Crimes of Moral Turpitude

(B)  Naturalization as Relief from Removal.  A noncitizen in removal proceedings may request the immigration judge to terminate removal proceedings to allow a pending naturalization application to be processed and completed.[328]  The noncitizen must demonstrate prima facie eligibility for naturalization and show exceptionally appealing or humanitarian factors in favor of allowing the naturalization application to go forward.[329]  Although it is arguably not required, [330] earlier[331] and recent decisions[332] state that the DHS must expressly consent to allowing the immigration proceeding be terminated to allow naturalization to occur.

A district court is not barred from granting naturalization by the pendency of removal proceedings, and may entertain an appeal from the denial, by the DHS, of a naturalization application, even while removal proceedings are pending.[333]  The court can therefore render a declaration that the noncitizen is prima facie eligible to naturalize, except for the pendency of removal proceedings, and order the DHS to grant the application.  The district court, however, must require the applicant to exhaust administrative remedies before the DHS prior to taking jurisdiction over naturalization proceedings.

How the district court chooses to act procedurally depends on how the prayer for relief is framed.  Under the statute, the judge can treat the naturalization application de novo.  Alternatively, the judge can remand with an instruction to adjudicate the petition within a set period of time.  Upon filing, the AUSA will try to get an agreement to remand.  Counsel should not agree unless there is in writing an agreement that the judge will supervise the settlement order unless and until it is adjudicated by CIS.  Counsel should make sure the client has a spotless record before filing in district court, or CIS and the AUSA will look for reasons to deny the application so as to moot the petition.

For more information on naturalization, see ABA Com’n on Immigration, Naturalization and Criminal Offenses (Oct. 2005); Immigrant Legal Resource Center, Naturalization: A Guide for Legal Practitioners and Other Community Advocates (2004).[334]

[328] 8 C.F.R. § 1239.2(f). 

[329] Id.

[330] Compare current 8 C.F.R. § 1239.2(f), with former 8 C.F.R. § 242.7(e).

[331] See, e.g., Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1974) (“affirmative communication” from the INS required to allow an IJ to terminate proceedings to allow a noncitizen to apply for naturalization).

[332] Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir Nov. 5, 2007) (the DHS has exclusive authority to announce that a noncitizen is prima facie eligible to apply for naturalization for the purpose of allowing a noncitizen in removal proceedings to naturalize; recognizing part of Matter of Cruz, 15 I. & N. Dec. 237 (BIA 1975) abrogated by amendment of 8 U.S.C. § 1421 (1990)); Anderson v. Gonzales, 497 F.3d 927 (9th Cir. Aug. 9, 2007) (under 8 C.F.R. § 1293.2(f), a noncitizen must obtain permission from the DHS to apply for naturalization before the district courts when the noncitizen is in removal proceedings); Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) (because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to a noncitizen's prima facie eligibility for naturalization), reaffirming Matter of Cruz, 15 I.& N. Dec. 236 (BIA 1975).  Cf. Rios-Valenzuela v. Dep't of Homeland Sec., 506 F.3d 393 (5th Cir. Oct. 25, 2007) (court lacks jurisdiction to hear citizenship claim where the DHS initiated removal proceedings after the claim was brought before the district court).

[333] INA § 242(b)(5), 8 U.S.C. § 1252(b)(5).  The federal court can address the citizenship claim within the petition for review or refer the matter to the district court for a hearing.  Zayed v. United States, 368 F.3d 902 (6th Cir. May 24, 2004) (INA § 318, 8 U.S.C. § 1429 prohibits U.S. district court from exercising jurisdiction to review administrative denial of naturalization application once removal proceedings begin; district court may be able to declare applicant eligible for naturalization “but for” pending removal proceedings and allow applicant to request termination of proceedings to allow naturalization); Grewal v. Ashcroft, 301 F.Supp.3d 692 (N.D. Ohio Jan. 30, 2004) (district court retains jurisdiction to review agency denial of naturalization application even after the agency subsequently initiates removal proceedings).  A district court’s finding of good moral character will not be overturned unless clearly erroneous. United States v. Hovsepian, 422 F.3d 883 (9th Cir. Sept. 6, 2005).

[334]  To order, contact the ILRC at 1663 Mission St., Suite 602, San Francisco, CA 94103; http://www.ILRC.org.