In re Hidalgo
| Citation | 24 I&N Dec. 103 |
| Decision Date | 08 March 2007 |
| Docket Number | Interim Decision No. 3555.,File A36 822 586. |
| Parties | In re Victor ACOSTA HIDALGO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case was last before us on May 4, 2004, when we sustained the appeal of the Department of Homeland Security ("DHS," formerly the Immigration and Naturalization Service)1 from an Immigration Judge's December 22, 2003, decision to terminate proceedings pursuant to 8 C.F.R. § 1239.2(f) (2003)2 in order to allow the respondent to pursue an application for naturalization.3 In a decision dated April 6, 2006, the United States Court of Appeals for the Second Circuit vacated our May 4, 2004, decision and remanded the record for a thorough analysis of the questions whether (1) an Immigration Judge may terminate proceedings pursuant to 8 C.F.R. § 1239.2(f) without an affirmative communication from a Federal district court or the DHS; (2) the Immigration Judge has jurisdiction to determine if the respondent is prima facie eligible for naturalization; and (3) Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), on which we previously relied, remains applicable. Both parties were given the opportunity to brief these issues, although only the respondent filed a brief.
The respondent is a native and citizen of the Dominican Republic who entered the United States as a lawful permanent resident on August 7, 1980. In his brief he directs his arguments primarily to the third issue articulated by the Second Circuit, i.e., whether Matter of Cruz, supra, is applicable in removal cases. In that case we considered 8 C.F.R. § 242.7 (1975), which is the predecessor to the current regulation and is essentially identical to it. Noting that neither we nor the Immigration Judges have authority over naturalization, we declined to determine the question of an alien's prima facie eligibility for naturalization for purposes of termination under the regulation. We further held that deportation proceedings could only be terminated to allow an alien to proceed with an application for naturalization if prima facie eligibility for naturalization was established by an affirmative communication from the Service or by a court's declaration that the alien would be eligible but for the pendency of the deportation proceedings.
According to the respondent, Matter of Cruz, supra, is no longer good law because the alien in that case was in deportation, rather than removal, proceedings and the case involved an unusual situation of Filipino military veterans seeking naturalization. The respondent also asserts that even under Matter of Cruz, supra, the DHS had, in essence, affirmatively communicated to the Immigration Judge that the respondent was prima facie eligible for relief by adjudicating his naturalization application on the merits and accepting his appeal of that decision. The respondent therefore contends that the Immigration Judge properly terminated proceedings in order to allow him to proceed with his appeal of the denial of naturalization. Finally, the respondent asserts that our previous reliance on Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003), to find the Immigration Judge's termination of proceedings invalid was misplaced because that case actually supports the determination that the Immigration Judge has authority to determine prima facie eligibility for naturalization.4
We acknowledge that since the time of Matter of Cruz, supra, changes in immigration law divested the United States district courts of jurisdiction to grant or deny applications for naturalization in the first instance. In fact, the district courts now have jurisdiction only in cases where the DHS has denied such an application. Section 310(c) of the Immigration and Nationality Act, 8 U.S.C. § 1421(c) (2000); see also section 336 of the Act, 8 U.S.C. § 1447 (2000). Therefore, Matter of Cruz, which held that a declaration by a district court could establish an alien's prima facie eligibility for naturalization, does not accurately reflect the current state of naturalization law.5 See section 310(a) of the Act (vesting the Attorney General with exclusive authority over naturalization proceedings); see also Zayed v. United States, 368 F.3d 902, 905-06 (6th Cir. 2004); Apokarina v. Ashcroft, 232 F.Supp.2d 414, 415-17 (E.D. Pa. 2002) ().
Nevertheless, in our view, 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, which we have continued to cite in adjudicating requests for termination pursuant to 8 C.F.R. § 1239.2(f).6 The regulation at 8 C.F.R. § 242.7(a), which we considered in that case, was essentially identical to the current regulation. Furthermore, neither the Board nor the Immigration Judges have jurisdiction to determine an alien's eligibility for naturalization, which now lies exclusively with the DHS.7 Because the same circumstances that were present in Matter of Cruz still exist today, we conclude that the decision remains applicable to the respondent's case. We therefore find that neither we nor the Immigration Judges have authority to determine his prima facie eligibility for naturalization in order to terminate removal proceedings pursuant to 8 C.F.R. § 1239.2(f).8 Accordingly, 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 his pending naturalization application. Accord Cuong Quang Le v. McNamee, 2006 WL 3004524 (D. Or. Oct. 20, 2006).
Although we have no jurisdiction to review a DHS naturalization ruling, we note that the DHS improperly reached the merits of the respondent's application for naturalization. According to section 318 of the Act, 8 U.S.C. § 1429 (2000), "no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act." See 8 C.F.R. § 318.1 (2006) (). In any case, we do not regard the DHS's adjudication of the respondent's application as an affirmative communication of his prima facie eligibility.9
Our findings in this regard are grounded in our recognition that the DHS's authority to adjudicate naturalization applications was limited by Congress in order to "prevent `a race between the alien to gain citizenship and the Attorney General to deport him.'" Apokarina v. Ashcroft, supra, at 415 (quoting Shomberg v. United States, 348 U.S. 540, 544 (1955)).10 Congress's purpose was "`to give priority to deportation/removal proceedings over naturalization proceedings' and to `prevent a race between an alien, seeking to be naturalized, and immigration authorities who needed to complete removal proceedings.'" Apokarina v. Ashcroft, supra, at 416, n.10 (quoting Tellez v. INS, 91 F.Supp.2d 1356, 1362 (C.D. Cal. 2000)); see also Zayed v. United States, supra, at 905-06 (); Mendonca v. INS, 52 F.Supp.2d 155, 163-64 (D. Mass. 1999).
We do not have authority to compel the DHS to acknowledge the respondent's eligibility for naturalization. See Cuong Quang Le v. McNamee, supra (). Nor can we sanction the agency for improperly entertaining the respondent's naturalization application on the merits while also prosecuting him in removal proceedings.11 At any rate, as delegatees of authority given to the Attorney General by Congress, we must remain true to the legislature's intent in drafting provisions of the Immigration and Nationality Act. Therefore, despite any missteps by the DHS, we must give priority to that agency's decision to institute removal proceedings. In sum, we cannot find any error in our previous decision to rule that the Immigration Judge's decision to terminate proceedings was erroneous, absent some affirmative communication regarding the respondent's prima facie eligibility for naturalization from the DHS. Accordingly, we will sustain the DHS's appeal, vacate the Immigration Judge's decision to terminate proceedings, and remand the record to the Immigration Judge for further proceedings.
Finally, we observe that the concurring and dissenting opinion of Board Member Filppu is not without some force in its observation that Matter of Cruz, supra, allows the DHS to prevent a termination of proceedings merely by its silence. However, the alternative approach suggested in that opinion also has problems. Among other things, it would interject a novel standard of uncertain application, because the Board would need to determine whether DHS has made a "nonfrivolous" argument or has advanced...
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