Chan v. Gantner

• Citation: 464 F.3d 289
• Decision Date: 20 September 2006
• Docket Number: Docket No. 05-4573-CV.
• Parties: Kai Tung CHAN, Plaintiff-Appellant, v. Mary Ann GANTNER, Interim District Director, United States Citizenship and Immigration Services, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 289

464 F.3d 289

Kai Tung CHAN, Plaintiff-Appellant, v. Mary Ann GANTNER, Interim District Director, United States Citizenship and Immigration Services, Defendants-Appellees.

Docket No. 05-4573-CV.

United States Court of Appeals, Second Circuit.

Argued: August 9, 2006.

Decided: September 20, 2006.

Michael P. DiRaimondo, (Marialaina L. Masi; Mary Elizabeth Delli-Pizzi, of counsel) DiRaimondo & Masi LLP, Melville, N.Y., for Plaintiff-Appellant.

F. James Loprest, Jr., Special Assistant United States Attorney, (Michael J. Garcia, United States Attorney for the Southern District of New York, on the brief; Kathy S. Marks, Assistant United States Attorney, of counsel) New York, N.Y., for Defendants-Appellees.

Before: STRAUB, POOLER, and SACK, Circuit Judges.

PER CURIAM.

Plaintiff-appellant, Kai Tung Chan, appeals from a judgment entered on June 28, 2005, in the Southern District of New York (John E. Sprizzo, Judge), upholding a decision by the Citizenship and Immigration Services (CIS) finding Chan ineligible for naturalization under 8 U.S.C. § 1427 because of a 1993 conviction for conspiracy to smuggle aliens, an aggravated felony under 8 U.S.C. § 1101(a)(43)(N), (U). We hold that: (1) the amendments to the Immigration and Nationality Act (INA) that expanded the class of aggravated felonies to include Chan's offense apply retroactively; (2) Chan is, therefore, statutorily precluded from establishing good moral character for the purposes of the INA; (3) Chan's waiver of deportation does not remove his conviction from consideration in subsequent immigration proceedings; and (4) Chan received the hearing he was entitled to under 8 U.S.C. § 1421(c).

BACKGROUND

I. Statutory Framework

As part of the Homeland Security Act of 2002, the INS was divided into two different bureaus: the Bureau of Immigration and Customs Enforcement and the Bureau of U.S. Citizenship and Immigration Services. See Brown v. Ashcroft, 360 F.3d 346, 348 n. 1 (2d Cir.2004). The Bureau of U.S. Citizenship and Immigration Services (CIS) handles applications for U.S. citizenship.

Before October 1, 1991, applicants for citizenship applied for naturalization directly in the United States district court. See Tutun v. United States, 270 U.S. 568, 575-76, 46 S.Ct. 425, 70 L.Ed. 738 (1926). The INS would investigate the applicant and supply the court with a report and non-binding recommendations. See 8 C.F.R. § 335.11 (1990). In response to backlogs in the district courts, the Immigration Act of 1990, Pub.L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29 1990) (the "1990 Amendments"), removed jurisdiction from the district courts and placed "sole authority to naturalize persons as citizens of the United States [with] the Attorney General." INA § 310(a), 8 U.S.C. § 1421(a). "A central purpose of the statute was to reduce the waiting time for naturalization applicants." United States v. Hovsepian, 359 F.3d 1144, 1163 (9th Cir.2004) (en banc) (citing Naturalization Amendments of 1989, 135 Cong. Rec. H4539-02, H4542). Federal statutes and regulations provide procedures for applicants to contest denials before naturalization officers within the CIS. See 8 U.S.C. §§ 1446-47; 8 C.F.R. §§ 335.1, 335.2, 336.2; see also Aparicio v. Blakeway, 302 F.3d 437, 440 (5th Cir.2002) (describing the application process).

The 1990 Amendments also provided for de novo judicial review in the United States district courts of the CIS's denials of applications for naturalization. See INA § 310(c); 8 U.S.C. § 1421(c). As the Tenth Circuit has noted, "[t]his grant of authority is unusual in its scope — rarely does a district court review an agency decision de novo and make its own findings of fact." Nagahi v. INS, 219 F.3d 1166, 1169 (10th Cir.2000). "[E]ven if the INS is allowed to make the initial decision on a naturalization application, the district court has the final word and does not defer to any of the INS's findings or conclusions." Hovsepian, 359 F.3d at 1162 (emphasis omitted); see also Boatswain v. Gonzales, 414 F.3d 413, 415 n. 2 (2d Cir. 2005); Aparicio, 302 F.3d at 445 ("Judicial review of naturalization denials is always available and is de novo, and is not limited to any administrative record but rather may be on facts established in and found by the district court.").

II. Factual Background

Chan, a native and citizen of the People's Republic of China, entered the United States on December 20, 1975, with a visitor's visa issued by the United States Consulate in Hong Kong. In June 1985, Chan married a United States citizen, and in October of that year, Chan was granted lawful permanent resident status.

On December 11, 1992, Chan was named in a four-count indictment charging him and another with smuggling aliens into the United States and related offenses, in violation of 18 U.S.C. §§ 2, 371, 1324(a)(2). Chan pleaded guilty to one count of conspiracy to smuggle aliens, in violation of 18 U.S.C. § 371, and on October 8, 1993, was sentenced to five years of probation and fined $5,000. Soon thereafter, the INS charged Chan with deportability from the United States pursuant to former INA § 241(a)(1)(E)(i) (now recodified as INA § 237(a)(1)(E)(i)). See 8 U.S.C. § 1227(a)(1)(E)(i). Because Chan had accepted responsibility for his offense and because his deportation would cause his family hardship, the Immigration Judge (IJ) granted him a waiver of deportation under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996) ("section 212(c) waiver").¹ Thereafter, Chan completed his probation and paid the fine without incident.

On March 20, 2002, Chan submitted an application for naturalization acknowledging his past conviction for conspiracy to smuggle aliens. Chan took and passed the naturalization exam. The INS, however, reserved decision pending a request for Chan's criminal records from the Federal Bureau of Investigation. On May 2, 2003, defendant-appellee, CIS Interim District Director Mary Ann Gantner, denied Chan's application for naturalization due to his inability to establish good moral character as required by 8 C.F.R. § 316.10.

On May 23, 2003, Chan filed a timely appeal of the denial of his application, under INA § 336, 8 U.S.C. § 1447, claiming that (1) his 1993 conviction had occurred outside the five-year statutory period prior to his filing for naturalization for establishing good moral character; and (2) the section 212(c) waiver of deportation waived the conviction for all immigration purposes. On October 16, 2003, Gantner denied the appeal because Chan, having been convicted of an "aggravated felony," was unable to establish the good moral character necessary under 8 C.F.R. § 316.10.

Following the denial of his appeal, Chan sought de novo review of his application in the United States District Court for the Southern District of New York under INA § 310, 8 U.S.C. § 1421(c). Shortly thereafter, the government moved for summary judgment pursuant to Fed.R.Civ.P. 56(c). The District Court granted the motion, holding that (1) Chan's conspiracy offense constituted an aggravated felony; (2) 8 U.S.C. § 1101(f)(8) prevented Chan from establishing good moral character even though his conviction occurred more than five years before he filed his application for naturalization; (3) provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) deeming Chan's conviction an aggravated felony applied retroactively; and (4) Chan's receipt of a section 212(c) waiver did not preclude the CIS from considering his conviction when determining good moral character. See Kai Tung Chan v. Gantner, 374 F.Supp.2d 363, 365-68 (S.D.N.Y. 2005). Chan filed a timely notice of appeal of the District Court's decision.

DISCUSSION

I. Standard of Review

Our review of a district court's grant of summary judgment is de novo. Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001). To obtain relief, the moving party must show that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we "resolve all ambiguities and draw all inferences in favor of the non-moving party." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000). The facts of this case are not in dispute. The relevant question is whether as a matter of statutory construction Chan is precluded from establishing good moral character.

II. Retroactive Application of the Definition of Aggravated Felony

No alien may become a United States citizen unless he establishes the following, subject to certain exceptions not at issue:

(1) immediately preceding the date of filing his application for naturalization [he] has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and . . . has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2)[he] has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection [he] 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). Title 8, section 1101(f)(8), precludes from establishing "good moral character" those "who, during the period for which good moral character is required to be established, is, or was . . . one who at any time has been convicted of an aggravated felony." The term "aggravated felony" as used in section 1101(f)(8) is defined in 8 U.S.C. § 1101(a)(43). At the time of Chan's conviction, conspiracy to engage...