O'Sullivan v. Us Citizenship & Immigration, 05-2943.

• Decision Date: 06 July 2006
• Docket Number: No. 05-2943.,05-2943.
• Citation: 453 F.3d 809
• Parties: Daniel O'SULLIVAN, Petitioner-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 809

Daniel O'SULLIVAN, Petitioner-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent-Appellee.

No. 05-2943.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2006.

Decided July 6, 2006.

Todd A. Gale (argued), Dykema Gossett, Chicago, IL, Wendy Netter Epstein, Kirkland & Ellis, Chicago, IL, for Plaintiff-Appellant.

Sheila M. McNulty (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit Judges.

FLAUM, Chief Judge.

Daniel O'Sullivan is not a United States citizen, yet he served honorably in the United States military during the Vietnam War. Years later, he was convicted of distributing cocaine, which he concedes is an "aggravated felony" under the relevant immigration statutes. The United States denied O'Sullivan's petition for naturalization, stating that he must prove good moral character in order to become a naturalized citizen and that his aggravated felony conviction prevents him from doing so. O'Sullivan argues that wartime veterans need not prove good moral character in order to be naturalized, or, if they do, are not permanently barred from doing so by law even if they have been convicted of aggravated felonies. The district court affirmed the government's denial of O'Sullivan's petition for naturalization. O'Sullivan appeals. For the following reasons, we affirm.

I. Background

Daniel O'Sullivan was born in Jamaica, but moved to the United States as a lawful permanent resident when he was twelve years old. His parents and six siblings were also lawful permanent residents of this country. He graduated from high school in Milwaukee, Wisconsin, and enlisted in the Marine Reserves. Since he enlisted in March 1978, he qualifies as a veteran who served during a period of military hostilities under 8 C.F.R. § 329.2(a)(4), which defines the Vietnam Conflict as extending to October 15, 1978. O'Sullivan was discharged honorably and later served our nation again as a member of the United States Air Force. He was also honorably discharged from that service. After completing his military service, O'Sullivan returned to civilian life in this country. He had children, was consistently employed, and paid taxes.

In August 2000, O'Sullivan was convicted in the State of Wisconsin for being a party to the crime of manufacture or delivery of less than five grams of cocaine. He was sentenced to serve time in Wisconsin state prison. After serving his sentence, he was immediately transferred to the custody of the Department of Homeland Security, which had initiated removal proceedings against him while he was incarcerated.

While in removal proceedings, O'Sullivan filed a petition for naturalization under 8 U.S.C. § 1440, also known as Immigration and Naturalization Act § 329 ("§ 1440"). That law, in conjunction with 8 U.S.C. § 1429, allows non-citizens who served in the United States military during designated times of hostilities against foreign governments to naturalize, even while removal proceedings are pending against them. The government denied O'Sullivan's naturalization petition in June 2004. The government stated that it believed O'Sullivan was unable to show good moral character due to his aggravated felony conviction, and therefore he was ineligible to naturalize.

O'Sullivan filed a timely appeal of the administrative decision. In December 2004, United States Citizenship and Immigration Services ("CIS," "the government," or "the agency") denied his appeal, again based on its belief that the relevant statutes, regulations, and case law demanded that O'Sullivan prove good moral character before he could become a naturalized citizen, and that his aggravated felony conviction prevented him from doing so.

O'Sullivan filed a petition for review of CIS's decision in district court, pursuant to 8 U.S.C. § 1421(c). After a full briefing, the district court affirmed CIS's denial of the petition for naturalization, essentially adopting the agency's reasoning. O'Sullivan timely appealed to this court.

While the debate over the naturalization petition has continued, O'Sullivan's deportation proceedings have carried on. The Board of Immigration Appeals affirmed the immigration judge's order of removal in September 2005. Thus, O'Sullivan currently has a final order of removal entered against him.

II. Discussion

1. Chevron deference

As a threshold issue, we must decide what level of deference to accord the CIS's statutory interpretation in this case. O'Sullivan claims that we must review his claims of law de novo, because Congress has determined that federal courts should primarily resolve naturalization questions. The statutory support for this position is found in 8 U.S.C. § 1421(c), which states that an alien may seek review in a district court if his application for naturalization is denied, and further states that "[s]uch review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application." This procedure is in stark contrast to the appeal process for orders of deportation and petitions for asylum, in which federal courts accord the Attorney General great deference. See, e.g., 8 U.S.C. § 1252(b)(4). Moreover, O'Sullivan believes that Congress has delegated no authority to the agency to interpret the naturalization statute. In 8 U.S.C. § 1421(d), O'Sullivan argues, Congress makes clear that the Attorney General may naturalize only under the terms set by Congress itself. ("A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise.") Therefore, O'Sullivan believes that Chevron deference would be inappropriate in this case.

CIS responds that in Nolan v. Holmes, 334 F.3d 189 (2d Cir.2003), and Boatswain v. Gonzales, 414 F.3d 413 (2d Cir.2005), the Second Circuit determined that CIS's interpretation of naturalization regulations is entitled to the high deference outlined in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778 81 L.Ed.2d 694 (1984). Further, CIS believes that the policy reasons that usually support deferring to agencies apply with equal force in the naturalization context. Immigration is a complex and narrow field with numerous policy interests competing for prominence. CIS argues that a specialized agency is therefore better equipped to evaluate and weigh the competing policy interests than a generalized federal court. Batanic v. INS, 12 F.3d 662, 665-66 (7th Cir.1993) (citing Presley v. Etowah County Comm'n, 502 U.S. 491, 508, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992)).

Although we disagree with O'Sullivan's contention that Congress has delegated no rulemaking authority to CIS,¹ we are persuaded that we should review his naturalization claim de novo. Congress specifically calls for de novo review in naturalization cases, while ordering great deference in other immigration contexts. We do not find this to be coincidental. A person who is arguably entitled to be a United States citizen, with all of the privileges citizenship entails, is not rightly at the grace of the Attorney General, as other aliens are often considered to be. Therefore, before denying citizenship and the rights attendant to it, it would stand to reason that the district court should review the Attorney General's decision as if it were reviewing a citizen's claim that the government is unfairly denying him his rights. Section 1421(c) seems to reflect this logic by requiring district courts to make de novo findings of fact and law. We therefore will review O'Sullivan's claim de novo.²

2. Does § 1440 entirely excuse qualifying aliens from the good moral character requirement?

The primary question in this case is whether § 1440 excuses aliens who served honorably in the U.S. military in times of war from making a showing of good character when applying to become naturalized citizens. Most of the confusion stems from the good character requirement's placement in the naturalization statute. That statute provides, under the subsection entitled "residence":

No person ... shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization 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 who 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) has resided continuously in 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 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) (emphasis added).

Section 1440(b) relaxes these requirements for aliens who have honorably served in the U.S. Military in times of war. That section provides:

A person filing an application under ... this section shall comply in all other respects with the requirements of this subchapter, except that —

(1) he may be naturalized regardless of age, and notwithstanding the provisions of section 1429 of this title as they relate to deportability ...

(2) no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required; ...

8 U.S.C. § 1440(b)(1)-(2) (emphasis added).

O'Sullivan argues that since wartime veterans...