Fourth Circuit Finds no Jurisdiction to Review District Court Remand Order

The Fourth Circuit has determined that it has no jurisdiction to review an order from the District Court remanding a delayed naturalization application to the agency. “Simply stating the standard may be enough to explain why it is not met here. The district court’s remand order did not ‘end the litigation on the merits’ of Dubon’s naturalization petition. It did the opposite: It declined to address the merits at all, and instead provided for further adjudication of the merits before the agency. When the district court issued its order, in other words, a determination on the crucial issue in this litigation – Dubon’s eligibility to naturalize – was yet to come. And because that question remained ‘open’ and ‘unfinished,’ the district court’s § 1447(b) remand was not a ‘final decision’ as that term generally is defined under § 1291.”

The full text of Dubon v. Jaddou can be found here: https://www.ca4.uscourts.gov/opinions/222280.P.pdf

Fourth Circuit Finds that Inadmissible and Deportable LPR was Eligible for Naturalization

The Fourth Circuit has determined that a lawful permanent resident who became inadmissible and deportable by virtue of a conviction entered after he obtained his residency is stil eligible to naturalize. The court examined the regulation at 8 CFR § 316.2(b), focusing ont he requirement that a permanent resident be lawfully admitted to the United States during any subsequent reentry.  The Court concluded that simply because the applicant was inadmissible due to his conviction at the time of his last entry to the United States, that did not change that he was lawfully admitted as a permanent resident when he reentered the United States, as it was undisputed that he continued to enjoy his permanent resident status at the time of his reentry.  

The full text of Azumah v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/222175.P.pdf

Ninth Circuit Rejects Equal Protection Challenge to Naturalization Statute; Finds that Arizona Third Degree Escape is not a Crime of Violence

The Ninth Circuit has rejected an equal protection challenge to a statute that required the adoptive parents of children to file naturalization petitions for those children. The Court also determined that Arizona’s third degree escape statute does not require the use of violent force, and therefore, is not a crime of violence aggravated felony.

The full text of Dent v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/17-15662.pdf

Ninth Circuit Rules on District Court Jurisdiction to Naturalize Person in Removal Proceedings

The Ninth Circuit has determined that a District Court maintains the authority to naturalize an applicant, even if removal proceedings are pending.  According to the government, 8 U.S.C. § 1429 precluded a court from considering a naturalization application when the applicant had been placed in removal proceedings.  "Because the  USCIS did not issue final decisions on the Yiths’ naturalization applications within 120 days after their examinations, the district court had jurisdiction to adjudicate their naturalization applications under 8 U.S.C. § 1447(b) and correctly rejected the government’s argument that the commencement of removal proceedings stripped the district court of subject matter jurisdiction."  Moreover, § 1447(b) applies only to the Attorney General, and thus, the existence of an on-going removal proceeding does not strip the District Court of authority to adjudicate a naturalization application.  

The court distinguished the instant scenario from one in which the agency denies a naturalization application because removal proceedings are pending.  "Unlike § 1421(c), which applies when an agency denies an application, § 1447(b) applies when the government fails to make a determination within a 120-day period and gives the district court jurisdiction over the entire 'matter.'  Here, the USCIS did not deny the Yiths’ naturalization applications, and so the district court’s review is not limited to the reason for the agency’s denial, but extends to the entire matter (i.e., the application for naturalization) that was pending before the agency.”  "[W]e adopt the straightforward reading of the statute that the USCIS fails to make a determination under § 1447(b) when it fails to deny the applications before the statutory deadline."  

The Court also considered the language in § 1429 that the government may not consider an applicant’s naturalization application “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.”  The Yiths argued that § 1429 does not apply to them by its terms because their removal proceeding was not pursuant to a warrant of arrest. The government argued that the Court should defer to the DHS’s regulatory interpretation of “warrant,” which states that for the purposes of 8 U.S.C. § 1429, "a notice to appear issued under 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) shall be regarded as a warrant of arrest.” 

The Court disagreed, finding that the meaning of “warrant of arrest” in § 1429 is unambiguous.  Specifically, a warrant of arrest is is a writ issued under § 1226 authorizing law enforcement personnel to arrest and detain an alien pending the results of removal proceedings.  This document is distinct from a Notice to Appear.  "Although the Yiths received a notice to appear, they were not subject to 'a warrant of arrest issued under the provisions' of Chapter 12 of the INA. Accordingly, their removal proceedings were not pursuant to such a warrant of arrest, and this portion of § 1429 was inapplicable to their case."  "By its terms, § 1429 precludes only the executive branch from considering an applicant’s naturalization application, and only when there is pending against the applicant a removal proceeding pursuant to a warrant of arrest."

The full text of Yith v. Nielsen can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/07/16-15858.pdf

Sixth Circuit Rules on the Meaning of "Lawfully Admitted to Permanent Residence"

In the context of a naturalization case, the Sixth Circuit has determined that a non-citizen is not lawfully admitted to permanent residence if the the admission was not substantively valid.  In the instant case, the petitioner was approved for an immigrant visa as a child accompanying or following to join a principal application parent.  However, he entered the United States 24 days before his father (the principal applicant).  Thus, his lawful permanent residence was accorded in error and he is not eligible for naturalization.

The full text of Turjah v. U.S. Citizenship and Immigration Services can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0001p-06.pdf

Third Circuit Affirms Denial of Naturalization

The Third Circuit has affirmed the denial of naturalization for an applicant who committed fraud to obtain his permanent residence.  The court found that he was never lawfully admitted to permanent residence.  In addition, although the 5 year statute of limitations on rescission proceedings protected him from deported for the fraud or from losing his residence, it did not retroactively cure that the residence was not lawfully granted.

The full text of Koszelnik v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/144816p.pdf

Third Circuit Denies Naturalization for Individual who Committed Fraud

The Third Circuit determined that a Syrian national who claimed to be Lebanese to obtain Temporary Protected Status, and who subsequently obtained his lawful permanent residence without disclosing the fraud or seeking a waiver, was never lawfully admitted to permanent residence.  As such, his application for naturalization was properly denied.

The full text of Saliba v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/153769p.pdf