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Dent v. Sessions

United States Court of Appeals, Ninth Circuit

August 17, 2018

Sazar Dent, aka Cesar Augusto Jimenez-Mendez, Petitioner-Appellant,
v.
Jefferson B. Sessions III, Attorney General, Respondent-Appellee.

          Argued and Submitted July 10, 2018 San Francisco, California

          Appeal from the United States District Court No. 2:10-cv-02673-GMSfor the District of Arizona G. Murray Snow, District Judge, Presiding

          Anne 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 Petitioner-Appellant.

          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 Respondent-Appellee.

          Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Ivan L.R. Lemelle, [*] District Judge.

         SUMMARY[**]

         Immigration

         The 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.

         Dent 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.

         Dent 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.

         As a preliminary matter, the panel concluded that Dent had standing to assert due process and equal protection claims on behalf of his mother.

         Dent 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.

         The 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.

         However, 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 Protection Clause.

         The 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 establish prejudice.

         Finally, 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.

         Noting 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 removal.

          OPINION

          GRABER, Circuit Judge.

         Petitioner 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.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Petitioner 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.

         In 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.[2]

         The INS 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.

         Petitioner's 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.

         In August of 1984, Petitioner's mother contacted the INS about the status of the naturalization application. The INS responded:

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.

         Petitioner's mother wrote the requested information on the form, adding: "Is 16 will be 17 Nov 15." That note was ...


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