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Page 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALVADOR

IVERA

Plaintiff-Appellant,

No. 03-35548

D.C. No.

OHN

SHCROFT

, Attorney General;

CV-03-00634-TSZ

MMIGRATION AND

ATURALIZATION

OPINION

ERVICE

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Submitted June 7, 2004*

Seattle, Washington

Filed October 18, 2004

Before: Harry Pregerson, Warren J. Ferguson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Ferguson;

Dissent by Judge Callahan

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

14605

Page 2

COUNSEL

Cheryl M. Nance, Bell, Flegenheimer & Nance, Seattle,

Washington; Karen L. Gilbert, for the plaintiff-appellant.

Kirsten M. Schimpff, United States Attorney’s Office, Seattle,

Washington, for the defendants-appellees.

OPINION

FERGUSON, Circuit Judge:

Salvador Rivera, a.k.a. Salvador Galvan-Gaspar, (hereinaf-

ter “Rivera”) appeals the District Court’s denial of his 28

U.S.C. § 2241 petition for a writ of habeas corpus. Rivera

alleges that he is a United States citizen who was wrongly

removed to Mexico, that his Due Process rights were violated

during removal proceedings before Immigration Judge Anna

Ho, and that he is entitled to a declaration by the District

Court that he is a United States citizen. We find that the Dis-

trict Court has jurisdiction to hear Rivera’s citizenship claim

and remand for further proceedings.

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FACTUAL BACKGROUND

Salvador Rivera was born at University North Hospital in

Portland, Oregon, on January 20, 1979, to Logino Rivera and

Eloisa Gaspar (now Eloisa Galvan). Approximately one

month after Rivera’s birth, Eloisa obtained a certified copy of

her son’s birth certificate. When Rivera was approximately

three months old, Eloisa and Logino were having “personal

problems,” so Eloisa took Rivera with her to Mexico. Eloisa

and Rivera returned to the United States with Eloisa’s new

husband in November 1989 when Rivera was nearly eleven

years old. A few years later, Eloisa left Rivera in the United

States with her brother and returned to Mexico. She left Rive-

ra’s personal documents, including those relating to his birth,

with him in the United States.

INS documents indicate that on November 26, 1991, one

Jorge Amaro-Gallardo and his mother, Maria De Jesus, were

apprehended in a vehicle in El Centro, California. When ques-

tioned about his immigration status, Jorge gave INS agents a

birth certificate that was not his own. The birth certificate

instead belonged to Salvador Rivera, born to Eloisa Gaspar

and Logino Rivera on January 20, 1979, at University Hospi-

tal North in Portland, Oregon. The birth certificate had been

issued on February 23, 1979. Jorge Amaro-Gallardo told INS

officials that the birth certificate had been “loaned” to him by

an “Arturo Galvan-Aguirre.” Following this incident, the INS

kept the birth certificate on file. When shown the birth certifi-

cate, Eloisa testified that it was the birth certificate that she

had obtained shortly after her son’s birth and had left with

Rivera when she left him with her brother and went to Mex-

ico. She did not know why another person might have had the

birth certificate. Rivera also did not know.

What follows is the story to which Rivera and his mother testified

before the Immigration Judge, unless otherwise noted.

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By the time Rivera was eighteen years old, a number of

warrants existed for his arrest, so he decided to develop an

alias. On a visit to his grandmother in Mexico that year,

Rivera paid an unknown individual for a Mexican birth certif-

icate. Rivera used the Mexican birth certificate to apply for a

Washington driver’s license and state ID card under the name

“Salvador Galvan-Gaspar.”

On January 15, 1998, Rivera was arrested by a Border

Patrol agent. Rivera believed that, due to his outstanding war-

rants, he would face jail or imprisonment if he gave the agent

his real name. Instead, he presented himself as a Mexican citi-

zen and underwent voluntary deportation, and then returned to

the United States via Mexicali. Over a year and a half later,

a Border Patrol agent interviewed Rivera at Skagit County jail

in Washington. Salvador told the agent that he had previously

been deported under the name Salvador Galvan-Gaspar, but

that he was actually a U.S. citizen.

On December 12, 2000, Rivera was arrested by Border

Patrol agents when he appeared for a parole hearing with the

Washington State Department of Corrections. Rivera told the

agents that he was a U.S. citizen, and that he had purchased

a birth certificate in Mexico in the name of “Salvador Galvan-

Gaspar.” Rivera initially agreed to give a sworn statement to

the agents as to his identity, but then refused after reading the

list of questions that he was to answer. That same day, the

INS issued a “Notice to Appear” alleging that Rivera was not

a U.S. citizen.

PROCEDURAL HISTORY

A. Immigration Court

On January 2, 2001, Rivera appeared before Immigration

Judge Anna Ho. The Immigration Judge (IJ) informed Rivera

that he had the right to an attorney, and asked if he needed

time to find one. Rivera responded that, in 1998, he “had a

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lawyer, and we already fixed this matter about me being a

U.S.A. citizen.” When the IJ asked Rivera whether he needed

time to contact his attorney, Rivera responded, “the thing that

I don’t understand is why I am here if we already—,” at

which point the IJ cut him off. Rivera presented a birth certifi-

cate indicating that he was born in Oregon on January 20,

1979, to the IJ. She informed the government lawyer that “this

is obviously a true birth certificate of the respondent,” and

continued the case to allow the INS time to verify Rivera’s

identity. The INS lawyer said that the INS would “resolve

whether we think he’s a citizen” before the case resumed.

The INS, however, did not resolve its position. When the

parties reappeared before IJ Ho six days later, the INS lawyer

told the IJ, “I don’t know whether or not that birth certificate

relates to him or not. I think it’s a question of fact for the

Court.” The INS lawyer further stated that if Rivera “is a citi-

zen, he is, of course, not removable from the United States.

But he has created this situation by assuming a false identity

as an illegal alien and taking a removal order or voluntary

departure once before.” The IJ then told Rivera that his case

would be set over to January 30, 2001, and that he “may have

your family come in and testify and bring in all the proof to

state that you are a U.S. citizen.” The IJ also told Rivera,

“You need to bring in people that knew you were born and

knew your name.”

At the January 30 hearing, the government’s position was

that Rivera had agreed to “removal to Mexico under one name

and now asserts to be a citizen and produces a birth certificate

which may or may not be his, may or may not relate to him.

But we do know that there was another instance that some

person . . . has used it also.” The INS presented testimony

from two Border Control agents, who said that Rivera told

them that he had undergone voluntary removal to Mexico

before but that he was actually a U.S. citizen. The INS also

presented documents relating to Rivera’s removal to Mexico,

his subsequent INS contacts, the fraudulent use of the Oregon

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birth certificate by Jorge Amaro-Gallardo in 1991, a driver’s

license and state ID card for “Salvador Galvan-Gaspar,” and

a driver’s license for “Salvador Rivera.” The INS stated that

there was no death record for “Salvador Rivera.”

Eloisa gave the IJ a packet of paperwork relating to Rivera.

In addition to the birth certificate, the paperwork included a

February 5, 1993 progress report for “Salvador Rivera” from

LaVenture Middle School; a page from a high school year-

book picturing “Salvador Rivera” as a sophomore student; a

tax return prepared for “Salvador Rivera” by H & R Block for

the 1998 tax year (including W-2 forms indicating that Salva-

dor Rivera was employed by “Larry Vander Veen” and “Dra-

per Valley Farms”); and a police file photo indicating that

“Salvador Rivera” was also known as “Salvador Galvan”).

The IJ responded:

I have a lot of questions and a lot of problems

with just a live certificate, which doesn’t tell me any-

thing, because anyone could go get a copy of a birth

certificate. So I need a lot more proof than just a

birth certificate and a picture, which is an adult pic-

ture.

. . .

You’ve provided a photograph of a high school

album. That doesn’t mean anything. Any — people

who have no documents can go to high school here,

so that doesn’t mean you’re a U.S. citizen.

. . . You know, if you’re a U.S. citizen, you cer-

tainly — your mother certainly would have more

than just this for record. My children were born in

this country. I could trace them from their birth . . .

all the way up to their adult age. And you have noth-

ing here to show that.

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The IJ put both Rivera and Eloisa on the stand; both testi-

fied as previously described. The IJ questioned Eloisa particu-

larly closely about the time she went to Mexico without

Rivera and left him in her brother’s care.

First, the IJ asked,

“And when was it that you left for Mexico by yourself?”

Eloisa responded that she could not “remember the year

exactly.” The IJ asked, “Well, how old was your son when

you left for Mexico by yourself?” Eloisa answered, “I don’t

remember if he was 14 or less or more. I don’t remember.”

A few questions later, the IJ asked, “And at that time he

was already 14 years old?” Eloisa said, “I don’t remember if

he was already 14 by then. I’m not sure.” The IJ persisted:

“But approximately when he was 14 years old; is that right?”

Eloisa agreed.

The IJ returned to the topic again: “And you said you went

to Mexico without your son when he was about 14; is that

right?” Eloisa replied, “Yes.” The IJ said, “Okay. And in

1993, your son was 14, right?” Eloisa responded affirma-

tively.

After a court break, the IJ brought the question up a fourth

time: “So it was in 1993 that you gave your son’s birth certifi-

cate with his footprint to him?” Eloisa responded, “I don’t

remember. But I did give it to him after he stayed behind.”

The IJ said, “And that was when he was about 14, is that

right?” Eloisa agreed. The IJ said, “And if you and I calculate

it right, it was about 1993; isn’t that correct?” Eloisa again

agreed.

After the INS had had an opportunity to question Eloisa,

the IJ asked the government for its position on the case. The

INS said that Rivera had “failed to . . . successfully rebut the

Service’s evidence that he is, in fact, a native and citizen of

We quote from this colloquy at length because it served as the primary

basis for the IJ’s decision.

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Mexico.” The IJ said that she agreed that Rivera had “not pro-

vided sufficient evidence to prove that you are, indeed, a U.S.

citizen.” In her view, the “most important thing” was

the fact that your mother testified that she never let

the birth certificate out of her sight — your birth cer-

tificate — until 1993. And somehow, somebody else

had your birth certificate in 1991. So I don’t know

who is not telling me the truth but, certainly, this is

not the truth. And you have not met your burden that

you are a U.S. citizen.

Having ruled, the IJ informed Rivera, “you certainly have

a right to appeal from my decision, and you may do so. I can

only tell you that the appeal process will take . . . five months

or maybe more.” Rivera said, “I don’t really understand what

appeal or —.” The IJ said, “Appeal means that you want

another Court to review the tapes and the all the [sic] docu-

ments in your file to see if I’ve made a right decision.” Rivera

responded, “Yes.”

Approximately one week later, however, Rivera agreed to

waive his appeal. Present counsel for Rivera contends that

Rivera did so because he believed that “seeking help from

‘another court’ such as the one he had just experienced”

would be futile, and because he believed he would have to

remain in INS custody while his appeal was pending. Rivera

was subsequently deported to Mexico.

B. District Court

On March 11, 2003, Rivera filed a Petition for Writ of

Habeas Corpus and a Complaint for Declaratory Judgment

and Order to Show Cause with the District Court. After sup-

plemental briefing and oral argument on the issue of jurisdic-

tion, the District Court issued a judgment that it lacked habeas

jurisdiction over Rivera’s case. The District Court found that

8 U.S.C. § 1252 provided an exclusive remedy for judicial

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review of nationality claims, that Rivera was not in custody

within the jurisdiction of the Court, and that Rivera had not

exhausted his administrative remedies. The District Court

stated that, in so holding, it was following our precedent in

Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002), and

Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001). The District

Court also held that “extreme circumstances” would permit

the exercise of habeas jurisdiction, but that such circum-

stances were not present in Rivera’s case because he was told

that he could have an attorney and told that he had the right

to appeal.

DISCUSSION

We review a district court’s dismissal of a § 2241 petition

for lack of jurisdiction de novo. See Miranda v. Reno, 238

F.3d at 1158.

We begin our analysis with some scrutiny of the facts and

procedural history of this case.

First, the INS did not present its own version of the facts

of Rivera’s birth, presumably because, on the evidence before

the IJ, there was no other version that was plausible. No party

has disputed that the Oregon birth certificate is an authentic

State document; the only question is whether it belongs to

Rivera or to some other person. The Mexican birth certificate

is too similar to the Oregon birth certificate to also be authen-

tic. The birth dates are the same, the mother’s name (Eloisa

Gaspar) is the same, and the first name “Salvador” is the

same. Moreover, the other last name on the Mexican birth cer-

tificate, Galvan, is Eloisa’s married name. If it were the INS’s

position that the Mexican document was Rivera’s real birth

certificate, and the Oregon birth certificate belonged to some-

one else, the coincidences would be staggering. The INS story

would have to be that Mexican citizens “Eloisa Gaspar” and

her son, “Salvador Galvan-Gaspar,” went to the United States

and discovered that another woman named “Eloisa Gaspar”

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had a son named “Salvador Rivera” born in Oregon on

exactly the same date, and contrived to obtain “Salvador

Rivera’s” birth certificate. This set of circumstances is not out

of the realm of imagination, but it is incredibly unlikely. Far

more plausible is the explanation that the Oregon birth certifi-

cate belongs to Rivera, and that he simply had a Mexican

birth certificate created with his own birthdate and own

mother on it, but changed his last name to his mother’s mar-

ried name.

In bringing this case to Immigration Court, the INS also

took no position as to whether the Oregon birth certificate did

in fact belong to Rivera. This is a startling posture given that,

if the Oregon birth certificate is Rivera’s, he is an American

citizen. The INS did little even to investigate whether the Ore-

gon birth certificate was Rivera’s aside from checking

whether a death record existed under the name “Salvador

Rivera” (it did not). Instead, the INS came before the IJ with

the position that it did not know whether Rivera was a citizen.

As an agency of the United States, the INS ought to have been

just as zealous in making sure that U.S. citizens were not

unlawfully removed from the United States as they were in

making sure that illegal immigrants were excluded. Why they

would not have resolved to their own satisfaction whether or

not Rivera was a U.S. citizen is difficult to fathom. As we

stated in Sun Il Yoo v. INS, 534 F.2d 1325, 1329 (9th Cir.

1976), “When such serious injury [i.e., deportation] may be

caused by INS decisions, its officials must be held to the high-

It would require fewer coincidences to believe that Rivera’s and his

mother’s names were something else entirely, and that, upon entering the

United States, they obtained an Oregon birth certificate for “Salvador

Rivera” and have been passing themselves off as “Salvador Rivera” and

“Eloisa Gaspar” since Rivera was in middle school. If that were the INS’s

story, however, there is no evidence that it might be true: the INS evidence

related to the Mexican birth certificate and Rivera’s temporary claim to

that identity. The INS was able to show that someone else tried to use the

Oregon birth certificate, but that is not at all probative of whether it

belonged to Rivera.

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est standards in the diligent performance of their duties. Here,

their duty was clear.” Such overreaching by the INS could

have been cured by the IJ at the time that government counsel

admitted that the INS did not know whether the Oregon birth

certificate belonged to Rivera. Instead, Immigration Judge Ho

essentially allowed the INS to use her as its investigative

agent.

Both the decision issued by the IJ and her conduct of the

hearing demonstrate that “the IJ did not conduct herself as an

impartial judge but rather as a prosecutor anxious to pick

holes in the petitioner’s story.” Li v. Ashcroft, No. 02-72689,

slip op. at 10495 (9th Cir. Aug. 5, 2004) (Noonan, J., dissent-

ing). In deciding that Rivera was not a citizen, the IJ said that

the most important factor was that Eloisa had testified that she

had not let Rivera’s birth certificate “out of her sight” until

1993, but that someone else had the birth certificate in 1991.

The IJ concluded that someone “is not telling me the truth.”

The reality is that Eloisa repeatedly stated that she did not

recall what year she had left for Mexico and given Rivera his

birth certificate; she only agreed to 1993 at the repeated push-

ing of the IJ. Jorge Amaro-Gallardo attempted to use Rivera’s

birth certificate on November 26, 1991; at that time, Rivera

would have been nearly thirteen. That is not enough to make

Eloisa’s statements “I don’t know if he was 14 or less or

more” and “I don’t remember if he was already 14 by then”

into lies.

The other apparent basis for the IJ’s ruling was that she

found Rivera’s documentary evidence inadequate. Immigra-

tion Judge Ho dismissed Rivera’s birth certificate as evidence

“because anyone could go get a copy of a birth certificate.”

She dismissed his high school yearbook and middle school

record because “people who have no documents can go to . . .

school here.” She dismissed his other documents, presumably

including his tax and employment records, because they

related to his adult life. One wonders what other sort of docu-

mentation than a birth certificate, school records, and “adult”

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documents such as tax returns and state ID cards or driver’s

licenses the IJ would have expected to see.

Moreover, the IJ

compared her own preservation of her children’s paperwork

with Eloisa’s (“My children were born in this country. I could

trace them from their birth . . . all the way up to their adult

age.”). There is no reason that a seasonal worker such as

Eloisa would have had the ability to preserve her children’s

paperwork to the extent that a civil service professional would

have been able to do.

We also note a bizarre colloquy between the IJ and Eloisa,

in which the IJ accuses Eloisa of lying when she said that she

left her son for the first time when she went to Mexico in

1993, because Eloisa also said that she took Rivera with her

to Mexico when he was three months old:

Q If I were to tell you, sir, that — ma’am, that your

son testified that he went to Mexico when he

was three months old, is he lying?

A No. He’s not lying, because he was in Mexico at

that age.

Q Well, ma’am, you said you never left your son

until he was 14 years old.

A I didn’t leave him. He went with me.

Q Well, ma’am, you said you left your son the first

time when he was 14 years old in 1993. You just

told me that earlier. And I asked you that three

times, so were you lying to me earlier?

Certainly, the instructions given to Rivera before the hearing by the IJ

would have led him to think that this sort of documentation was adequate

(e.g., “You need to bring in people that knew you were born and knew

your name.”).

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A Well, I didn’t understand, then, because I said

that I had never left him before.

Q Well, I asked you if you ever left your son for

Mexico, and you said you left him alone here

when you went to Mexico. You never said you

went to Mexico with him when he was three

months old.

A I understood that if I had left him here in the

United States, and I did leave him here when he

was 14, but not before that. I didn’t say that I’d

left him before that.

Q Ma’am, my question originally to you was have

you ever left your son since his birth, and you

said that you left him when he was 14 years old

when you went to Mexico.

A Yes. He stayed here with my brother.

Q You never said that you took your son with you

when he was three months old to Mexico.

A No. I took him with me. He was born here in

Portland, and when I went to Mexico, I took him

with me to Mexico.

Eloisa’s testimony had been that she took her son with her to

Mexico when he was three months old, and that she left him

(for the first time) in the United States in the care of her

brother when Rivera was approximately fourteen years old

and went to Mexico by herself. There is nothing contradictory

in these statements, and no basis for the IJ’s impression that

Eloisa was lying to her.

I. Habeas Review

[1] The executive may deport certain aliens but has no

authority to deport citizens. An assertion of U.S. “citizenship

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is thus a denial of an essential jurisdictional fact” in a deporta-

tion proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284

(1922); see also Frank v. Rogers, 253 F.2d 889, 890 (D.C.

Cir. 1958) (“Until the claim of citizenship is resolved, the pro-

priety of the entire proceeding is in doubt.”).

[2] Because the deportation of “one who so claims to be a

citizen obviously deprives him of liberty . . . [and] may result

also in loss of both property and life, or of all that makes life

worth living,” the Fifth Amendment mandates that any person

with a non-frivolous claim to American citizenship receive a

judicial evaluation of that claim.

Ng Fung Ho, 259 U.S. at

284-85. In Ng Fung Ho, the Supreme Court found that this

constitutional right would be violated by the deportation of

two men following executive proceedings, and directed that

writs of habeas corpus issue to permit federal district court

review of their citizenship claims. Id.

Here, the government contends that the writ may not issue

because Rivera waived his right to appeal the IJ’s ruling and

was deported. As a result, Rivera is no longer “in custody”;

nor has he exhausted administrative remedies or pursued a

direct appeal under 8 U.S.C. § 1252 — which statute, accord-

ing to the government, provides an exclusive judicial remedy.

However, if Rivera is in fact a U.S. citizen, permitting the IJ’s

determination that he is not a citizen to stand renders Rivera

a stateless person. If the government’s analysis of this case

were correct, it would be possible to unintentionally relin-

quish U.S. citizenship by waiving the right to appeal a depor-

tation order.

[3] The Constitution does not permit American citizenship

to be so easily shed. Under the Fourteenth Amendment, all

people born in the United States are citizens of the United

States. United States v. Wong Kim Ark, 169 U.S. 649, 702

In so holding, the Court adverted to the greater protection afforded by

judicial over administrative action. Ng Fung Ho, 259 U.S. at 285.

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(1898). The citizenship defined by the Amendment is one

“which a citizen keeps unless he voluntarily relinquishes it.”

Afroyim v. Rusk, 387 U.S. 253, 262 (1967). This rule has its

root in the fact that “[i]n our country the people are sovereign

and the Government cannot sever its relationship to the peo-

ple by taking away their citizenship.” Id. at 257; see also

Nishikawa v. Dulles, 356 U.S. 129, 138-39 (1958) (Black, J.,

concurring) (explaining that the rule that citizens may not be

involuntarily expatriated “results not only from the provisions

of the Fourteenth Amendment but from the manner in which

the Government of the United States was formed, the funda-

mental political principles which underlie its existence, and its

continuing relationship to the citizenry who erected and main-

tain it.”).

In Vance v. Terrazas, 444 U.S. 252, 260 (1980), the

Supreme Court explained that its holding in Afroyim preclud-

ing involuntary relinquishment of citizenship meant that a

person losing citizenship must intend to do so, “whether the

intent is expressed in words or is found as a fair inference

from proved conduct.” The Court held that it was therefore

not sufficient for the government to prove that, by making a

formal declaration of allegiance to a foreign state, Terrazas

had voluntarily committed an act designated as expatriating

by Congress. Terrazas, 444 U.S. at 255, 261. For Terrazas to

lose his U.S. citizenship, the government had to prove that, in

swearing allegiance to Mexico, he “also intended to relinquish

his citizenship.” Id. at 261.

[4] In short, a U.S. citizen cannot lose that status unless the

government can prove that the person intended to relinquish

citizenship. We can think of no reason why citizens illegally

deported by the government should be exempt from that rule.

Acceptance of deportation after an administrative hearing is

not, in and of itself, proof that a person wishes to relinquish

citizenship. Such acceptance cannot serve to conclusively

establish a person’s non-citizen status when that person makes

a non-frivolous claim to U.S. citizenship. Because he has a

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colorable citizenship claim, Rivera has a constitutional right

to judicial review, and may obtain such review via habeas

corpus even after accepting deportation and waiving his right

to appeal the IJ’s decision.

Our case law is not to the contrary. Prior to the passage of

the Illegal Immigration and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30,

1996), a petition for a writ of habeas corpus could be brought

in federal district court pursuant to 8 U.S.C. § 1105a(b) or 28

U.S.C. § 2241. Section 1105a was repealed by IIRIRA. How-

ever, IIRIRA did not repeal the statutory habeas corpus rem-

edy provided by § 2241. INS v. St. Cyr, 533 U.S. 289, 314

(2001); Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149

(9th Cir. 2002).

In Magana-Pizano v. INS, 200 F.3d 603, 608 (9th Cir.

1999) (on remand from the Supreme Court), we stated that we

adhered to our prior result in Magana-Pizano v. INS, 152 F.3d

1213 (9th Cir. 1998) that § 2241 is available when an alien in

custody pursuant to an order of deportation has no other rem-

edy. In Taniguchi, 303 F.3d at 955, we noted that statement

and proceeded to hold that the remedy provided by

§ 1252(b)(5), which permits direct appeal from Board of

Immigration Appeals (BIA) determinations to the Court of

Appeals on questions of nationality, is an exclusive remedy

for aliens in removal proceedings with citizenship claims.

Like Rivera, Taniguchi could have appealed the issue of her

nationality directly to the Court of Appeals pursuant to

§ 1252(b)(5) but did not do so. See id. at 956. We held that

habeas relief was therefore not available to her. Id. at 955.

The District Court believed that this holding in Taniguchi

controlled the outcome of Rivera’s case.

Taniguchi, however, did not involve the Fifth and Four-

teenth Amendment issues presented here because Taniguchi’s

claim to U.S. citizenship was patently frivolous. She was a

native and citizen of the Philippines and had a conviction for

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impersonating a citizen of the United States. Id. at 953. Her

claim to citizenship had no greater foundation than the fact

that she had applied for a certificate of citizenship on a federal

form. Id. at 954. She did not even bother to raise her frivolous

citizenship claim in her removal hearing before the Immigra-

tion Judge. Id. at 955.

The Fifth Amendment right to judicial review of non-

frivolous citizenship claims and the Fourteenth Amendment

right to U.S. citizenship (absent voluntary relinquishment) are

not violated when an alien making a frivolous citizenship

claim is deported after administrative proceedings.

Taniguchi’s deportation was therefore not in conflict with

these constitutional rights. Rivera’s citizenship claim is at the

opposite end of the spectrum from Taniguchi’s. The only

result consistent with the Fifth and Fourteenth Amendments

is that habeas relief be available to hear Rivera’s citizenship

claim.

Our decision in Miranda v. Reno is also not in conflict with

our holding in this case. Citing § 2241’s requirements that a

petitioner must be “in custody,” we held in Miranda that a

petitioner who has already been removed “cannot avail him-

self of habeas corpus jurisdiction.” 238 F.3d at 1158. We also

noted an exception to this rule: “under extreme circum-

stances,” we have held that an immigrant already removed

may still receive habeas review. Id. at 1159.

The extreme circumstances exception arose in our decision

in Singh v. Waters, 87 F.3d 346 (9th Cir. 1996). The INS had

removed Singh in violation of a stay of deportation by the

immigration judge and after interfering with Singh’s right to

counsel. Id. at 349. We held that, in such a case, Singh could

not be considered to have “departed” the United States and

was thus still in custody. Id. Such extreme circumstances did

not exist in Miranda. 238 F.3d at 1159. Miranda was removed

“after a hearing at which he was represented by counsel. His

counsel waived Miranda’s right to appeal that order to the

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Board of Immigration Appeals.” Id. Moreover, after deporta-

tion, Miranda was “subject to no greater restraint than any

other non-citizen living outside American borders.” Id.

The facts of Miranda are not analogous to the facts of this

case. Unlike Rivera, Miranda was represented by counsel

before his hearing before an immigration judge. Miranda’s

waiver of the right to appeal to the BIA was also made with

the aid of counsel. Finally, Miranda had no claim to being an

American citizen. If, as Rivera plausibly contends, he is a citi-

zen forced to live outside U.S. borders, he is clearly subject

to greater restraints than other citizens.

[5] The District Court believed that the facts of this case do

not rise to the level of extreme circumstances warranting issu-

ance of a writ of habeas corpus because Rivera was told of his

right to counsel as well as of his right to an appeal. We dis-

agree. In Singh, we held that, because the government had

“effectively scuttled the right to counsel guaranteed to Singh

by statute,” his deportation was unlawful and he could not be

considered to have departed the country. 87 F.3d at 349. Rive-

ra’s rights to judicial review of his citizenship claim and to

U.S. citizenship (if he is a citizen) are guaranteed to him by

the Constitution. The government would be able to very effec-

tively sink these rights if its deportation of Rivera could pre-

vent further review of his citizenship claim. For the purposes

of habeas review, Rivera, like Singh, cannot be considered to

have departed the country.

[6] In Singh, we observed that “Singh was not traveling out

of the country of his own volition. He had been put on the

plane deporting him by an officer of the INS.” Id. at 349. The

fact that Rivera acquiesced in his own deportation does not

affect our analysis because the waiver of his appeal rights was

not made knowingly or voluntarily. The IJ told Rivera only

that “[a]ppeal means that you want another Court to review

the tapes and the all the [sic] documents in your file to see if

I’ve made a right decision.” She did not tell him that, because

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he had a plausible claim to U.S. citizenship, he had a constitu-

tional right to judicial (and not merely administrative) review

of that claim. Nor did she tell Rivera that, if he were in fact

a citizen, failing to appeal would amount to relinquishment of

his citizenship because her determination that he was not a

citizen would become final.

[7] Moreover, the abuse of executive power exhibited here

rises to the level of Singh. The INS prosecuted its deportation

claim against Rivera without resolving whether the Oregon

birth certificate belonged to him, and the IJ allowed herself to

be used as the INS’s investigative agent rather than acting as

an impartial fact-finder. During the deportation hearing, the IJ

dismissed out of hand Rivera’s birth certificate, school

records, and tax documents because they were a less complete

record than the IJ would have been able to generate for her

own children. The IJ’s conclusion that Rivera was not a citi-

zen was made on the basis of an imaginary contradiction in

testimony, manufactured by the IJ herself. These abuses of

executive power, the unknowing and involuntary nature of the

waiver of appeal, and the fact that the Fourteenth Amendment

does not permit involuntary relinquishment of citizenship all

support our finding of extreme circumstances sufficient to

permit a writ of habeas corpus in this case.

This decision is not in conflict with our jurisprudence

regarding exhaustion of remedies. In Castro-Cortez v. INS,

239 F.3d 1037, 1047 (9th Cir. 2001), we observed that

exhaustion was not required by § 2241 and that, in Brown v.

Rison, 895 F.2d 533, 535 (9th Cir. 1990), we had held that

exhaustion “is not a ‘jurisdictional’ prerequisite” of § 2241. In

Brown, we held that a petitioner’s failure to exhaust his

administrative remedies before pursing habeas review “does

not divest us of jurisdiction,” and that “[w]here exhaustion of

administrative remedies is not jurisdictional, the district court

must determine whether to excuse the faulty exhaustion and

reach the merits, or require the petitioner to exhaust his

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administrative remedies before proceeding in court.” 895 F.2d

at 535.

[8] More recently, in Sun v. Ashcroft, 370 F.3d 932, 941 &

n.13 (9th Cir. 2004), we held that § 1252(d)(1) establishes a

statutory administrative, but not judicial, exhaustion require-

ment. We applied this ruling to Sun, a Cambodian refugee

ordered removed on the basis of a firearm conviction, and

affirmed the district court’s denial of Sun’s petition for habeas

corpus. Id. at 934-35, 945. However, our disposition of the

case also relied on our finding that “[n]o constitutional viola-

tion would arise from Sun’s removal.” Id. at 945. By contrast,

the Constitution is violated when a person with a non-

frivolous claim to U.S. citizenship is deported without receiv-

ing a judicial determination of that claim. The statutory

administrative exhaustion requirement of § 1252(d)(1) does

not apply in such a case.

Finally, the dissent contends that Rivera can seek alterna-

tive relief by obtaining a certificate of identity from a diplo-

matic or consular officer in accordance with 8 U.S.C.

§1503(b). But such relief would prove ineffective for Rivera.

Even with a certificate of identity in hand, Rivera would need

to apply for separate admission to the United States under 8

U.S.C. § 1503(c). That provision confirms the ability of the

Attorney General to deny persons with properly obtained cer-

tificates of identity entry into the United States. Thus, were

Rivera to obtain a certificate of identity and then present him-

self for entry into the United States, the Attorney General

would deny his entry on the basis of the IJ’s determination

that Rivera was not a citizen. On habeas review, the questions

then before the reviewing court would be whether or not the

IJ had so determined (which she has) and whether or not the

IJ’s order was final (which it would be). The court in that pro-

ceeding could not re-evaluate the merits of Rivera’s claim to

be a United States citizen, nor evaluate whether Rivera’s Due

Process rights had been violated in the first hearing.

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[9] Rivera is no model citizen. By his own account, he pro-

cured false documents and lied to Border Patrol officials in

order to evade warrants for his arrest. But the punishment for

this sort of fraud is provided in federal statutes, and it does

not include banishment from the United States or involuntary

relinquishment of citizenship. As Chief Justice Warren

observed in Trop v. Dulles, 356 U.S. 86, 92 (1958) (plurality

opinion), “[c]itizenship is not a license that expires upon mis-

behavior.” We reverse the District Court’s denial of Rivera’s

petition for habeas corpus and remand for further proceed-

ings.

REVERSED AND REMANDED.

CALLAHAN, Circuit Judge, dissenting:

My colleagues, in a rush to correct what they perceive as

an injustice, implicitly decide what has yet to be determined

— Rivera’s citizenship — and, reasoning backward from that

determination, create jurisdiction in the district court where

none had previously existed. I dissent because their approach

conflicts with our prior opinions and is not sound.

Whatever the shortcomings of the Immigration and Natu-

ralization Service (“INS”) and the Immigration Judge (“IJ”),

Rivera’s predicament is of his own making. Rivera, by his

own admissions, at the age of eighteen decided to develop an

alias. He purchased a Mexican birth certificate and used that

to apply for a Washington State driver’s license and identifi-

cation card. When he was arrested in January 1998, by a Bor-

der Patrol agent, rather than face jail or imprisonment due to

his outstanding warrants, he presented himself as a Mexican

citizen and accepted deportation to Mexico. When he was

again arrested in the United States in December 2000, Rivera

changed his tune and told the Border Patrol agents that he was

a United States citizen.

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The government, understandably leery of his representa-

tions, commenced removal proceedings against Rivera. The IJ

conducted an evidentiary hearing and determined that Rivera

had not rebutted the evidence that he was a native and citizen

of Mexico and had not provided sufficient evidence that he

was a United States citizen.

I agree with my colleagues that the IJ’s conduct at the hear-

ings and her approach leave much to be desired. Nonetheless,

the IJ’s decision was a decision on the merits of Rivera’s

claim of citizenship. Moreover, Rivera allowed the IJ’s deci-

sion to become final, and that decision is not before this court.

It became final because Rivera, although having initially

determined to appeal the IJ’s decision, a week later waived

his appeal. As a result of the waiver of his appeal, Rivera was

deported to Mexico.

Although Rivera was apparently deported to Mexico in

February 2001, he did not file his petition for a writ of habeas

corpus in the district court until March 2003.

The majority, in its efforts to relieve Rivera of the conse-

quences of waiving his appeal and thereby consenting to

deportation, disregards Taniguchi v. Schultz, 303 F.3d 950

(9th Cir. 2002), and Miranda v. Reno, 238 F.3d 1156 (9th Cir.

2001), and creates an improper and unworkable basis for

jurisdiction in the district court.

In Taniguchi, the alien, like Rivera, did not file an appeal

from the IJ’s initial decision that she was removable. Instead

she filed a motion to reopen with the IJ. Taniguchi, 303 F.3d

at 954. The IJ denied the motion as untimely, the Board of

Immigration Appeals (“BIA”) denied her appeal holding that

Rivera preferred to be deported to Mexico in 1998, rather than face

possible incarceration due to his outstanding warrants. Similarly, in 2001,

he preferred deportation to Mexico to the possibility of being in INS cus-

tody in this country while his appeal was pending.

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the motion was untimely, and Taniguchi filed a petition for

review with this court. Id. Meanwhile, Taniguchi filed a peti-

tion for writ of habeas corpus in the district court alleging that

she was a United States citizen. Id. The district court dis-

missed the citizenship claim for lack of jurisdiction as such

claims must be brought in the court of appeals. Id. Taniguchi

appealed to this court.

We considered the petition for review and appeal together.

We dismissed the petition for review explaining that

“Taniguchi’s claim of citizenship fails because she has not

exhausted her administrative remedies as required by statute.”

Id. at 955. We then affirmed the district court’s dismissal for

lack of jurisdiction explaining: “[i]f an alien in a removal pro-

ceeding is ordered removed, but contends that she is a United

States citizen, [8 U.S.C.] § 1252(b)(5) is the exclusive statu-

tory method of determining the claim of citizenship, and it is

brought as a petition for review of a final order of removal.”

Id. at 956. Thus, we affirmed the district court’s dismissal for

lack of jurisdiction, even though we had already determined

that Taniguchi could not seek relief under § 1252(b)(5)

because she had failed to appeal the IJ’s initial decision.

The majority attempts to distinguish Taniguchi on the

ground that Taniguchi’s claim to citizenship was “patently

frivolous,” but this will not do. A district court must deter-

mine its jurisdiction on the basis of the allegations in the com-

plaint. If we hold that a district court has jurisdiction over

non-frivolous claims of citizenship, we are in essence requir-

ing that district courts entertain all petitions until such time as

the courts can determine whether they are factually frivolous.

In other words, district courts will have to entertain the cases

until such time as they have developed records which are suf-

ficient to allow the courts to rule on the merits of the petition-

ers’ allegations.

I agree with the majority that United States citizenship

should not be easily shed and that a citizen keeps it “unless

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he voluntarily relinquishes it.” Afroyim v. Rusk, 387 U.S. 253,

262 (1967). I part company with the majority in that I find in

this record sufficient indicia of voluntary relinquishment to

justify Rivera’s current predicament. Even accepting Rivera’s

presentation as true, he chose to adopt an alias to avoid his

warrants, he chose to represent himself to the government as

a Mexican citizen, he chose to be removed to Mexico rather

than face his warrants, and he chose to waive his appeal from

the IJ’s decision and again accept removal to Mexico. Rea-

sonable minds may find that this constitutes a voluntary relin-

quishment. In any event, Rivera is not entitled to any greater,

or lesser, rights than any other person who petitions a district

court claiming to be a United States citizen.

Even if the district court were not compelled to dismiss

Rivera’s petition under Taniguchi, it nonetheless properly dis-

missed the petition pursuant to our decision in Miranda. An

IJ there found that Miranda was an aggravated felon and

ordered him removed. Miranda, 238 F.3d at 1158. Miranda

waived his right to appeal to the BIA and was removed to

Mexico. Id. He then sought review in the district court, which

held it lacked subject matter jurisdiction. Id. at 1157. On

appeal, we held that although the district court had general

jurisdiction to consider a habeas petition challenging a final

order of removal, Miranda’s petition had to be dismissed. We

stated: “[b]ut Miranda cannot avail himself of habeas corpus

jurisdiction because he has already been removed and there-

fore is no longer ‘in custody.’ See 28 U.S.C. § 2241; see also

Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)

(‘[T]he “in custody” requirement is jurisdictional.’).”

Miranda, 238 F.3d at 1158. The district court had no jurisdic-

tion over Rivera because he was not in the Western District

of Washington when the habeas petition was filed. In fact, he

had not been in that district for over two years at the time the

petition was filed.

The majority’s attempt to circumvent our holding in

Miranda by arguing that Rivera’s case presents an “extreme

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circumstance,” citing Singh v. Waters, 87 F.3d 346 (9th Cir.

1996), converts a checkpoint into a freeway. Singh was

removed from the country after the immigration judge had

granted a stay of deportation. Id. at 347. We determined that

he had been unlawfully removed because (1) “the Service

proceeded with his deportation after a stay of deportation had

been issued by the immigration judge,” and (2) “by having the

file of Singh and failing to inform his counsel . . . that it had

the file prior to the handcuffing and arrest on December 2,

1993, the Service effectively scuttled the right to counsel

guaranteed to Singh by statute.” Id. at 349. We concluded:

If the alien was kidnapped out of the country, he

would not have departed . . . . Neither has he

departed here when he was removed in violation of

the immigration judge’s order and after interference

with his right to counsel. For the same reasons, he is

not to be charged with having failed to exhaust his

administrative remedies when the Service by physi-

cally removing him made the full reopening of his

case impossible. Singh does not fall under [8 U.S.C.]

§ 1105a(c) but under § 1105a(a)(10): he is an “alien

held in custody pursuant to an order of deportation.”

Id. at 349-50 (citations omitted).

A moment’s reflection reveals that Rivera does not present

an extreme circumstance as defined by Singh. There was no

order staying Rivera’s removal, or even any pending proceed-

ing in which such an order might have been sought. Rather,

he had waived his appeal to the BIA and requested removal

to Mexico “as soon as possible” (as he had previously in

1998). Accordingly, the government agents would have been

derelict in their duties if they had not promptly removed

Rivera.

The majority, however, opines that Rivera’s acquiescence

in his removal is of no moment because it “was not made

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knowingly or voluntarily.” With all due respect, there is little

before us to support this “finding.” It does not appear that

Rivera ever submitted an affidavit to the district court. Rather,

his counsel argued that the IJ did not adequately advise Rivera

of his right to appeal. But Rivera did not waive his right to

appeal before the IJ. When he left the IJ he still had his right

to appeal. Six days later he chose to abandon that right. There

is nothing in the record from Rivera indicating why he aban-

doned his appeal.

Ultimately, the majority’s reasoning falls back upon its

assumption that Rivera is a citizen. As previously noted, how-

ever, the district court’s jurisdiction cannot turn on the under-

lying merits of an allegation of citizenship. Otherwise, any

person who was removed from the United States (and remains

outside the United States) could invoke a district court’s juris-

diction, particularly if the individual did not have counsel at

the time of removal,

simply by alleging that he or she is a

United States citizen.

Although Rivera may be a United States citizen, this court

does not have the jurisdiction to so decide on this appeal.

Rivera, for not the first time, allowed himself to be removed

to Mexico. His removal does not, as the majority claims, ren-

der Rivera stateless. It does, however, require that he resort to

other remedies.

Pursuant to our opinion in Miranda, Rivera

The majority stresses that Rivera did not have counsel, but does not

point to anything in the record that suggests that Rivera was denied coun-

sel or was not aware that he could have counsel. The fact that he made an

arguably poor decision in abandoning his appeal does not establish that

either that decision or his decision not to employ counsel was not freely

made. Similarly, the possibility that Rivera is a United States citizen is

not, in itself, a basis for challenging his decisions. Hundreds of thousands

of people go through immigration processes every year without counsel.

There is no basis in fact for presuming that un-counseled immigration

decisions should be open to judicial review (when counseled decisions are

not). Such a presumption would seriously undermine the country’s immi-

gration policies.

For example, 8 U.S.C. § 1503(b) sets forth a procedure for a person

outside the United States, who claims to be a United States citizen, to

obtain a certificate of identity from a United States diplomatic or consular

officer.

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should not be allowed to invoke the district court’s jurisdic-

tion by filing a petition for writ of habeas corpus in a district

court some two years after his removal to Mexico. I would

affirm the district court’s dismissal of Rivera’s petition for

lack of jurisdiction.

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