The Tenth Circuit Court of Appeals published its opinion in Shepherd v. Holder, Jr. on Tuesday, May 8, 2012.
The Tenth Circuit dismissed the petition for review. “This case is about the government’s repeated efforts to remove Petitioner from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest [Petitioner]’s claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), and the Immigration Judge dismissed for lack of jurisdiction. The very next day, the government initiated a new removal proceeding, explaining to the same [judge] that it had made a mistake and now realized that [Petitioner] was too old to qualify under the CCA for citizenship. The [judge] eventually decided that his initial ruling precluded the government from relitigating [Petitioner]’s citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the [Immigration Judge], who ordered removal.”
On appeal, the Tenth Circuit had to decide whether it had jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits judicial review of orders to remove criminal aliens and to “ascertain as a jurisdictional fact whether [Petitioner] is a citizen or an alien, using the procedures that Congress prescribed in 8 U.S.C. § 1252(b)(5) for that purpose.” The Court found that her alien status precludes the Court’s jurisdiction. Her issue preclusion argument based on the Immigration Judge’s first decision is unavailing because administrative collateral estoppel does not apply to the § 1252(b)(5) analysis. Accordingly, her petition for review.