Boatswain v. Gonzales

• Decision Date: 30 June 2005
• Docket Number: Docket No. 03-2524-PR.
• Parties: Hollis BOATSWAIN, Petitioner-Appellant, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

414 F.3d 413

Hollis BOATSWAIN, Petitioner-Appellant, v. Alberto GONZALES,¹ Attorney General of the United States, Respondent-Appellee.

Docket No. 03-2524-PR.

United States Court of Appeals, Second Circuit.

Argued November 9, 2004.

Decided June 30, 2005.

Navin Pant and Naomi Sunshine, legal interns (Nancy Morawetz, Sejal Zota, and Kevin Lapp, on the brief), Washington Square Legal Services, Inc., New York, NY, for Appellant.

Steven Kim, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York; F. Franklin Amanat and Varuni Nelson, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Appellee.

Before: WALKER, Chief Judge, POOLER and WESLEY, Circuit Judges.

WALKER, Chief Judge.

Petitioner-Appellant Hollis Boatswain appeals from a June 12, 2003, decision of the United States District Court for the Eastern District of New York (Frederic Block, Judge), affirming an order of the Immigration and Naturalization Service ("INS") that denied Boatswain's application for naturalization as a U.S. citizen. As an alien who served in the U.S. Army during the Vietnam War, Boatswain is entitled to the benefits of Immigration and Nationality Act ("INA") § 329, 8 U.S.C. § 1440, a statute that relaxes the naturalization requirements for persons who have served in the U.S. military on active-duty status during wartime. On appeal, Boatswain argues that the district court erred in applying INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), which precludes the finding of "good moral character" necessary for naturalization where an individual has been convicted of an "aggravated felony" (as defined by INA § 101(a)(43), 8 U.S.C. § 1101(a)(43)), to 8 U.S.C. § 1440. Because we find that the plain meaning of § 1101(f)(8) bars applicants for naturalization under § 1440 from demonstrating good moral character if they have been convicted of an aggravated felony, we affirm the judgment of the district court.

BACKGROUND

In 1969, Boatswain arrived in the United States from Trinidad; in 1974, he became a lawful permanent resident. In 1975, during the Vietnam War, he voluntarily enlisted and served in the U.S. Army. The following year he was honorably discharged for medical reasons. Between 1982 and 1998, Boatswain was convicted seventeen times in New York state court for misdemeanor sale of marijuana, eight times for misdemeanor possession of marijuana, and seven times for misdemeanor theft of services. The most serious sentence he received for any one of these convictions was eight months' imprisonment. In 1998, Boatswain pled guilty in federal court to healthcare fraud in violation of 18 U.S.C. § 1347; he was sentenced to one year in prison and ordered to pay restitution of $15,000.

In July 1999, the INS commenced removal proceedings against Boatswain, charging him as removable as a result of his healthcare fraud conviction. In September 1999, while in INS detention, Boatswain applied for naturalization under 8 U.S.C. § 1440. In November 1999, following a hearing, an Immigration Judge ("IJ") ordered Boatswain removed, and in June 2000, the Board of Immigration Appeals ("BIA") dismissed Boatswain's appeal of the IJ's removal order. In September 2000, however, the district court stayed that removal order until the INS had resolved Boatswain's still-pending application for naturalization. In February 2002, the INS denied Boatswain's application. In April and May 2002, the district court conducted a two-day hearing pursuant to 8 U.S.C. § 1421(c) to review the INS's denial of Boatswain's application.²

In its decision, the district court first found that § 1440 requires applicants for naturalization under its terms to demonstrate good moral character. See Boatswain v. Ashcroft, 267 F.Supp.2d 377, 386-87 (E.D.N.Y.2003). It then held that the good moral character bar found in 8 U.S.C. § 1101(f)(8), which precludes a finding of good moral character where an individual has been convicted of an "aggravated felony," applies to such applicants. Because Boatswain had indisputably been convicted of an "aggravated felony" as that term is defined in 8 U.S.C. § 1101(a)(43)(B),³ the court concluded that Boatswain was "barred under § 1101(f)(8) from naturalizing." Id. at 387.⁴ This appeal followed.

DISCUSSION

Soon after the district court issued its opinion, but prior to briefing in this case, we decided Nolan v. Holmes, 334 F.3d 189 (2d Cir.2003). Nolan, as Boatswain concedes, resolved the threshold issue raised in the district court by holding that applicants for naturalization under 8 U.S.C. § 1440 must, consistent with the INS's interpretation of the statute, demonstrate good moral character. 334 F.3d at 201-02. Nolan, however, expressly left open the other issue in Boatswain's case: whether the statutory bar for aggravated felons contained in § 1101(f)(8) applies to wartime veterans seeking naturalization under § 1440. See id. at 203. We now address this question.

I. Relevant Statutes

There are three statutory provisions directly bearing on Boatswain's appeal. The general naturalization statute, 8 U.S.C. § 1427, sets forth various conditions with which an individual must comply in order to be eligible for naturalization. Of particular relevance to this case is § 1427(a), which, after establishing a required period of lawful permanent residence in the United States of five years, see 8 U.S.C. § 1427(a)(1), provides that

[no person except as otherwise provided in this title shall be naturalized unless such applicant] during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

8 U.S.C. § 1427(a)(3) (emphasis added). Thus, any person applying for citizenship under § 1427 must be a lawful permanent resident of the United States for five years prior to application, and must further demonstrate that during that period he "has been and still is a person of good moral character...." Id.

The statute under which Boatswain seeks naturalization is 8 U.S.C. § 1440. Section 1440 relaxes the general regime established in § 1427 when the applicant for naturalization is a person, like Boatswain, who "has served honorably ... in an active-duty status" in the U.S. military during armed conflict with a hostile foreign force. 8 U.S.C. § 1440(a). Rather than establishing specific conditions under which such persons can be naturalized, however, § 1440 sets forth a list of exceptions to the conditions listed in § 1427. See 8 U.S.C. § 1440(b). Among these is § 1440(b)(2), which provides 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[.]" The exceptions in § 1440 make no mention of § 1427's good moral character requirement.

Finally, at the heart of this appeal is 8 U.S.C. § 1101(f). This provision, in a limited number of circumstances, erects a per se statutory bar to a finding of good moral character under chapter twelve of title eight of the U.S.Code, which contains the laws on immigration and naturalization. The introductory paragraph of § 1101(f) reads as follows:

For the purposes of this chapter—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was ....

Among the conditions listed thereafter is § 1101(f)(8): "one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section)."

II. The Relationship between §§ 1101(f)(8) and 1440

As already noted, there is no longer any question (as there was at the time of the district court's decision) that § 1440 contains a good moral character requirement. While it is true that our court in Nolan, 334 F.3d at 197, acknowledged that "the precise interplay between [sections 1440 and 1427] is hardly clear," we concluded that the INS's interpretation of § 1440 as requiring a demonstration of good moral character was reasonable, and thus entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That interpretation is set forth in an INS regulation, 8 C.F.R. § 329.2, entitled "Eligibility," which explains in more detail what § 1440 requires of wartime veterans before they can be naturalized. Specifically, section 329.2(d) provides that

[an applicant must establish that he or she] [h]as been, for at least one year prior to filing the application for naturalization, and continues to be, of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States....

After a careful review of the legislative history of § 1440 and other provisions of the INA, we observed that this history supported the INS's interpretation as codified in section 329.2(d) insofar as the good moral character requirement is concerned.⁵ Nolan, 334 F.3d at 198-201. The rule in Nolan, then, is that applicants under § 1440 must demonstrate good moral character if they hope to be naturalized as U.S. citizens.

Boatswain argues in this appeal that § 1101(f)'s reference to a "period for which good moral character is required to be established" (emphasis added) suggests that the provision only pertains to those sections of chapter twelve that specifically designate a "period" during which good moral character must be shown. He claims that because § 1440 eliminates the period-of-residence requirement for applicants under its terms, we must also read it as eliminating the requirement that good moral character be shown during a specific period. All that must be demonstrated under § 1440, in Boatswain's view, is that an applicant "is" of good...