Olgens Dragenice v. Alberto R. Gonzales, U.S. Attorney General

Citations: 470 F.3d 183; 2006 U.S. App. LEXIS 29668; 2006 WL 3479738Docket: 05-7050

Court: Court of Appeals for the Fourth Circuit; December 4, 2006; Federal Appellate Court

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Olgens Dragenice, a native and citizen of Haiti, entered the United States in April 1996 to join his father. He completed high school and enlisted in the U.S. Army Reserves in 1999, taking an oath of allegiance. In May 2000, he was convicted in Maryland of robbery with a dangerous weapon, theft under $300, and second-degree assault, receiving concurrent sentences. Following these convictions, the Immigration and Naturalization Service (INS) issued a Notice to Appear, alleging Dragenice's removal due to his convictions, which included a crime of moral turpitude and an aggravated felony, both occurring within five years of his admission to the U.S.

At a hearing in November 2001, Dragenice, representing himself, acknowledged that he was not a U.S. citizen and had committed the offenses listed in the Notice. The Immigration Judge found him subject to removal based on the aggravated felony and moral turpitude claims, but deferred a decision regarding the firearms offense. Ultimately, the Fourth Circuit Court of Appeals denied Dragenice's petition for review, confirming his status as an alien subject to removal.

Dragenice sought withholding of removal to Haiti under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT). The Immigration Judge (IJ) allowed him time to file an application for these forms of relief. In his application, Dragenice identified as Haitian and detailed his employment, including service in the U.S. Army Reserve (USAR). The IJ denied his requests for both withholding of removal under the INA, citing his status as an aggravated felon, which rendered him statutorily ineligible, and evaluated his CAT claim. Although Dragenice was eligible for CAT relief, the IJ found insufficient evidence to support his claim that he would face torture by Haitian officials. Consequently, an order was issued for his removal to Haiti.

Dragenice appealed to the Board of Immigration Appeals (BIA), contesting the IJ's findings on torture and asserting for the first time that he was a U.S. national due to his military service. The BIA affirmed the IJ’s decision without opinion and later denied a motion for reconsideration, specifically addressing and rejecting Dragenice's nationality claim. The BIA concluded he did not demonstrate acquisition of U.S. nationality under the INA. Dragenice did not seek judicial review of the BIA decisions. Instead, while his appeal was pending, he filed a habeas petition in federal district court, arguing his detention was unlawful because he was not an "alien" under the INA, reiterating his claim of U.S. nationality based on his military service and oath of allegiance. He maintained that he remained a member of the USAR and had not been discharged.

The district court determined it lacked habeas jurisdiction over nationality issues in removal proceedings and transferred Dragenice's habeas action to a court with proper jurisdiction under 28 U.S.C. § 1631. However, the appellate court remanded the case, stating the district court did have jurisdiction to consider Dragenice's nationality claim, thus invalidating the transfer. Before the district court could decide on remand, Congress enacted the REAL ID Act of 2005, which established that judicial review of removal orders would exclusively occur through petitions filed with courts of appeals, effectively stripping federal courts of jurisdiction over § 2241 petitions related to removal orders. The REAL ID Act also included transitional provisions requiring that pending habeas petitions challenging removal orders be transferred to the appropriate court of appeals, treated as timely petitions for review regardless of the time elapsed since the Board of Immigration Appeals (BIA) decision. Consequently, Dragenice's habeas petition was transferred to this court under these rules, where it would be treated as a petition for review. The central issue on appeal is whether Dragenice, due to an oath taken upon his enlistment in the U.S. Army, qualifies as a "national of the United States," thereby exempting him from removal under the Immigration and Nationality Act (INA), which only subjects "aliens" to removal. The INA defines "alien" as anyone not a citizen or national of the U.S., while a "national of the United States" includes U.S. citizens or those who owe permanent allegiance, with no clear criteria provided for determining such allegiance.

Dragenice asserts his qualification as a "national of the United States" under subsection (B) due to his noncitizen status and permanent allegiance, which he claims was established when he took the military enlistment oath in 1999. He argues that this allegiance is "permanent" as he remains subject to military obligations. The Attorney General contends that "national" status cannot be acquired as Dragenice suggests and outlines that the Immigration and Nationality Act (INA) allows for national status only through naturalization or birth circumstances. Under the INA, individuals can become nationals through naturalization (8 U.S.C.A. §§ 1421-1458) or by being born to nationals or in U.S. territories (8 U.S.C.A. § 1408). The Attorney General emphasizes that the INA does not recognize military enlistment as a path to national status, and cites case law supporting this interpretation. Dragenice references United States v. Morin, which acknowledged a different basis for national status involving permanent legal residency and a citizenship application, arguing it implies that allegiance can establish national status outside of the traditional avenues. However, the court indicates it need not decide the implications of Morin, concluding that Dragenice does not qualify as a national under any standard considered.

Dragenice's enlistment oath does not impose permanent allegiance to the United States. The Immigration and Nationality Act (INA) defines "permanent" as a lasting relationship that can eventually be dissolved, distinguishing it from temporary relationships, such as military service, which is inherently limited in duration. The Ninth Circuit, in Reyes-Alcaraz v. Ashcroft, reaffirmed that military oaths signify allegiance only for the term of service, not indefinitely. Furthermore, the INA outlines a naturalization process for noncitizen military members, indicating that while the requirements are relaxed, they remain in place, suggesting that military service alone does not confer national status. Specific provisions exempt military personnel from removal proceedings, reinforcing the notion that noncitizen soldiers do not automatically gain citizenship or national status. Consequently, it is concluded that Dragenice is an alien and subject to removal from the United States, with the petition for review denied. The BIA referenced its earlier decision in Matter of Navas-Acosta, which stated that national status can only be obtained through birth or naturalization.