Furthermore, in such cases, the location of custody, and the identity
of the day-to-day custodian, frequently change when detainees are
transferred among INS facilities, all of which are under the control of
the Attorney General. See Arias-Agramonte, 2000 WL 1617999, at *8. This
potential problem is made manifestly clear by the circumstances of the
instant case. Here, Petitioner was released from custody on May 31,
2002. Therefore, he is no longer in the physical custody of the warden.
Yet the Attorney General continues to maintain "custody" over Petitioner
so long as the removal order remains pending. 8 U.S.C. § 1126 (b)
("The Attorney General at any time may revoke a bond or parole . . .,
rearrest the alien . . . and detain the alien.").
Petitioner's release from custody does not moot his petition. The
federal habeas corpus statutes, including § 2241, require that a
petitioner be in "custody" at the time of filing of the petition. See
28 U.S.C. § 2241(c)(3); see also Canela v. United States Dep't of
Justice, No. 00 Civ. 8735, 2001 WL 664633 at *3 (S.D.N.Y. June 12,
2001). "Custody" in this context has been interpreted broadly, to include
being "subject to restraints `not shared by the public generally.'"
Hensley v. Mun. Ct, 411 U.S. 345, 351 (1973) (quoting Jones v.
Cunningham, 371 U.S. 236, 240 (1963)); see also Spencer v. Kemna,
523 U.S. 1, 7 (1998) (discussing the extent to which collateral
consequences of convictions may meet the "case or controversy"
requirement). Although he has since been released from physical custody,
Petitioner continues to suffer the consequences of the outstanding order
of removal, including the imminent fear of deportation and permanent
exclusion from the United States, which are sufficient to meet the "case
or controversy" requirement of Article II, § 2, of the Constitution.
See Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir. 2001)
(holding that sufficient collateral consequences flow from an order of
removal to make a § 2241 petition a live case or controversy); see
also Chadha v. INS, 634 F.2d 408, 417 (9th Cir. 1980) (holding that the
fear of deportation under the INA was sufficient injury to meet the "case
or controversy" requirement); Cardenas v. Superintendent, No. 94 Civ.
5093, 1996 WL 497138, at *3, n. 1 (E.D.N.Y. Aug. 26, 1996) (finding a
deported habeas petitioner still "in custody" because he faced
"collateral consequences" of his conviction). Accordingly, this Court
exercises its jurisdiction over the petition.
The Government argues that even if the Court finds that it has
jurisdiction over the instant case, the habeas petition should
nevertheless be transferred to the Western District of Louisiana because
venue is not proper in the Eastern District of New York. Traditional
venue considerations include 1) the location where the material events
took place, 2) where records and witnesses pertinent to the claim are
likely to be found, 3) the convenience of the forum for the respondent
and petitioner, and 4) the familiarity of the court with the applicable
laws. See Henderson, 157 F.3d at 128, n. 25; Alcaide-Zelaya, 2000 WL
1616981, at *5; Arias-Agramonte, 2000 WL 1059678. at *9; Mojica, 970 F.
Supp. at 165.
In the instant case, these venue considerations favor a finding of
proper venue in the Eastern District of New York. At all relevant times,
Petitioner has resided within the Eastern District of New York. The
underlying material events include Petitioner's conviction in the
Southern District of New York, his incarceration at Fort Dix, New
Jersey, and the Notice to Appear before an immigration judge in
Newark, New Jersey. Petitioner did not leave the region until the INS
transferred him to its facility in Oakdale, Louisiana, over the objections
of Petitioner and his counsel. The Petitioner would be severely
disadvantaged by having to bring the habeas proceeding in Louisiana.*fn1
The witnesses and evidence to establish the merit of Petitioner's claim
that he is a citizen or a national of the United States are located in
New York, and Petitioner's family resides in New York. The Eastern
District of New York is equally as convenient for Respondents as the
Western District of Louisiana, and there is no indication that
Respondents would be prejudiced by a transfer of venue to New York. Most
compelling, Petitioner has now been released and has returned to his home
within the Eastern District. Further, the immigration judge in Louisiana
has already ruled against Petitioner, and the BIA has declined to review
his case. Accordingly, there is no reason that venue should lodge in
Louisiana. The Court finds that venue is proper in the Eastern District
of New York.
III. Derivative Citizenship
Petitioner initially requested relief from deportation on the grounds
that he is a citizen, derived through the naturalization of his parents.
Although he would not have been eligible for derivative citizenship under
the immigration laws in existence at the time that his father
naturalized, Petitioner contends that the Child Citizenship Act of 2000
should be applied retroactively to his case. This Court disagrees.
Prior to the 2000 amendment, INA § 321(a) provided that a child
born outside of the United States of alien parents and residing in the
United States as a lawful permanent resident becomes a citizen upon the
naturalization of both parents, or where the parents are legally
separated, by the naturalization of the parent having legal custody of
the child. 8 U.S.C. § 1432 (a) (1988). The child must be under age 18
at the time of such naturalization. 8 U.S.C. § 1432 (a)(4) (1988).
Petitioner's mother was not naturalized until 1983, at which time
Petitioner was 23 years old, and the naturalization documents of both
parents list their status as married and indicate that they resided at the
same address. Accordingly, Petitioner would not have been eligible for
derivative citizenship under this rule.
On October 30, 2000, Congress enacted the CCA, which amended the INA to
confer derivative citizenship upon a child with one citizen parent.
8 U.S.C. § 1431 (a) (2000). After the effective date of February 27,
2001, the new rule automatically confers citizenship on a child under the
age of 18 upon the naturalization of one parent. However, the language of
the CCA does not make it retroactive. The general presumption against
retroactive legislation operates to preclude the CCA's application to
Petitioner's circumstances. See Hughes Aircraft v. U.S. ex rel Schumer,
520 U.S. 939, 946 (1997) ("[W]e apply this time-honored presumption
[against retroactive legislation] unless Congress has clearly
manifested its intent to the contrary."). Although the Second Circuit has
not yet considered the temporal reach of the CCA, those other courts which
have ruled on this issue have unanimously agreed that the CCA cannot be
applied retroactively. See Cartagena-Paulino v. Reno, 2001 WL 536934, at
*3, n. 5 (S.D.N.Y. May 18, 2001); United States v. Arbelo, 288 F.3d 1262,
1263 (11th Cir. 2002); Nehme v. INS, 252 F.3d 415, 431 (5th Cir. 2001);
Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir. 2001). Petitioner was 40
years old on February 27, 2001, thus the CCA cannot apply to him.
Accordingly, his claim of derivative citizenship must fail.
III. Status as a "National of the United States"
In the alternative, Petitioner asserts in an Addendum to his § 2241
Motion, filed on April 30, 2002, that he cannot be deported because he is
not an alien, but a "national of the United States." See
8 U.S.C. § 1101 (a)(3) ("The term `alien' means any person not a
citizen or national of the United States.") The INA defines a national as
"(A) a citizen of the United States, or (B) a person who, though not a
citizen of the United States, owes permanent allegiance to the United
States." 8 U.S.C. § 1101 (a)(22). Petitioner argues that as a
"national," not an "alien," he should not be subject to deportation under
INA § 237(a)(2)(A)(iii), which mandates the deportation of "any
alien who is convicted of an aggravated felony." 8 U.S.C. § 1227
The term "national" came into general use when the United States
acquired territories outside its continental limits and accorded
inhabitants with a status that was not equivalent to citizenship, but
that nonetheless conferred certain rights and responsibilities as
nationals of the United States. Such nationals were deemed to owe
allegiance to the United States. See Oliver v. United States Dep't of
Justice, 517 F.2d 426, 428, n. 3 (2d Cir. 1975).
Various courts have considered the modern application of the term
"national," without agreeing on the precise qualifications for according
that status. Long-term residency and a personal claim or belief that one
"owes allegiance" are clearly insufficient standing alone. See Oliver,
517 F.2d at 427 ("[T]he concept of `owing allegiance' for purposes of
nationality is not so easily satisfied or indeed understood"); see also
United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997) (Alien's
subjective belief that he owed allegiance to the United States was
insufficient to establish that he was a national.); Sierra-Reyes v. INS,
585 F.2d 762, 764 (5th Cir. 1978) (Alien's claim to citizenship based on
long residency in the United States and lack of allegiance to any other
country were insufficient to confer status of national where individual
had never filed a petition for naturalization.); Shittu v. Elwood, No. 02
Civ. 0682, 2002 WL 992036, at *3 (E.D. Pa. May 14, 2002) ("[L]ong-term
residency alone does not suffice to confer the status of `national.'
There must be some objective demonstration of permanent allegiance.");
Carreon-Hernandez v. Levi, 409 F. Supp. 1208, 1210 (D. Minn.) (finding
petitioner deportable where he had lived and worked in the United States
for over 20 years and was married to a U.S. citizen and the parent of a
U.S. citizen child, but had never gone through the naturalization
process), aff'd 543 F.2d 637 (8th Cir. 1976). At a minimum, it appears
that to qualify as a national, an individual must have demonstrated his
or her allegiance by applying for citizenship. Hughes v. Ashcroft, 255
F.3d at 756; see also Oliver, 517 F.2d at 428 (finding that the
petitioner did not qualify as a national because she continued to owe
allegiance to Canada and had not chosen to renounce that allegiance by
naturalizing); United States v. Morin,
80 F.2d 124, 126 (4th Cir. 1996)
("[A]n application for citizenship is the most compelling evidence of
permanent allegiance to the United States short of citizenship itself.").
The Supreme Court has also identified the application for citizenship as
a step in the process of acquiring the full rights of citizenship.
Johnson v. Eisentrager, 339 U.S. 769, 770 (1950) ("The alien, to whom the
United States has been traditionally hospitable, has been accorded a
generous and ascending scale of rights as he increases his identity with
our society. Mere lawful presence in the country creates an implied
assurance of safe conduct and gives him certain rights; they become more
extensive and secure when he makes preliminary declaration of intention
to become a citizen, and they expand to those of full citizenship upon
However, another district court has found that "the existence of a
single objective demonstration of permanent allegiance, such as an
application for naturalization, is not conclusive if it is contradicted by
other evidence showing the applicant's lack of such allegiance." Shittu,
2002 WL 992036, at *4. In Shittu v. Elwood, the Eastern District of
Pennsylvania refused to extend the status of national to a permanent
resident who had applied for naturalization, but was then convicted of
intent to distribute heroin and sentenced to 37 months in prison. That
court found that the petitioner's "aggravated felony conviction was
sufficient by itself to refute any other evidence of permanent allegiance
to this country. The conviction demonstrated that his professed
allegiance was no more than a convenient cover for illegal activity."
This Court declines to extend that court's reasoning to Petitioner
Lee's case. Unlike Shittu, Lee has been a permanent resident for nearly
30 years. He entered the United States as a child, and has never lived
anywhere else since. He is married to a United States citizen and has two
citizen children. Both of his parents are naturalized citizens. All of
his ties are to the United States. He has no ties to Hong Kong, a
territory that is now under a different political authority than it was
during the brief period of his residency there. Furthermore, Petitioner
has objectively demonstrated his allegiance to the United States. Prior
to his arrest and indictment in his only criminal case, Petitioner filed
his application for citizenship on July 13, 1998, thereby expressing his
willingness to take an oath of allegiance to his adopted country. In
addition, his registration for Selective Service on September 9, 1980
further indicates his loyalty to the United States.
Petitioner was convicted of a crime that is defined as an aggravated
felony for purposes of INA § 237(a)(2)(A)(iii). However, this was a
crime of fraud, not narcotics distribution, not an offense involving
bodily harm or the use of a weapon. He was sentenced to only six months
in prison. While the Court does not condone his fraudulent activity, it
notes that Petitioner's single foray into criminal activity does not pose
any ongoing danger to the community. He, along with three codefendants,
have been ordered to pay restitution to the New York City Water Board in
the amount of $115,558 in monthly installments dependant on Petitioner's
employment income. He has already begun making these payments. The Court
believes that Petitioner can thus contribute more positively to society
by rejoining the community, resuming employment, and continuing to
demonstrate his allegiance and fidelity to his adopted nation.
The Court finds that Petitioner has satisfied the requirements to be
considered a national of the United States. He has demonstrated his
allegiance through his
application for naturalization and his
registration for Selective Service. As a national, he is not subject to
deportation on the basis of his conviction for mail fraud. The INS is
hereby enjoined from deporting Petitioner under INA §
For the foregoing reasons, Petitioner's application for a writ of
habeas corpus seeking clarification of his status as a national of the
United States is hereby GRANTED. Petitioner may not be deported as a
criminal alien under INA § 237(a)(2)(A)(iii).