Perriello v. Napolitano

Citation579 F.3d 135
Decision Date01 September 2009
Docket NumberDocket No. 05-2868-ag.
PartiesSavario PERRIELLO, Petitioner, v. Janet NAPOLITANO; John T. Morton, Asst. Secretary, United States Immigration and Customs Enforcement; Christopher Shanahan, Field Office Director of New York City, U.S. Immigration and Customs Enforcement, Department of Homeland Security; United States Immigration And Customs Enforcement<SMALL><SUP>*</SUP></SMALL>, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Matthew L. Guadagno (Ruchi Thaker, Jules E. Coven, Kerry W. Bretz on the brief), Bretz & Coven LLP, New York, NY, for Petitioner.

Natasha Oeltjen, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney on the brief) for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, NY, for Respondents.

Before JACOBS, Chief Judge, KEARSE and SACK, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Petitioner Savario Perriello, a native and citizen of Italy and a lawful permanent resident of the United States, seeks review of a December 17, 2004 order of the Board of Immigration Appeals ("BIA") affirming the August 30, 2002 decision of Immigration Judge ("IJ") Robert D. Weisel finding Perriello inadmissible and ordering him removed to Italy. In re Savario Perriello, No. A 12 363 855 (B.I.A. Dec. 17, 2004), aff'g No. A 12 363 855 (Immig. Ct. N.Y. City Aug. 30, 2002). Perriello argues for termination of his removal proceedings pursuant to 8 C.F.R. § 1239.2(f)1 and a waiver of inadmissibility pursuant to former Immigration and Nationality Act ("INA") § 212(c).

We acknowledge the significant hardship that Perriello and his family will face as a result of the unaccountable delay in the decision to seek his removal decades after his conviction, and notwithstanding his evidently lawful and productive life in the interval. Nonetheless, we conclude that [i] Perriello is not entitled to relief under § 1239.2(f) (which has been rendered vestigial by revisions to the INA), because he has not established prima facie eligibility for naturalization, and [ii] that he is barred from relief under INA § 212(c) by virtue of § 511(a) of the Immigration Act of 1990 ("IMMACT"), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052. Accordingly, the petition is denied.

I

Perriello first entered the United States on December 27, 1961, when he was thirteen years old. On December 28, 1977, Perriello was convicted by a jury of Arson in the Second Degree in violation of New York Penal Law § 150.15 and eight counts of Criminal Mischief in the Second Degree in violation of New York Penal Law § 145.10. Perriello was sentenced to a term of seven to twenty-five years in prison, and he served seven years before his release on parole in 1984.

After his release from prison, Perriello started a business and contributed to his community. Perriello married a United States citizen in 1991, and he has four United States citizen children. Perriello and his wife operate a restaurant in Haverstraw, New York.

On November 28, 2000, Perriello was detained at Newark Airport on his return from a brief trip to Italy. The Immigration and Naturalization Service ("INS"),2 having discovered Perriello's 1977 conviction, paroled him into the country pending a determination of his admissibility. On February 13, 2001, the INS issued a Notice to Appear and placed Perriello in removal proceedings based on his 1977 conviction for a crime involving moral turpitude.

Perriello admitted the allegations contained in the Notice to Appear, but sought to avoid removal by filing an application for naturalization and moving for termination of his removal proceedings pursuant to 8 C.F.R. § 1239.2(f), which permits an IJ to terminate removal proceedings while an application for naturalization is pending. The IJ declined to terminate the removal proceedings and ordered Perriello removed on August 30, 2002. The BIA affirmed on December 17, 2004.

On February 22, 2005, Perriello challenged the BIA's decision in a habeas corpus petition filed in the Southern District of New York. While the petition was pending, Congress enacted section 106(a)(1) of the Real ID Act of 2005 ("Real ID Act"), Pub.L. No. 109-13, Div. B, § 106(a)(1)(B), 119 Stat. 231, 310, which provides that "a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal." The district court transferred Perriello's habeas petition to this Court pursuant to Real ID Act § 106(c), which requires that any habeas petition [i] challenging an order of removal, and [ii] pending in district court on the date of the Act's enactment, be transferred to the appropriate court of appeals.

II

By virtue of 8 C.F.R. § 1239.2(f),3 an IJ may terminate removal proceedings to permit an alien who has established prima facie eligibility for naturalization to proceed to a "final hearing" on a pending naturalization application. The BIA has held, however, that an IJ may not terminate removal proceedings unless the alien has obtained an affirmative communication from the Department of Homeland Security ("DHS") stating that the alien is prima facie eligible for naturalization. See In re Hidalgo, 24 I. & N. Dec. 103, 106 (B.I.A. 2007). But nothing seems to compel DHS to make such a determination, let alone to issue such a communication. Moreover, in many cases (including this one), DHS is prohibited by statute from considering a naturalization application (a prerequisite to determining prima facie eligibility) while removal proceedings are pending. The law, in effect, seems to be chasing its tail.

We review de novo Perriello's claim that the IJ and BIA erred as a matter of law in denying relief from removal. See, e.g., Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir.2007). But we owe deference to the BIA's interpretation of its own regulations, and the BIA's interpretation will be "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted); see also Bah v. Mukasey, 529 F.3d 99, 110-11 (2d Cir.2008).

In order to analyze Perriello's arguments and to appreciate the anomaly that complicates the analysis, it is necessary to describe the evolution of the statutes and regulations relevant to this appeal.

A. Naturalization and Removal Law Before 1990

From 1906 until 1990, an application for naturalization was reviewed in two stages. See Etape v. Chertoff, 497 F.3d 379, 385 (4th Cir.2007); Admin. Naturalization, 56 Fed.Reg. 50475, 50476 (Oct. 7, 1991). First, the Attorney General considered the application and made a recommendation to the naturalization court as to the alien's prima facie eligibility for naturalization. See 8 U.S.C. § 1446(a)-(d) (1988). The second stage was a "final hearing" held "in open court before a judge or judges." 8 U.S.C. § 1447(a) (1988). Under this system, courts were vested with "[e]xclusive jurisdiction to naturalize persons as citizens of the United States."4 8 U.S.C. § 1421(a) (1988).

Until 1990, "naturalization authority and removal authority were vested in different branches of government, with naturalization being the province of the courts and removal the province of the executive acting through the Attorney General." Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). Prior to 1950, this led to "both the deportation and naturalization processes ... proceed[ing] along together until either petitioner's deportation or naturalization ipso facto terminated the possibility of the other occurring." Shomberg v. United States, 348 U.S. 540, 543, 75 S.Ct. 509, 99 L.Ed. 624 (1955).

In 1950, Congress put an end to this "race between the alien to gain citizenship and the Attorney General to deport him," id. at 544, 75 S.Ct. 509, by enacting section 27 of the Internal Security Act of 1950, Pub.L. No. 81-831, § 27, 64 Stat. 987, 1015, reenacted without significant change by Immigration and Nationality Act of 1952, Pub.L. No. 82-414, § 318, 66 Stat. 163, 244 (codified as amended at 8 U.S.C. § 1429). That statute "afforded [priority to] removal proceedings," Ajlani, 545 F.3d at 239, and "prohibited naturalization or the holding of final hearings on naturalization petitions where deportation proceedings were instituted," Shomberg, 348 U.S. at 544, 75 S.Ct. 509. As a result, aliens who had successfully navigated the first stage of the naturalization process, and were thus prima facie eligible for naturalization, were in limbo because courts were prohibited from conducting final hearings on their applications. To provide such aliens access to court, the BIA held, in Matter of B-, 6 I. & N. Dec. 713, 720 (B.I.A.1955), that "there exists inherent authority in the Attorney General to terminate deportation proceedings for the limited purpose of permitting the alien to file a petition for naturalization and to be heard thereon by a naturalization court."

In 1974, the BIA's decision in Matter of B- was adopted in the regulation now found at § 1239.2(f). The regulation provided, in relevant part:

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

8 CFR § 242.7 (1974).

Soon after, in Matter of Cruz, 15 I. & N. Dec. 236 (B.I.A.1975), the BIA considered the regulation's requirement that an alien "ha[ve] established prima facie eligibility for naturalization." Id. at 236-38. The BIA held that "neither [it] nor immigration judges have...

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