BARNES v. HOLDER

• Decision Date: 10 November 2010
• Docket Number: No. 09-1782.,09-1782.
• Citation: 625 F.3d 801
• Parties: Nicolas Alfonso BARNES, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

625 F.3d 801

Nicolas Alfonso BARNES, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1782.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 21, 2010.

Decided: Nov. 10, 2010.

ARGUED: Linda Hanten, Harrigan & Hanten, PC, Washington, D.C., for Petitioner. Janette L. Allen, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Thomas B. Fatouros, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Petition denied by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

DUNCAN, Circuit Judge:

Nicolas Alfonso Barnes petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge's (“IJ” 's) denial of his motion to terminate removal proceedings. Barnes challenges the BIA's conclusion that an IJ can only terminate removal proceedings pursuant to 8 C.F.R. § 1239.2(f) based on the pendency of a naturalization application if the alien presents an affirmative communication from the Department of Homeland Security (“DHS”) confirming that he is prima facie eligible for naturalization. We join every circuit to have considered the issue in finding that the BIA's interpretation of 8 C.F.R. § 1239.2(f) is neither plainly erroneous nor inconsistent with the regulation. Accordingly, we deny the petition for review.

I.

Barnes, a native and citizen of Panama, was admitted to the United States as a permanent resident in 1979. That same year, Barnes joined the United States Army. In 1982, he was convicted by a military court of possessing, transporting, and selling a controlled substance. In 1999, Barnes filed an application for naturalization in which he disclosed that conviction. He was then interviewed by an immigration official, who told him that the conviction was a bar to naturalization and advised him to withdraw his application. Barnes did so in May of 2000.

In March 2004, DHS commenced removal proceedings against Barnes with the issuance of a notice to appear before an IJ. The notice charged him with removability based on his 1982 conviction. Barnes's initial hearing was postponed to give him an opportunity to secure legal counsel. During an April 2005 hearing, Barnes admitted removability and informed the IJ that he intended to submit an application for relief from removal. The IJ continued the hearing to allow Barnes to prepare that application.

In September 2006, Barnes submitted a second naturalization application. That same month, he submitted a motion to terminate removal proceedings pursuant to 8 C.F.R. § 1239.2(f). That section gives the IJ discretion to “terminate removal proceedings to permit the alien to proceed to a final hearing” on his naturalization application if the IJ finds that the case involves “exceptionally appealing or humanitarian factors.” 8 C.F.R. § 1239.2(f). To be eligible for relief under § 1239.2(f), the alien must have “established prima facie eligibility for naturalization.” Id. The IJ denied Barnes's § 1239.2(f) motion but continued the case to permit DHS to adjudicate Barnes's pending naturalization application.

In March 2007, Barnes appeared before the IJ again on the removal matter and informed him that DHS had scheduled a naturalization interview, but later canceled it. Barnes's counsel indicated to the IJ that he believed the interview would be rescheduled. The IJ granted another continuance to allow Barnes to undergo a naturalization interview. On May 1, 2007, DHS filed a motion before the IJ opposing any further continuances of Barnes's removal proceedings. Three days later, Barnes wrote to DHS requesting that his naturalization interview be rescheduled. He also requested a letter stating that he was prima facie eligible for naturalization, which he intended to submit in support of a second § 1239.2(f) motion. Then, on May 16, 2007, Barnes filed before the IJ a second motion to terminate removal proceedings, a motion to stay proceedings, and a motion to apply for a deportation waiver under § 212(c) of the Immigration and Nationality Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163.

On July 10, 2007, the IJ issued an order denying all of Barnes's motions and ordering his removal. Barnes appealed to the BIA asserting, among other things, that he was entitled to relief under § 1239.2(f). The BIA upheld the IJ's decision and dismissed Barnes's appeal. With regard to his § 1239.2(f) motion, the BIA held:

Removal proceedings ... may only be terminated pursuant to 8 C.F.R. § 1239.2(f) where the DHS has presented an affirmative communication attesting to the alien's prima facie eligibility for naturalization. ... As no such communication was presented, the respondent's motion to terminate or stay these proceedings is denied.

J.A. 332. The BIA based this determination on its decision in Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007), which held that “it is appropriate for the Board and the Immigration Judges to require some form of affirmative communication from the DHS prior to terminating proceedings based on [an alien's] pending naturalization application.” Id. at 106. Barnes petitions this court for review of the BIA's dismissal of his appeal.

II.

Barnes asserts that the BIA's interpretation of § 1239.2(f), adopted in Hidalgo and applied in this case, is erroneous. ¹ He argues that the plain language of the regulation vests IJs with authority to make prima facie naturalization eligibility determinations. He further alleges that the Hidalgo interpretation of § 1239.2(f) “thwarts [his] right to have his naturalization application timely adjudicated and to pursue, if necessary, judicial review.” Petitioner's Br. at 20.

[1] We review the BIA's legal determinations de novo, “affording appropriate deference to the BIA's interpretation of the INA and any attendant regulations.” Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir.2008). Because the BIA's holding involves an agency's interpretation of its own regulation, it “is entitled to deference ‘unless plainly erroneous or inconsistent with the regulation.’ ” AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 729-30 (4th Cir.2009) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 672, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)); see also Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir.2009)( “[W]e owe deference to the BIA's interpretation of its own regulations, and the BIA's interpretation will be ‘controlling unless plainly erroneous or inconsistent with the regulation.’ ” (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997))).

We first set forth the relevant legal background leading to the BIA's decision in Hidalgo. We then address Barnes's contentions in turn.

A.

Section 1239.2(f) states:

An immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.

8 C.F.R. § 1239.2(f) (emphasis added). The BIA has long held that an IJ lacks jurisdiction to make a prima facie determination of eligibility for purposes of terminating removal. In Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975), a case addressing the substantively identical predecessor to § 1239.2(f), 8 C.F.R. § 242.7, ² the BIA held that deportation proceedings could only be terminated to allow an alien to proceed with an application for naturalization if “prima facie eligibility [was] established by an affirmative communication from [DHS] or by a declaration of a court that the alien would be eligible for naturalization but for the pendency of the deportation proceedings or the existence of an outstanding order of deportation.” Id. at 237. The Cruz panel reasoned that because “neither [the BIA] nor immigration judges have authority with respect to the naturalization of aliens,” they do not have jurisdiction over the “question of whether an alien is eligible for naturalization” for purposes of terminating removal proceedings. Id.

The Immigration Act of 1990, Pub. L. No. 101-649, § 401(a), 104 Stat. 4978 (1990) (codified at 8 U.S.C. § 1421(a)), changed the legal landscape on which Cruz was based by divesting district courts of authority to consider naturalization applications in the first instance. The Act transferred sole authority in that regard to the Attorney General. See 8 U.S.C. § 1421(a) ( “The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.”); see also Perriello, 579 F.3d at 139-41 (discussing the statutory history relating to this change). It thus called into question the continuing validity of Cruz's holding that both DHS and the district courts could make a finding of prima facie eligibility for naturalization. See Perriello, 579 F.3d at 140 (collecting cases that “questioned whether the BIA could continue to rely on courts to issue declarations as to prima facie eligibility for naturalization” following the enactment of § 1421(a)).

The BIA resolved this tension in Hidalgo. It found that “the fact that the Federal courts no longer have authority to make decisions as to an alien's prima facie eligibility for citizenship does not undermine Matter of Cruz ” and that therefore “neither the Board nor the Immigration Judges have jurisdiction to determine an alien's eligibility for naturalization, which now lies exclusively with the DHS.” Hidalgo, 24 I. & N....