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NOLOS v. HOLDER
611 F.3d 279 (2010)
Roseller Osicos NOLOS, Petitioner,
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
No. 08-60786.
United States Court of Appeals, Fifth Circuit.
July 9, 2010.
Roseller O. Nolos, N. Las Vegas, NV, pro se.
Joseph D. Hardy, Jr. and Claire L. Workman, Trial Attys., Tangerlia Cox, John Clifford Cunningham, I and Luis Enrique Perez, Sr. Lit. Counsels, Thomas Ward Hussey, Dir., U.S Dept. of Justice, OIL, Washington, DC, Guadalupe R. Gonzales, Imm. & Customs Enforcement, El Paso, TX, for Respondent.
Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*
PER CURIAM: Roseller Osicos Nolos ("Nolos") petitions for review of the Board of Immigration Appeal's ("BIA") decision to uphold the immigration judge's ("IJ") order of removal and the BIA's subsequent denial of his separate motions to reconsider and to reopen. Nolos argues that he is not removable because (1) he derives United States citizenship from his parents, who he claims acquired United States citizenship by virtue of their births in the Philippine Islands ("Philippines") while the country was a United States territory, and (2) the Nevada theft conviction that forms the basis of the removal order does not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). For the following reasons, we DENY the petition for review. Nolos was admitted to the United States in 1983 as a lawful permanent resident. In 2003, he pleaded guilty to a theft offense pursuant to Nevada Revised Statutes § 205.0832 (2003) in Nevada state court and received a suspended prison sentence of between 18 and 48 months. In July 2006, the Department of Homeland Security ("DHS")1 issued an order to show cause and notice of hearing, charging that Nolos's conviction constituted an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(G) and rendered him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Nolos, proceeding pro se, admitted the DHS's allegations and conceded his removability. In August 2006, the IJ determined that Nolos was removable because his Nevada conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and ordered him removed to the Philippines. Nolos timely appealed the IJ's order to the BIA. After an initial dismissal and a subsequent grant of Nolos's motion to reopen in light of newly discovered evidence, the BIA determined that not all of the subsections of Nevada Revised Statutes § 205.0832 constituted aggravated felonies and that the judgment of conviction—the record of conviction the Government submitted to prove Nolos was convicted of a theft offense—did not specify which provision of Nevada Revised Statutes § 205.0832 Nolos was convicted of violating. As a result, it vacated its initial dismissal of Nolos's appeal and remanded the case to the IJ. On remand, the DHS submitted the Nevada information charging Nolos with theft under Nevada Revised Statutes § 205.0832. After a review of this additional material, the IJ determined that Nolos was convicted under § 205.0832(1)(b); § 205.0832(1)(b) met the requirements of theft under the Immigration and Nationality Act ("INA"); and Nolos was removable as an aggravated felon. The BIA agreed with the IJ's determination and dismissed Nolos's appeal. Nolos filed a timely petition for review and also filed with the BIA a timely motion for reconsideration and a motion to reopen, asserting in part that he was a citizen of the United States. After the BIA's denial of those motions, Nolos filed an additional timely petition for review of this BIA decision.
* District Judge, Southern District of Mississippi, sitting by designation. 1. The notice was issued by the Immigration and Naturalization Services, whose services and responsibilities have since between transferred to the DHS. See Zaidi v. Ashcroft,374 F.3d 357, 358 n. 1 (5th Cir.2004). 2. The Supreme Court also observed, although without deciding the issue, that persons born in the Philippines at the time the Philippines were a territory of the United States were not United States citizens. See Rabang v. Boyd,353 U.S. 427, 430-31, 77 S.Ct. 985, 1 L.Ed.2d 956 (1957) ("The inhabitants of the Islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess right of free entry into the United States." (citation and quotation marks omitted)); Barber v. Gonzales,347 U.S. 637, 639 n. 1, 74 S.Ct. 822, 98 L.Ed. 1009 (1954) (stating that although the inhabitants of the Philippines during the territorial period were "nationals" of the United States, they were not "United States citizens"). 3. The Valmonte court found further support in Hooven & Allison Co. v. Evatt,324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 (1945), in which the Court held that the Philippines were "not a part of the United States in the sense that they are subject to and enjoy the benefits or protection of the Constitution, as do the states which are united by and under it." Id. at 678, 65 S.Ct. 870 (cited in Valmonte, 136 F.3d at 919). The Second Circuit also referenced Barber,347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009, and Rabang,353 U.S. 427, 77 S.Ct. 985, 1 L.Ed.2d 956, in which the Court "observed, without deciding, that persons born in the Philippines prior to its independence in 1946 [were] not citizens of the United States." Valmonte, 136 F.3d at 919 (citing Barber, 347 U.S. at 639 n. 1, 74 S.Ct. 822; Rabang 353 U.S. at 432 n. 12, 77 S.Ct. 985). 4. Most recently, the District Court for the District of Columbia, relying on the reasoning in Rabang, Valmonte and Lacap, held that a Filipino Navy shipyard worker who was born in the Philippines when it was a United States territory was not a United States citizen under the Citizenship Clause. See Licudine v. Winter,603 F.Supp.2d 129, 134-35 (D.D.C. 2009).
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