United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C.
§ 2241
LEE
ANN RENO UNITED STATES MAGISTRATE JUDGE.
Before
the Court is the pro se Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 filed by
petitioner MUAMAR SAYYED ASAD a/k/a Muamar Asad Sayyed. [ECF
3]. For the reasons set forth below, petitioner's habeas
application should be dismissed.
Petitioner
is a state prisoner currently confined in the Neal Unit in
Potter County, Texas.[1]In the introductory paragraph of his habeas
application, petitioner makes the global assertion that he is
filing the instant section 2241 petition because he is
“being held illegally by the respondent [the United
States Immigration and Customs Enforcement agency (ICE)] in
violation of the Constitution and the law of the United
States.” [ECF 3 at 5]. Petitioner, however, is not in
ICE custody and does not appear to be challenging any
immigration detainer respondent may have lodged against
petitioner.[2] In fact, petitioner identifies
“[t]he only question disputed and presented in this
petition is whether petitioner has met condition 3 of §
1432(a) and is thus a derivative United States citizen that
I.C.E. lacks jurisdiction over.” [ECF 3 at 6].
Consequently, the remainder of petitioner's pleading
argues only that he has met all of the statutory conditions
to derive automatic citizenship and thus he is a
“derivative United States citizen.” Petitioner
does not specifically appear to be challenging any prior
determination that he has not established automatic
derivative citizenship, nor does he specifically appear to be
challenging a final order of removal. Instead, petitioner
requests this Court “grant this petition and prevent a
great injustice and a constitutional crisis from taking place
by giving the words of § 1432(a)(3) their unambiguous
and clear meaning” and find “petitioner has
clearly demonstrated that he had automatically derived United
States citizenship (ADC) from his father.” Petitioner
simply seeks a determination from this Court as to
petitioner's citizenship.
In
Sayyed v. United States Immigration and Customs
Enforcement, Civil Action No. 4:12-CV-1083, the United
States District Court for the Southern District of Texas,
Houston Division, considered a section 2241 habeas petition
filed by petitioner challenging an immigration detainer and a
final order of removal, as well as petitioner's motion
for de novo determination of citizenship. In its June 21,
2012 Order of Dismissal, the Houston court noted a
federal district court only has jurisdiction to review a
derivative citizenship claim in two scenarios: (1) where a
claimant has applied for a certificate of citizenship through
the filing of Form N-600 with the United States Citizenship
and Immigration Services under 8 U.S.C. § 1452(a)
outside the removal context, [3] has exhausted his
administrative remedies through appeal, and then brings a
declaratory judgment action in a federal district court
pursuant to 8 U.S.C. § 1503(a); or (2) where the claim
of citizenship is raised and rejected as a defense in a
removal proceeding, is rejected on appeal by the Board of
Immigration Appeals, and the claimant filed a petition for
review with a federal court of appeals who then directly
transfers the case to the federal district court for a
determination of the nationality claim. Id. [ECF 33
at 6].
Observing
petitioner's case had not been transferred to the
district court from a federal appellate court, the Houston
Division court found the only issue to determine was whether
petitioner's claims arose “by reason of, or in
connection with” his prior removal proceedings and
noted an affirmative answer to that inquiry would divest the
court of subject matter jurisdiction. Id. [ECF 33 at
7]. After detailing the procedural history of
petitioner's claim and relying on controlling Fifth
Circuit authority, the Houston Division court held
petitioner's action was barred because his claim of
citizenship first arose “by reason of or in connection
with” his removal proceedings, and the district court
was thus without jurisdiction to consider petitioner's
request for determination of citizenship. Id. [ECF
33 at 8].
As with
the Houston case, a federal court of appeals did not transfer
the instant case to this district court; rather, petitioner
commenced this proceeding by directly filing the action with
this Court. Therefore, as in the Houston case, the only issue
before this Court is whether petitioner's claim for
derivative citizenship arose “by reason of, or in
connection with” his removal proceedings. This precise
issue was previously raised and rejected by the Houston
Division court in a final order, and petitioner simply
appears to be attempting to bypass that decision. Petitioner
should be precluded from relitigating this exact same claim
here.
The
Houston court, a court of competent jurisdiction in the prior
proceeding, thoroughly addressed why petitioner's request
for a judicial determination of citizenship in a district
court proceeding initiated by petitioner is barred as a
result of the claim being affirmatively raised within
petitioner's removal proceedings. Petitioner has not
shown the circumstances of his prior removal proceedings and
application for certificate of citizenship have changed in
any way subsequent to the Houston Division court's
finding that a district court is without jurisdiction to
consider petitioner's request for determination of
citizenship in a petitioner-initiated declaratory action.
Petitioner's request for a determination of citizenship
in this case is simply duplicative of his earlier request for
such a determination in Cause No. 4:12-CV-1083, a case
involving the same parties as in the instant proceeding. Once
this claim was raised and decided, it may not thereafter be
litigated anew. Petitioner's habeas application should be
dismissed. Petitioner is precluded from collaterally
attacking the prior decision of the Houston Division court
under the doctrine of res judicata.
RECOMMENDATION
It is
the RECOMMENDATION of the United States Magistrate Judge to
the United States District Judge that the petition for a writ
of habeas corpus filed by petitioner MUAMAR SAYYED ASAD a/k/a
Muamar Asad Sayyed be DISMISSED.
INSTRUCTIONS
FOR SERVICE
The
United States District Clerk is directed to send a copy of
this Findings, Conclusions and Recommendation to each party
by the most efficient means available.
IT IS
SO RECOMMENDED.
*
NOTICE OF RIGHT TO OBJECT *
Any
party may object to these proposed findings, conclusions and
recommendation. In the event parties wish to object, they are
hereby NOTIFIED that the deadline for filing objections is
fourteen (14) days from the date of filing as indicated by
the “entered” date directly above the signature
line. Service is complete upon mailing, Fed.R.Civ.P.
5(b)(2)(C), or transmission by electronic means, Fed.R.Civ.P.
5(b)(2)(E). Any objections must be filed on or before the
fourteenth (14th) day after this recommendation is ...