Dent v. Sessions, No. 17-15662 (9th Cir. 2018)
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The Ninth Circuit denied a petition for review insofar as it raised due process claims related to the district court's rejection of petitioner's United States citizenship claim. First determining that petitioner had standing to bring the due process and equal protection claims, the panel held that, because a legitimate governmental interest was rationally related to 8 U.S.C. 1433's requirement that citizen parents petition to naturalize their adopted, foreign-born children, section 1433 did not violate the Fifth Amendment's Equal Protection Clause.
The panel also held that the district court did not err in ruling that the INS was not deliberately indifferent to whether petitioner's mother's application for his citizenship was processed; and, even if the INS did act with deliberate indifference, petitioner's due process claim failed because he could not demonstrate prejudice. The panel held that the district court correctly concluded that the INS was not deliberately indifferent to petitioner's adult application for citizenship and he could not establish prejudice. Finally, the panel held that the BIA erred in concluding that third-degree escape under Arizona Revised Statutes section 13-2502 was a crime of violence and thus an aggravated felony that would make petitioner removable. Accordingly, the panel denied in part, granted in part, and remanded in part the petition for review.
Court Description: 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 DENT V. SESSIONS 3 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 4 DENT V. SESSIONS 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.
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