Lopez v. Henley

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS July 12, 2005

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

_____________________ Clerk

No. 04 50728

____________________

JOSE FRANCISCO LOPEZ,

Petitioner-Appellant,

v.

TROY HENLEY, District Director, Bureau of Immigration and Customs

Enforcement; MICHAEL GARCIA, Assistant Secretary, Bureau of

Immigration and Customs Enforcement; MICHAEL CHERTOFF, SECRETARY,

DEPARTMENT OF HOMELAND SECURITY; ALBERTO R. GONZALES, U.S.

ATTORNEY GENERAL; RUDY FRANCO, Warden, Reeves County Detention

Center,

Respondents - Appellees.

__________________

Appeal from the United States District Court

For the Western District of Texas

_______________________

Before KING, Chief Judge, DAVIS, Circuit Judge, and FITZWATER*,

District Judge.

W. EUGENE DAVIS, Circuit Judge:

This case presents the issue of whether a legal resident

alien, who is a veteran of active service in the Vietnam War, is

exempt from the requirement of demonstrating “good moral

character” in order to be naturalized. Because we find the

Immigration and Naturalization Act (INA) ambiguous on this issue

*

District Judge of the Northern District of Texas, sitting

by designation.

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and find reasonable the Immigration and Naturalization Service’s

(INS’2) implementing regulation answering this question in the

affirmative, we affirm the district court’s order. We therefore

conclude that Appellant Jose Francisco Lopez (Lopez) was properly

deported because his criminal conviction for drug possession

rendered him unable to demonstrate the requisite good moral

character.

I.

Lopez is a Mexican citizen who has been a lawful permanent

resident of the United States since 1960. He joined the United

States Army and from 1967 - 1969 served on active duty in

Vietnam, during the Tet offensive, and received an honorable

discharge. In 1995, Appellant Lopez pled guilty in federal court

to attempting to possess a controlled substance and was sentenced

to a 108-month term of imprisonment.

In 2002, while Lopez was still serving his federal sentence

the INS served him with a Notice to Appear in Removal

Proceedings.

After a hearing, the presiding Immigration Judge (IJ)

determined that Lopez was removable from the U.S. for the reasons

asserted by the INS. Lopez moved, unsuccessfully, for termination

of the removal proceedings or, alternatively, for the proceedings

2

The INS no longer exists as an independent agency, certain

of its functions having been transferred as of March 1, 2003 to

the Department of Homeland Security (DHS). To reduce confusion,

the Court will continue to refer to “the INS”.

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to be held in abeyance pending an adjudication of an application

for naturalization under Section 329 of the INA. 8 U.S.C. § 1440.

The IJ noted Appellant’s active duty service in the Army and that

Section 329 of the INA makes citizenship by naturalization

available to aliens who served honorably in the U.S. armed forces

during wartime. However, she concluded that Appellant would not

be eligible to file a naturalization application under this

provision because he could not show “good moral character” as

required by the implementing regulation, 8 C.F.R. § 329(d).

Although the IJ denied Lopez’s request for relief from the

removal order, she certified the case to the Board of Immigration

Appeals (BIA) for review. The BIA affirmed the IJ’s decision

without a written opinion.

Lopez then filed a petition for a writ of habeas corpus,

alleging that the IJ and BIA erred as a matter of law when they

concluded that Appellant did not qualify for naturalization under

INA § 329 because his federal conviction precludes a showing of

good moral character. Lopez asked the district court to grant his

writ application, declare that Section 329 of the INA does not

require an applicant who is otherwise qualified under that

section to make a showing of good moral character, and to enjoin

his deportation.

The district court, after finding that it had jurisdiction

over Lopez’s habeas claim, ruled against Lopez on the merits. The

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district court dissolved the Order Staying Removal and denied all

affirmative relief requested by Appellant. Lopez was later

deported to Mexico.

II.

Appellant Lopez argues that Congress intended, with the

passage of § 329, to reward alien veterans of the U.S. armed

services with liberal eligibility requirements and procedures for

naturalization. Lopez’s main argument is that the good moral

character requirement is intrinsic to the residency requirements

for naturalization and, since § 329 exempts active service

veterans from the residency requirement, it must also exempt them

from the need to show good moral character.

While Lopez is correct that Congress did, through § 329,

loosen the naturalization requirements for veteran aliens, we

agree with the Second Circuit that the statute is unclear as to

the good moral character requirement. We also agree with the

Second Circuit that the INS’ reasonable interpretation of § 329

as incorporating a good moral-character requirement must be

upheld. Nolan v. Holmes, 334 F.3d 189, 194 (2nd Cir. 2003).

Section 329 of the INA establishes conditions of

“naturalization through active-duty service in the Armed Forces

during World War I, World War II, Korean hostilities, Vietnam

hostilities, or other periods of military hostilities”. 8 U.S.C.

§ 1440. Under this section, veterans of active-duty service are

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exempted from the residency requirements required of other

applicants. § 329 is silent on the issue of the good moral

character requirement, but says that “[a] person filing an

application under subsection (a) of this section shall comply in

all other respects with the requirement of this subchapter”. 8

U.S.C. § 1440(b). The subchapter includes INA § 316(a), which

lays out the residency requirements for naturalization and reads

as follows:

No person, except as otherwise provided in this subchapter,

shall be naturalized unless such applicant, (1) immediately

preceding the date of filing his application for

naturalization has resided continuously, after being

lawfully admitted for permanent residence, within the United

States for at least five years and during the five years

immediately preceding the date of filing his application has

been physically present therein for periods totaling at

least half of that time, and who has resided within the

State or within the district of the Service in the United

States in which the applicant filed the application for at

least three months, (2) has resided continuously within the

United States from the date of the application up to the

time of admission to citizenship, and (3) during all the

periods referred to in this subsection has been and still is

a person of good moral character, attached to the principles

of the Constitution of the United States, and well disposed

to the good order and happiness of the United States.

8 U.S.C. § 1427(a)(emphasis added). The issue then is whether §

329(b)’s incorporation by reference of other sections includes §

316(a)’s “good moral character” requirement or whether §

329(b)(2)’s exemption from the residency requirement also exempts

the veteran applicant from the obligation to demonstrate good

moral character. Because § 329 fails to address the issue, and

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the INA does not otherwise address whether veterans of active

service must fulfill the good moral character requirement, we

conclude that the statute is ambiguous on the issue. See Nolan v.

Holmes.

When reviewing a challenge to an administrative agency’s

interpretation of a statute, where the governing statute is

ambiguous and fails to speak clearly to the issue before the

Court, this Court must uphold the agency interpretation as long

as it is reasonable. Wilson v. INS, 43 F.3d 211, 213 (5th Cir.

1995), citing Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.

1993); Chevron, U.S.A., Inc. v. National Resources Defense

Counsel, Inc., 467 U.S. 837 (1984). The INS, as the

administrative agency charged with interpreting the INA,

promulgated regulations interpreting the requirements of § 329.

Under those regulations, a veteran of active military service

seeking naturalization must

compl[y] with all...requirements for naturalization as

provided in part 316 of this chapter, except that:

(1) The applicant may be of any age;

(2) The applicant is not required to satisfy the residence

requirements under § 316.2(a)(3) through (a)(6) of this

chapter; and

(3) The applicant may be naturalized even if an outstanding

notice to appear pursuant to 8 C.F.R. part 239 (including a

charging document issued to commence proceedings under

sections 236 or 242 of the Act prior to April 1, 1997)

exists.

8 C.F.R. § 329.2(e). Therefore, under the INS’s interpretation of

§ 329, a veteran of active military service must demonstrate his

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good moral character as a prerequisite for naturalization. In

finding this interpretation to be reasonable, we agree with the

Second Circuit’s reasoning in Nolan. In that decision, the Court

reasoned as follows:

The potentially conflicting policy concerns here are the

specific desire to provide aliens who have served in the

United States Armed Forces with benefits in the form of

relaxed requirements for naturalization, and the general

goal of attempting to ensure that persons admitted to United

States citizenship through naturalization be of good moral

character. Proof of good moral character clearly is a

requirement for most applicants; and it is explicitly

required for persons who served in the Armed Forces at

various times in non-active-duty status. Notwithstanding

Congress’s desire to reward aliens who have served the

United States in its Armed Forces, it hardly seems

unreasonable for the INS to have inferred that Congress

would not have intended to single out persons trained and/or

experienced in physical confrontations for elimination of

the requirement of good moral character.

Nolan, 334 F.3d at 198.

III.

For the reasons stated above, we affirm the order of the

district court and conclude that a veteran alien, seeking

naturalization under § 329, must demonstrate his good moral

character.

AFFIRMED.

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