Post on 22-Apr-2015
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No. 11-55796
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
LUISA EVELIN SANCHEZ FAYARD,
Plaintiff-Appellant,
v.
JANET NAPOLITANO, et al.,
Defendants-Appellees.
ON APPEAL FROM THE SOUTHERN DISTRICT OF CALIFORNIANo. 10-cv-01109
BRIEF FOR DEFENDANTS-APPELLEES
TONY WESTAssistant Attorney GeneralCivil Division
ELIZABETH J. STEVENSAssistant DirectorOffice of Immigration Litigation - DCS
AARON S. GOLDSMITHTrial AttorneyOffice of Immigration Litigation - DCSU.S. Department of JusticeP.O. Box 868, Ben Franklin StationWashington, DC 20044
Telephone: (202) 532-4107 Attorneys for Defendants-Appellees
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TABLE OF CONTENTS
INTRODUCTION. ................................................................................................... 1
JURISDICTION. ...................................................................................................... 3
STANDARD OF REVIEW. ..................................................................................... 3
ISSUE PRESENTED................................................................................................ 3
STATEMENT OF THE CASE................................................................................. 4
STATEMENT OF FACTS. ...................................................................................... 6
THE HISTORY AND APPLICATION OF SECTION 1429. ................................. 7
A. The History Of Section 1429. .............................................................. 7
B. The Bellajaro Opinion. ........................................................................ 9
SUMMARY OF LEGAL ARGUMENTS.............................................................. 10
LEGAL ARGUMENTS. ........................................................................................ 12
1. Regardless Of When An Applicant Files An Action Under Section1421(c), If Removal Proceedings Are Pending, The Applicant’s Claim Is Barred By Section 1429....................................................... 12
A. The Plain Language of Section 1429 Does Not Support Ms. Sanchez’s Interpretation Of This Provision...................... 13
B. Ms. Sanchez’s Interpretation Of Section 1429 Is Contrary ToThe Underlying Rationale Behind This Provision. .................. 14
C. Ms. Sanchez Does Not Explain Why The Scope Of Section1429 Should Turn On The Timing Of The Filing Of HerLawsuit..................................................................................... 15
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2. There Is No Merit In Ms. Sanchez’s Argument That Even If USCISCannot “Consider” A Naturalization Application, It Still Has TheAuthority To Grant It. ........................................................................ 20
A. The Government Cannot Approve A Naturalization Application If It Is Barred From Considering It. ..................... 18
B. Ms. Sanchez’s Strained Reading Of The Word “Consider” IsContrary To The Plain Meaning Of The Word As Used In theContext Of Section 1429.......................................................... 19
3. Ms. Sanchez’s Constitutional Argument Is Without Merit. ............... 22
4. Ms. Sanchez’s Argument That Naturalization Should TakePrecedence Over Removal Proceedings Is Disposed Of By Bellajaro............................................................................................. 23
CONCLUSION....................................................................................................... 24
STATEMENT WITH RESPECT TO ORAL ARGUMENT
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES
CASES
Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008). ............................................................. 2, passim
Aye Aye Kyi v. Chertoff,No. 08-03383, JSW, 2008 WL 5131619 (N.D. Cal. Dec. 5, 2008) ............. 13
Barnes v. Holder,625 F.3d 801 (4th Cir. 2010). ................................................................. 14, 19
De Lara Bellajaro v. Schiltgen,378 F.3d 1042 (9th Cir. 2004). ........................................................... 1, 21, 23
EEOC v. Fed. Labor Relation Auth.,476 U.S. 19 (1986). ...................................................................................... 20
Gonzalez v. Napolitano,684 F. Supp. 2d 555 (D.N.J. 2010)......................................................... 17, 22
Kemp v. Blake,476 U.S. 998 (1985). .................................................................................... 20
Kramer v. Time Warner Inc.,937 F.2d 767 (2d Cir. 1991). .......................................................................... 5
North County Alliance, Inc. v. Salazar,573 F.3d 738 (9th Cir. 2009). ......................................................................... 3
Oppenheimer Fund, Inc. v. Sanders,437 U.S. 340 (1978). .................................................................................... 23
Rahman v. Napolitano,No. 09-3437, 2010 WL 2777271 (6th Cir. July 13, 2010). .................... 18, 24
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Saba-Bakare v. Chertoff,507 F.3d 337 (5th Cir. 2007). ....................................................................... 14
Schomberg v. U.S., 348 U.S. 540 (1955). ...................................................................................... 7
Todorovic v. Pierre,No. 10-cv-1538, 2010 WL 5313484 (S.D. Cal. 2010). ................................ 13
U.S. v. Hovsepian,359 F.3d 1144 (9th Cir. 2004). ..................................................................... 16
U.S. v. Luong,Nos. 03-10700, 03-10701, 04-1007, 2005 WL 661287 (9th Cir. March 11, 2005)............................................................................. 20
Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160, 1173 (E.D. Cal. 2006). ............................................. 20
Zayed v. U.S.,368 F.3d 902 (6th Cir. 2004). ............................................................ 2, passim
STATUTES
6 U.S.C. § 101........................................................................................................... 9
6 U.S.C. § 271(b)(2). ................................................................................................ 9
6 U.S.C. § 521(c). ..................................................................................................... 9
8 U.S.C. § 1229(c)(3)(A). ....................................................................................... 22
8 U.S.C. § 1229a. .................................................................................................... 23
8 U.S.C. § 1229a(b)(4)............................................................................................ 22
8 U.S.C. § 1252(b). ................................................................................................. 23
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8 U.S.C. § 1252(a)(5)........................................................................................ 17, 22
8 U.S.C. § 1252(b). ................................................................................................. 22
8 U.S.C. § 1252(d)(1). ...................................................................................... 17, 22
8 U.S.C. § 1421(a). ............................................................................................... 4, 8
8 U.S.C. § 1421(c). ...................................................................................... 4, passim
8 U.S.C. § 1429............................................................................................ 1, passim
8 U.S.C. § 1447(b). ................................................................................................. 13
28 U.S.C. § 1291....................................................................................................... 3
28 U.S.C. § 1331....................................................................................................... 3
Immigration Act of 1990:
Pub. L. No. 101-649, 104 Stat. 4978, 5038. ............................................................. 8
Naturalization Act of 1906:
Pub. L. No. 59-338, Stat. 596, 596, 599. .................................................................. 7
Department of Homeland Security Act of 2002:
Pub. L. No. 107-296, Stat. 2135. .............................................................................. 9
REGULATIONS
8 C.F.R. § 3. .............................................................................................................. 9
8 C.F.R. § 1003. ........................................................................................................ 9
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INTRODUCTION
This case involves the meaning and scope of the priority provision in
8 U.S.C. § 1429. See De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1046-47 (9th
Cir. 2004). In Bellajaro, this Court found that when an application for
naturalization is denied because the applicant is in removal proceedings, 8 U.S.C.
§ 1429 bars judicial review of the denial. Bellajaro, 378 F.3d at 1046-47. This
Court explained that, under prior immigration law, when an alien seeking
naturalization was in removal proceedings, there was a “race” between the federal
district court (who heard the petition for naturalization) and the Attorney General
(who had authority over deportation (now removal) proceedings). Id. at 1045.
Congress ended this “race” enacting 8 U.S.C. § 1429 (1952) which stated that
once an alien was placed in removal proceedings, the alien’s petition for
naturalization could not be heard. Id. Although U.S. immigration law has
changed over the years, 8 U.S.C. § 1429 continues to give precedence to removal
proceedings over naturalization applications by barring the consideration of
applications for naturalization by the government when an applicant is in removal
proceedings. See id.
In this action, Ms. Sanchez does not challenge the holding of the Bellajaro
opinion, conceding that it is “the controlling case here.” (Excerpts of the Record
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(“E.R.”), p. 15). Instead, her principle argument is that Bellajaro is
distinguishable from the present case because in Bellajaro, the applicant was
placed in removal proceedings before commencing a lawsuit in federal court and,
in contrast, she was placed in removal proceedings after filing her lawsuit.
(Appellant’s Op. Br., pp. 6, 16, 25-26).
The district court rejected this argument finding that, notwithstanding this
difference in timing, 8 U.S.C. § 1429 still barred Ms. Sanchez’s claim for judicial
review of the denial of her application for naturalization. (E.R., p. 4). In support
of this conclusion, it cited the two appellate decisions that analyzed this issue and
found that an applicant’s claim is barred by 8 U.S.C. § 1429 irrespective of
whether the applicant commences litigation before or after being placed in
removal proceedings. (E.R., p. 4, citing Ajlani v. Chertoff, 545 F.3d 229, 238-41
(2d Cir. 2008); Zayed v. U.S., 368 F.3d 902, 906 (6th Cir. 2004)). As these cases
explain, to interpret 8 U.S.C. § 1429 otherwise would restart the “race” between
naturalization and removal that Congress sought to end by enacting 8 U.S.C.
§ 1429. (Id.). At issue on appeal is whether the district court correctly interpreted
8 U.S.C. § 1429 or whether, as Ms. Sanchez suggests, an applicant has the right to
simultaneously litigate a claim for naturalization in federal court while contesting
removability in proceedings before an immigration judge.
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JURISDICTION
The district court had subject matter jurisdiction under 28 U.S.C. § 1331.
The district court entered a final order of dismissal on April 22, 2011. (E.R., pp.
2-5); see 28 U.S.C. § 1291. Ms. Sanchez timely noted her appeal by filing a notice
of appeal on May 17, 2011. (E.R., p. 1); Fed. R. App. P. 4 (a)(1).
STANDARD OF REVIEW
The parties are in agreement that questions of law are reviewed de novo.
(See Appellant’s Op. Br., p. 4); see, e.g., North County Alliance, Inc. v. Salazar,
573 F.3d 738, 740 (9th Cir. 2009). Ms. Sanchez is not challenging the factual
findings of the district court judge, which are undisputed. (Appellant’s Op. Br.,
p. 4; E.R., p. 2).
ISSUE PRESENTED
1. Sole authority to grant a naturalization application is committed in
U.S. Citizenship and Immigration Services (USCIS). If USCIS is barred by 8
U.S.C. § 1429 from considering a naturalization application because the applicant
is in removal proceedings, may a federal court nonetheless order USCIS to grant
the naturalization application?
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STATEMENT OF THE CASE
On May 21, 2010, Ms. Sanchez commenced litigation in federal court
seeking judicial review, under 8 U.S.C. § 1421(c), of USCIS’s denial of her
naturalization application. (E.R., p. 3.). On September 14, 2010, USCIS filed a
motion to dismiss, or in the alternative, for summary judgment. (Id.). The district
court, after examining the interplay of 8 U.S.C. §§§ 1421(a), 1421(c), and 1429,
granted the motion to dismiss and denied the motion for summary judgment as
moot. (Id., pp. 3-5). The district court observed that:
(i) The sole authority to naturalize citizens is committed to the
government under 8 U.S.C. § 1421(a);
(ii) Congress gave district courts the authority to review denials of
naturalization applications under 8 U.S.C. § 1421(c); and
(iii) Under 8 U.S.C. § 1429, no application for naturalization shall be
considered by the government if there is a removal proceeding
pending against the applicant.
(E.R., pp. 3-4). Because it is undisputed that Ms. Sanchez is in removal
proceedings, the district court concluded that 8 U.S.C. § 1429 barred Ms.
Sanchez’s claim for judicial review of the denial of her naturalization application.
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(Id., pp. 3-5). The district court noted that 8 U.S.C. § 1429 does not specify any1
timing restriction and simply refers to pending removal proceedings. (Id., p. 3).
The district court further ruled that Ms. Sanchez is not entitled to any discovery
because access to discovery is not a reason to go to trial and is not a claim for
relief that a court may grant. (Id., p. 5).
On May 17, 2011, Ms. Sanchez filed her Notice of Appeal. (E.R., p. 1).
On appeal, Ms. Sanchez does not challenge this Court’s holding in Bellajaro.
(Appellant’s Op. Br., p. 1). Instead, she limits her appeal to whether the district
court correctly found that 8 U.S.C. § 1429 strips all federal question jurisdiction
and judicial review if a naturalization applicant is charged as removable.
(Appellee’s Op. Br., p. 1 “Statement of Issues Presented for Review”). 2
The district court properly took notice of the fact that Ms. Sanchez is in1
removal proceedings in ruling on the motion to dismiss. See Kramer v. TimeWarner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (courts “routinely” take judicialnotice of documents filed in other courts, not for the truth of the matters asserted,but rather to establish the fact of such litigation and related filings). Any argumentthat the district court erred in doing so was waived by Ms. Sanchez’s failure toobject at the district court level or assign error in her opening brief. (Appellant’sOp. Br., p. 3).
USCIS notes that this description of the district court’s holding is2
inaccurate. (See Appellee’s Op. Br., p. 1). The district court expressly stated that 8U.S.C. § 1429 “does not strip the courts of jurisdiction to review the denial ofapplications.” (Id., p. 4, citing Bellajaro, 378 F.3d at 1043). An applicant is stillentitled to review of whether or not the applicant is in removal proceedings. SeeBellajaro, 378 F.3d at 1043.
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STATEMENT OF FACTS
Ms. Sanchez entered the United States on June 18, 1994, on a visitor visa.
(E.R., p. 2). On September 3, 1998, she purportedly married a U.S. citizen. (Id.).
On February 7, 2000, USCIS granted Ms. Sanchez conditional lawful permanent
resident status based on her purported marriage to a U.S. citizen. (Id.). On
January 4, 2002, USCIS removed the contingency and granted Ms. Sanchez the
status of lawful permanent resident. (Id.). In July 2002, Ms. Sanchez divorced her
purported husband. (Id.). After the divorce, her purported former husband told
immigration officers that Ms. Sanchez had paid him to marry her and to maintain
the illusion of marriage. (Id., pp. 2-3).
On June 17, 2005, Ms. Sanchez applied for naturalization. (Id., p. 2). On
September 9, 2009, USCIS denied Ms. Sanchez’s application, in part, on the
grounds that she failed to establish good moral character and provided false
testimony in order to obtain an immigration benefit. (Id.). Ms. Sanchez’s
administrative appeal of this decision was denied. (Id.).
On September 7, 2010, after this action was commenced, Ms. Sanchez was
placed in removal proceedings. (Id., pp. 2, 32-4 (copy of the Notice to Appear);
Appellant’s Op. Br., p. 3).
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THE HISTORY AND APPLICATION OF SECTION 1429
This action turns on the application of 8 U.S.C. § 1429. Before addressing
Ms. Sanchez’s arguments, USCIS will briefly: (a) describe the history this
provision, and (b) explain how this Court previously interpreted this provision in
the Bellajaro opinion (which Ms. Sanchez concedes is “controlling”). (E.R.,
p. 15).
A. The History Of Section 1429
Before 1990, district courts had the authority to naturalize and the Attorney
General had the authority to deport (now “remove”) aliens. Bellajaro, 378 F.3d at
1045; see also Naturalization Act of 1906, Pub. L. No. 59-338, §§ 3, 11, 34, Stat.
596, 596, 599. This differentiation of function gave rise to a “race between the
alien to gain citizenship and the Attorney General to deport . . .” Bellajaro, 378
F.3d at 1045 citing Schomberg v. U.S., 348 U.S. 540, 544 (1955). In 1952,
Congress enacted 8 U.S.C. § 1429 to put an end to this race. Bellajaro, 378 F.3d
at 1045; see also Zayed, 368 F.3d at 905 (further discussing the history of 8 U.S.C.
§ 1429). This provision provided that “no petition for naturalization shall be
finally heard by a naturalization court if there is pending against the petitioner a
deportation proceeding . . .” Bellajaro, 378 F.3d at 1045 citing 8 U.S.C. § 1429
(1952).
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In 1990, Congress amended the Immigration and Nationality Act (INA) to
vest all authority to naturalize aliens in the Attorney General, 8 U.S.C. § 1421(a).
Bellajaro, 378 F.3d at 1045. There is no evidence that in enacting this 1990
amendment, Congress intended to change the priority of removal proceedings over
naturalization proceedings. See Zayed, 368 F.3d at 905-6. In order to conform 8
U.S.C. § 1429 to the 1990 amendments to the INA, Congress replaced “a
naturalization court” with “the Attorney General” so that § 1429 now reads in
relevant part:
[N]o application for naturalization shall be considered by theAttorney General if there is pending against the applicant a removalproceeding . . . .
Bellajaro, 378 F.3d at 1045; see also Immigration Act of 1990, Pub. L. No. 101-
649, § 401(a), 104 Stat. 4978, 5038.
At the same time, Congress provided for judicial review of denials of
naturalization applications:
A person whose application for naturalization . . . . is denied, after ahearing before an immigration officer under section 1447(a) of thisTitle, may seek review of such denial before the United States districtcourt for the district in which such person resides . . . . Such reviewshall be de novo, and the court shall make its own findings of fact andconclusions of law and shall, at the request of the petitioner, conducta hearing de novo on the application.
Id., citing 8 U.S.C. § 1421(c).
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Pursuant to the Department of Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135, 6 U.S.C. §§ 101-557, as of March 1, 2003, the
Immigration and Naturalization Service (INS) was abolished and its functions
were transferred from the Department of Justice (DOJ) to the newly created
Department of Homeland Security (DHS). The authority to adjudicate
applications for naturalization was committed to USCIS (a component of DHS).
6 U.S.C. § 271(b)(2). Immigration judges, who are part of the Executive Office
of Immigration Review (EOIR), remained part of DOJ. See 6 U.S.C. § 521(c);
8 C.F.R. §§ 3 and 1003.
B. The Bellajaro Opinion
In Bellajaro, the INS denied Mr. Bellajaro’s application for naturalization
on the merits finding that he failed to establish good moral character. 378 F.3d at
1044. The INS commenced removal proceedings against him. Id. Mr. Bellajaro
filed a subsequent application for naturalization and moved to terminate the
removal proceedings. Id. This motion was denied. Id. INS denied his
application for naturalization. Id. Mr. Bellajaro filed an administrative appeal
which was denied under 8 U.S.C. § 1429. Id. Mr. Bellajaro then filed an action
under 8 U.S.C. § 1421(c). Id. Mr. Bellajaro argued that, even though he was in
removal proceedings, he must have an opportunity for judicial review of his
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naturalization application because, otherwise, the government would always be in
a position to circumvent judicial review by placing an applicant in removal
proceedings. Id. at 1044-45. This Court rejected Mr. Bellajaro’s argument
holding that he was not entitled to relief under 8 U.S.C. § 1421(c) because of the
priority provision of 8 U.S.C. § 1429. Id. at 1045-46.
This Court also rejected Mr. Bellajaro’s secondary argument that even if a
federal court was barred from deciding that he was entitled to naturalization, a
court should still be able to declare that he is eligible for naturalization but for the
pendency of removal proceedings. Id. at 1047. This Court found that such relief
would be “purely advisory” given the pendency of his removal proceedings. See
id. As a result, Mr. Bellajaro was not entitled to any relief under 8 U.S.C.
§ 1421(c). Id.
SUMMARY OF LEGAL ARGUMENTS
In this action, the district court correctly found that Ms. Sanchez is not
entitled to relief under 8 U.S.C. § 1421(c) because she is currently in removal
proceedings. (See E.R., pp. 3-5); see Bellajaro, 378 F.3d at 1045. On appeal, Ms.
Sanchez raises four arguments as to why the district court erred in reaching this
conclusion.
First, she argues that the present case is distinguishable from Bellajaro
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because, unlike Mr. Bellajaro, Ms. Sanchez filed an action under 8 U.S.C.
§ 1421(c) before she was placed in removal proceedings. (Appellant’s Op. Br.,3
pp. 6, 16). As a result, she contends her claim is not barred by 8 U.S.C. § 1429.
(Id.) This argument ignores the plain language and underlying rationale of
8 U.S.C. § 1429. See Ajlani, 545 F.3d at 234-35; Zayed, 368 F.3d at 907.
Moreover, Ms. Sanchez does not explain why the scope of 8 U.S.C. § 1429 should
turn on the timing of the filing of a lawsuit by an applicant when this provision
makes no mention of such a lawsuit.
Second, Ms. Sanchez argues that even if USCIS lacks the authority to
consider Ms. Sanchez’s naturalization application because she is in removal
proceedings, a federal judge can still order USCIS to approve the application.
(Appellant’s Op. Brief, pp. 18, 21). This argument has been rejected by the two
appellate courts that have addressed it. See Ajlani, 545 F.3d 234-35; Zayed, 368
F.3d at 907. Moreover, Ms. Sanchez’s argument ignores the plain meaning of the
word “consider” as used in the context of 8 U.S.C. § 1429.
To be clear, in both Bellajaro and this action the applicant filed an3
application for naturalization before being placed in removal proceedings. See378 F.3d at 1044. The difference is that in Bellajaro, the applicant filed asubsequent application for naturalization that was denied because he was inremoval proceedings and it was this subsequent application that was the subject oflitigation. See id. In contrast, here, Ms. Sanchez never filed a subsequentapplication for naturalization after being placed in removal proceedings.
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Third, Ms. Sanchez raises a due process challenge. (Appellant’s Op. Brief,
pp. 13-16). This challenge must fail because she cannot explain how the district
court’s interpretation of 8 U.S.C. § 1429 amounts to a violation of her due process
rights or how she has been deprived of any process that is due to her by law.
Fourth, Ms. Sanchez argues that naturalization applications should take
priority over removal proceedings. (Appellant’s Op. Br., p. 25). This argument is
easily disposed of by the holding of Bellajaro. 378 F.3d at 1045.
LEGAL ARGUMENTS
1. Regardless Of When An Applicant Files An Action Under Section1421(c), If Removal Proceedings Are Pending, The Applicant’s Claim IsBarred By Section 1429.
Ms. Sanchez argues that this action is distinguishable from Bellajaro
because, unlike Mr. Bellajaro, Mr. Sanchez filed an action under 8 U.S.C. § 1429
before she was placed in removal proceedings. (Appellant’s Op. Br., pp. 6, 16).
As a result, she contends that her claims are not barred by 8 U.S.C. § 1429. Her
position is contrary to: (a) the plain language of 8 U.S.C. § 1429, and (b) the
underlying rationale of 8 U.S.C. § 1429. Moreover, she does not explain why this
difference in procedural posture should be dispositive.
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A. The Plain Language of Section 1429 Does Not Support Ms.Sanchez’s Interpretation Of This Provision.
There is nothing in the plain language of 8 U.S.C. § 1429 suggesting that its
scope turns on when an applicant files a lawsuit under 8 U.S.C. § 1421(c). (See
E.R., p. 4). In fact, 8 U.S.C. § 1429 makes no reference to 8 U.S.C. § 1421(c).
In recognition of this fact, both appellate courts that have addressed this
question have concluded that the scope of this provision does not turn on when the
lawsuit was filed. Ajlani, 545 F.3d 234-35 (“Ajlani is correct that no removal
proceedings were pending against him at the time he filed his federal complaint
. . . . [but] [t]he sequence of events does not, however, assist Ajlani in challenging
the district court’s judgment of dismissal”); Zayed, 368 F.3d at 907 (“Regardless4
of when removal proceedings are initiated, the Attorney General may not
naturalize an alien while such proceedings remain pending.”); see also Todorovic
v. Pierre, No. 10-cv-1538, 2010 WL 5313484, *2 (S.D. Cal. 2010) (“it is not
USCIS’s reason for denying Petitioner’s application that renders the Court unable
to grant Petitioner effective relief. Rather, it is the fact that Petitioner is now in
removal proceedings”); Aye Aye Kyi v. Chertoff, No. 08-03383 JSW, 2008 WL
USCIS notes for the sake of completeness that in Aljani, the plaintiff4
sought an order of naturalization under 8 U.S.C. § 1447(b) rather than 8 U.S.C.§ 1421(c). See Aljani, 545 F.3d at 237-38. This difference in procedural postureis immaterial.
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5131619, *3 (N.D. Cal. Dec. 5, 2008) (Bellajaro is “dispositive” notwithstanding
that denial was not based on the pendency of removal proceedings). 5
For this reason alone, this Court should conclude that the scope of 8 U.S.C.
§ 1429 does not turn on the timing of the filing of a lawsuit by an applicant.
B. Ms. Sanchez’s Interpretation Of Section 1429 Is Contrary To TheUnderlying Rationale Behind This Provision.
As this Court has recognized, 8 U.S.C. § 1429 was enacted to end the “race”
between an applicant seeking naturalization and the government seeking removal.
See Bellajaro, 378 F.3d at 1045. This rationale applies with equal force regardless
of whether an applicant files a lawsuit before or after being placed in removal
proceedings.
If this Court were to accept Ms. Sanchez’s invitation and create an
exception to Bellajaro for applicants who were placed in removal proceedings
after filing a lawsuit, it would re-start the “race” that Congress sought to end by
enacting 8 U.S.C. § 1429. See Bellajaro, 378 F.3d at 1045; see also Ajlani, 545
The Fourth Circuit Court of Appeals, citing Bellajaro, reached a similar5
result in Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010) (holding that8 U.S.C. § 1429 barred review of naturalization application because applicant wasin removal proceedings). Barnes is distinguishable from the present actionbecause it arose in the context of a petition for review and does not expresslyanalyze the question of timing raised here. The Fifth Circuit Court of Appealsalso reached a similar result on somewhat different grounds. Saba-Bakare v.Chertoff, 507 F.3d 337, 340 (5th Cir. 2007).
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F.3d at 240. Under such an interpretation of 8 U.S.C. § 1429, an applicant would
be able to litigate a claim under 8 U.S.C. § 1421(c) in federal court while
simultaneously contesting removability before an immigration judge. Whichever
judge ruled first would take precedence (i.e., if the district court ordered
naturalization, the immigration judge could not order the applicant removed and if
an immigration judge ordered the applicant removed, the applicant would no
longer be eligible for naturalization before the district court). Not only would
such an outcome waste scarce judicial resources, it would be contrary to 8 U.S.C.
§ 1429. See Bellajaro, 378 F.3d at 1045.
For these reasons, this Court should not create an exception to the holding
of Bellajaro by finding that an applicant can simultaneously proceed both in
federal court under 8 U.S.C. § 1421(c) and before an immigration judge in
removal proceedings.
C. Ms. Sanchez Does Not Explain Why The Scope Of Section 1429Should Turn On The Timing Of The Filing Of Her Lawsuit.
Ms. Sanchez argues that she should be allowed to pursue her claim in
federal court, notwithstanding the pendency of removal of removal proceeding,
because otherwise the government can effectively “circumvent . . . judicial review
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of naturalization decisions” by initiating removal proceedings. (Appellant’s Op.
Br., pp. 25-26); see also Aljani, 545 F.3d at 241 (addressing this argument). This
Court has already rejected this very argument in Bellajaro. 378 F.3d 1044-45
(“Bellajaro contends that he must have this opportunity for judicial review because
otherwise, the government would always be in a position to circumvent it by
placing an applicant in removal proceedings . . .”). Moreover, Ms. Sanchez is6
incorrect in asserting that 8 U.S.C § 1429 prevents federal courts from reviewing
the government’s actions. If Ms. Sanchez prevails in her removal proceeding, she
could then seek judicial review under 8 U.S.C. § 1421(c) of the denial of her
In her opening brief, Ms. Sanchez also references U.S. v. Hovsepian, 3596
F.3d 1144 (9th Cir. 2004). (Appellant’s Op. Br., p. 22). Ms. Sanchez incorrectlystates that in Hovsepian, the district court took jurisdiction even though one of theplaintiffs was in removal proceedings. (Appellant’s Op. Br., p. 22). In fact, theHovsepian Court specifically found that removal proceedings were “nevercommenced” against either of the plaintiffs. 359 F.3d at 1165. Although the INSmay have been planning to commence removal proceedings, its intentions were“irrelevant” in determining whether plaintiffs’ claims were barred by 8 U.S.C.§ 1429. Id. As the Court explained:
[N]o removal proceedings were ‘pending’ against Hovsepian orYacoubin . . . . Thus, § 1429 did not bar the district court fromconsidering their naturalization applications.
Id. By negative implication, the Hovsepian opinion suggests that if removalproceedings had been pending against the plaintiffs, then the district court wouldhave been barred by 8 U.S.C. § 1429 from considering the merits of plaintiffs’naturalization applications. See id.
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naturalization application. If the immigration judge rules against Ms. Sanchez, she
may, after she has exhausted her administrative remedies, seek judicial review of
the immigration judge’s decision by filing a petition for review with this Court.
See 8 U.S.C. §§ 1252(a)(5); (d)(1). Section 1429 does not insulate the government
from judicial review; it merely dictates the avenue for such review.
In sum, this Court should find that the scope of 8 U.S.C. 1429 does not turn
on whether an applicant filed a lawsuit before or after removal proceedings were
commenced.
2. There Is No Merit In Ms. Sanchez’s Argument That Even If USCISCannot “Consider” A Naturalization Application, It Still Has TheAuthority To Grant It.
Ms. Sanchez argues that even if USCIS lacks the authority to “consider” her
naturalization application under 8 U.S.C. § 1429 because she is in removal
proceedings, it still has the authority to grant it. (Appellant’s Op. Brief, pp. 18,
21). This Court has never directly ruled on this question and at least one federal
district court agrees with Ms. Sanchez. See Gonzalez v. Napolitano, 684 F. Supp.
2d 555, 562-63 (D. N.J. 2010). But this contention is contrary to: (a) the weight
of authority, and (b) the plain meaning of the word “consider” as used in the
context of 8 U.S.C. § 1429.
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A. The Government Cannot Approve A Naturalization ApplicationIf It Is Barred From Considering It.
Courts cannot order the government to approve a naturalization application
when the government is barred from considering the application under 8 U.S.C.
§ 1429. See Aljani, 545 F.3d at 240 (it would seem to work against the statutory
framework for a district court to undertake an evaluation of a naturalization
application where Congress has expressly prohibited the agency from doing so);
Barnes, 625 F.3d at 806 (“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 adjudication judicially reviewed); Zayed, 368
F.3d at 906-7 (“We are at something of a loss, however, to understand how
judicial fiat can overcome the statutory bar of § 1429.”); see generally, Rahman v.
Napolitano, No. 09-3437, 2010 WL 2777271, *3 (6th Cir. July 13, 2010) (when
removal proceedings are pending the district court may not compel USCIS to grant
the application for naturalization).
As the Sixth Circuit Court of Appeals explained, Congress committed the
exclusive authority to naturalize aliens with the government. See Zayed, 368 F.3d
at 906. Federal courts cannot ignore this Congressional allocation of authority in
ruling on a request for entry of an order granting the application. Id. If the agency
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is barred from considering an application for naturalization, a district court cannot
order the government to approve it. See id.; see also Barnes, 625F.3d at 806.
Moreover, as discussed above, to rule otherwise would restart the “race” that
Congress sought to end between naturalization and removal proceedings in
enacting 8 U.S.C. § 1429. See Aljani, 545 F.3d at 240. This conclusion is
consistent with this Court’s holding in the Bellajaro opinion. In Bellajaro, the
plaintiff sought, as an alternative remedy, a declaration from the district court that
he was eligible for naturalization but for the pendency of removal proceedings.
This Court denied this request on the grounds that this relief would be “purely
advisory.” Bellajaro, 378 F.3d at 1047. Implicit in this holding is the recognition
that a federal court cannot order the government to naturalize an applicant when
the applicant is in removal proceedings. Otherwise, the request sought by Mr.
Bellajaro would not be “purely advisory;” the district court could have simply
ordered Mr. Bellajaro naturalized notwithstanding the bar of 8 U.S.C. § 1429. See
id; see also Aljani, 545 F.3d at 239-40 (analyzing the Bellajaro opinion).
B. Ms. Sanchez’s Strained Reading Of The Word “Consider” IsContrary To The Plain Meaning Of The Word As Used In theContext Of Section 1429.
The word “consider” has several meanings. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (Unabridged) (hereafter “WEBSTER’S”) 483
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(1986) (listing ten different definitions of the word including “to think of: come to
view, judge, or classify”). Depending on context, the word “consider” can refer to
the preliminary evaluation of a factor in making a decision. See, e.g., Gonzalez,
684 F. Supp. 2d at 562 citing Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp.
2d 1160, 1173 (E.D. Cal. 2006) (“[A] congressional requirement that a decision
maker ‘consider’ a factor . . . requires an actor to merely ‘investigate and analyze’
the specified factor, but not necessarily to act upon it.”). But the word “consider”
can also be used to refer to the authority or jurisdiction of a decision-maker to act.
See, e.g., EEOC v. Fed. Labor Relation Auth., 476 U.S. 19, 23 (1986) (citations
omitted) (“Court of Appeal is without jurisdiction to consider an issue not raised
before the Board”); Kemp v. Blake, 476 U.S. 998, 999 (1985) (Because there was
no final judgment “the court was without jurisdiction to consider the appeal”);
U.S. v. Luong, Nos. 03-10700, 03-10701, 04-1007, 2005 WL 661287, *1 (9th Cir.
March 11, 2005) (“we conclude we also lack jurisdiction to consider their
argument”). It would make no sense to say that a court was without jurisdiction to
“consider the appeal” but that it nonetheless had the authority to grant the appeal.
Used in this context, the word “consider” applies to the authority of a decision-
maker to act or “judge” a matter. See WEBSTER’S 483; Kemp, 476 U.S. at 999.
Section 1429 uses the word “consider” in this context. This provision does
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not articulate factors that the government is required to evaluate in adjudicating an
application. See 8 U.S.C. § 1429. Rather, it creates a bar on the government’s
authority to adjudicate an application for naturalization. Id.
Any other reading of the word “consider” would turn the 1990 amendments
to the INA on their head. Prior to 1990, naturalization applications (known as
petitions) were adjudicated by district courts, and 8 U.S.C. § 1429 placed a
limitation on their authority. See Bellajaro, 378 F.3d at 1045. In 1990, the district
court’s authority to adjudicate naturalization applications was transferred to the
Attorney General (now USCIS). See id. There is no evidence that in enacting this
change, Congress intended to alter the scope of 8 U.S.C. § 1429. See Zayed, 368
F.3d at 905-6. It would make no sense to read an amendment that transferred
naturalization authority from district courts to the government as implicitly
conferring upon district courts the authority to adjudicate (or “judge”)
naturalization applications when the applicant is in removal proceedings (authority
which district courts had not had since 8 U.S.C. § 1429 was first enacted in 1952).
See Bellajaro, 378 F.3d at 1045.
In sum, there is no merit in Ms. Sanchez’s suggestion that USCIS has the
authority to approve an application for naturalization even if it is barred by
8 U.S.C. § 1429 from considering the application.
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3. Ms. Sanchez’s Constitutional Argument Is Without Merit.
Ms. Sanchez also seeks to raise a constitutional argument as to why the
district court erred in dismissing her claim under 8 U.S.C. § 1421(c). (Appellant’s
Op. Brief, pp. 13-16). It is difficult to determine exactly what this constitutional
argument is. She appears to be arguing that her purported husband’s statement
that she paid him to marry her and to maintain the illusion of marriage may have
been “procured by corruption, spite, or any number of other improper issues.”
(Appellant’s Op. Brief, pp. 15-16). As a result, in her view, it is unconstitutional
to hold this statement against her. (Id.).
Ms. Sanchez has a forum in which to challenge the validity of this statement
– her removal proceedings. Her rights in these proceedings are set forth in 8
U.S.C. § 1229a(b)(4). See also 8 U.S.C. § 1229(c)(3)(A) (requiring that the
immigration judge’s decision must be based “upon reasonable, substantial, and
probative evidence”). If the immigration judge rules against her, she can (after she
exhausts her administrative appeals) raise any constitutional challenge she might
have by filing a petition for review of the removal order with this Court. See 8
U.S.C. §§§ 1252(a)(5); (b); (d)(1); see also Aljani, 545 F.3d at 235 (holding the
district court lacked jurisdiction to review Mr. Aljani’s constitutional argument
regarding removal). This is the process established by Congress, and this is the
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process that is due to her. See id. She has no right to an advisory opinion from
this Court regarding the accuracy of a statement provided by her purported former
husband for use in her removal proceedings. See Bellajaro, 378 F.3d at 1047
(denying plaintiff’s request for a similar declaration for use in his removal
proceeding). Nor does she have the right to maintain an action in federal court
simply as a vehicle for obtaining discovery for use in her removal proceeding. See
generally Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)
(requested discovery was outside the scope of permissible discovery because it
was not sought for any bearing that it might have on issues in the case).
In sum, Ms. Sanchez has the right to challenge the government’s evidence
that she committed immigration fraud and lied about it, but she does not have the
right to do so by litigating the present action in federal court. See 8 U.S.C.
§§ 1229a, 1252(b).
4. Ms. Sanchez’s Argument That Naturalization Should Take PrecedenceOver Removal Proceedings Is Disposed Of By Bellajaro.
On appeal, Ms. Sanchez argues that it is “far more just” to resolve questions
in federal district court than in administrative proceedings. (Appellant’s Op. Br.
25). But Congress decided otherwise when it enacted 8 U.S.C. § 1429. See
Bellajaro, 378 F.3d at 1045 (the natural reading of 8 U.S.C. § 1429 is that removal
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proceedings and final removal orders are to take precedence over naturalization
applications); see also, Rahman, No. 09-3437, 2010 WL 2777271, at *3
(“regarding “the long-standing priority that removal proceedings are to have over
naturalization proceedings.”). Thus, this argument is easily disposed of.
CONCLUSION
For all the foregoing reasons, this Court should affirm the decision of the
district court and deny the appeal.
Respectfully submitted,
TONY WESTAssistant Attorney GeneralCivil Division
ELIZABETH J. STEVENS Assistant Director
Office of Immigration Litigation - DCS
s/ AARON S. GOLDSMITHAaron S. GoldsmithTrial AttorneyU.S. Department of JusticeCivil DivisionOffice of Immigration Litigation-DCSP.O. Box 868, Ben Franklin StationWashington, D.C. 20044(202) 532-4107
Dated: October 25, 2011 Attorneys for Defendants-Appellees
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STATEMENT WITH RESPECT TO ORAL ARGUMENT
USCIS respectfully requests oral argument to the extent such argument may
assist in the Court in addressing outstanding factual or legal issues which the
Court deems relevant.
STATEMENT OF RELATED CASES
USCIS knows of no related cases, as defined by Circuit Court Rule 28-2.6,
pending before this Court.
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(c), I certify that the text of the attached
answering brief is double spaced, proportionally spaced using Times New Roman
14-point typeface and contains 5,369 words of text.
October 25, 2011 s/ AARON S. GOLDSMITHAaron S. GoldsmithTrial Attorney U.S. Department of JusticeCivil DivisionOffice of Immigration LitigationP.O. Box 878Ben Franklin StationWashington, D.C. 20044
(202) 532-4107
Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 31 of 32
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