FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GHENA NEGASH IASU, 

Petitioner-Appellant,

v.

RON SMITH, Director of San Diego

Field Office, U.S. Immigration and No. 06-55681

Customs Enforcement; MICHAEL B. D.C. No.

MUKASEY,* Attorney General;  CV-05-00088-DMS

MICHAEL CHERTOFF, Secretary of OPINION the Department of Homeland

Security; ANTHONY CERONE, Acting

Officer-In-Charge, San Diego

Detention Center,

Respondents-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

June 6, 2007—Pasadena, California

Filed December 18, 2007

Before: Stephen S. Trott and Johnnie B. Rawlinson,

Circuit Judges, and Samuel P. King,** District Judge.

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

**The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation. 

16451
Opinion by Judge King

16452 IASU v. SMITH
COUNSEL

Lori B. Schoenberg, Reeves & Associates, Pasadena, California, for the petitioner-appellant. 

16454 IASU v. SMITH
Jennifer Paisner, United States Department of Justice, Office

of Immigration Litigation, Washington, D.C., for the

respondents-appellees.

OPINION

KING, District Judge: 

Ghena Negash Iasu appeals the district court’s order (1)

dismissing for lack of subject matter jurisdiction his amended

28 U.S.C. § 2241 petition challenging his removability, and

(2) declining to transfer the petition to the Ninth Circuit under

section 106(c) of the REAL ID Act, Pub. L. No. 109-13, 119

Stat. 231 (2005). We have appellate jurisdiction under 28

U.S.C. § 1291, and we affirm. 

I.

Iasu faces removal to Eritrea. But he contends he is a naturalized American citizen, and thus he challenges the government’s power to remove him. See, e.g., Rivera v. Ashcroft,

394 F.3d 1129, 1136 (9th Cir. 2005) (“The executive may

deport certain aliens but has no authority to deport citizens.”).

Iasu, however, did not raise this contention during removal

proceedings and did not appeal the immigration judge’s (IJ’s)

final order of removal. Rather, he challenged his removal later

by filing a § 2241 habeas petition in district court — a procedure that the REAL ID Act eliminated in lieu of a new provision, codified at 8 U.S.C. § 1252(a)(2)(D), allowing direct

review of “constitutional claims or questions of law.” The district court dismissed the petition for lack of jurisdiction under

the REAL ID Act’s jurisdiction-stripping provision set forth

in 8 U.S.C. § 1252(b)(9),1 and declined to transfer the matter

1The REAL ID Act added the following language to section 1252(b)(9):

Except as otherwise provided in this section, no court shall have

jurisdiction, by habeas corpus under section 2241 of Title 28, or

IASU v. SMITH 16455
to the Ninth Circuit because the amended petition was filed

after the REAL ID Act’s effective date of May 11, 2005. See

Iasu v. Chertoff, 426 F. Supp. 2d 1124 (S.D. Cal. 2006). 

On appeal, Iasu contends the REAL ID Act is an unconstitutional suspension of the writ of habeas corpus as applied to

his claim to citizenship because (1) there is always jurisdiction to determine jurisdiction, and (2) American citizenship

must be intentionally relinquished and cannot be established

by waiver. See, e.g., Theagene v. Gonzales, 411 F.3d 1107,

1110 (9th Cir. 2005). He claims he no longer has an opportunity to raise his non-frivolous claim of citizenship. Alternatively, he seeks to have the Ninth Circuit adjudicate his

citizenship by construing his appeal as a petition directly

reviewing a final order of removal. 

A district court’s decision to dismiss a habeas corpus petition for lack of subject matter jurisdiction is reviewed de

novo. Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir. 2006).

II.

Iasu left Ethiopia in 1978 for Sudan. He was born in Eritrea, which was part of Ethiopia before Eritrea became a

country in 1993. He left Sudan in 1985 for the United States.

He became a lawful permanent resident of the United States

in 1986. After two attempts at naturalization in the early1990’s, Iasu’s naturalization application was approved on

April 24, 2002. He had passed a citizenship test, and satisfied

several other conditions of citizenship. He also filed a petition

for a name change in conjunction with the naturalization process.2

 A “Form N-XXX” dated April 23, 2002, indicated that

any other habeas corpus provision, by section 1361 or 1651 of

such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

See Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007). 

2Title 8 U.S.C. § 1447(e) provides: 

It shall be lawful at the time and as a part of the administration

16456 IASU v. SMITH
Iasu petitioned to have his named changed to “Amare Gabregzeabher Nugsa.” That form also has a line reading “the above

petition was granted by the court on _____” with “July 04,

2002” typed into the space. It was signed by a deputy clerk.

(The “July 4, 2002” was apparently pre-dated.) The naturalization application has an oath of allegiance signed by

“Amare Gabreegzeabher [sic] Nugsa” and dated April 23, 2002.3

Iasu’s declaration states that an immigration service officer

asked him to raise his hand, read the oath, and told him to

sign his name. Iasu states that, after he signed his name, the

officer said “congratulations, you’re done.” The officer told

him that he would get a citizenship certificate on July 4, 2002

(and presumably participate in a “public ceremony” as

required under 8 U.S.C. § 1448(a)). 

Iasu, however, failed to appear at the Fourth of July citizenship ceremony. He couldn’t appear because he had been

arrested for armed assault in the meantime on May 30, 2002.

On July 19, 2002, he was convicted in state court of assault

with a deadly weapon and was sentenced to three years in

state prison. 

After Iasu’s release from prison, the government initiated

removal proceedings against him on January 30, 2004, under

8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted

of an aggravated felony. During different hearings before different IJs (proceeding pro se, with continuances to allow him

by a court of the oath of allegiance under section 1448(a) of this

title for the court, in its discretion, upon the bona fide prayer of

the applicant included in an appropriate petition to the court, to

make a decree changing the name of said person, and the certificate of naturalization shall be issued in accordance therewith. 

3

8 C.F.R. § 337.4 provides: 

When the court has granted the petitioner’s change of name

request, the petitioner shall subscribe his or her new name to the

written oath of allegiance. 

IASU v. SMITH 16457
to seek counsel), he made some references to his citizenship

status. Both Iasu and the IJs seemed uncertain as to whether

Iasu was a citizen of Eritrea or, rather, Ethiopia. Iasu also

mentioned his 2002 naturalization proceedings, and that he

was an American citizen, but he did not base his challenge to

removal on his purported American citizenship status. He

eventually waived his right to seek deferral of removal and

waived his right to appeal to the Board of Immigration

Appeals (BIA). An IJ issued a final order of removal to Eritrea. 

After being remanded into federal custody, Iasu filed a

§ 2241 habeas petition in district court (through counsel) on

January 18, 2005, challenging his indefinite detention under

Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (limiting an

alien’s post-removal-period detention to a period reasonably

necessary to bring about that alien’s removal from the United

States). The habeas petition was then amended on July 22,

2005 (after the REAL ID Act took effect on May 11, 2005)

to challenge his removal, asserting for the first time that he

was a naturalized American citizen. After the district court

dismissed the amended habeas petition and declined to transfer the matter to the Ninth Circuit, Iasu filed a timely appeal.

III.

In Rivera, the Ninth Circuit held that — because of the

jurisdictional nature of a non-frivolous claim to American citizenship in a removal proceeding — habeas jurisdiction

existed in a district court under § 2241 to address such a

claim. 394 F.3d at 1138 (“The only result consistent with the

Fifth and Fourteenth Amendments is that habeas relief be

available to hear Rivera’s citizenship claim.”). It found “extreme circumstances,” id. at 1139, because “[a]n assertion of

U.S. ‘citizenship is . . . a denial of an essential jurisdictional

fact’ in a deportation proceeding.” Id. at 1136 (quoting Ng

Fung Ho v. White, 259 U.S. 276, 284 (1922)). It also relied

on the principle that American citizenship must be intention16458 IASU v. SMITH
ally relinquished. Id. at 1137 (citing Vance v. Terrazas, 444

U.S. 252, 260-61 (1980)). “Because he has a 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.” Id.; see also Minasyan v. Gonzales, 401 F.3d

1069, 1075 (9th Cir. 2005) (holding on direct review from the

BIA that “[b]ecause Minasyan’s claim to citizenship is not

patently frivolous, we have jurisdiction to review it, irrespective of whether he has exhausted his claim before the agency.”). Under Rivera, “the Constitution is violated when a

person with a non-frivolous claim to U.S. citizenship is

deported without receiving a judicial determination of that

claim.” 394 F.3d at 1140. 

Rivera was grounded in part in INS v. St. Cyr, 533 U.S.

289, 305 (2001), wherein the Supreme Court held that a writ

of habeas corpus under § 2241 was necessary to avoid implicating the Suspension Clause.4

See Rivera, 394 F.3d at 1137.

After passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), 110 Stat. 3009-546, courts lacked jurisdiction

to review final orders of removal for aggravated felons. St.

Cyr, 533 U.S. at 297. In allowing a § 2241 remedy, St. Cyr

reasoned that a regime precluding any judicial review of

“pure questions of law” would be constitutionally suspect

under the Suspension Clause. Id. at 305. St. Cyr also indicated

that habeas relief might not be required if Congress provided

“an adequate substitute through the courts of appeals.” Id. at

314 n.38. 

4The Constitution’s Suspension Clause reads: 

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it. 

U.S. Const, art. I, § 9. 

IASU v. SMITH 16459
[1] The REAL ID Act changed the statutory regime. Effective May 11, 2005, the REAL ID Act responded to St. Cyr by

eliminating all district court habeas jurisdiction over orders of

removal. Title 8 U.S.C. § 1252(a)(5), as amended by § 106(a)

of the REAL ID Act, provides: 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title

28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for

review filed with an appropriate court of appeals in

accordance with this section shall be the sole and

exclusive means for judicial review of an order of

removal entered or issued under any provision of this

chapter, except as provided in subsection (e) of this

section. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and

“jurisdiction to review” include habeas corpus

review pursuant to section 2241 of Title 28, or any

other habeas corpus provision, sections 1361 and

1651 of such title, and review pursuant to any other

provision of law (statutory or nonstatutory). 

8 U.S.C. § 1252(a)(5). Congress addressed Suspension Clause

concerns raised in St. Cyr by allowing (i.e., reinstating)

review in courts of appeals of final removal orders of aggravated felons for “constitutional claims or questions of law.”

See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in . . . any . . . provision of this chapter (other than this section) which limits or

eliminates judicial review, shall be construed as precluding

review of constitutional claims or questions of law raised

upon a petition for review filed with an appropriate court of

appeals in accordance with this section.”). 

[2] Given a retroactive application of the REAL ID Act’s

elimination of habeas jurisdiction, § 106(c) of the REAL ID

Act also required (1) district courts to transfer to courts of

16460 IASU v. SMITH
appeals any habeas petitions challenging final orders of

removal that were pending on its effective date of May 11,

2005, and (2) courts of appeals to treat such habeas cases as

if they were timely petitions for review of such final orders.5

See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.

2005). Any such habeas petitions pending on appeal on May

11, 2005, are similarly treated as timely petitions for review.

Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th

Cir. 2005). “Section 106(c) is a transition rule[.]” Chen v.

Gonzales, 435 F.3d 788, 789 (7th Cir. 2006). 

“Congress’ clear intent [was] to have all challenges to

removal orders heard in a single forum (the courts of

appeals)[.]” Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d

Cir. 2005) (citing H.R. Conf. Rep. No. 109-72, at 174 (2005)).

“Congress assumed this task [of complying with the Suspension Clause] in enacting the Real ID Act, with the explicit

intent to give ‘every alien one day in the court of appeals, satisfying constitutional concerns.’ ” Ramadan v. Gonzales, 479

F.3d 646, 653 (9th Cir. 2007) (quoting H.R. Rep. No. 109-72,

at 175). “These modifications effectively limit all aliens to

one bite of the apple with regard to challenging an order of

removal, in an effort to streamline what the Congress saw as

uncertain and piecemeal review of orders of removal, divided

between the district courts (habeas corpus) and the courts of

appeals (petitions for review).” Bonhometre, 414 F.3d at 446.

5Section 106(c) of the REAL ID Act provides: 

If an alien’s case, brought under [28 U.S.C. § 2241], and challenging a final administrative order of removal, deportation, or

exclusion, is pending in a district court on the date of the enactment [of this Act], then the district court shall transfer the case

. . . to the court of appeals for the circuit in which a petition for

review could have been properly filed under [INA § 242(b)(2), 8

U.S.C. § 1252], as amended by this section, . . . . The court of

appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that

[the 30-day filing deadline] shall not apply. 

IASU v. SMITH 16461
See generally Singh, 499 F.3d at 975-76 (setting forth statutory background of the REAL ID Act). 

[3] But for the REAL ID Act, Iasu could have filed a

habeas petition in district court even if he had not appealed

the removal order directly. Rivera, 394 F.3d at 1137. He could

have done so for jurisdictional reasons if he had a “nonfrivolous” claim to citizenship, given the reasoning in St. Cyr

that “wholesale repeal of habeas jurisdiction over pure questions of law would be constitutionally suspect” without some

type of judicial review. Ramadan, 479 F.3d at 652 (citing St.

Cyr, 533 U.S. at 301-05). After the REAL ID Act, however,

the district court plainly lacked habeas jurisdiction. 

IV.

[4] Iasu therefore challenges the new statutory regime on

Suspension Clause grounds. However, the Ninth Circuit has

held that, facially, the REAL ID Act is not an unconstitutional

suspension of the writ because the new statutory scheme provides an “adequate substitute” by allowing judicial review of

the final order of removal through the courts of appeals. See

Puri, 464 F.3d at 1042 (“[T]his court’s review of the administrative proceeding is an adequate substitute for district court

habeas corpus jurisdiction.”) (citing St. Cyr, 533 U.S. at 314

n.38); cf. Ramadan, 479 F.3d at 653 (“Congress assumed this

task [of providing adequate and effective review for all aliens

subject to removal] in enacting the Real ID Act, with the

explicit intent to give ‘every alien one day in the court of

appeals, satisfying constitutional concerns,’ and we are compelled to interpret that Act accordingly.”) (citations omitted).

[5] The petitioner in Puri, like Iasu here, had filed his district court § 2241 habeas petition almost three months after

the REAL ID Act’s effective date. 464 F.3d at 1041. Puri also

indicated that a petition for direct review had been dismissed.

Id. at 1043. Thus, similar to Puri, Iasu had a means for seeking relief (direct review). Iasu had simply failed to pursue the

16462 IASU v. SMITH
relief that the statutory scheme allows. See 8 U.S.C.

§ 1252(a)(2)(D) (specifically allowing judicial review of

“constitutional claims or questions of law raised upon a petition for review”). 

Puri followed the First Circuit’s reasoning that review by

a court of appeals of “pure questions of law . . . provides . . .

the same review and the same relief . . . as were available

under prior habeas law.” Id. at 1042 (quoting Enwonwu v.

Gonzales, 438 F.3d 22, 33 (1st Cir. 2006). Other circuits have

similarly upheld the REAL ID Act against Suspension Clause

challenges. See Alexandre v. U.S. Att’y Gen., 452 F.3d 1204,

1206 (11th Cir. 2006) (“Section 106 of the Real ID Act does

not violate the Suspension Clause of the Constitution because

it provides, through review by a federal court of appeals, an

adequate and effective remedy to test the legality of an alien’s

detention.”); Mohamed v. Gonzales, 477 F.3d 522, 526 (8th

Cir. 2007) (same). 

[6] Moreover, because Iasu had no habeas petition challenging his removal pending on or before the REAL ID Act’s

effective date, he could not use the statutory replacement —

direct review on a transferred petition — that the REAL ID

Act’s transitional rules in § 106(c) gave in lieu of district

court habeas review. That is, there was no existing habeas

proceeding that a court could properly treat as a timely petition for review under § 106(c). See, e.g., Alvarez-Barajas, 418

F.3d at 1053 (discussing § 106(c), which requires conversion

of pending habeas petitions into timely filed petitions for

review). Recent case law from other circuits confirms that it

is improper to allow a habeas petition that was not pending on

or before May 11, 2005, to be treated as a petition for review.

See Wang v. Dep’t of Homeland Sec., 484 F.3d 615, 617 (2d

Cir. 2007) (disallowing transfer of habeas petition filed after

passage of the REAL ID Act); Chen, 435 F.3d at 790 (“A

petition under § 2241 filed in a district court after [May 11,

2005] . . . must be dismissed; it can be neither entertained nor

transferred.”). Construing Iasu’s post-May 11, 2005, amended

IASU v. SMITH 16463
petition as one seeking direct review of a final order of

removal would violate clear Congressional intent.6

V.

As Iasu points out, even after the REAL ID Act, Congress

left intact 8 U.S.C.§ 1252(b)(5) regarding nationality claims.

If habeas relief is no longer available, he appears to suggest

using § 1252(b)(5) as authority for us to review his nationality

claim on the merits. Section 1252(b)(5) provides: 

Treatment of nationality claims 

(A) Court determination if no issue of fact 

If the petitioner claims to be a national of the United

States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material

fact about the petitioner’s nationality is presented,

the court shall decide the nationality claim. 

(B) Transfer if issue of fact 

If the petitioner claims to be a national of the United

States and the court of appeals finds that a genuine

issue of material fact about the petitioner’s national6

Iasu does not contend that his petition’s original filing date of January

18, 2005, applies so as to render the petition “pending” for purposes of

section 106(c) of the REAL ID Act. He recognizes that the amendment

filed on July 2, 2005, changed the relief sought and thus cannot “relate

back” to the original filing date. See Mayle v. Felix, 545 U.S. 644, 650

(2005) (concluding that an amended habeas petition does not “relate back”

if “it asserts a new ground for relief supported by facts that differ in both

time and type from those the original pleading set forth.”). Rather, for a

petition to be “pending” for purposes of section 106(c) of the REAL ID

Act, it must be a petition “challenging a final administrative order of

removal, deportation, or exclusion.” The original petition did not make

such a challenge; only the amended petition did so. 

16464 IASU v. SMITH
ity is presented, the court shall transfer the proceeding to the district court of the United States for the

judicial district in which the petitioner resides for a

new hearing on the nationality claim and a decision

on that claim as if an action had been brought in the

district court under section 2201 of Title 28. 

(C) Limitation on determination 

The petitioner may have such nationality claim

decided only as provided in this paragraph. 

[7] Section 1252(b)(5) “requires the court of appeals to

decide the [nationality] issue ‘if the petitioner claims to be a

national of the United States’ and the facts . . . are not in dispute.” Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001).

Indeed, in Theagene the Ninth Circuit noted that § 1252(b)(5)

appears “to provide a fail safe against inadvertent or uninformed execution of a final order of removal against a person

with a claim to United States nationality.” 411 F.3d at 1110

n.4. 

[8] Section 1252(b)(5), however, applies to nationality

claims made on direct review of a final order of deportation.

See id. at 1110 (“[T]he plain language of § 1252(b)(5)

requires that upon a petition for review of the BIA’s final

order of removal, we must evaluate a petitioner’s claim to

United States nationality regardless of whether the claim was

raised below.”) (emphasis added). It does not override other

provisions limiting petitions for habeas relief under § 2241.

See 8 U.S.C. § 1252(a)(5) (“. . . a petition for review filed

with an appropriate court of appeals in accordance with this

section shall be the sole and exclusive means for judicial

review of an order of removal[.]”). 

If Iasu had petitioned for review on any basis, then we

would have had jurisdiction to review his present nationality

claim under § 1252(b)(5), notwithstanding his status as an

IASU v. SMITH 16465
aggravated felon. See Barthelemy v. Ashcroft, 329 F.3d 1062,

1064 (9th Cir. 2003) (“We do not have jurisdiction to review

a criminal alien’s final order of removal. But where, as here,

the petitioner claims he is a United States citizen not subject

to removal, we have jurisdiction to determine whether the

petitioner is an alien or a citizen.”) (citations omitted). Furthermore, we would have had jurisdiction to review nationality even if he had not previously raised and exhausted such a

claim. See Theagene, 411 F.3d at 1110 (“[W]e must evaluate

a petitioner’s claim to United States nationality regardless of

whether the claim was raised below.”); see also Jordon v.

Att’y Gen., 424 F.3d 320, 325 n.8 (3d Cir. 2005). Or we could

have reviewed Iasu’s claim to citizenship under the REAL ID

Act’s new judicial review provision. See Brue v. Gonzales,

464 F.3d 1227, 1231-32 (10th Cir. 2006) (concluding that

courts of appeals have jurisdiction to review citizenship claim

under the REAL ID Act’s new power to review “constitutional claims or questions of law” in § 1252(a)(2)(D)). 

But, again, this appeal is not here on direct review; Iasu

failed to file a petition for review challenging his final order

of deportation. 

VI.

The government cites several out-of-circuit cases indicating, on the merits, that Iasu’s claim to citizenship would fail

because he did not complete the naturalization process’s

“public ceremony” requirement set forth in 8 U.S.C.

§ 1448(a) (requiring participation in a “public ceremony”

before “being admitted to citizenship”) and in 8 C.F.R.

§§ 337.1(a) and 337.2(a). See Okafor v. Gonzales, 456 F.3d

531, 534 (5th Cir. 2006) (rejecting argument that alien’s oath

signed during or immediately after his naturalization interview satisfied the “public oath” requirement in 8 U.S.C.

§ 1448(a)); Abiodun v. Gonzales, 461 F.3d 1210, 1215-16

(10th Cir. 2006) (same); Tovar-Alvarez v. U.S. Att’y Gen.,

427 F.3d 1350, 1353 (11th Cir. 2005) (same). 

16466 IASU v. SMITH
Iasu attempts to distinguish such cases by contending that

he did take an appropriate oath before an immigration officer

designated by the Attorney General. See 8 U.S.C. § 1448(a)

(requiring “a public ceremony before the Attorney General or

a court with jurisdiction under section 1421(b) of this title[.]”)

(emphasis added); 8 C.F.R. § 337.9(a) (“An applicant for naturalization shall be deemed a citizen of the United States as

of the date on which the applicant takes the prescribed oath

of allegiance, administered either by the Service or an Immigration Judge in an administrative ceremony or in a ceremony

conducted by an appropriate court under § 337.8 of this chapter.”) (emphasis added). In certain circumstances, the immigration statutes do appear to contemplate giving applicants a

choice as to where and how the required oath of allegiance is

administered. See 8 U.S.C. § 1421(b)(1)(A) (“Except as provided in subparagraph (B), each applicant for naturalization

may choose to have the oath of allegiance . . . administered

by the Attorney General or by an eligible court[.]”). It is

unclear whether the applicable “eligible court” had invoked

its “exclusive authority to administer the oath of allegiance”

in Iasu’s situation. See 8 U.S.C. § 1421(b)(1)(B) (“An eligible

court . . . that wishes to have exclusive authority to administer

the oath of allegiance . . . shall notify the Attorney General

of such wish and . . . shall have such exclusive authority with

respect to such persons during such period.”). 

[9] Ultimately, however, we lack jurisdiction in the current

procedural posture to address the merits of Iasu’s claim to citizenship. Sections 1252(a)(5) and 1252(a)(2)(D) are provisions for direct appeals, and — absent an as-applied violation

of the Suspension Clause — the REAL ID Act has eliminated

habeas corpus jurisdiction. 

VII.

[10] Nevertheless, a fundamental element — a claim to citizenship — is still at issue. See Rivera, 394 F.3d at 1136 (“An

assertion of U.S. ‘citizenship is thus a denial of an essential

IASU v. SMITH 16467
jurisdictional fact’ in a deportation proceeding.”) (quoting Ng

Fung Ho, 259 U.S. at 284); Theagene, 411 F.3d at 1110-11

(reviewing unexhausted nationality claim under 8 U.S.C.

§ 1252(b)(5) because courts necessarily have jurisdiction to

determine jurisdiction). The principle that courts have jurisdiction to determine jurisdiction is well-settled in this context

where alienage is questioned (at least in a petition for direct

review). See, e.g., Hughes, 255 F.3d at 755 (finding jurisdiction to review alienage under § 1252(b)(5)(A) because such a

claim is a “jurisdictional fact”); Omolo v. Gonzales, 452 F.3d

404, 407 (5th Cir. 2006) (“Only an ‘alien’ may be required to

exhaust his administrative remedies; accordingly, we must

determine whether Omolo is an alien in order to determine

whether § 1252(d)(1) bars our jurisdiction.”); Brue, 464 F.3d

at 1231-32; see also Drakes v. Ashcroft, 323 F.3d 189, 190

(2d Cir. 2003) (finding authority to determine jurisdiction

where petitioner facing removal contended she had acquired

derivative American citizenship, observing that such a “jurisdictional inquiry ‘merges’ with the merits of the case.”). 

[11] Consequently, the post-REAL ID Act statutory regime

may have an impermissible retroactive effect as applied to

Iasu’s (perhaps unique) situation, unless he still has some

opportunity for judicial review. We are still bound by the

holding in Rivera that “a non-frivolous claim to U.S. citizenship” gives a person a constitutional right to judicial review

that may be obtained “even after accepting deportation and

waiving his right to appeal the IJ’s decision[.]” 394 F.3d at

1137. As the Ninth Circuit recently observed sitting en banc:

This limbo — in which the petitioner is subject to a

void order of removal but has no judicial remedy —

may raise serious constitutional concerns because the

Suspension Clause ‘unquestionably’ requires ‘some

judicial intervention in deportation cases.’ 

Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en

banc) (quoting St. Cyr, 533 U.S. at 300). 

16468 IASU v. SMITH
Rivera distinguished Taniguchi v. Schultz, 303 F.3d 950

(9th Cir. 2002) (finding no habeas relief available where the

petitioner could have sought relief on direct review — but did

not — regarding nationality under 8 U.S.C. § 1252(b)(5))

because Taniguchi’s claim to American citizenship was

patently frivolous. Rivera, 394 F.3d at 1138. That is, the Suspension Clause is not implicated and there is no need for

potential habeas relief if a claim to citizenship that was abandoned on direct review is “patently frivolous.” 

[12] Iasu’s claim, however, is not “patently frivolous.”

Although other circuits7 have specifically rejected the argument that an alien’s oath signed during or immediately after

his naturalization interview satisfies the “public ceremony”

requirement in 8 U.S.C. § 1448(a), the Ninth Circuit has not

yet done so in a published opinion. This alone suggests Iasu’s

position is not without some arguable basis in law. See Guti

v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (reasoning that a

“frivolous” claim in an immigration context must lack “any

arguable basis in law or in fact” and that standard is not met

when there is no controlling authority requiring a holding that

the claim lacks even an arguable basis as a matter of law)

(citations omitted); cf. Lew Shee v. Nagle, 7 F.2d 367, 368

(9th Cir. 1925) (allowing habeas jurisdiction, reasoning that

claim to American citizenship is not frivolous if supported by

competent evidence). Moreover, the statutory and regulatory

regime does appear to allow (at least in some circumstances

which may or may not apply here) the naturalization process

to be completed by an oath before an official of the Bureau

of Citizenship and Immigration Services. See, e.g., 8 U.S.C.

§ 1421(b)(1)(A); 8 C.F.R. § 337.9(a).8

7

See Okafor, 456 F.3d at 534; Abiodun, 461 F.3d at 1215-16, TovarAlvarez, 427 F.3d at 1353. 

8Although we do not have jurisdiction in the present posture to decide

the merits of Iasu’s claim to citizenship one way or the other, we do have

jurisdiction to determine whether his claim is patently frivolous as part of

our jurisdiction to determine whether we have jurisdiction. 

IASU v. SMITH 16469
[13] Importantly, the government points out that Iasu still

— even now — has at least the possibility of filing a motion

to reopen with an IJ to attempt to assert his nationality claim.9

See 8 C.F.R. § 1003.23(b). A potential motion to reopen can

suffice to alleviate Suspension Clause concerns. In Alexandre,

the Eleventh Circuit reasoned that a motion to reopen before

the BIA, and the attendant possibility of a petition for review

in a court of appeals thereafter, could satisfy constitutional

concerns. 

Even though habeas corpus relief is precluded by the

REAL ID Act, a deportable alien can still seek

review of constitutional and legal claims by moving

the BIA to reopen or reconsider its previous ruling,

and if unsuccessful, by filing a petition for review in

the court of appeals. See 8 C.F.R. § 1003.2(c); 8

U.S.C. § 1252(a)(5), (2)(D). This procedure offers

the same review as that formerly afforded in habeas

corpus which provided legal, but not factual or discretionary, determinations. 

Alexandre, 452 F.3d at 1206 (citations omitted). Likewise, the

Eighth Circuit adopted the Eleventh Circuit’s reasoning in

rejecting a similar as-applied Suspension Clause challenge to

the REAL ID Act. See Mohamed, 477 F.3d at 526 (“This

court is persuaded by Alexandre . . . . The petitioner there had

the opportunity to add new evidence to the record by a motion

to reopen with the Board, and the Eleventh Circuit found the

REAL ID Act to be an adequate and effective substitute for

habeas review.”) (citations omitted). 

9The government also proffers 8 U.S.C. § 1503(a) as another possible

remedy. Section 1503(a) allows an action seeking a judgment declaring a

petitioner to be a United States national. However, it specifically disallows

an action if the nationality issue “arose by reason of, or in connection with

any removal proceeding[.]” Rather, § 1252(b)(5) is the exclusive means of

obtaining a declaration of nationality for a person in removal proceedings

(and it must be sought in a petition for review of the final order of

removal). See 8 U.S.C. § 1252(b)(5)(C). 

16470 IASU v. SMITH
Iasu recognizes that a motion to reopen would appear to be

untimely and could be construed as not asserting any new

facts not previously available. See Iturribarria v. INS, 321

F.3d 889, 896 (9th Cir. 2003) (stating that the “purpose of a

motion to reopen is to present new facts or evidence that

would entitle the alien to relief from deportation.”). Iasu contends that such a motion to reopen would thus be completely

discretionary with an IJ under the IJ’s sua sponte powers. See

8 C.F.R. § 1003.23(b)(1). 

[14] We cannot predict what an IJ or the BIA might do if

a motion to reopen is filed. Presumably, alienage is also a

jurisdictional prerequisite at the administrative level. See

Theagene, 411 F.3d at 1110 n.4 (“We do not mean to imply

that the question of nationality may not be addressed at the

administrative level. Inasmuch as the immigration judge and

the Board have no subject matter jurisdiction over United

States nationals, those officials will have to investigate the

issue if it is raised.”). However, even if an IJ denies such a

motion to reopen as procedurally improper, and even if the

BIA upholds the denial, a court of appeals could still review

the jurisdictional issue on direct appeal from that denial. See,

e.g., Theagene, 411 F.3d at 1110; Minasyan, 401 F.3d at

1074-75; Hughes, 255 F.3d at 755. At that point, the case

would be in a procedural posture so that 8 U.S.C.

§ 1252(b)(5) and § 1252(a)(2)(D) could be invoked, or opinions such as Okafor, 456 F.3d at 534; Abiodun, 461 F.3d at

1215-16, and Tovar-Alvarez, 427 F.3d at 1353, could be

adopted in this Circuit. 

[15] We thus agree with the Eleventh Circuit in Alexandre

that a potential motion to reopen at the administrative level

and the possibility of judicial review thereafter provides the

necessary process to alleviate Suspension Clause concerns.

See Alexandre, 452 F.3d at 1206. 

CONCLUSION

This case further demonstrates that “[t]he maze of immigration statutes and amendments is notoriously complicated and

IASU v. SMITH 16471
. . . . [t]he recent amendments under the REAL ID Act do not

make our task any easier.” Singh, 499 F.3d at 980. The district

court properly held that the REAL ID Act deprives courts of

subject-matter jurisdiction over Iasu’s petition under 28

U.S.C. § 2241 challenging his final order of removal. Because

the case was filed after the REAL ID Act’s effective date, the

district court correctly declined to transfer the case to the

Ninth Circuit. The REAL ID Act does not violate the Suspension Clause because Iasu had, and still has, at least some

opportunity for judicial review of his claim to citizenship. 

AFFIRMED. 

16472 IASU v. SMITH