Apokarina v. Atty Gen USA , 93 F. App'x 469 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-7-2004
Apokarina v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4265
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NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4265
DANIL APOKARINA
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES;
KENNETH ELWOOD, DISTRICT
DIRECTOR, U.S.I.N.S.
Danil Apokarina a.k.a
Danil Apokarin,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 02-cv-00210)
District Judge: Honorable Eduardo C. Robreno
Argued July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges
(Opinion filed: April 7, 2004)
James J. Orlow, Esquire (Argued)
Orlow & Orlow
6 th & Chestnut Streets
656 Public Ledger Building
Philadelphia, PA 19106
Attorney for Appellant
Patrick L. Meehan, United States Attorney
Virginia A. Gibson, Assistant United States Attorney
Susan R. Becker, Assistant United States Attorney (Argued)
615 Chestnut Street, Ste. 1250
Philadelphia, PA 19106-4476
Attorneys for Appellee
OPINION
AM BRO, Circuit Judge
The issue in this case was initially straightforward. Under 8 U.S.C. § 1429, the
Attorney General of the United States may not consider naturalization applications of
aliens against whom removal proceedings are pending. We were asked to decide whether
a district court has jurisdiction under 8 U.S.C. § 1421(c) to review the denial of a
naturalization application when that denial is based on § 1429 (i.e., there was, apparently,
a pending removal proceeding at the time the naturalization application was denied).
At oral argument, however, it came to our attention that the Attorney General
(apparently in line with a long-standing practice dating back to 1975, see Matter of Cruz,
15 I. & N. Dec. 236 (1975)), has been considering, and granting, applications to terminate
removal proceedings to permit persons to proceed on their naturalization applications in
exceptional cases. Because this practice— in the face of a seemingly clear statutory bar to
considering naturalization applications while formal removal attempts are underway—
2
suggests questions that require further development, we remand.
I. Facts and Procedural History
In 1980, Petitioner Danil Apokarina, a native of Russia, entered the United States
as a refugee. He became a permanent resident on October 29, 1981. Between 1984 and
1993, Apokarina was convicted of a variety of crimes in Pennsylvania and New Jersey,
including resisting arrest, theft, improper gifts to public servants, possession of a weapon,
reckless endangerment, and possession of a controlled substance. In 1996 the
Immigration and Naturalization Service (“INS”) 1 began removal proceedings against
Apokarina by issuing an Order to Show Cause and Notice of Hearing (“Order to Show
Cause”) on the basis of his criminal convictions. In 1997 the INS issued a second Order
to Show Cause after Apokarina tried to cross from the United States to Canada without
proper immigration papers.
Apokarina submitted an application for naturalization in February 1999. He
acknowledged on his application that he was in removal proceedings. The record,
however, reflects that Apokarina’s removal proceedings were administratively closed by
agreement of the parties in 1998, and not reopened by the INS until April 2000. We are
thus unclear as to the basis for the District Court’s opinion that Apokarina’s naturalization
1
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice
and its enforcement functions have been transferred to the Department of Homeland
Security. For convenience, we refer solely to the INS throughout this opinion.
3
application was submitted “while the removal proceedings were still pending.” 2 Per its
delegated authority from the Attorney General to naturalize immigrants, see 8 U.S.C. §
1421, the INS rejected his naturalization application in July 2000, citing to § 318 of the
Immigration and Naturalization Act (“INA”), 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 pursuant to a warrant of arrest issued
under the provisions of this chapter or any other Act.” 3
Apokarina appealed and sought a hearing before an immigration officer. At the
hearing in January 2001, he presented evidence of the ways in which he had rehabilitated
his good moral character subsequent to his criminal convictions.4 In August 2001 the INS
Acting District Director affirmed the July 2000 decision. In doing so, he apparently
considered and rejected Apokarina’s naturalization application on the merits. He
emphasized Apokarina’s extensive criminal record and concluded that he lacked the good
moral character that must be demonstrated by an applicant for naturalization.
2
Apokarina does not challenge this assertion on appeal— as noted, he stated in his
naturalization application that removal proceedings were pending. No argument or
briefing was presented to us on the question whether, during the period between the time
that removal proceedings are administratively closed and the time that those proceedings
are reopened, they are properly deemed pending.
3
An Order to Show Cause constitutes a warrant of arrest for the purposes of this
section. 8 C.F.R. § 318.1.
4
In order to be eligible for naturalization, an applicant must show, inter alia, that he or
she possesses good moral character. 8 U.S.C. § 1427(a).
4
In January 2002 Apokarina filed a complaint seeking judicial review by the
District Court of the denial of his application for naturalization under 8 U.S.C. § 1421(c),
which provides that “a person whose application for naturalization . . . is denied . . . may
seek review [in the] United States district court.” The Government argued that because
the Attorney General lacked jurisdiction to consider Apokarina’s naturalization
application, so too did the District Court. In November 2002 the District Court granted
the Government’s motion to dismiss for lack of subject matter jurisdiction. This appeal
followed.5
II. Basis for Remand
Prior to 1990, the INA conferred on district courts exclusive jurisdiction to
naturalize aliens. INA § 310, 8 U.S.C. § 1421(a). These courts were, however, statutorily
precluded from granting the naturalization applications of aliens when removal
proceedings against them were underway in connection with a warrant of arrest. The
prior version of 8 U.S.C. § 1429 read: “No person shall be naturalized against whom there
is outstanding a final finding of deportability pursuant to a warrant of arrest . . . ; and no
application for naturalization shall be finally heard by a deportation court if there is
pending against the petitioner a removal proceeding pursuant to a warrant of arrest.”
Consequently, district courts lacked subject matter jurisdiction to entertain an application
for naturalization filed by an alien against whom a removal proceeding was pending. See,
5
We have appellate jurisdiction under 28 U.S.C. § 1291.
5
e.g., Petition of Terzich, 256 F.2d 197, 200 (3d Cir. 1958); United States v. Ali, 757 F.
Supp. 710, 713-14 (W.D. Va. 1991).
The Immigration Act of 1990 transferred jurisdiction to consider naturalization
applications from district courts to the Attorney General. Pub. L. No. 101-649, § 401,
104 Stat. 4978. While the Attorney General now has the sole authority to naturalize
aliens, 8 U.S.C. § 1421(a), he or she (like district courts under the prior law) may not
consider an application for naturalization if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest. 8 U.S.C. § 1429. But no mention is
made of what district courts may do in § 1429. They may review denials of naturalization
petitions, without regard to the basis for the denial. 8 U.S.C. § 1421(c). Thus it is an
open question whether a district court has jurisdiction under § 1421(c) to review the
Attorney General’s denial of a naturalization petition based on § 1429.
Adding additional complexity to this area is that, since the 1990 amendment, the
Attorney General has entertained petitions for naturalization and ruled on their
merits—rather than dismissing them for lack of jurisdiction due to pending removal
proceedings—in at least four cases in addition to Apokarina’s. See Zayed v. United
States, 221 F. Supp. 2d 813 (N.D. Ohio 2002); Tellez v. INS, 91 F. Supp. 2d 1356 (C.D.
Cal. 2000); Gatcliffe v. Reno, 23 F. Supp. 2d 581 (D.V.I. 1998); Mosleh v. Strapp, 992 F.
Supp. 874 (N.D. Tex. 1998).
The only possible authority that we find for the Attorney General to do this is the
6
1975 decision of the Board of Immigration Appeals entitled Matter of Cruz, 15 I. & N.
Dec. 236 (1975). There the BIA held that, if an alien can establish prima facie eligibility
for naturalization, he can move to have removal proceedings terminated under 8 C.F.R. §
242.7.6 But Cruz was decided prior to the 1990 statutory amendments, and the BIA based
its conclusion on the fact that “neither we nor immigration judges have authority with
respect to the naturalization of aliens.” 15 I. & N. Dec. at 237. But with the Attorney
General having sole authority to naturalize aliens since 1990 under 8 U.S.C. § 1421(a), is
Cruz still viable?7
All of this spawns many questions.
(1) Does the Attorney General view Cruz as continuing authority for considering
the merits of naturalization petitions in the face of pending removal proceedings? If not,
does it have any other authority to do so?
(2) If the Attorney General derives no authority from Cruz or elsewhere for
considering the merits of naturalization petitioners in the face of pending removal
proceedings, why does it continue to consider those petitions on the merits?
(3) Did the Attorney General consider the merits of Apokarina’s naturalization
application as part of the discretionary administrative process enabling termination of
6
Until last year upon regulatory repeal, this procedure was codified in the INS
regulations at 8 C.F.R. § 239.2(f). 68 Fed. Reg. 35276 (June 13, 2003).
7
While we requested and received post-argument briefing from the parties on the status
of Cruz, this resulted in raising more questions than answers.
7
removal proceedings under Cruz? (If the Attorney General is considering the merits of
his application notwithstanding limits on his jurisdiction imposed by 8 U.S.C. § 1429,
then the case for the District Court’s jurisdiction to review the Attorney General’s
decision is stronger.)
(4) What is the effect, if any, of the repeal of 8 C.F.R. § 329.2(f), on the Attorney
General’s policy regarding Cruz?
(5) Were removal proceedings against Apokarina in fact pending at the time he
filed his naturalization application?
* * * * *
In this context, we remand this case for further proceedings consistent with this
opinion.
8