Barnes v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NICOLAS ALFONSO BARNES, 

Petitioner,

v.

 No. 09-1782

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals.

Argued: September 21, 2010

Decided: November 10, 2010

Before WILKINSON, SHEDD, and

DUNCAN, Circuit Judges.

Petition denied by published opinion. Judge Duncan wrote the

opinion, in which Judge Wilkinson and Judge Shedd joined.

COUNSEL

ARGUED: Linda Hanten, HARRIGAN & HANTEN, PC,

Washington, D.C., for Petitioner. Janette L. Allen, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: Tony West, Assistant Attorney

General, Civil Division, Thomas B. Fatouros, Senior Litiga-

2 BARNES v. HOLDER

tion Counsel, Office of Immigration Litigation, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent.

OPINION

DUNCAN, Circuit Judge:

Nicolas Alfonso Barnes petitions for review of an order of

the Board of Immigration Appeals ("BIA") affirming an

Immigration Judge’s ("IJ"’s) denial of his motion to terminate

removal proceedings. Barnes challenges the BIA’s conclusion

that an IJ can only terminate removal proceedings pursuant to

8 C.F.R. § 1239.2(f) based on the pendency of a naturalization

application if the alien presents an affirmative communication

from the Department of Homeland Security ("DHS") confirm-

ing that he is prima facie eligible for naturalization. We join

every circuit to have considered the issue in finding that the

BIA’s interpretation of 8 C.F.R. § 1239.2(f) is neither plainly

erroneous nor inconsistent with the regulation. Accordingly,

we deny the petition for review.

I.

Barnes, a native and citizen of Panama, was admitted to the

United States as a permanent resident in 1979. That same

year, Barnes joined the United States Army. In 1982, he was

convicted by a military court of possessing, transporting, and

selling a controlled substance. In 1999, Barnes filed an appli-

cation for naturalization in which he disclosed that conviction.

He was then interviewed by an immigration official, who told

him that the conviction was a bar to naturalization and

advised him to withdraw his application. Barnes did so in

May of 2000.

In March 2004, DHS commenced removal proceedings

against Barnes with the issuance of a notice to appear before

BARNES v. HOLDER 3

an IJ. The notice charged him with removability based on his

1982 conviction. Barnes’s initial hearing was postponed to

give him an opportunity to secure legal counsel. During an

April 2005 hearing, Barnes admitted removability and

informed the IJ that he intended to submit an application for

relief from removal. The IJ continued the hearing to allow

Barnes to prepare that application.

In September 2006, Barnes submitted a second naturaliza-

tion application. That same month, he submitted a motion to

terminate removal proceedings pursuant to 8 C.F.R.

§ 1239.2(f). That section gives the IJ discretion to "terminate

removal proceedings to permit the alien to proceed to a final

hearing" on his naturalization application if the IJ finds that

the case involves "exceptionally appealing or humanitarian

factors." 8 C.F.R. § 1239.2(f). To be eligible for relief under

§ 1239.2(f), the alien must have "established prima facie eligi-

bility for naturalization." Id. The IJ denied Barnes’s

§ 1239.2(f) motion but continued the case to permit DHS to

adjudicate Barnes’s pending naturalization application.

In March 2007, Barnes appeared before the IJ again on the

removal matter and informed him that DHS had scheduled a

naturalization interview, but later canceled it. Barnes’s coun-

sel indicated to the IJ that he believed the interview would be

rescheduled. The IJ granted another continuance to allow

Barnes to undergo a naturalization interview. On May 1,

2007, DHS filed a motion before the IJ opposing any further

continuances of Barnes’s removal proceedings. Three days

later, Barnes wrote to DHS requesting that his naturalization

interview be rescheduled. He also requested a letter stating

that he was prima facie eligible for naturalization, which he

intended to submit in support of a second § 1239.2(f) motion.

Then, on May 16, 2007, Barnes filed before the IJ a second

motion to terminate removal proceedings, a motion to stay

proceedings, and a motion to apply for a deportation waiver

under § 212(c) of the Immigration and Naturalization Act

("INA"), Pub. L. No. 82-414, 66 Stat. 163.

4 BARNES v. HOLDER

On July 10, 2007, the IJ issued an order denying all of

Barnes’s motions and ordering his removal. Barnes appealed

to the BIA asserting, among other things, that he was entitled

to relief under § 1239.2(f). The BIA upheld the IJ’s decision

and dismissed Barnes’s appeal. With regard to his § 1239.2(f)

motion, the BIA held:

Removal proceedings . . . may only be terminated

pursuant to 8 C.F.R. § 1239.2(f) where the DHS has

presented an affirmative communication attesting to

the alien’s prima facie eligibility for naturalization.

. . . As no such communication was presented, the

respondent’s motion to terminate or stay these pro-

ceedings is denied.

J.A. 332. The BIA based this determination on its decision in

Matter of Acosta-Hidalgo, 24 I. & N. Dec. 103 (BIA 2007),

which held that "it is appropriate for the Board and the Immi-

gration Judges to require some form of affirmative communi-

cation from the DHS prior to terminating proceedings based

on [an alien’s] pending naturalization application." Id. at 106.

Barnes petitions this court for review of the BIA’s dismissal

of his appeal.

II.

Barnes asserts that the BIA’s interpretation of § 1239.2(f),

adopted in Hidalgo and applied in this case, is erroneous.1 He

argues that the plain language of the regulation vests IJs with

authority to make prima facie naturalization eligibility deter-

minations. He further alleges that the Hidalgo interpretation

of § 1239.2(f) "thwarts [his] right to have his naturalization

application timely adjudicated and to pursue, if necessary,

judicial review." Petitioner’s Br. at 20.

1

Barnes does not challenge any of the BIA’s or IJ’s other holdings.

BARNES v. HOLDER 5

We review the BIA’s legal determinations de novo, "af-

fording appropriate deference to the BIA’s interpretation of

the INA and any attendant regulations." Li Fang Lin v.

Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). Because the

BIA’s holding involves an agency’s interpretation of its own

regulation, it "is entitled to deference ‘unless plainly errone-

ous or inconsistent with the regulation.’" AES Sparrows Point

LNG, LLC v. Wilson, 589 F.3d 721, 729-30 (4th Cir. 2009)

(quoting Nat’l Ass’n of Home Builders v. Defenders of Wild-

life, 551 U.S. 644, 672 (2007)); see also Perriello v. Napoli-

tano, 579 F.3d 135, 138 (2d Cir. 2009)("[W]e owe deference

to the BIA’s interpretation of its own regulations, and the

BIA’s interpretation will be ‘controlling unless plainly errone-

ous or inconsistent with the regulation.’" (quoting Auer v.

Robbins, 519 U.S. 452, 461 (1997))).

We first set forth the relevant legal background leading to

the BIA’s decision in Hidalgo. We then address Barnes’s con-

tentions in turn.

A.

Section 1239.2(f) states:

An immigration judge may terminate removal pro-

ceedings to permit the alien to proceed to a final

hearing on a pending application or petition for natu-

ralization when the alien has established prima facie

eligibility for naturalization and the matter involves

exceptionally appealing or humanitarian factors; in

every other case, the removal hearing shall be com-

pleted as promptly as possible notwithstanding the

pendency of an application for naturalization during

any state of the proceedings.

8 C.F.R. § 1239.2(f) (emphasis added). The BIA has long

held that an IJ lacks jurisdiction to make a prima facie deter-

mination of eligibility for purposes of terminating removal. In

6 BARNES v. HOLDER

Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975), a case

addressing the substantively identical predecessor to

§ 1239.2(f), 8 C.F.R. § 242.7,2 the BIA held that deportation

proceedings could only be terminated to allow an alien to pro-

ceed with an application for naturalization if "prima facie eli-

gibility [was] established by an affirmative communication

from [DHS] or by a declaration of a court that the alien would

be eligible for naturalization but for the pendency of the

deportation proceedings or the existence of an outstanding

order of deportation." Id. at 237. The Cruz panel reasoned that

because "neither [the BIA] nor immigration judges have

authority with respect to the naturalization of aliens," they do

not have jurisdiction over the "question of whether an alien is

eligible for naturalization" for purposes of terminating

removal proceedings. Id.

The Immigration Act of 1990, Pub. L. No. 101-649,

§ 401(a), 104 Stat. 4978 (1990) (codified at 8 U.S.C.

§ 1421(a)), changed the legal landscape on which Cruz was

based by divesting district courts of authority to consider nat-

uralization applications in the first instance. The Act trans-

ferred sole authority in that regard to the Attorney General.

See 8 U.S.C. § 1421(a) ("The sole authority to naturalize per-

sons as citizens of the United States is conferred upon the

Attorney General."); see also Perriello, 579 F.3d at 139-41

(discussing the statutory history relating to this change). It

thus called into question the continuing validity of Cruz’s

holding that both DHS and the district courts could make a

finding of prima facie eligibility for naturalization. See Perr-

iello, 579 F.3d at 140 (collecting cases that "questioned

whether the BIA could continue to rely on courts to issue dec-

2

The differences between the two regulations are quite minor. Section

242.7 uses the word "deportation" instead of "removal" and the word "re-

spondent" instead of "alien." Also, § 242.7 states that the IJ "may, in his

discretion, terminate" removal proceedings, while § 1239.2(f) states more

succinctly that the IJ "may terminate" them. Otherwise the two provisions

are identical.

BARNES v. HOLDER 7

larations as to prima facie eligibility for naturalization" fol-

lowing the enactment of § 1421(a)).

The BIA resolved this tension in Hidalgo. It found that "the

fact that the Federal courts no longer have authority to make

decisions as to an alien’s prima facie eligibility for citizenship

does not undermine Matter of Cruz" and that therefore "nei-

ther the Board nor the Immigration Judges have jurisdiction

to determine an alien’s eligibility for naturalization, which

now lies exclusively with the DHS." Hidalgo, 24 I. & N. Dec.

at 105-06. The BIA further noted that, because the BIA and

IJs do not make naturalization determinations, they lack the

expertise necessary to determine prima facie eligibility. See

id. at 107. The Hidalgo panel held that because "neither [it]

nor the Immigration Judges have authority to determine his

prima facie eligibility for naturalization in order to terminate

removal proceedings pursuant to 8 C.F.R. § 1239.2(f)," it is

therefore "appropriate for the Board and the Immigration

Judges to require some form of affirmative communication

from the DHS prior to terminating proceedings based on [an

alien’s] pending naturalization application." Id. at 106.

B.

Barnes mounts two challenges to the BIA’s holding in

Hidalgo. First, he argues that the plain language of

§ 1239.2(f) compels the conclusion that IJs have the authority

to make prima facie determinations of naturalization eligibil-

ity. We join the four other circuits to have addressed the issue

in rejecting that contention. See Ogunfuye v. Holder, 610 F.3d

303, 308 (5th Cir. 2010); Zegrean v. Att’y Gen. of United

States, 602 F.3d 273, 274-75 (3d Cir. 2010); Perriello v.

Napolitano, 579 F.3d 135, 142 (2d Cir. 2009); Hernandez de

Anderson v. Gonzales, 497 F.3d 927, 933-34 (9th Cir. 2007).

Contrary to Barnes’s argument, nothing in the language of

the regulation specifies who is to make the prima facie eligi-

bility determination. See Anderson, 497 F.3d at 934 ("The text

8 BARNES v. HOLDER

of the regulation does not specifically authorize IJs to evalu-

ate prima facie eligibility."). The regulation simply states that

an alien is eligible for discretionary relief under that section

if he "has established prima facie eligibility for naturaliza-

tion." 8 C.F.R. § 1239.2(f). Because § 1239.2(f) leaves open

the question of who has the authority to make that determina-

tion, we must defer to the BIA’s gap-filling interpretation as

long as it is not clearly erroneous. See I.N.S. v. Aguirre-

Aguirre, 526 U.S. 415, 425 (1999) (explaining that the BIA

should be accorded deference "as it gives ambiguous statutory

terms ‘concrete meaning through a process of case-by-case

adjudication’" (citation omitted)); see also Godinez-Arroyo v.

Mukasey, 540 F.3d 848, 850 (8th Cir. 2008) ("We generally

defer to reasonable BIA interpretations of gaps in statutes and

regulations it administers.").

The BIA interpretation before us is deserving of deference

for several reasons. First, given that DHS is the only body sta-

tutorily vested with the power to make naturalization deci-

sions in the first instance, see 8 U.S.C. § 1421(a), it is

reasonable to conclude that only DHS has the authority to

make prima facie determinations of naturalization eligibility.

See Zegrean, 602 F.3d at 275 ("[T]he BIA’s conclusion in

Hidalgo that it cannot consider eligibility is consistent with 8

U.S.C. § 1421."); Perriello, 579 F.3d at 142 (same). Also, by

virtue of its adjudicatory function, DHS has the greatest insti-

tutional expertise regarding the standards for naturalization

eligibility. By contrast, as the Hidalgo panel noted, the BIA

and IJs "not only lack jurisdiction over the ultimate issue, but

may also lack expertise as to the specific issue regarding

prima facie eligibility." 24 I. & N. Dec. at 108; see also

Zegrean, 602 F.3d at 275. An interpretation of § 1239.2(f)

that fills that regulation’s gap by placing the prima facie eligi-

bility decision in the hands of the only entity that has the clear

authority and requisite expertise to make it can scarcely be

said to be clearly erroneous.

Furthermore, vesting DHS with sole authority over the

prima facie determination is consistent with the regulation’s

BARNES v. HOLDER 9

clear intent to have the removal proceedings of non-qualifying

aliens "completed as promptly as possible." 8 C.F.R.

§ 1239.2(f). Such purpose is best served by an accurate prima

facie determination in the first instance, for an erroneous

determination that has to be later revisited would lead to

unnecessary delays in the removal process. Since, as we have

explained, DHS is best suited to make an accurate prima facie

finding based on its adjudicatory experience and expertise, an

interpretation giving DHS exclusive authority over that find-

ing furthers the regulation’s purpose. See Anderson, 497 F.3d

at 935 (finding that an interpretation of § 1239.2(f) that would

allow a finding of prima facie eligibility by an IJ would be

inefficient and therefore contrary to the regulation’s purpose).

C.

Barnes next asserts that the BIA’s interpretation in Hidalgo

deprives him of "the right of judicial review of a denied natu-

ralization application." Petitioner’s Br. at 12. Barnes argues

that such a right is grounded in 8 U.S.C. § 1421(c), which

states that "[a] person whose application for naturalization

under this title is denied, after a hearing before an immigra-

tion officer . . . may seek review of such denial before the

United States district court." However, any right that Barnes

might have under § 1421(c) is limited by 8 U.S.C. § 1429,

which states that "no application for naturalization shall be

considered by the Attorney General if there is pending against

the applicant a removal proceeding."

When interpreting a statute, "rules of statutory construction

require that we give meaning to all statutory provisions and

seek an interpretation that permits us to read them with con-

sistency." United States v. Fisher, 58 F.3d 96, 99 (4th Cir.

1995). A harmonious reading of § 1421(c) and § 1429 leads

to the conclusion that an alien has a statutory right to review

of his naturalization application, unless he is in removal pro-

ceedings. As several courts have found, in passing § 1429

Congress clearly intended to give removal proceedings prior-

10 BARNES v. HOLDER

ity over naturalization. See Zegrean, 602 F.3d at 274 (explain-

ing that § 1429 makes clear that "[r]emoval proceedings quite

simply have priority over naturalization applications"); Perr-

iello, 579 F.3d at 139 (explaining that § 1429 "afforded [pri-

ority to] removal proceedings" over naturalization

proceedings). For this reason, § 1429 has become known as

the INA’s "priority provision." See Ajlani v. Chertoff, 545

F.3d 229, 236 (2d Cir. 2008); Bellajaro v. Schiltgen, 378 F.3d

1042, 1045 (9th Cir. 2004).

Because, under § 1429, an alien in removal proceedings

does not have a right to have his application adjudicated, it

follows that he cannot possibly have a right to have the adju-

dication judicially reviewed. See Zayed v. United States, 368

F.3d 902, 906 (6th Cir. 2004) ("A district court . . . can review

only those decisions that § 1429 permits the Attorney General

to make, of course."); Bellajaro, 378 F.3d at 1047 (holding

that, when the Attorney General has not made a determination

on the merits of a naturalization application due to § 1429,

"the district courts, which no longer have authority to natural-

ize, cannot make [that determination] in the first instance").

Accordingly, as an alien in removal proceedings, Barnes had

no statutory right to review of his naturalization application.

Barnes suggests that § 1239.2(f) was intended to provide an

avenue around the priority provision of § 1429 by serving "as

a mechanism providing qualified aliens in removal proceed-

ings the right to pursue their pending naturalization applica-

tion . . . and . . . insure that such applicants have the right to

pursue judicial review." Petitioner’s Br. at 28-29. Even

assuming that Barnes’s suggestion is correct, nothing in the

Hidalgo interpretation is necessarily inconsistent with that

alleged purpose.3 While it is true that § 1429 forecloses con-

3

Barnes also asserts that the Hidalgo interpretation is unfair because it

"reduc[es] an alien’s ability to pursue his statutory rights to the exclusive,

unreviewable whim of the DHS." Petitioner’s Br. at 29. We note that, as

discussed above, an alien in removal proceedings has no statutory right to

BARNES v. HOLDER 11

sideration of a naturalization application, we are aware of no

statutory provisions or regulations that require DHS to con-

sider an application per se before making a prima facie eligi-

bility determination. The juxtaposition of § 1239.7(f) and

§ 1429 leaves room for the possibility, confirmed by the gov-

ernment at oral argument,4 that DHS could make a prima facie

determination without actually considering an alien’s applica-

tion.5 Petitioner points to nothing that would preclude an alien

from submitting proof of prima facie eligibility in a form sep-

arate from and independent of his naturalization application

and requesting an affirmative communication in that regard.

Therefore, even assuming that § 1239.7(f) is intended to pro-

vide relief in spite of § 1429, the Hidalgo interpretation of

§ 1239.7(f) is not necessarily in conflict with the possibility

of such relief.6

review of his naturalization application due to the bar created by § 1429.

Absent the implementation by DHS of its regulation, § 1239.7(f), such an

alien would not have any possibility of review. Therefore we find it rea-

sonable that DHS would have the authority to limit the scope of such dis-

cretionary relief, which is only available by virtue of its own regulation.

See Anderson, 497 F.3d at 935 (rejecting the argument that, through the

Hidalgo interpretation, the "Attorney General and, derivatively, the DHS

have been given too much authority over naturalization and removal deci-

sions").

4

Counsel for the government stated at oral argument that DHS can, and

routinely does, make prima facie determinations outside of the context of

a naturalization application.

5

The BIA panel in Hidalgo seems to have considered this possibility.

The panel noted: "We do not have authority to compel the DHS to

acknowledge the respondent’s eligibility for naturalization. Nor can we

sanction the agency for improperly entertaining the respondent’s natural-

ization application on the merits while also prosecuting him in removal

proceedings." 24 I. & N. Dec. at 107 (emphasis added) (internal citation

omitted). In so stating, the panel appears to contemplate a distinction

between acknowledging prima facie eligibility and entertaining a natural-

ization application in violation of § 1429.

6

Barnes also argues that the Hidalgo interpretation "denied [his] right

to compel a decision under INA § 336(b) [codified at 8 U.S.C.

12 BARNES v. HOLDER

III.

For the reasons stated above, we hold that the interpretation

of § 1239.7(f) adopted in Hidalgo and applied by the BIA in

this case is neither clearly erroneous nor inconsistent with the

regulation. We therefore deny Barnes’s petition for review.

PETITION DENIED

§ 1447(b)]." Petitioner’s Br. at 18. Section 1447(b) provides that an appli-

cant may file an action in federal district court if DHS fails to approve or

deny a naturalization application within 120 days of the applicant’s exami-

nation. 8 U.S.C. § 1447(b). As discussed above, due to the pendency of

removal proceedings against him, Barnes had no statutory right to adjudi-

cation of his application. In any event, § 1447(b) did not apply here

because DHS never held an examination for Barnes’s naturalization appli-

cation. Barnes does not argue that he would be entitled to compel the

scheduling of an interview. Therefore the Hidalgo interpretation did not

deprive Barnes of a right under § 1447 because, even if the IJ had cancel-

led removal proceedings, no such right would have been triggered in

Barnes’s case.