Zayed v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Zayed v. United States, et al. No. 02-4011 ELECTRONIC CITATION: 2004 FED App. 0149P (6th Cir.) File Name: 04a0149p.06 California, for Appellee. ON BRIEF: Abraham Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio, for Appellant. Patricia M. Corrales-Talleda, UNITED STATES UNITED STATES COURT OF APPEALS DEPARTMENT OF JUSTICE, Los Angeles, California, Michelle R. Slack, UNITED STATES DEPARTMENT OF FOR THE SIXTH CIRCUIT JUSTICE, Washington, D.C., Kathleen L. Midian, _________________ ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. DALAL ZAYED , X Petitioner-Appellant, - _________________ - - No. 02-4011 OPINION v. - _________________ > , DAVID A. NELSON, Circuit Judge. The U.S. Attorney UNITED STATES OF AMERICA , - et al., General, whose duties include the processing of applications - for naturalization, is prohibited by statute from considering Respondents-Appellees. - the naturalization application of any person against whom - there is pending a proceeding for removal from this country. N See 8 U.S.C. § 1429, the relevant portion of which is set forth Appeal from the United States District Court in the margin.1 for the Northern District of Ohio at Cleveland. No. 02-00241—Donald C. Nugent, District Judge. The question presented in the case at bar is whether § 1429 likewise prohibits a United States district court from Argued: February 6, 2004 exercising jurisdiction to review an administrative denial of a naturalization application once a removal proceeding has Decided and Filed: May 24, 2004 been instituted against the applicant. The court below answered this question with an unqualified “yes” – an answer Before: NELSON, GILMAN, and ROGERS, Circuit that led the court to dismiss, without prejudice, a petition for Judges. review of the denial of the petitioner’s naturalization application. Our answer — a heavily qualified “no” — is _________________ different in form, but it leads us to the same result on the facts presented here. Although § 1429 does not directly strip COUNSEL ARGUED: Keevin J. Berman, Cleveland, Ohio, Abraham 1 Subject to a proviso that has no bearing on this case, 8 U.S.C. Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio, § 1429 provides, in pertinent part, that “no application for naturalization for Appellant. Patricia M. Corrales-Talleda, UNITED shall be considered by the Attorney General if there is pending against the STATES DEPARTMENT OF JUSTICE, Los Angeles, applicant a removal proceeding pursuant to a warrant of arrest issued unde r the provisions of this chapter or any other A ct . . . .”

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district courts of jurisdiction to review the denial of In September of 1999 the INS notified Ms. Zayed that it applications for naturalization while removal proceedings are intended to deny her application for naturalization. An pending, the statutory scheme does, in our view, limit the investigation had revealed that the applicant lived with her scope of judicial review and the availability of meaningful once-and-future husband for at least two years during the time relief. In the case at bar, we believe, the district court lacked she claimed to have been living with her parents. Because the power to grant an effective remedy. We shall affirm the Ms. Zayed appeared to have lied about her past addresses – dismissal on that basis. presumably to avoid casting doubt on the bona fides of her divorce – the INS reached the preliminary conclusion that Ms. I Zayed lacked the good moral character required for naturalization. It also determined that she might be The petitioner, Dalal Zayed, is a native of Israel and a removable for using a sham divorce to obtain lawful citizen of Sweden. She entered the United States as a visitor permanent residence here as an unmarried daughter. for pleasure in December of 1988. Her mother, who had recently become a lawful permanent resident of this country, Ms. Zayed filed a response to the notice of intent, but her then applied for a relative’s immigrant visa on Ms. Zayed’s response did not carry the day; the application for behalf. Ms. Zayed was admitted for permanent residence in naturalization was denied. Ms. Zayed filed an administrative April of 1991 as an unmarried daughter of a lawful permanent appeal, and a hearing followed. The INS affirmed its denial resident.2 of the naturalization application in October of 2001. Ms. Zayed applied for naturalization in February of 1996. Seeking relief in the district court, Ms. Zayed filed her She stated in her application that she had lived at her parents’ petition for review in February of 2002. A few weeks later Chicago-area address from December of 1988 until June of the INS initiated removal proceedings against Ms. Zayed. 1991 and that she had lived in the Cleveland area ever since. The agency then moved to dismiss Ms. Zayed’s petition for She also stated that she had married Nabeel Zayed in 1982, lack of subject matter jurisdiction. The motion was based on divorced him in 1988, and remarried him in 1992. She the theory that because 8 U.S.C. § 1429 precludes the confirmed this information in an interview with an examiner Attorney General from considering a naturalization for the Immigration and Naturalization Service. (A application while removal proceedings are pending, the component of the Department of Justice, the INS took its institution of such proceedings divested the district court of marching orders from the Attorney General.3) jurisdiction to review the denial of the naturalization application. The district court granted the motion. After reviewing the 2 At the time in question, 8 U.S.C. § 1152(e)(2) provided that legislative history of § 1429, the court concluded that the additional visas co uld be made availab le to spouses, unmarried sons, and original intent of Congress in enacting the relevant portion of unmarried daughters of lawful permanent residents after the fiscal yea r’s the statute had survived a set of amendments adopted in the quota of visas for citizens of the applicant’s country had been reached. Immigration Act of 1990, Pub. L. No. 101-649, § 401. 3 Because the authority to naturalize aliens had been removed The Homeland Security Act of 2002 abolished the INS and from the district courts, under the 1990 amendments, and had transferred its functions to the Department of Homeland Security. See been vested solely in the Attorney General (see 8 U.S.C. Pub.L.No . 107-296, 116 Stat. 2135 (2002).

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§ 1421(a), as amended), a conforming amendment was B adopted to prohibit “the Attorney General,” rather than the “naturalization court,” from considering naturalization Under 8 U.S.C. § 1421(c), federal district courts are given applications where removal proceedings were pending. The jurisdiction to review administrative denials of naturalization district court concluded that the substitution of “the Attorney applications. “Such review shall be de novo, and the court General” for the “naturalization court” did not reflect any shall make its own findings of fact and conclusions of law change in the underlying intent of Congress. That intent, the and shall, at the request of the petitioner, conduct a hearing de district court said in its memorandum opinion, remained what novo on the application.” 8 U.S.C. § 1421(c). Ms. Zayed it had been for many years: “to emphasize deportation contends that the commencement of removal proceedings proceedings over the naturalization process, and to avoid a cannot divest a district court of the jurisdiction granted by race between an alien seeking to be naturalized and § 1421(c). The INS responds that such divestiture is immigration authorities seeking to complete removal automatic under 8 U.S.C. § 1429. proceedings.” It is difficult to square the agency’s response with the plain Adopting the approach to statutory interpretation urged language of § 1429. By its terms, the statute limits the upon it by the government — an approach pioneered by the authority of “the Attorney General” – not the authority of the Supreme Court in Church of the Holy Trinity v. United States, district courts – to act on applications for naturalization: “no 143 U.S. 457 (1892) — the district court elected to follow application for naturalization shall be considered by the what it saw as the true intent of Congress without necessarily Attorney General if there is pending against the applicant a adhering to the letter of the statutory language. The petition removal proceeding . . . .” (Emphasis supplied.) for review was dismissed without prejudice, as we have said, and Ms. Zayed has filed a timely appeal. Although courts — particularly inferior courts such as ours — are generally well advised to be cautious about letting the II actual language of a statute be trumped by an unarticulated congressional intent, we have some sympathy for the district A court’s conclusion as to what Congress intended when it changed the law in 1990. The history of the Immigration Act We have jurisdiction of Ms. Zayed’s appeal under of that year does suggest that Congress intended removal 28 U.S.C. § 1291, the appeal having been taken from a final proceedings to have priority over naturalization proceedings. decision of the district court. Although the petition was dismissed without prejudice, the dismissal clearly terminated It is important to recall that while authority to naturalize the action; Ms. Zayed could not cure the defect by aliens was vested in the district courts until 1990, removal of amendment. Where an action, and not merely an amendable aliens was the province of the Attorney General. And until complaint (or petition), is dismissed without prejudice, the 1952, when § 1429 was adopted, the usual practice had been order of dismissal is final and appealable. See Thompson v. “for both the [removal] and naturalization processes to Michigan Dep’t of Corrections, 23 Fed. Appx. 486, 487-88 proceed along together until either [the] petitioner’s [removal] (6th Cir. 2001); CompuServe Inc. v. Saperstein, No. 97-4038, or naturalization ipso facto terminated the possibility of the 1999 WL 16481, at **2-3 (6th Cir. Jan. 8, 1999). other occurring.” Shomberg v. United States, 348 U.S. 540,

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543 (1955).4 Section 1429 was designed to end this “race expressly conferred on it by the very act of Congress that between the alien to gain citizenship and the Attorney General amended § 1429. to deport him.” Id. at 544. That objective was accomplished by according priority to removal proceedings. A district court that is exercising its § 1421(c) jurisdiction can review only those decisions that § 1429 permits the Thus § 1429 provided that “no petition for naturalization Attorney General to make, of course. See Apokarina v. shall be finally heard by a naturalization court if there is Ashcroft, 232 F. Supp. 2d 414, 416 (E.D. Pa. 2002) (“[T]he pending against the petitioner a [removal] proceeding . . . .” district court’s scope of review of the denial of a And when the “sole authority” to naturalize aliens was naturalization petition, pursuant to section 1421(c), cannot be transferred from the district courts to the Attorney General in any greater than the authority of the Attorney General to 1990, see 8 U.S.C. § 1421(a), a corresponding change was consider the petition in the first place”), remanded, No. 02- made in § 1429: “the Attorney General” replaced the 4265, 2004 WL 742286 (3d Cir. Apr. 7, 2004). Where the “naturalization court” as the entity precluded from acting on INS has denied an application for naturalization on the ground naturalization applications during the pendency of removal that removal proceedings are pending, therefore, the district proceedings. Section 1421(c) — which, as we have seen, court’s de novo review is limited to review of that threshold provides for judicial review of denials of naturalization determination. Id. applications — was also added at this time. We are aware of no suggestion that Congress intended the priority of removal Of greater importance to this appeal, Ms. Zayed’s proceedings over naturalization proceedings to be altered by application for naturalization having been denied on grounds the 1990 amendments. other than the pendency of removal proceedings, the restraints that § 1429 imposes upon the Attorney General prevent a But we do not read the amended § 1429 as divesting the district court from granting effective relief under § 1421(c) so district courts of the jurisdiction granted under § 1421(c). In long as removal proceedings are pending. The exclusive this we agree with Grewal v. Ashcroft, 301 F. Supp. 2d 692, power to naturalize aliens rests with the Attorney General, as 696 (N.D. Ohio 2004), where the court declared that “Section we have seen, and § 1429 bars the use of that power while [1429] simply has no bearing on the district court’s removal proceedings are pending. In the case before us, then, jurisdiction to review the administrative denial of a the district court could not properly have ordered the Attorney naturalization application of an alien against whom removal General to grant Ms. Zayed’s application for naturalization.5 proceedings have been initiated.” (Emphasis supplied.) The And the district court could not properly have entered an effect of § 1429, in our view, is to limit the scope of the order granting the application without reference to the court’s review and circumscribe the availability of effective remedies, but not to oust the district court of a jurisdiction 5 W e recognize that at least one d istrict court has ordered the INS to grant an application for naturalization despite the pendency of removal proceedings against the app licant. See Ngwana v. Attorney General, 40 4 F. Supp. 2d 319, 322 (D . Md . 1999 ). We are at something of a loss, A person who has been naturalized cannot be removed, and a person however, to und erstand how judicial fiat can overcome the statutory bar who has been removed cannot be naturalized. See Apoka rina v. Ashcroft, of § 1429. See U .S. Const., art. VI, cl. 2 (“This Constitution, and the 232 F. Supp. 2d 414 , 415 n.5 (E.D. Pa. 2002), remanded, No. 02-4265, Laws of the United States which sha ll be ma de in P ursuan ce thereof . . . 2004 W L 7422 86 (3d C ir. Apr. 7, 2004). shall be the supreme Law of the Land . . . .”).

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Attorney General, Congress having decided that it would be naturalization. The § 1239.2(f) procedure is thus inapplicable the Attorney General who should have “sole authority to here. naturalize persons . . . .” See 8 U.S.C. § 1421(a). In these circumstances, we believe that the dismissal of Ms. An alternative form of relief is suggested by Gatcliffe v. Zayed’s petition for review must be affirmed. The fact that Reno, 23 F. Supp. 2d 581, 583, 585 (D.V.I. 1998), where the the statute precludes the relief sought requires this result. Our district court declared an applicant to be eligible for affirmance, however, does not mean that the court will never naturalization “but for the pendency of [removal] be able to grant effective relief. The petition having been proceedings.” In the case at bar, however, Ms. Zayed did not dismissed without prejudice, Ms. Zayed will have an request declaratory relief — and a declaration that she would opportunity to file a new petition if she prevails in the be eligible for naturalization but for the pendency of removal removal proceedings. proceedings might well have been a vain act in any event. There is one additional issue. Ms. Zayed argues that the In the Gatcliffe case the court reasoned that its finding district court materially erred in finding that the INS initiated would allow the applicant to move for termination of the removal proceedings against her before it finally denied her removal proceedings. See Gatcliffe, 23 F. Supp. 2d at 583. application for naturalization. The finding was indeed The court apparently had in mind a regulation giving incorrect, but we agree with the INS that the error is immigration judges the power to terminate removal immaterial. Regardless of when removal proceedings are proceedings “when the alien has established prima facie initiated, the Attorney General may not naturalize an alien eligibility for naturalization and the matter involves while such proceedings remain pending. See 8 U.S.C. exceptionally appealing or humanitarian factors.” See § 1429. 8 C.F.R. § 1239.2(f). Under a 1975 decision of the Board of Immigration Appeals, prima facie eligibility can be The dismissal of the petition for review is therefore established by “a declaration of a court.” In re Cruz, 15 I. & AFFIRMED. N. Dec. 236, 237 (BIA 1975), cited in Gatcliffe, 23 F. Supp. 2d at 583.6 Unfortunately for Ms. Zayed, the procedure contemplated by the court in Gatcliffe is not available to her. An immigration judge’s authority to terminate removal proceedings exists for a particular purpose: “to permit the alien to proceed to a final hearing on a pending application or petition for naturalization.” 8 C.F.R. § 1239.2(f). Ms. Zayed has already had a final hearing on her application for

6 W hether Cruz remains good law notwithstanding the 1990 transfer of the naturalization power from the district courts to the Attorney General is an open question. See Apok arina v. Ash croft, No. 02-4265, 2004 W L 7422 86, at *3 (3d Cir. Apr. 7, 2004).