Ogundoju v. Atty Gen USA

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MANDATE ISSUED, filed.

Ogundoju v. Atty Gen USA

Doc. 0 Att. 1

Case: 05-1368

Document: 003110300157

Page: 1

Date Filed: 09/30/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 05-1368 ___________ O L U W A F U N M I L A Y O OGUNDOJU, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ___________________________________ In itia lly Docketed as an Appeal from the U n ite d States District Court f o r the Middle District of Pennsylvania (M .D . Pa. Civ. No. 01-cv-00680) C o n v e rte d to a Petition for Review P u r s u a n t to the REAL ID Act of 2005 A g e n c y No. A039-039-008 Im m ig ra tio n Judge: Charles Honeyman D is tric t Judge: Honorable William J. Nealon ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u ly 21, 2010 B e f o re : BARRY, SMITH and HARDIMAN, Circuit Judges (O p in io n filed: July 22, 2010) ___________ O P IN IO N ___________

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Case: 05-1368

Document: 003110300157

Page: 2

Date Filed: 09/30/2010

P E R CURIAM In an amended opinion filed March 5, 2009, we transferred Oluwafunmilayo O g u n d o ju 's petition for review of an Immigration Judge's ("IJ") removal order to the U n ite d States District Court for the Middle District of Pennsylvania for a new hearing on O g u n d o ju 's claim that he is a citizen of the United States. The District Court determined th a t Ogundoju had not established derivative citizenship, and returned the case to this C o u rt. We affirm the District Court's finding that Ogundoju is not a United States c itiz e n . We will dismiss the petition for review for lack of jurisdiction. I. T h e parties are already familiar with the facts and long procedural history of this c a s e . Therefore, we limit our discussion to those facts essential to our decision. As we n o te d in our previous opinion, Ogundoju entered the United States as a lawful permanent re sid e n t in 1989 at the age of 15. He was convicted of two controlled substance v io latio n s in the late 1990s and was placed in removal proceedings as a result. Ogundoju a ttem p ted to establish through administrative proceedings that he derived citizenship th ro u g h his father under since-repealed 8 U.S.C. § 1432(a), but he was unsuccessful.1 On

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Section 1432(a) provided, in pertinent part:

A child born outside of the United States of alien parents, or of an alien parent and a c itiz e n parent who has subsequently lost citizenship of the United States, becomes a c itiz e n of the United States upon fulfillment of the following conditions: ...

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J u ly 13, 2000, an IJ ordered him removed in absentia, as neither he nor his attorney a p p e are d for a hearing. Ogundoju unsuccessfully sought to reopen, contending that he h a d not had notice of the hearing. The IJ found that Ogundoju had been present at a prior o c c a sio n where the hearing date was set, and thus denied the motion to reopen. Ogundoju d id not appeal that decision to the Board of Immigration Appeals ("BIA"), but instead f ile d a habeas petition challenging his detention. He later amended the petition to include h is claim of derivative citizenship. The District Court found that it lacked jurisdiction to re so lv e the main factual issue underlying the citizenship claim, namely, whether O g u n d o ju 's parents had been legally separated. Ogundoju filed a timely appeal, and due to the passage of the REAL ID Act, we converted the appeal into a petition for review. In our prior opinion, we decided that, despite the fact that Ogundoju had failed to a d m in is tra tiv e ly exhaust his claims, we had jurisdiction to consider his citizenship claim. We reasoned that the exhaustion doctrine applies by its terms only to aliens, and that if

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents . . . ; and if (4) Such naturalization takes place while such child is under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for p e rm a n e n t residence at the time of the naturalization of the parent . . . naturalized under c la u se . . . (3) of this subsection, or thereafter begins to reside permanently in the United S ta te s while under the age of eighteen years. 8 U.S.C. § 1432(a) (1999), repealed by Child Citizenship Act of 2000, § 103, Pub. L. No. 1 0 6 -3 9 5 , 114 Stat. 1631. 3

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O g u n d o ju were in fact a United States citizen, the immigration laws would not apply to h im . We also recognized that, pursuant to statute (8 U.S.C. § 1252(b)(5)(B)), a genuine is s u e of material fact involving a claim to citizenship must be resolved in the District C o u rt. As noted, we transferred the case to the District Court for resolution of the factual is s u e s, and we held the petition in abeyance pending such resolution. II. " W e may set aside [a] district court's findings of fact only if they are clearly e rro n e o u s." Agere Systems, Inc. v. Advanced Environmental Technology Corp., 602 F .3 d 204, 216 (3d Cir. 2010). A person claiming United States citizenship bears the b u rd e n of establishing his eligibility, and all doubts are resolved in favor of the United S ta te s and against the claimant. Bagot v. Ashcroft, 398 F.3d 252, 256-57 (3d Cir. 2005) (c itin g Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967) and United States v. M ac intosh , 283 U.S. 605, 626 (1931)). T h e District Court's Memorandum and Order sets forth at length its many attempts to gain Ogundoju's cooperation in attending conferences and an evidentiary hearing. Ogundoju did appear for one conference, on September 24, 2009, with his brother, father, an d fiancée. But he refused to meet later with the Government's attorney, despite a court o rd e r, and he did not attend the evidentiary hearing. We find that the District Court did n o t abuse its discretion in proceeding in Ogundoju's absence, particularly since he had in f o rm e d the Court that he had previously submitted all relevant documentation regarding

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h is parents' marriage and divorce, and since the Court afforded Ogundoju an opportunity to review the evidentiary hearing transcript and add any additional arguments.2 T h e District Court found, based on the evidence, that Ogundoju had not e s ta b lis h e d that his parents were legally separated before his father took custody of him. The District Court noted some evidence considered by the Immigration and N a tu ra liz a tio n Service ("INS") when it denied Ogundoju's original application for c itiz e n sh ip . When Ogundoju's father, Festus Ogundoju, applied for naturalization, his s ta te m e n t, signed under oath, stated that he was presently married to Adijat Nkoyo, and h e had previously been married two times before, to Gina Ogundoju and to Alyaji Ib ra h im (there was no mention of Ogundoju's mother, Dorcas Adepeju Ogundoju). Festus's application claimed that he had seven children, but Ogundoju's name was not lis te d as one of those children. The Acting District Director's decision denying O g u n d o j u 's motion for reconsideration states that the INS record also included affidavits, in c lu d in g one from Ogundoju's father, stating that Ogundoju's father and mother married in January 1966 in accordance with customary traditions, and "claim[ing] that in June 1 9 7 6 this customary marriage was dissolved by verbal agreement only, that no judicial

To the extent Ogundoju challenges the District Court's order denying his motion to tran sfe r venue, we hold that the District Court did not abuse its discretion, as the Court w a s familiar with the lengthy, complicated procedural and factual history, and the A s s is ta n t United States Attorney had spent considerable time preparing the case over the ye a rs. Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995) (district courts h a v e broad discretion to determine, on an individualized, case-by-case basis, whether co n v en ienc e and fairness considerations weigh in favor of transfer). 5

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d iv o rc e took place, and that no written certificate of divorce could be obtained." D e sp ite his father's earlier affirmation that no written certificate could be obtained, O g u n d o ju submitted in the District Court a Certificate of Divorce from the Customary C o u rt of Lagos State dated September 18, 1976. The Certificate contains apparent m is s p e llin g s : it is stamped "REGISTRAY [sic] OF MARRIAGES LAGOS NIGERIA," a n d has "Registra [sic] of Marriages" typed under the signature line. See Doc. #84, Exhs. A & F.3 He also submitted, among other documents, affidavits from his grandfather and tw o uncles, stating that Ogundoju's father and mother were "joined together in verbal (no w ritten document) native and law custom marriage at a family meeting . . . in January 1 9 6 6 ," and that "the marriage had since been disolved [sic] in June 1976." 4 See Doc. # 8 4 , Exhs. B, C, D, G, H & I. The affidavits were all dated July 7, 1988, and were s ta m p e d with a signature of E. Fola Mosanya, Commissioner of Oaths. The Government submitted a United States Consulate Fraud Prevention Program R e p o rt, explaining that the investigator spoke with a number of court officials regarding the affidavits. The officials recalled that Fola Mosanya had retired some twenty years p re v io u s ly, and stated that he could not have signed the documents in 1988. As to the
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These documents appear earlier in the District Court record (see Doc. #22 and Doc. # 4 9 ). For ease of reference, references here are to the Exhibits to the Supplement to the G o v e rn m e n t's Response (Doc. #84), which contains the documents mentioned, copies of th e documents with written notations on them, a Fraud Prevention Program Report of In v e stig a tio n , and a Declaration of the Fraud Prevention Investigator who carried out the in v e stig a tio n in Nigeria.
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These affidavits do not explain the process by which the marriage was dissolved. 6

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C e rtif ic a te of Divorce, the investigator went to the Lagos State Customary Court, and was in f o rm e d by the Registrar of the Court that the divorce decree had not been issued by his c o u rt, as claimed, and that it was not signed by any authorized officer. See Doc. #84, E x h s . E & J. O g u n d o ju then submitted these documents to the U.S. Consulate in Lagos, Nigeria, w h ich informed him that they do not verify documents. Ogundoju next submitted them to th e Nigerian Embassy in Washington, D.C., which forwarded them to the Consulate G e n e ra l of Nigeria in New York, New York. The Consulate later forwarded to Ogundoju th e affidavit of an attorney retained by Ogundoju's mother, stating that he obtained " C e rtif ie d True Copies" of the previously submitted affidavits of Ogundoju's uncles. The C o n s u la te also forwarded a letter regarding Ogundoju's request for authentication of the d iv o rc e declaration, informing him "that action is going on accordingly." Doc. #103, e x h i b i ts . T h e District Court examined the law and determined that a customary divorce in N ig e ria during the time in question required a certificate of divorce rendered by a c u sto m a ry court.5 The Certificate tendered by Ogundoju was never authenticated, was

Ogundoju and the Government both submitted information concerning the applicable la w regarding divorce in Nigeria, including some information from a Foreign Law S p e c ia lis t at the Library of Congress, who stated in a letter that a divorce could be e f f e c te d through a "dissolution ceremony" in lieu of going through a customary court. However, as the District Court noted, Ogundoju did not claim that an actual "dissolution c e re m o n y" took place, nor did he make any attempt to document such a ceremony. Instead, he submitted a Certificate of Divorce to show that his father did go through a 7

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in h e re n tly suspicious (due to the misspellings), and contradicted the affidavits of his f a m ily members, including his father, who said no written documentation of the divorce e x iste d (and that the divorce took place in June 1976, while the Certificate is dated in S ep tem b er 1976).6 T h e District Court's finding that Ogundoju has "not established the Certificate of D iv o rc e is a valid legal document from the Customary Court of Lagos, Nigeria," is not clea rly erroneous. He therefore did not meet his burden of showing that his parents were le g a lly separated, and has thus not met his burden of showing that he derives U.S. citizen sh ip from his father. I I I. A s we agree with the District Court's finding that Ogundoju is not a U.S. citizen, th e immigration laws apply to him. Ogundoju is subject to the IJ's final order of removal. Ogundoju did not appeal the IJ's order to the BIA. Because he did not exhaust his a d m in is tra tiv e remedies, we lack jurisdiction to review the IJ's decision. 8 U.S.C. § 1 2 5 2 (d). F o r the foregoing reasons, we affirm the District Court's finding that Ogundoju did n o t meet his burden of showing that he derives citizenship from his father, and we will

customary court in dissolving his marriage. The District Court did not make an explicit finding as to the authenticity of the a f f id a v its ; however, even assuming that Ogundoju's uncles' affidavits were authentic, b ec au se they made no mention of a certificate of divorce, they undermined Ogundoju's p o sitio n , rather than supporting it. 8
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d is m is s the petition for review.

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