Sazar Dent, aka Cesar Augusto Jimenez-Mendez, Petitioner-Appellant,
Jefferson B. Sessions III, Attorney General, Respondent-Appellee.
and Submitted July 10, 2018 San Francisco, California
from the United States District Court No.
2:10-cv-02673-GMSfor the District of Arizona G. Murray Snow,
District Judge, Presiding
R. Traum (argued), Supervising Attorney; Andrew Clark, Scott
Cardenas, Beatriz Aguirre, and Sabrina Clymer, Student
Attorneys; Thomas & Mack Legal Clinic, William S. Boyd
School of Law, University of Nevada, Las Vegas, Nevada; for
Katherine E. Clark (argued) and Russell J.E. Verby, Senior
Litigation Counsel; Papa Sandhu, Assistant Director; Chad A.
Readler, Acting Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for
Before: Susan P. Graber and Richard C. Tallman, Circuit
Judges, and Ivan L.R. Lemelle, [*] District Judge.
panel denied a petition for review insofar as it raised due
process claims related to the district court's rejection
of Sazar Dent's United States citizenship claim, and
granted the petition and remanded to the Board of Immigration
Appeals insofar as the BIA ruled that Dent's conviction
for third-degree escape under Arizona Revised Statutes §
13-2502 is a crime of violence aggravated felony.
was born in Honduras, but was admitted to the United States
on the basis of being adopted by a United States citizen. His
adoptive mother filed an application for naturalization for
Dent, but that application was terminated after Dent and his
mother missed scheduled interviews and he turned 18. Dent
then filed his own naturalization application, but it was
denied for failure to prosecute. After criminal convictions,
Dent was placed in removal proceedings and the immigration
judge and BIA found him removable for a controlled substance
offense, and for having been convicted of an aggravated
felony based on his conviction for third-degree escape.
petitioned for review with this court, which transferred the
case to the District Court of Arizona for a hearing on his
citizenship claim. The district court determined that Dent
was not a United States citizen and ultimately granted the
government's motion for summary judgment.
preliminary matter, the panel concluded that Dent had
standing to assert due process and equal protection claims on
behalf of his mother.
claimed that the applicable citizenship statute, 8 U.S.C.
§ 1433 (1982), violated his mother's rights under
the Fifth Amendment's Equal Protection Clause because the
statute required citizen-parents of foreign-born, adopted
children to petition for naturalization of their children,
while biological parents, as well as adoptive parents who
naturalized after adoption, could confer citizenship on their
children automatically, without petitioning.
panel explained that, under Sessions v.
Morales-Santana, 137 S.Ct. 1678 (2017), Dent's equal
protection claims do not necessarily receive rational basis
review simply because they are in the immigration context;
rather, when a petitioner presents a claim for citizenship,
his or her equal protection claims are treated the same as
they would be in a non-immigration case.
the panel held that rational basis review applied to
Dent's equal protection claims because he failed to
identify any protected class. The panel further held that,
because a legitimate governmental interest is rationally
related to § 1433's requirement that citizen-parents
petition to naturalize their adopted, foreign-born children,
§ 1433 does not violate the Fifth Amendment's Equal
panel also rejected Dent's due process claims. The panel
held that the district court correctly concluded that the
former Immigration and Naturalization Service was not
deliberately indifferent to Dent's mother's
application for his citizenship, or his own adult application
for citizenship. The panel also concluded that Dent could not
the panel held that the BIA erred in concluding that
third-degree escape under Arizona Revised Statutes §
13-2502 is a crime of violence and, therefore, an aggravated
felony. Comparing the generic federal definition of
"crime of violence" under 18 U.S.C. § 16 to
the Arizona statute, the panel held that Arizona third-degree
escape is not crime of violence because it does not
necessarily involve the "physical force" required
by § 16(a). The panel also observed that the Supreme
Court recently declared, in Sessions v. Dimaya, 138
S.Ct. 1204, 1223 (2018), that § 16(b) is
unconstitutionally vague and, therefore, that subsection
cannot be the basis for an aggravated felony.
that Dent is still removable for a controlled substance
offense, the panel remanded the case to the BIA for a new
hearing to address Dent's request for cancellation of
GRABER, Circuit Judge.
Sazar Dent, a native and citizen of Honduras, appeals the
summary judgment entered in favor of Respondent Attorney
General Sessions on the question of Petitioner's
citizenship. He also challenges the Board of Immigration
Appeals' ("BIA") conclusion that Arizona
third-degree escape is an aggravated felony. We deny the
petition insofar as it raises due process and equal
protection claims related to the citizenship determination;
but we grant and remand insofar as the BIA ruled that the
escape conviction is an aggravated felony.
AND PROCEDURAL BACKGROUND
was born in Honduras in 1967. He was admitted to the United
States in early 1981, when he was 13 years old, on the basis
of his then-pending adoption by Roma Dent, a United States
citizen. The adoption was finalized later in 1981.
January of 1982, the former Immigration and Naturalization
Service ("INS") received an application filed by
Petitioner's adoptive mother seeking to naturalize
Petitioner (who was then 14 years old) as a United States
citizen. Petitioner and his mother lived in Arkansas. The INS
transferred the application to its New Orleans office because
there was no office in Arkansas and because the Memphis
office was overworked. More than 200, 000 naturalization
petitions were filed with the INS in 1982. At that time, it
typically took about a year and a half, after the filing of
an application for a child's naturalization petition, to
schedule an interview.
scheduled an interview on Roma Dent's application for
August 4, 1983, less than 17 months after it was filed. The
INS arranged for the interview to be held in Arkansas, near
the Dents' home. But neither Petitioner nor his mother
appeared at the appointed time and place.
mother then asked for a new interview date, explaining that
Petitioner would be in Honduras "for 6 months
probably." The INS obliged the request, setting a second
interview date of March 13, 1984. There is no evidence that
the INS knew that Petitioner would still be abroad at that
time. Again, neither he nor his mother appeared.
August of 1984, Petitioner's mother contacted the INS
about the status of the naturalization application. The INS
So good to hear from you. Am unable to locate Sazar['s]
records in our office as I do not have his Alien card number.
Also include Sazar['s] complete name and date of birth.
We will do all we can to get him his citizenship.
mother wrote the requested information on the form, adding:
"Is 16 will be 17 Nov 15." That note was ...