Emile Parker v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12369
Non-Argument Calendar
____________________
EMILE PARKER,
a.k.a. Andein Jean-Pierre,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A074-341-218
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2 Opinion of the Court 21-12369
____________________
Before GRANT, LAGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Emile Parker petitions this Court for review of a final admin-
istrative order of removal issued by the Department of Homeland
Security. The Department determined that Parker was deportable
under § 237 of the Immigration and Nationality Act as an alien con-
victed of an aggravated felony.
See 8 U.S.C. § 1227(a)(2)(A)(iii).
Parker contests the order of removal on the ground that he is a
United States citizen by virtue of his birth to a United States citizen
father.1
See 8 U.S.C. §§ 1401, 1409.
Specifically, Parker contends that he was born in Gressier,
Haiti to Sonia Antoine, an unmarried native of Haiti, and Nick
James Parker (formerly Nick James Poppys), a United States citizen
who was born in Minnesota in 1920. Under 8 U.S.C. § 1409(a), a
person born outside the United States and out of wedlock to a
United States citizen father and a noncitizen mother is a United
1 We generally lack jurisdiction to review a final order of removal “against an
alien who is removable by reason of having committed a criminal offense cov-
ered in” 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(C). But we retain
jurisdiction to consider questions of law, including questions concerning the
petitioner’s nationality.
Id. § 1252(a)(2)(D), (b)(5)(A);
see Guerrero-Lasprilla
v. Barr, 140 S. Ct. 1062, 1068 (2020) (“questions of law” under § 1252(a)(2)(D)
include questions involving “the application of a legal standard to undisputed
or established facts”).
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21-12369 Opinion of the Court 3
States citizen and national from birth if the father met certain phys-
ical-presence requirements and: (1) a blood relationship to the fa-
ther is established by clear and convincing evidence; (2) the father
had the nationality of the United States at the time of the person’s
birth; (3) the father (if living) has agreed in writing to provide finan-
cial support for the person until he reaches the age of 18; and
(4) while the person is under the age of 18, the person is legitimated
under the law of his residence or domicile, the father acknowledges
paternity in writing under oath, or paternity is established by adju-
dication of a competent court. Parker contends that he meets these
requirements.2 The government disagrees.
When a petitioner claims to be a national of the United
States and no genuine issue of material fact exists about the peti-
tioner’s nationality, this Court must decide the issue. 8 U.S.C.
§ 1252(b)(5)(A). But if we determine that a genuine issue of mate-
rial fact about the petitioner’s nationality exists, we must transfer
the proceeding to the federal district court for the district where
the petitioner resides “for a new hearing on the nationality claim
2 Parker also argues that § 1409(a) violates the Equal Protection Clause of the
5th Amendment by applying more onerous requirements for children born
out of wedlock than those set out in § 1401 for children whose parents were
married. Because we must transfer the case to the district court for determi-
nation of Parker’s nationality claim, we defer consideration of his equal-pro-
tection claim until the case is returned to us. Parker is, of course, free to make
that argument in the district court to the extent that it is relevant to his nation-
ality claim.
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4 Opinion of the Court 21-12369
and a decision on that claim as if” it had been brought in the district
court as an action for a declaratory judgment.
Id. § 1252(b)(5)(B).
A genuine issue of material fact about Parker’s nationality
exists here. Primarily, the parties dispute whether American-born
Nick James Parker was Parker’s father, as Parker claims. In its final
administrative order of removal, the Department relied on its 2012
determination that the Haitian birth certificate and legitimation
certificate Parker produced identifying Nick James Parker as his fa-
ther were both fraudulent. Parker has since produced another Hai-
tian birth certificate—again identifying Nick James Parker as his fa-
ther—that was authenticated by the U.S. Department of State in
2013, along with a birth certificate, death certificate, school records,
and military records for Nick James Poppys a/k/a Nick James Par-
ker. He also produced a notarized but unsworn letter from his
mother explaining her relationship with Nick James Parker and
claiming that he was Parker’s father.
The government disputes Parker’s right to citizenship,
claiming that Department records indicate that Parker’s father may
have been a Canadian citizen named Nick George Parker rather
than American-born Nick James Parker. The government argues
that the fact that Parker has a Canadian passport and has given at
least one sworn statement claiming to be a citizen of Canada (as
well as an American citizen) corroborate this information because
Parker could not have been granted Canadian citizenship through
Nick James Parker. Both parties rely on documents not included
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21-12369 Opinion of the Court 5
in the administrative record before the Department at the time it
issued the final administrative order of removal.
Because we conclude that a genuine dispute of material fact
exists regarding Parker’s claim to United States citizenship, we
GRANT the government’s motion to transfer the case to the
United States District Court for the Southern District of Florida
(where Parker resides) for a de novo hearing on the nationality
claim pursuant to 8 U.S.C. § 1252(b)(5)(B). We DENY Parker’s mo-
tion for summary judgment on his nationality claim for the same
reason, and we DENY the government’s motion to file a supple-
mental appendix in this Court. We HOLD IN ABEYANCE Par-
ker’s petition for review pending the resolution of the nationality
claim in the district court.3
MATTER TRANSFERRED TO THE U.S. DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.
3 This Court has not yet decided in a published opinion whether, following
the district court’s decision on a nationality claim under § 1252(b)(5)(B), the
losing party is required to file a notice of appeal to obtain review of that deci-
sion by this Court. Although we do not reach that question today, the parties
are advised to file a timely notice of appeal if they wish to seek review of the
district court’s determination on the issue of nationality.
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