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 . . . .”

1

No. 02-4011 Zayed v. United States, et al. 3 4 Zayed v. United States, et al. No. 02-4011

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).

No. 02-4011 Zayed v. United States, et al. 5 6 Zayed v. United States, et al. No. 02-4011

§ 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,

No. 02-4011 Zayed v. United States, et al. 7 8 Zayed v. United States, et al. No. 02-4011

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 . . . .”).

No. 02-4011 Zayed v. United States, et al. 9 10 Zayed v. United States, et al. No. 02-4011

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).