Boatswain v. Ashcroft

• Decision Date: 09 June 2003
• Docket Number: No. 99-CV-8517(FB).,99-CV-8517(FB).
• Citation: 267 F.Supp.2d 377
• Parties: Hollis BOATSWAIN, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
• Court: U.S. District Court — Eastern District of New York

267 F.Supp.2d 377

Hollis BOATSWAIN, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

No. 99-CV-8517(FB).

United States District Court, E.D. New York.

June 9, 2003.

Nancy Morawetz, Anjana Malhotra, Legal Intern, Tony Lu, Legal Intern, Washington Square Legal Services, New York City, for petitioner.

Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, by

Steven J. Kim, Assistant United States Attorney, Brooklyn, NY, for respondent.

MEMORANDUM & ORDER

BLOCK, District Judge.

Petitioner, Hollis Boatswain ("Boatswain"), a citizen of Trinidad and a legal permanent resident of the United States, seeks review, pursuant to 8 U.S.C. § 1421(c), of the Immigration and Naturalization Service's ("INS") denial of his application for naturalization.¹ Boatswain claims he is entitled to naturalize, notwithstanding his significant criminal history, under a special provision of the Immigration and Nationality Act ("INA") providing relaxed naturalization requirements for aliens who served in the United States military during designated times of hostility. See 8 U.S.C. § 1440. Respondent argues that Boatswain's application must be denied because 1) he must establish his "good moral character," and 2) he is statutorily barred from making such a showing by virtue of his criminal history. The Court agrees with respondent.

BACKGROUND

I. Procedural History and Hearing

In September 1999, while in INS detention, Boatswain submitted his naturalization application. On November 23, 1999, an Immigration Judge found Boatswain removable based solely upon a November 1998 conviction for Health Care Fraud, see 18 U.S.C. § 1347, for which he had been sentenced to one year of incarceration. On June 22, 2000, the Board of Immigration Appeals ("BIA") dismissed Boatswain's appeal, and the Immigration Judge's removal order became final.²

On September 7, 2000, the Court stayed Boatswain's removal order because the INS had yet to rule on Boatswain's naturalization application. See Boatswain v. Ashcroft, 99 CV 8517 (E.D.N.Y. Sept. 7, 2000) (staying removal order); see also 8 U.S.C. § 1429 (permitting veterans to naturalize notwithstanding any final order of removal); 8 C.F.R. § 329.2(e)(3) (permitting veterans to apply for naturalization during removal proceedings). On February 5, 2002, the INS denied Boatswain's naturalization application. See Stipulation ¶35. In April and May 2002, the Court conducted a de novo hearing to determine Boatswain's eligibility for citizenship. See 8 U.S.C. § 1421(c) (establishing right to de novo judicial review of denials of naturalization applications). Throughout his proceedings before the INS and the Court, Boatswain has remained in INS detention.

At the hearing, the following facts were adduced: In 1969, Boatswain came to the United States from Trinidad; in 1974 he became a legal permanent resident. Boatswain has five children, all of whom are United States citizens. For the past twenty-six years Boatswain has been living in Brooklyn, New York with the mother of three of his children. The other two children are from a previous marriage. Three of his children testified persuasively about the loving and supportive role their father has played in their lives. Boatswain has encouraged his children to value education and has consistently assisted in their schooling.

In 1975, during the period of Vietnam hostilities, Boatswain voluntarily enlisted in the United States Army. After basic training, he became a member of the Twenty-Fifth Infantry Division and served on a military base in Hawaii. In August 1976, he was honorably discharged.

It was further established at the hearing that Boatswain's criminal history was significantly more extensive than the Health Care Fraud conviction. In the early 1980's, he became involved in the drug trade as a small time dealer of marijuana. Between 1982 and 1998, he was convicted seventeen times for Criminal Sale of Marijuana in the Fourth Degree, see N.Y. Penal Law § 221.40, eight times for Possession of Marijuana, see N.Y. Penal Law §§ 220.03, 221.10, 221.15, and seven times for Theft of Services, N.Y. Penal Law § 165.15. In relation to these convictions, Boatswain received several short sentences of incarceration—the longest being eight months. Boatswain concedes that his criminal history qualifies him as an aggravated felon under the INA. See Tr. at 89 (May 2, 2002).³

II. Legal Framework

A. Present Statutory and Regulatory Framework

Wading through the statutory scheme is not a simple task because, as legal commentators have observed, the immigration laws are a "patchwork", containing "numerous inconsistencies and vagaries." David Jones, U.S. Immigration — A Legacy of Reform and Reorganization and Possible Solutions, 11 Fla. J. Int'l L. 409, 427 (1997); see also Mary McGee Light, 45 Drake L.Rev. 789 (1997 ("Immigration law consists of a patchwork of statutes and regulations.")).

Chapter 12 of Title 8 U.S.C. §§ 1101-1537, entitled "Immigration and Nationality," governs citizenship, nationality and naturalization. The sections governing naturalization are contained in Subchapter III, 8 U.S.C. §§ 1421-1504 ("Nationality Through Naturalization").⁴ Under § 1427(a), which sets forth the general requirements for naturalization, "[n]o person shall be naturalized unless [the] petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence within the United States for at least five years * * *, and (3) during all the period referred to in this subsection has been and still is a person of good moral character. ..." (emphasis added). Because the "period referred to" in § 1427(a)(3) is the five-year residency period set forth in § 1427(a)(1), § 1427(a) creates a five-year good moral character requirement. See In re Kovacs, 476 F.2d 843, 844 (2d Cir.1973).

Subsection (e) of § 1427 provides:

In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period,

(emphasis added). Thus, although an applicant must show good moral character for the five-year period set forth in § 1427(a), § 1427(e) affords the INS discretion to "take into consideration ... the applicant's conduct and acts at any time prior to" that period "in determining whether the applicant has sustained the burden of establishing good moral character" during the five-year period.

Notwithstanding these general provisions of § 1427, Congress has prescribed significantly relaxed requirements for the naturalization of applicants who have served at any time in the armed forces during a designated time of war. See 8 U.S.C. § 1440. Specifically, subsection (a) of § 1440 sets forth two overarching requirements for the naturalization of such aliens: [1] that they have served honorably during a time of military conflict, and [2] that they were in the United States, or certain designated territories, at the time of their "enlistment, reenlistment, extension of enlistment, or induction" into the military or that "at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1440(a).

Subsection (b) of § 1440 states, in pertinent part: "A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter. ..." 8 U.S.C. § 1440(b) (emphasis added). By this incorporation, these requirements include the five-year residency period for which good moral character must be established under § 1427(a), in addition to other requirements, such as knowledge of English and United States history and the principles of the country's form of government. See 8 U.S.C. §§ 1423 and 1429. However, subdivisions (b)(1)-(3) of § 1440 create certain exceptions to this requirement that applicants comply with all the requirements of Subchapter III. Relevant to this case is subsection (b)(2), which states that "no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required." 8 U.S.C. § 1440(b)(2).⁵

Title 8 U.S.C. § 1439 governs naturalization for peacetime veterans. The statute requires, inter alia, such applicants to have "served honorably at any time in the armed forces of the United States for a period or periods aggregating three years", 8 U.S.C. § 1439(a), and provides that "service under honorable conditions, and good moral character" during the required three-year period may be shown by "duly authenticated copies ... of the records of such service," 8 U.S.C. § 1439(e), provided the petition is filed within six months of the termination of service. Such copies of records of service "shall be accepted in lieu of compliance with the" five-year residence and good moral character requirements of § 1427(a). 8 U.S.C. § 1439(e). If the petition is filed more than six months after the termination of service, the applicant must meet the five-year residence and good moral character requirements of § 1427(a). See 8 U.S.C. § 1439(d).

Unlike the explicit good moral character requirement for peacetime veterans in § 1439, there is no specific mention of good moral character for wartime veterans in 8 U.S.C. § 1440. To fill this perceived gap, the INS promulgated a regulation in 1996, which states in pertinent part:

To be eligible for naturalization under section [8 U.S.C. § 1440(a)], an applicant must establish that he or she:

* * *

Has been, for at least one year prior...