Nolan v. Holmes

• Decision Date: 02 July 2003
• Docket Number: No. 01-2608.,01-2608.
• Citation: 334 F.3d 189
• Parties: Allan NOLAN, Petitioner-Appellant, v. M. Frances HOLMES, District Director Immigration and Naturalization Services, Buffalo, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

334 F.3d 189

Allan NOLAN, Petitioner-Appellant, v. M. Frances HOLMES, District Director Immigration and Naturalization Services, Buffalo, New York, Respondent-Appellee.

No. 01-2608.

United States Court of Appeals, Second Circuit.

Argued: January 13, 2003.

Decided: July 2, 2003.

Christopher W. Drinan, Boston, Massachusetts, for Petitioner-Appellant.

Ernesto H. Molina, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General, Norah Ascoli Schwarz, Senior Litigation Counsel, Patrick Shen, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., on the brief) for Respondent-Appellee.

Washington Square Legal Services, New York, New York (Nancy Morawetz, of counsel, Abigail S. Hendel, Katherine J. Knaus, law student interns), filed a brief for Amici Curiae The National Veterans Legal Services Program, et al., in support of Appellant.

Before: KEARSE and B.D. PARKER, Circuit Judges, and RAKOFF, District Judge^*.

KEARSE, Circuit Judge.

Petitioner Allan Nolan, an alien being held by the United States government for removal from the United States following his conviction of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), appeals from a judgment of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, dismissing his petition for habeas corpus on the ground that the Immigration and Naturalization Service ("INS") Board of Immigration Appeals ("BIA" or "Board") erred in refusing to terminate his deportation proceedings in order to permit him to apply, pursuant to § 329 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1440 (2000), for naturalization on the basis of his prior service in the armed forces of the United States. The district court dismissed the petition on the ground that the BIA did not err because Nolan is ineligible for naturalization under INA § 329 by reason of his inability to show good moral character, see 8 C.F.R. § 329.2(d) (2003). On appeal, Nolan argues principally that the district court erred in upholding the BIA's decision because INA § 329 does not require a showing of good moral character. For the reasons that follow, we affirm the denial of the petition.

I. BACKGROUND

The pertinent facts are not in dispute. The INS (which has ceased to exist as an independent agency, certain of its functions having been transferred as of March 1, 2003, to the Department of Homeland Security, see Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002)), commenced removal proceedings against Nolan in 1999. Nolan sought to forestall his removal by becoming a naturalized United States citizen pursuant to certain provisions of Title 8 of the 2000 version of the United States Code relating to the naturalization of aliens who served in the armed forces of the United States ("Armed Forces"). The only issues on this appeal concern the meanings of those provisions and related regulatory provisions.

A. Nolan's Personal History

Nolan is a permanent resident alien who entered the United States at the age of 17 in 1958. In 1962, he enlisted in the United States Army and served during the Vietnam conflict. He was honorably discharged approximately three years later (the "1965 discharge"). Sometime thereafter, Nolan reenlisted for a second tour of duty. In 1973, he was discharged "under conditions other than honorable" (the "1973 discharge").

In 1996, Nolan pleaded guilty to federal narcotics offenses, to wit, conspiracy to possess, possession with intent to distribute, and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. As those offenses are "aggravated felonies" within the meaning of the INA, see 8 U.S.C. § 1101(a)(43)(B), the INS commenced proceedings for Nolan's removal from the United States under, inter alia, 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

B. The Administrative Proceedings

In the removal proceedings before an Immigration Judge ("IJ"), Nolan asserted, inter alia, that as a veteran who was on active-duty status during the Vietnam conflict and who was honorably discharged in 1965, he was eligible for naturalization under INA § 329. That section, with some exceptions, provides that an alien may, without satisfying certain of the usual preconditions, become a naturalized citizen of the United States if he "has served honorably in an active-duty status" in the United States armed services "during a period" in which the Armed Forces were "engaged in military operations involving armed conflict with a hostile foreign force" (hereinafter "wartime"), and, "if separated from such service, [he] was separated under honorable conditions." 8 U.S.C. § 1440(a). Nolan moved for termination of the removal proceedings pursuant to the then-existing subsection (f) of 8 C.F.R. § 239.2 (2000) ("Regulation 239.2(f) (2000)"), but see 68 Fed.Reg. 35276 (June 13, 2003) (omitting subsection (f) from 8 C.F.R. § 239.2 (2003)), in order to permit him to apply for naturalization under INA § 329. Regulation 239.2(f) (2000) provided that

[a]n immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state [sic] of the proceedings.

8 C.F.R. § 239.2(f) (2000) (emphasis added).

In an Oral Decision of the Immigration Judge dated March 14, 2000 ("IJ Decision"), the IJ denied Nolan's motion for termination of the proceedings, ruling that, for two reasons, Nolan had not established prima facie eligibility for naturalization. First, the IJ interpreted INA § 329 as requiring that an alien's "entire service be honorable." IJ Decision at 6. The IJ found that Nolan did not satisfy that requirement because his 1973 discharge was "other than honorable."

Second, the IJ ruled that Nolan was ineligible for naturalization under § 329 because he could not show "good moral character." IJ Decision at 7. The IJ noted that § 329(b), with exceptions not relevant to Nolan, provides that "[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), and that INA § 316(a)(3), also with exceptions not relevant here, provides that "[n]o person ... 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," 8 U.S.C. § 1427(a)(3). The IJ concluded that § 329 incorporates the good-moral-character requirement found in § 316(a). He noted that, consistent with this interpretation of INA § 329, an INS regulation, 8 C.F.R. § 329.2(d), expressly "requir[es] a showing of one year good moral character for Section 329 purposes." IJ Decision at 8.

Because INA § 101 defines as aggravated felonies the narcotics offenses of which Nolan was convicted, see 8 U.S.C. § 1101(a)(43)(B), and provides that "[n]o person" who "has been convicted of [such] an aggravated felony," "shall be regarded as, or found to be, a person of good moral character," 8 U.S.C. § 1101(f)(8), the IJ reasoned that Nolan could not meet § 329's requirement of good moral character. The IJ accordingly denied Nolan's motion to terminate the removal proceedings and ordered Nolan's removal.

Nolan appealed the IJ's decision to the BIA. In an Order dated October 26, 2000 ("BIA Order"), the BIA dismissed the appeal. The Board mentioned the IJ's second, but not his first, rationale for refusing to terminate the removal proceedings, and it discussed neither rationale but stated that it found "no error in the proceedings." BIA Order at 3. In addition, the Board ruled that Nolan had not met the procedural requirements for establishing his "prima facie eligibility for naturalization," Regulation 239.2(f) (2000), in order to permit the IJ to terminate the removal proceeding. The BIA noted that in Matter of Cruz, 15 I. & N. Dec. 236, 1975 WL 31486 (BIA 1975), involving a substantially identical predecessor of Regulation 239.2(f) (2000), it had

h[e]ld that prima facie eligibility may be established by an affirmative communication from the [Immigration and Naturalization] Service or by a declaration of a court that the alien would be eligible for naturalization but for the pendency of the deportation proceedings or the existence of an outstanding order of deportation.

15 I. & N. Dec. at 237. In the present case, the Board found that Nolan failed to meet this test because

he ha[d] not submitted an affirmative communication from the Service stating that but for the removal proceedings he would be eligible for naturalization. In fact the Service opposed the respondent's naturalization application.

BIA Order at 2.

C. The Decision of the District Court

Following the BIA decision, Nolan filed his present petition for habeas corpus in the district court pursuant to 28 U.S.C. § 2241. He asserted that the IJ had erred in imposing a "good moral character" requirement in connection with an application for naturalization under § 329 and refusing to terminate the removal proceedings in order to permit him to apply for naturalization under that section. The petition principally sought an order directing the BIA to consider Nolan's application for termination of the removal proceedings without imposition of the good-moral-character requirement. Over the INS's objection, Nolan's deportation was stayed pending disposition of his habeas petition.

The INS moved to dismiss the petition for failure to state a claim, contending, inter alia, that Nolan is...