USCIS N-400 Brief to Sanchez-Fayad in 9th 10-25-2011

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

Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 1 of 32

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

ii


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


(“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?

3


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).

8


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

9


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

10


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.

13


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).

14


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

15


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.

17


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

18


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

20


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

22


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

23


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

24


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


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Oct 25, 2011


Education

USCIS N-400 Brief to Sanchez-Fayad in 9th 10-25-2011