Gonzalez v. Sec'y of Dept. of Homeland Sec., 11–2276.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtPOGUE
Citation678 F.3d 254
PartiesJose GONZALEZ, A077 638 441, Appellant v. SECRETARY OF DEPT. OF HOMELAND SECURITY; Michael Aytes, Acting Deputy Director United States Citizenship and Immigration Services; John Thompson, District Director United States Citizenship and Immigration Services.
Docket NumberNo. 11–2276.,11–2276.
Decision Date19 March 2012

678 F.3d 254

Jose GONZALEZ, A077 638 441, Appellant
SECRETARY OF DEPT. OF HOMELAND SECURITY; Michael Aytes, Acting Deputy Director United States Citizenship and Immigration Services; John Thompson, District Director United States Citizenship and Immigration Services.

No. 11–2276.

United States Court of Appeals,
Third Circuit.

Argued Nov. 17, 2011.
Filed: March 19, 2012.

[678 F.3d 255]

James V. Scarlata, Newark, NJ, Tarik D. Scarlata [argued], Hanahan, SC, for Petitioner–Appellant.

Tony West, Assistant Attorney General, Elizabeth Stevens, Assistant Director, Sherease Pratt [argued], United States Department of Justice, Civil Division, Office of Immigration Litigation, District Court Section, Washington, D.C., for Respondents–Appellees.

Before: FUENTES and CHAGARES, Circuit Judges, and POGUE,* Judge.


POGUE, Chief Judge.

Jose Gonzalez (“Gonzalez” or “Appellant”) appeals the District Court of New Jersey's grant of summary judgment dismissing

[678 F.3d 256]

his petition for review of the United States Citizenship and Immigration Service's (“USCIS”) denial of his naturalization application. USCIS denied Gonzalez's application on good moral character grounds for giving false testimony in an immigration proceeding after Gonzalez affirmed during his I–751 interview that he had no children and later held out two children, YGP and AGP, as his own. The District Court held that because uncontradicted evidence indicated that Gonzalez lied in his I–751 interview, there was no genuine issue of material fact for trial. For the reasons that follow, we hold that no genuine issue of material fact existed on the record before the District Court and will affirm the District Court's grant of summary judgment.


Gonzalez is a native of Panama and a citizen of Spain. He entered the United States as a non-immigrant visitor in or around 1998. Around 1999, Gonzalez met a United States citizen, Inez Otero, and the two were married on February 4, 2000. By virtue of his marriage to Otero, Gonzalez's status was adjusted to conditional lawful permanent resident on May 19, 2001. On August 3, 2004, Gonzalez and Otero appeared together at an interview in support of Gonzalez's Form I–751 Petition to Remove the Conditions on Residence (“Form I–751”). During the interview Gonzalez affirmed, under oath, his written statement on Form I–751 that he did not have children of his own. Following the interview, the conditions on Gonzalez's residence were lifted. On March 7, 2005, Gonzalez's marriage to Otero was legally dissolved through a Judgment of Divorce.

Otero was not the only woman with whom Gonzalez was romantically involved. Beginning in 1998, and through the duration of his marriage, Gonzalez was also romantically involved with Margarete Picinin. During this time, Picinin gave birth to two children: YGP in 2000 and AGP in 2001. Gonzalez supported Picinin financially before, during, and after her pregnancies—all while still married to Otero. In early August of 2004, prior to his divorce, Gonzalez moved out of his marital home and into the apartment occupied by Picinin and her children. On March 31, 2005, following the Judgment of Divorce, Gonzalez amended the birth certificates of YGP and AGP to reflect that he was their father.

On December 19, 2006, Gonzalez filed a Form N–400 Application for Naturalization (“Form N–400”). On his Form N–400, Gonzalez listed YGP and AGP as his children for the first time in the course of his immigration proceedings. Noting that this was inconsistent with his statements in the I–751 interview, USCIS determined that Gonzalez had provided false testimony during that interview and, on October 26, 2007, denied his petition on the grounds that he lacked the requisite good moral character.

Following administrative appeal, Gonzalez received a final denial of naturalization on June 12, 2009. On June 24, 2009, USCIS served on Gonzalez a Form I–862 Notice to Appear and filed the Notice with the Newark New Jersey Immigration Court, thereby initiating removal proceedings against him. 1 On July 10, 2009, Gonzalez filed a petition for de novo review with the District Court for the District of New Jersey pursuant to 8 U.S.C. § 1421(c) (2006).2 On cross motions for summary

[678 F.3d 257]

judgment, the District Court denied Gonzalez's motion and granted the Government's motion, holding that “the uncontradicted evidence is that Petitioner, while under penalty of perjury, gave false evidence in order to receive a benefit in an immigration proceeding.” Gonzalez v. Napolitano, No. 2:09–cv–03426, 2011 WL 941299, at *7 (D.N.J. Mar. 16, 2011). Gonzalez timely appealed the District Court's decision on May 10, 2011.


The District Court had jurisdiction over this action pursuant to 8 U.S.C. § 1421(c),3 and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

We review a “District Court's grant of summary judgment de novo, applying the same standard the District Court applied.” Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007) (citing Doe v. County of Centre, Pa., 242 F.3d 437, 447 (3d Cir.2001)). When reviewing a grant of summary judgment the court “must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.” Stratechuk v. Bd. of Educ., S. Orange–Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir.2009) (quoting Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir.2008)).

A. District Court Review under 8 U.S.C. § 1421(c)

Prior to 1990, the authority to naturalize aliens and the authority to remove aliens were vested, respectively, in the courts and the Attorney General. See8 U.S.C. §§ 1251, 1421(a) (1988); see also Shomberg v. United States, 348 U.S. 540, 543–44, 75 S.Ct. 509, 99 L.Ed. 624 (1955). As naturalization and removal were mutually exclusive, this bifurcation of authority sometimes led to “a race between the alien to gain citizenship and the Attorney General to deport him.” Id. at 544, 75 S.Ct. 509. In 1950, intending to end this race, Congress enacted 8 U.S.C. § 1429, providing that “no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding....” 8 U.S.C. § 1429 (1952); see also Shomberg, 348 U.S. at 544–45, 75 S.Ct. 509.

In 1990, Congress conferred upon the Attorney General, “sole authority to naturalize persons as citizens of the United States....” Immigration Act of 1990, Pub.L. No. 101–649, § 401(a), 104 Stat. 4978, 5038 (1990) (codified at 8 U.S.C. § 1421(a)). With authority for both naturalization and removal vested in the Attorney General, § 1429 was amended to read, “no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding....” 8 U.S.C. § 1429; § 407(d)(3), 104 Stat. at 5041 (amending 8 U.S.C. § 1429). Thus, priority for removal proceedings was maintained. The Immigration Act of 1990 did not, however, remove the courts entirely from the naturalization process. Rather, the Act reaffirmed the right of a petitioner to judicial review by giving the district courts the power to review, de novo, decisions by the Attorney General denying

[678 F.3d 258]

naturalization. § 401(c), 104 Stat. at 5038 (codified at 8 U.S.C. § 1421(c)).4

We are now faced with the question, unresolved by the statute, of whether § 1429 forecloses judicial review pursuant to § 1421(c) whenever a removal proceeding is pending. Prior to the 1990 amendments, we held in In re Terzich, 256 F.2d 197, 200 (3d Cir.1958), that courts could not exercise jurisdiction over naturalization so long as a removal proceeding was pending. However, we have since questioned, in a non–precedential opinion, whether Terzich remains valid in light of the 1990 amendments. See Apokarina v. Ashcroft, 93 Fed.Appx. 469, 471–72 (3d Cir.2004). Today we resolve the question raised in Apokarina by holding that district courts have jurisdiction to review a denial of naturalization during the pendency of removal proceedings and may issue a declaratory judgment regarding the lawfulness of such denial.

In resolving this question, we must address both the district courts' jurisdiction and their capacity to grant effective relief. On the issue of jurisdiction, we find the Ninth Circuit's analysis of the issue compelling. See De Lara Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir.2004). In Bellajaro, the Ninth Circuit found that

[n]othing in the text [of § 1421(c) ] limits the jurisdiction so conferred to review of denials when there is no removal proceeding pending. By the same token, the text of § 1429—which does constrain consideration of naturalization applications during the pendency of a removal proceeding—clearly applies to the Attorney General. There is no hint in the language of § 1429 that it also applies to the courts.

Id. at 1046. Based on the plain language of the statute, we concur with the Ninth Circuit that there is “no textual basis for concluding that jurisdiction vested in district courts by § 1421(c) is divested by § 1429.” Id.; see also Zayed v. United States, 368 F.3d 902, 906 (6th Cir.2004) (“[W]e do not read the amended § 1429 as divesting the district courts of the jurisdiction granted under § 1421(c).”).

The Ninth Circuit ultimately concluded that the district court could not review the denial of naturalization in Bellajaro because, while § 1429 did not remove the court's jurisdiction, it did limit the scope of review. Bellajaro, 378 F.3d at 1043–44. The Ninth Circuit held that “where ... the INS has denied an application for naturalization on the basis of § 1429 because removal proceedings are pending, the district courts have jurisdiction to review the denial but the scope of review is limited to ‘such’ denial.” Id. at 1046–47;see also Zayed, 368 F.3d at 906 (“Where the INS has denied an application for naturalization on the...

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