivalent” to those required of business records admissible under the Federal Rules of Evidence. Felzcerek v. INS, 75 F.3d 112, 116–17 (2d Cir. 1996). Here, the Form I-213 contains information from interviews with three of Findley's family members (two half-brothers and a sister-in-law), who stated that Findley was born in Jamaica.²

We, however, agree with Findley that a March 21, 2017 email from the Jamaican embassy to his counsel raises a genuine issue of material fact concerning Findley's nationality. The email indicates that Findley “was not identified as a national of Jamaica, during [a] verification interview conducted by [the] embassy of Jamaica” and that the embassy would not be issuing Findley travel documents “at [that] time.” Cert. Admin. R. 48. Even if the email does not represent a conclusive determination as to Findley's nationality, it at a minimum demonstrates that the Jamaican embassy could not confirm Findley's nationality and raises questions about the respondent's determination that Findley is a Jamaican national. See Felzcerek, 75 F.3d at 117 (holding that the presumption of reliability afforded to a Form I-213 is lost when a petitioner introduces evidence contradicting statements in the form or undermining its reliability). We therefore conclude that transfer to the district court is required.

We need not address additional evidence of nationality in the record because 8 U.S.C. § 1252(b)(5)(B) requires transfer once we determine a genuine issue of material fact exists. Garcia v. Dep't of Homeland Sec., 669 F.3d 91, 98 (2d Cir. 2011) (transferring to the district court for resolution of factual dispute regarding citizenship and stating that the district court must “weigh the probative value of [petitioner's] and the Government's evidence”). We note, however, our agreement with Judge Videla's conclusion that the evidence of Findley's alienage submitted by the respondent was “unreliable and often contradictory.” Cert. Admin. R. 303.

For the foregoing reasons, the petition for review is GRANTED and the case is TRANSFERRED to the United States District Court for the Southern District of New York for further factfinding. All pending motions and applications are DENIED and stays VACATED.

FOOTNOTES

1.   Generally, where, as here, an alien has been ordered removed for a controlled substance offense, a jurisdictional bar precludes our review of any final order of removal. 8 U.S.C. § 1252(a)(2)(C). However, we always retain jurisdiction to review constitutional claims and questions of law, including issues surrounding nationality and citizenship. See Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) (“An assertion of U.S. citizenship is [ ] a denial of an essential jurisdictional fact in a deportation proceeding.”) (internal quotation marks omitted); Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005) (“If [petitioner] is a United States citizen, then § 1252(a)(2)(C) cannot bar his petition.”).

2.   The three relatives whose statements appeared in the Form I-213 are related to Findley through his father, and their statements do not indicate how they knew where Findley was born. Two of the three relatives interviewed did not know the identity of Findley's mother.