US v. Ali, Cr. A. No. 89-00112-R/C-01.

• Decision Date: 06 February 1991
• Docket Number: Cr. A. No. 89-00112-R/C-01.
• Parties: UNITED STATES of America, Plaintiff, v. Jamal Issa ALI, Defendant.
• Court: U.S. District Court — Western District of Virginia

757 F. Supp. 710

UNITED STATES of America, Plaintiff, v. Jamal Issa ALI, Defendant.

Cr. A. No. 89-00112-R/C-01.

United States District Court, W.D. Virginia, Charlottesville Division.

February 6, 1991.

Ray Fitzgerald, Roanoke, Va., for U.S.

John C. Lowe, Charlottesville, Va., for defendant.

MEMORANDUM OPINION

MICHAEL, District Judge.

The matter presently before the Court is Jamal Issa Ali's motion for naturalization. All concerned parties have submitted legal memoranda on this matter, and it is, therefore, ripe for resolution. Before turning to the body of this Memorandum Opinion, however, the Court will make a few comments that will be later expanded.

This Memorandum Opinion brings to a close a case that has proved very distressful to this Court. The Court has been troubled by the Immigration and Naturalization Service's (hereinafter "INS's") participation in the present case, but more importantly, the result that is mandated by the relevant federal statutes on Jamal Issa Ali's motion for naturalization gives this Court considerable pause. As the following pages will reveal more fully, the Court believes that Jamal Issa Ali's motion for naturalization must be denied, but in denying that motion, the Court realizes that it may play a part in forcing this young man to return to an inhospitable part of the world that will undoubtedly have a tremendous impact upon his future well-being and security.

At the time that this matter is before the Court, judicial notice must be taken of the martial conditions that now exist in the Middle East.¹ Although the Court must apply the laws of this country as they are written, the Court knows that its decision on this matter may be a step towards Jamal Issa Ali's ultimate forced relocation to the Middle East, and at minimum, this is an unsettling prospect. Nevertheless, the decision on whether Jamal Issa Ali must be deported or whether he can remain in this country is not before this Court. The United States Congress has stated that this crucial decision belongs to the INS and that this Court is not authorized to intervene at this stage in the process.² Accordingly, the Court trusts that the INS will consider the current state of affairs in the Middle East along with all other relevant factors and will resolve Jamal Issa Ali's case in the manner that it believes most appropriate under the circumstances, but as indicated, this is all that the Court can do.

Factual Background

Jamal Issa Ali was born in Jerusalem on December 25, 1963. After completing high school, he moved to the United States to join other members of his immediate family, and he has remained in this country for the better part of a decade. Despite the length of his stay in this country, Jamal Issa Ali has not, however, become a naturalized citizen. He has formally applied for naturalization, but the record in this case indicates that his citizenship remains in the Kingdom of Jordan, and presumably, if not in this country, Jamal Issa Ali would reside in Jordan.

On December 12, 1989, Jamal Issa Ali and his brother, Nidal Issa Ali, both pled guilty to conspiring to purchase an unregistered machine gun, from which the identifying serial number had been removed, and a silencer for the machine gun. Thereafter, the INS lodged a detainer against Jamal Issa Ali for possible deportation proceedings. Pursuant to the relevant federal statutes, the INS apparently believes that the offense to which Jamal Issa Ali has pled guilty in this Court provides a sufficient basis for his deportation. See 8 U.S.C. § 1251(a)(14) (1990). After the filing of the deportation detainer, counsel for Jamal Issa Ali filed a motion with the Court asking that a judicial recommendation against deportation be issued at the date of sentencing or within the ensuing thirty days. See 8 U.S.C. § 1251(b) (1970). Additionally, counsel for Jamal Issa Ali also filed the instant motion with the Court asking that his client be naturalized immediately.

On September 24, 1990, Jamal Issa Ali was sentenced to serve a term of imprisonment for 18 months and to serve a term of supervised release, following his incarceration, for 24 months. Since the naturalization and judicial-recommendation-against-deportation motions were still pending at that time, the Court ordered the United States Marshal to retain custody of Jamal Issa Ali and to house him in the Western District of Virginia until all pending matters in his case had been resolved. The Court also set a briefing schedule on both motions pending in the case.

On October 23, 1990, this Court issued an Order and Memorandum Opinion denying Jamal Issa Ali's motion for a judicial recommendation against deportation. The Court held that, based upon relevant federal statutes and case law, it did not have the authority to issue a judicial recommendation against deportation in Jamal Issa Ali's particular case. Alternatively, the Court held that, even if it did have such authority, the issuance of a judicial recommendation against deportation would still not be an appropriate measure since the present case did not involve the exceptional circumstances that are typically required before courts will employ this drastic and uncommon relief.

Having resolved the judicial-recommendation-against-deportation question, the Court next turned its attention to Jamal Issa Ali's motion for naturalization. On November 15, 1990, counsel for Jamal Issa Ali filed with the Court his legal memorandum in support of the motion for naturalization. The INS did not, however, respond with its required pleading until January 14, 1991, approximately six weeks after the prescribed deadline. Thereafter, counsel for Jamal Issa Ali submitted his legal memorandum in reply on January 18, 1991, and this matter then became ripe for resolution.

In his legal memoranda in support of the motion, counsel for Jamal Issa Ali argues that this Court should naturalize his client because his client's conviction on the firearms-conspiracy charge does not, pursuant to the relevant federal statutes and regulations, render his client unfit for citizenship. He further argues that the Immigration and Nationality Act, see 8 U.S.C. §§ 1101-1503 (1970), does not require administrative remedies to be exhausted prior to this Court's considering and granting his client's motion for naturalization. Counsel for Jamal Issa Ali concludes by arguing that there are no compelling reasons for not naturalizing his client and that there are many compelling reasons for doing so.

In its pleading filed in response to the motion, the INS argues that Jamal Issa Ali's conviction in this Court on the firearms-conspiracy charge does, indeed, disqualify him from obtaining citizenship. More importantly, the INS maintains that, within the Immigration and Nationality Act, see 8 U.S.C. § 1429 (1970), there is a "priority provision" that requires any court in which a naturalization petition has been filed to deny the petition if concurrent deportation proceedings are pending. Since the deportation process has commenced in Jamal Issa Ali's case, the INS, therefore, asserts that this Court should deny his motion for naturalization.

Legal Analysis

Pursuant to the Immigration and Nationality Act, see 8 U.S.C. §§ 1101-1503 (1970), courts given naturalization jurisdiction³ play the pre-eminent role in the naturalization process. See 3A Am.Jur.2d Aliens and Citizens § 1641 (1986). While the INS plays a critical role in processing applications, conducting investigations and examinations of applicants, and making recommendations regarding particular applicants, the court with jurisdiction over the applicant in question bears the responsibility for the ultimate decision on whether to grant or deny that applicant's petition for naturalization. See id. The INS has no authority either to grant or deny a petition for naturalization, and moreover, it cannot deny any applicant the right to apply for naturalization to any court that is authorized to exercise naturalization jurisdiction. See id. Regardless of the INS's position on a given application, that applicant in most instances has the right to submit his case to the appropriate court and, after the necessary proceedings, obtain a ruling on his eligibility for citizenship. See id.

In the typical case, however, courts do not become involved in the naturalization process until the very end. Usually, the courts' involvement does not occur until the culmination of the naturalization process when a final hearing before the court on a given application results in an order either granting or denying citizenship to the naturalization petitioner. See id. at § 1641. While the INS has a great deal of influence as to the nature of the final hearing, it is important to remember that the petitioner normally has an absolute right to have his petition submitted to and ruled on by a court with naturalization jurisdiction. See id. There is, nonetheless, one major exception to this general rule.

Section 1429 of title 8 of the United States Code provides, in pertinent part, that:

No person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other act, and no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other act.

8 U.S.C. § 1429 (1970) (emphasis added).⁴ This provision announces the general rule (1) that no person may be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the Immigration and Nationality Act and, most relevant to the present analysis, (2) that no petition for naturalization can be finally heard by a court with naturalization jurisdiction if there is pending against the...