Travis Damien Ashton v. Alberto Gonzales, Attorney General of the United States

Citations: 431 F.3d 95; 2005 U.S. App. LEXIS 26801; 2005 WL 3306609Docket: 03-41038

Court: Court of Appeals for the Second Circuit; December 7, 2005; Federal Appellate Court

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Travis Damien Ashton, a native of Trinidad and Tobago, petitions for review of a Board of Immigration Appeals (BIA) order affirming his removal based on a conviction for an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Ashton claims he is not deportable, asserting U.S. citizenship due to his mother's naturalization in 1997 under 8 U.S.C. § 1432(a). The Immigration Judge (IJ) rejected this claim, determining that Ashton is not a U.S. citizen. The court agrees, stating that Ashton is subject to removal as he has been convicted of an aggravated felony, which limits the court's jurisdiction over his petition under 8 U.S.C. § 1252(a)(2)(C). The background details indicate that Ashton entered the U.S. on a nonimmigrant visa in 1987, became a lawful permanent resident in 2000, and was convicted in 2000 for sexually abusing minors. The INS initiated removal proceedings in 2001 based on this conviction. The IJ ordered his removal in 2002, and the BIA affirmed this decision. The court notes that it can assess its jurisdiction to determine if Ashton is indeed an alien, as that would impact the reviewability of his petition.

Ashton claimed U.S. citizenship based on his mother's naturalization in 1997 under § 321(a) of the Immigration and Nationality Act (INA). The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) rejected this argument. The case hinges on interpreting § 321(a), which governs derivative citizenship for children. Under this statute, a non-citizen child, born out of wedlock and without legally established paternity, becomes a U.S. citizen if the mother naturalizes while the child is under 18 and the child is residing in the U.S. as a lawful permanent resident at that time or begins to reside permanently thereafter.

Ashton was 17 during his mother's naturalization and was not a lawful permanent resident at that time. The crux of the dispute is whether he began to reside permanently in the U.S. after her naturalization but before turning 18. Ashton argued that discussions with his mother regarding his future constituted a decision to reside permanently, but the court disagreed. It emphasized that mere intent, without an objective official indication of permanent residence, is insufficient to meet the requirements of § 321(a). Ultimately, Ashton failed to demonstrate that he fulfilled the necessary conditions for derivative citizenship.

The Government argues that "to reside permanently" equates to being a lawful permanent resident, supported by the definitions in the Immigration and Nationality Act (INA). Section 1101(a)(33) defines "residence" as a person's principal dwelling place, disregarding intent, which suggests that the concept of permanent residence cannot solely depend on intent. However, this section does not clarify what it means to "begin to reside permanently" in the U.S. Section 1101(a)(31) defines "permanent" as a lasting relationship that may eventually be dissolved according to law, but the government misinterprets this to mean that a relationship must always be lawful to be considered permanent.

The Government also references several cases asserting that "begins to reside permanently" implies a lawful origin for residence. However, these cases primarily involve individuals who were excluded from the U.S. upon entry, contrasting with the situation of Ashton, who initially entered legally before becoming illegal due to an expired visa. The distinctions in these cases render them irrelevant.

Ultimately, the document concludes that while the Government's interpretation is flawed, the petitioner's view is also incorrect. The statute does not support the idea that "begins to reside permanently" is based solely on subjective intent. The conclusion drawn is that Congress likely intended for naturalization requirements under § 321(a) to involve more than mere intent, particularly as children qualifying for naturalization face stricter requirements for lawful permanent residency. The Supreme Court's precedent emphasizes that doubts regarding citizenship should be resolved in favor of the United States, further reinforcing the interpretation that subjective intent alone is insufficient.

A child who obtains lawful permanent residency satisfies the requirements of § 321(a), but Ashton, who did not apply for or receive such status before turning 18, fails to demonstrate any official objective manifestation to support his citizenship claim. Consequently, the Immigration Judge (IJ) ordered Ashton's removal under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that any alien convicted of an aggravated felony post-admission is deportable. Ashton's conviction for sexual abuse of a minor qualifies as an aggravated felony. The petition for review is dismissed due to lack of jurisdiction. Additionally, the opinion notes the substitution of Attorney General Gonzalez for John Ashcroft and references the Bureau of Immigration and Customs Enforcement (BICE) as the current agency responsible for immigration enforcement, although the proceedings referenced occurred under the former Immigration and Naturalization Service (INS). The relevant provisions of § 321, which was repealed in 2000, outline the conditions under which a child born outside the U.S. becomes a citizen.