United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
TO THE HONORABLE G. MURRAY SNOW:
Petitioner, proceeding in this matter pro se, docketed a petition pursuant to 28 U.S.C. § 2241 on June 10, 2014. Petitioner is detained by the United States at the detention center in Eloy, Arizona. Petitioner docketed an "emergency" amended petition (Doc. 3) on June 18, 2014. Petitioner asserts, inter alia, that "The Executive Office of Immigration Review has no jurisdiction and authority to deport me as an American citizen in violation of my Fifth Amendment Due process Clause." Respondent was ordered to answer the petition on August 11, 2014. See Doc. 4. Respondent, who asserts he is not the correct respondent in this matter, docketed an answer to the petition on September 3, 2014. See Doc. 9. Petitioner docketed a reply (Doc. 20) to the answer to his petition on December 18, 2014.
Petitioner, Mr. Nazreth Derboghossian, was born in Syria on August 4, 1959. See Doc. 3. See also Answer, Attach. A. Petitioner's father Nubar Derboghossian and mother Zarouhi Minassian are both natives of Syria and both parents are naturalized United States citizens. See Answer, Attachs. B, D, E. On August 11, 1969, the former Immigration and Naturalization Service ("INS") admitted Petitioner, who was then ten years old, his parents, and his younger siblings to the United States at New York, New York, as immigrants under the classification "NP1, " i.e., as "nonpreference" immigrants. Id., Attach. B & Attach. C.
On May 6, 1977, three months before Petitioner's eighteenth birthday, Petitioner's father Nubar filed a Form N-400, "Application to File Petition for Naturalization" with the INS. Id., Attach. D (Immigration Documents for Nubar) at DERICE-000019. On November 18, 1977, after Petitioner turned eighteen on August 3, Petitioner's mother filed her Form N-400, "Application to File Petition for Naturalization" with the INS. Id., Attach. E (Immigration Documents for Zarouhi) at DER-ICE-000031). On January 19, 1978, Petitioner's parents attended their naturalization interviews and on March 1, 1978, the INS scheduled them for a naturalization hearing on March 20, 1978. Id., Attach. D at DER-ICE-000015-18 & Attach. E at DER-ICE-000026-30. On March 20, 1978, Petitioner's parents became naturalized United States citizens. Id., Attach. D at DER-ICE-000012 & Attach. E at DER-ICE-000023. Petitioner was, therefore, eighteen years and seven months old when his parents were naturalized on March 20, 1978.
On September 26, 2012, Petitioner was convicted by the Maricopa County Superior Court on one count of fraudulent schemes and artifices, a class 2 felony, in violation of section 13-2310 of the Arizona Revised Statutes; one count of illegal control of an enterprise, a class 3 felony, in violation of Arizona Revised Statutes § 13-2312; and one count of forgery, a class 4 felony, in violation of Arizona Revised Statutes § 13-2002. Id., Attach. F. Petitioner was sentenced to, inter alia, one year of incarceration and three years of probation. The court also ordered Petitioner to pay $1, 430, 428.22 in restitution to his victims.
On September 27, 2013, Petitioner was released from the custody of the Maricopa County Sheriff's Office to the custody of Immigration and Customs Enforcement ("ICE"). Id., Attach. G, Warrant for Arrest of Alien. On that same day, ICE issued a Notice to Appear, charging Petitioner with removability under section 237(a)(2)(A)(iii)2 of the Immigration and Nationality Act ("the Act"), as an alien, who any time after admission, has been convicted of an aggravated felony as defined by section 101(a)(43)(R) of the Act, an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered, for which the term of imprisonment is at least one year. Id., Attach. H, Notice to Appear.
On September 27, 2013, Petitioner was transferred to the Eloy Detention Center for removal proceedings. He was detained without bond pursuant to section 236(c) of the Act. Id., Attach. I.
On or about October 4, 2013, the government withdrew the initial charge of removability under section 237(a)(2)(A)(iii) of the Act and charged Petitioner as an alien who, at any time after admission, has been convicted of an aggravated felony as defined in section 101(a)(43)(M) of the Act, an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10, 000. See id., Attach. J. On or about December 4, 2013, the government additionally charged Petitioner with removability based on an allegation that he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Id., Attach. K. On April 10, 2014, an Immigration Judge ("IJ") conducted a bond hearing pursuant to Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). Id., Attach. l. On April 15, 2014, the IJ issued an order denying Petitioner's request for a change in custody status. Id., Attach I Petitioner reserved appeal but has not appealed the IJ's decision.
On or about May 8, 2014, Petitioner submitted a motion for a second bond redetermination hearing. Id., Attach. M, On May 15, 2014, the IJ denied Petitioner's motion for a second bond redetermination hearing. Id., Attach. N. Petitioner has not appealed the IJ's bond decision.
On May 19, 2014, at a removal hearing before the IJ, Petitioner claimed that he had derived United States citizenship through his naturalized United States citizen parents. Id., Attach. O. On May 20, 2014, ICE's Office of Enforcement and Removal Operations ("ERO"), interviewed Petitioner in conjunction with his citizenship claim and obtained a sworn statement from him. Id., Attach. P (Affidavit of Petitioner). Petitioner admitted he had taken no steps to become naturalized. Id., Attach. P at DER-ICE-000093.
On July 29, 2014, Petitioner's attorney filed a Motion for Administrative Closure with the IJ. Id., Attach. Q. Counsel argued that the proceedings should be administratively closed so that Petitioner could file a Form N-600, "Application for Certificate of Citizenship." Id., Attach. Q. In the motion Petitioner acknowledged that he is not legally eligible to derive citizenship through his naturalized United States citizen parents under former section 321 of the Act because he was over the age of eighteen years when they naturalized. Id., Attach. Q at DER-ICE-000097. Petitioner indicated that he intended to file a Form N-600 with United States Citizenship and Immigration Services ("USCIS") seeking declaratory action based on the argument that there was an unreasonable delay in processing his parents' Form N-400s, which he believed were filed in 1976. Petitioner argued that, but for this delay, his parents would have become naturalized United States citizen prior to his eighteenth birthday. Id., Attach. Q at DER-ICE-000096-97. Id., Attach. Q.
On August 19, 2014, the Department filed an opposition to Petitioner's Motion for Administrative Closure, arguing that Petitioner was not likely to succeed on his N-600 application because (1) his parents delayed in applying to naturalize after they became eligible to do so in August of 1974, and (2) that the Department believed that INS timely adjudicated their applications, as the entire process only took approximately nine months. Id., Attach. R.
On August 25, 2014, Petitioner appeared at a master calendar hearing with his counsel. The Department served Petitioner with his mother's naturalization documents obtained from her alien file at the National Records Center (NRC) on August 22, 2014. See id., Attach. E. Petitioner's counsel requested time to review these documents, and the IJ therefore reset the matter to September 16, 2014. On August 29, 2014, ICE's Office of Chief Counsel ...