Zayed v. U.S.

• Decision Date: 24 May 2004
• Docket Number: No. 02-4011.,02-4011.
• Citation: 368 F.3d 902
• Parties: Dalal ZAYED, Petitioner-Appellant, v. UNITED STATES of America, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

368 F.3d 902

Dalal ZAYED, Petitioner-Appellant, v. UNITED STATES of America, et al., Respondents-Appellees.

No. 02-4011.

United States Court of Appeals, Sixth Circuit.

Argued February 6, 2004.

Decided and Filed May 24, 2004.

Abraham Kay (argued and briefed), Law Office of Abraham Kay, Cleveland, OH, Keevin J. Berman (argued), Cleveland, OH, for Petitioner-Appellant.

Kathleen L. Midian, Asst. U.S. Attorney (briefed), Cleveland, OH, Michelle R. Slack, U.S. Dept. of Justice, Immigration Litigation, Civil Division, Washington, DC, Patricia M. Corrales-Talleda (argued and briefed), U.S. Dept. of Justice, Office of Immigration Litigation, Los Angeles, CA, for Respondent-Appellee.

Before: DAVID A. NELSON, GILMAN, and ROGERS, Circuit Judges.

OPINION

DAVID A. NELSON, Circuit Judge.

The U.S. Attorney General, whose duties include the processing of applications for naturalization, is prohibited by statute from considering the naturalization application of any person against whom there is pending a proceeding for removal from this country. See 8 U.S.C. § 1429, the relevant portion of which is set forth in the margin.¹

The question presented in the case at bar is whether § 1429 likewise prohibits a United States district court from exercising jurisdiction to review an administrative denial of a naturalization application once a removal proceeding has been instituted against the applicant. The court below answered this question with an unqualified "yes" — an answer that led the court to dismiss, without prejudice, a petition for review of the denial of the petitioner's naturalization application. Our answer — a heavily qualified "no" — is different in form, but it leads us to the same result on the facts presented here. Although § 1429 does not directly strip district courts of jurisdiction to review the denial of applications for naturalization while removal proceedings are pending, the statutory scheme does, in our view, limit the scope of judicial review and the availability of meaningful relief. In the case at bar, we believe, the district court lacked the power to grant an effective remedy. We shall affirm the dismissal on that basis.

I

The petitioner, Dalal Zayed, is a native of Israel and a citizen of Sweden. She entered the United States as a visitor for pleasure in December of 1988. Her mother, who had recently become a lawful permanent resident of this country, then applied for a relative's immigrant visa on Ms. Zayed's behalf. Ms. Zayed was admitted for permanent residence in April of 1991 as an unmarried daughter of a lawful permanent resident.²

Ms. Zayed applied for naturalization in February of 1996. She stated in her application that she had lived at her parents' Chicago-area address from December of 1988 until June of 1991 and that she had lived in the Cleveland area ever since. She also stated that she had married Nabeel Zayed in 1982, divorced him in 1988, and remarried him in 1992. She confirmed this information in an interview with an examiner for the Immigration and Naturalization Service. (A component of the Department of Justice, the INS took its marching orders from the Attorney General.³)

In September of 1999 the INS notified Ms. Zayed that it intended to deny her application for naturalization. An investigation had revealed that the applicant lived with her once-and-future husband for at least two years during the time she claimed to have been living with her parents. Because Ms. Zayed appeared to have lied about her past addresses — presumably to avoid casting doubt on the bona fides of her divorce the — INS reached the preliminary conclusion that Ms. Zayed lacked the good moral character required for naturalization. It also determined that she might be removable for using a sham divorce to obtain lawful permanent residence here as an unmarried daughter.

Ms. Zayed filed a response to the notice of intent, but her response did not carry the day; the application for naturalization was denied. Ms. Zayed filed an administrative appeal, and a hearing followed. The INS affirmed its denial of the naturalization application in October of 2001.

Seeking relief in the district court, Ms. Zayed filed her petition for review in February of 2002. A few weeks later the INS initiated removal proceedings against Ms. Zayed. The agency then moved to dismiss Ms. Zayed's petition for lack of subject matter jurisdiction. The motion was based on the theory that because 8 U.S.C. § 1429 precludes the Attorney General from considering a naturalization application while removal proceedings are pending, the institution of such proceedings divested the district court of jurisdiction to review the denial of the naturalization application.

The district court granted the motion. After reviewing the legislative history of § 1429, the court concluded that the original intent of Congress in enacting the relevant portion of the statute had survived a set of amendments adopted in the Immigration Act of 1990, Pub.L. No. 101-649, § 401. Because the authority to naturalize aliens had been removed from the district courts, under the 1990 amendments, and had been vested solely in the Attorney General (see 8 U.S.C. § 1421(a), as amended), a conforming amendment was adopted to prohibit "the Attorney General," rather than the "naturalization court," from considering naturalization applications where removal proceedings were pending. The district court concluded that the substitution of "the Attorney General" for the "naturalization court" did not reflect any change in the underlying intent of Congress. That intent, the district court said in its memorandum opinion, remained what it had been for many years: "to emphasize deportation proceedings over the naturalization process, and to avoid a race between an alien seeking to be naturalized and immigration authorities seeking to complete removal proceedings."

Adopting the approach to statutory interpretation urged upon it by the government — an approach pioneered by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892) — the district court elected to follow what it saw as the true intent of Congress without necessarily adhering to the letter of the statutory language. The petition for review was dismissed without prejudice, as we have said, and Ms. Zayed has filed a timely appeal.

II

A

We have jurisdiction of Ms. Zayed's appeal under 28 U.S.C. § 1291, the appeal having been taken from a final decision of the district court. Although the petition was dismissed without prejudice, the dismissal clearly terminated the action; Ms. Zayed could not cure the defect by amendment. Where an action, and not merely an amendable complaint (or petition), is dismissed without prejudice, the order of dismissal is final and appealable. See Thompson v. Michigan Dep't of Corrections, 23 Fed.Appx. 486, 487-88 (6th Cir.2001); CompuServe Inc. v. Saperstein, No. 97-4038, 1999 WL 16481, at ** 2-3 (6th Cir. Jan. 8, 1999).

B

Under 8 U.S.C. § 1421(c), federal district courts are given jurisdiction to review administrative denials of naturalization applications. "Such 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." 8 U.S.C. § 1421(c). Ms. Zayed contends that the commencement of removal proceedings cannot divest a district court of the jurisdiction granted by § 1421(c). The INS responds that such divestiture is automatic under 8 U.S.C. § 1429.

It is difficult to square the agency's response with the plain language of § 1429. By its terms, the statute limits the authority of "the Attorney General" — not the authority of the district courts — to act on applications for naturalization: "no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding...." (Emphasis supplied.)

Although courts — particularly inferior courts such as ours — are generally well advised to be cautious about letting the actual language of a statute be trumped by an unarticulated congressional intent, we have some sympathy for the district court's conclusion as to what Congress intended when it changed the law in 1990. The history of the Immigration Act of that year does suggest that Congress intended removal proceedings to have priority over naturalization proceedings.

It is important to recall that while authority to naturalize aliens was vested in the district courts until 1990, removal of aliens was the province of the Attorney General. And until 1952, when § 1429 was adopted, the usual practice had been "for both the [removal] and naturalization processes to proceed along together until either [the] petitioner's [removal] 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).⁴ Section 1429 was designed to end this "race between the alien to gain citizenship and the Attorney General to deport him." Id. at 544, 75 S.Ct. 509. That objective was accomplished by according priority to removal proceedings.

Thus § 1429 provided that "no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a [removal] proceeding...." And when the "sole authority" to naturalize aliens was transferred from the district courts to the Attorney General in 1990, see 8 U.S.C. § 1421(a), a corresponding change was made in § 1429: "the Attorney General" replaced the "naturalization court" as the entity precluded from acting on naturalization applications during the pendency of removal proceedings. Section 1421(c) — which, as we have seen, provides for judicial review of denials of naturalization applications — was also added at this time. We are aware of no suggestion that Congress intended the priority of...