Mason v. Brooks

• Decision Date: 29 November 1988
• Docket Number: No. 87-3991,87-3991
• Citation: 862 F.2d 190
• Parties: Gregory Paul MASON, Plaintiff-Appellant, v. Ronald A. BROOKS; Edwin Meese, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 190

862 F.2d 190

Gregory Paul MASON, Plaintiff-Appellant, v. Ronald A. BROOKS; Edwin Meese, Defendants-Appellees.

No. 87-3991.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 5, 1988.

Decided Nov. 29, 1988.

Edwards E. Merges, Merges, Youngsberg & Larsen, Seattle, Wash., for plaintiff-appellant.

Robert M. Taylor, Asst. U.S. Atty., Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington (Seattle).

Before SCHROEDER, ALARCON and NORRIS, Circuit Judges.

ALARCON, Circuit Judge:

Appellant Gregory Mason (Mason) appeals the district court's grant of summary judgment in favor of Ronald A. Brooks ("Brooks"), District Director of the Seattle District of the Immigration and Naturalization Service ("INS") and Edwin Meese III, Attorney General of the United States ("Attorney General"). We affirm.

BACKGROUND

Mason, a Canadian citizen and resident, brought this action to compel the Attorney General to allow him to enter the United States and file his application for naturalization under 8 U.S.C. Sec. 1440 (1982).

Mason served in the United States Marine Corps from April 9, 1969 to October 8, 1970, including a ten-month tour of duty in Vietnam. On November 22, 1971, he was convicted of possession with intent to distribute marijuana. The conviction followed his arrest for possession of 74 pounds of marijuana. His conviction was expunged pursuant to the Federal Youth Corrections Act. 18 U.S.C. Sec. 5021 (repealed 1984). Additionally, Mason was later convicted of a misdemeanor count of possession of a controlled substance stemming from a November 10, 1973 arrest for possession of marijuana. Following the second conviction, the INS commenced deportation proceedings against Mason.

On October 7, 1974, a deportation hearing was held before a United States Immigration Judge. Mason admitted his drug-related convictions, conceded deportability, and requested Canada as the country for his deportation. Mason waived his right to appeal the deportation decision. On February 15, 1975, Mason voluntarily departed to Canada.

On February 17, 1983, Mason attempted to file an "Application to file Petition for Naturalization" (Form N-400), with the INS by mail. Along with this petition, he requested temporary admission into the United States so that he could participate in a hearing on his petition. To receive a naturalization hearing, Mason must file his petition for naturalization in person. 8 U.S.C. Sec. 1445(a) (1982); 8 C.F.R. Secs. 334.11, 334.13 (1988). The Attorney General has the discretion to grant temporary admission to an alien applying to enter the United States. Permission to enter temporarily is referred to as "parole" by Congress. 8 U.S.C. Sec. 1182(d)(5) (1982). ¹

On June 9, 1983, the INS rejected Mason's Form N-400 application because he was not physically present in the United States. On March 15, 1984, Mason wrote William Beeks, Naturalization Officer for the INS, and again requested permission to enter the United States to participate in a hearing on his petition. On November 26, 1984, Mason contacted Brooks and again requested parole. Thereafter, the Attorney General reviewed Mason's file and determined that he was ineligible for temporary admission because of his November On December 19, 1984, Brooks wrote Mason advising him that his request for temporary admission had been denied. Brooks stated that the decision to deny temporary admission was based on several factors, including Mason's deportation and present excludability because of his drug conviction. ² At Mason's attorney's request, Brooks's decision was subsequently reviewed by the Regional Commissioner for the INS. The Regional Commissioner reviewed the decision to deny parole. On August 29, 1985, the Regional Commissioner advised Mason that he agreed with Brooks that the request for parole should be denied.

10, 1973 conviction for possession of a controlled substance. Aliens convicted of violating any law relating to a controlled substance are statutorily excludable from entry into the United States. 8 U.S.C. Sec. 1182(a)(23) (1982 & Supp. IV 1986). Additionally, the Attorney General determined that no facts had been presented to justify granting temporary admission to Mason.

On August 22, 1986, Mason filed a complaint for declaratory judgment in the United States District Court for the Western District of Washington. Mason sought a declaration that he was entitled to enter the United States and apply for naturalization because of his status as a Vietnam veteran, pursuant to 8 U.S.C. Sec. 1440. The district court ruled that the Attorney General did not abuse his discretion in denying Mason's request for parole because he was an excludable alien, under 8 U.S.C. Sec. 1182(a)(23), due to his conviction for possession of a controlled substance. ³ The district court granted summary judgment in favor of Brooks and the Attorney General. The complaint for declaratory relief was dismissed.

DISCUSSION

Mason contends that: (1) as a Vietnam veteran, he has a right to enter the United States and to apply for citizenship under 8 U.S.C. Sec. 1440; and (2) the Attorney General abused his discretion in denying him temporary admission for the purpose of applying for citizenship.

We review an order granting summary judgment independently, without deference to the district court's determination. Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988). We also review independently an agency's construction of statutes it must enforce. However, we give deference to its interpretation thereof. Ramirez-Ramos v. Immigration & Naturalization Service, 814 F.2d 1394, 1396 (9th Cir.1987).

Mason contends that the exclusion provisions of 8 U.S.C. Sec. 1182 are inapplicable to an alien veteran wishing to apply for naturalization under 8 U.S.C. Sec. 1440. Alternatively, he contends that section 1440 entitles him to enter the United States to apply for citizenship irrespective of his exclusion under section 1182(a)(23).

As noted above, to apply for citizenship, Mason must file his petition for naturalization in person, with the clerk of a naturalization court. 8 U.S.C. Sec. 1445(a); 8 C.F.R. Secs. 334.11, 334.13. Because Mason is a statutorily excludable alien, he may only enter the United States temporarily at the discretion of the Attorney General, unless he can establish independent statutory grounds authorizing his admission.

The district court did not address Mason's contention that as a Vietnam veteran, under section 1440, he is entitled to enter the country and to apply for citizenship, notwithstanding the fact that he is an excludable alien. However, a plain reading of the statute shows that section 1440(b) does not expressly authorize an alien, who served honorably in the military, the unrestricted right to enter the United States, notwithstanding the fact that he is excludable under section 1182. We can affirm the district court's decision on any ground supported by the record. United States v. Humboldt, 628 F.2d 549,551 (9th Cir.1980).

Section 1440(b) provides that an alien who has served honorably in active-duty status, during the Vietnam hostilities, on behalf of the United States, may be naturalized, without complying with all the requirements of the United States naturalization laws. The effect of the statute is to eliminate certain of the requirements for naturalization which must ordinarily be met. Petition for Naturalization of Convento, 210 F.Supp. 265, 266 (D.C.1962), aff'd, United States v. Convento, 336 F.2d 954 (D.C.Cir.1964).

Section 1440(b) does not dispense with the requirement that the applicant shall present himself in the office of the clerk to file his petition, unless excused by illness or disability. 8 U.S.C. Sec. 1445(d) (1982). Nor does it dispense with the requirement that the applicant be lawfully admitted into the United States for permanent residence. 8 U.S.C. Sec. 1445(b) (1982). Specifically, section 1440(b) permits an alien who served the United States to file a petition for citizenship regardless of his age, and no period of residency or physical presence in the United States is required. Additionally, the petition may be filed in any court having naturalization jurisdiction, regardless of the alien's place of permanent residence in the United States. 8 U.S.C. Sec. 1440(b); 8 U.S.C. Sec. 1445(b), (f) (1982).

Section 1440(b) does not purport to override the exclusionary provisions of section 1182. Section 1440(b) makes it clear that aliens who qualify because of their military service in Vietnam or other hostilities must show that they are eligible for naturalization in all other respects. The statute provides in pertinent part: "A person filing a petition under subsection (a) of this section shall comply in all other respects with the requirements of" the naturalization laws (emphasis added). 8 U.S.C. Sec. 1440(b); Millan-Garcia v. Immigration and Naturalization Service, 343 F.2d 825, 829 (9th Cir.1965), vacated on other grounds, 382 U.S. 69, 86 S.Ct. 247, 15 L.Ed.2d 144 (1965); See Knauff v. Shaughnessy, 338 U.S. 537, 546, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (The War Brides Act did not relieve the nonresident alien of her alien status. Accordingly, as the Immigration Act required, she still had to be "otherwise admissible under the immigration laws.").

An examination of the legislative history of the statute indicates that Congressional intent was to expedite the naturalization of members of the military who had served honorably during periods of military hostilities. Congress enacted section 1440 to encourage aliens to engage in the defense of this country by relieving them of "some of the burdensome requirements of the general naturalization laws" (emphasis added). H.Rep. No. 1710, 77th Cong., 2d Sess., 2 (1942); cited in Petition of Delgado, 57 F.Supp. 460, 462 (N.D...