(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.

CITIZENSHIP " DENATURALZATION
United States v. Gomez, __ F.Supp.2d __, 2013 WL 2147021 (S.D. Fla. May 15, 2013) (revoking naturalization where noncitizen failed to disclose conviction for drug trafficking on naturalization application).

NATURALIZATION - IJ LACKS JURISDICTION TO REVIEW ELIGIBILITY
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. Jun. 28, 2010) (immigration judge lacks authority to determine whether noncitizens are prima facie eligible for naturalization), following Matter of Hidalgo, 24 I. & N. Dec. 103, 105 (BIA 2007).

BIA

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Matter of Guzman-Gomez, 24 I. & N. Dec. 824 (BIA May 8, 2009) (the terms "child" and "parent" defined at 8 U.S.C. 1101(c), do not encompass stepchildren and stepparents; a person born outside the United States cannot derive United States citizenship under 8 U.S.C. 1431(a), by virtue of his or her relationship to a nonadoptive stepparent).

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

Second Circuit

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Garcia v. USICE, ___ F.3d ___, 2011 WL 6825581 (2d Cir. Dec. 29, 2011) (petitioner can derive citizenship if he was in his father's legal custody when his father naturalized, looking in this case first to state law to determine whether there is an enforceable judicial determination or statutory grant of custody; if there is not, actual uncontested custody of the child controls).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT
Bustamante v. Napolitano, 582 F.3d 403 (2nd Cir. Sept. 28, 2009) (where noncitizen properly invoked district courts authority over naturalization applications upon which the USCIS has failed to act for 120 days, under INA 336(b) of the Act, the district court had exclusive jurisdiction over naturalization application).

RELIEF - NATURALIZATION - DISTRICT COURT LACKS JURISDICTION TO RULE ON PROPRIETY OF REMOVAL PROCEEDINGS
Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008) (district court lacked jurisdiction to review the propriety of pending removal proceedings; pendency proceedings precluded plaintiff from stating a present claim for naturalization).

Third Circuit

JUDICIAL REVIEW"DISTRICT COURTS JURISDICTION TO REVIEW NATURALIZATION DENIALS
Gonzalez v. Secy of Dept of Homeland Security, 2012 WL 898609 (3d Cir. Mar. 19, 2012) (unpublished) (the jurisdiction vested in district courts by 8 U.S.C. 1421(c) to review naturalization denials is not divested by the priority given to removal proceedings under 8 U.S.C. 1429; district court may grant declaratory relief in the naturalization case notwithstanding the role it may play in terminating a removal proceeding).

CITIZENSHIP - NATURALIZATION - DISQUALIFICATION GROUND THAT REMOVAL PROCEEDING IS PENDING
Zegrean v. U.S. Attorney General, 602 F.3d 273 (3d Cir. Apr. 13, 2010) (noncitizen cannot establish prima facie eligibility for naturalization, under 8 C.F.R. 1239.2(f), when removal proceedings began before the naturalization application was filed), citing Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009).

Fourth Circuit

CITIZENSHIP " NATURALIZATION " FRAUDULENT ADMISSION
Injeti v. U.S. Citizenship and Immigration Services, 737 F.3d 311 (4th Cir. Dec. 11, 2013) (affirming district court denial of review of USCIS denial of naturalized U.S. citizenship, where noncitizen made misrepresentations on application for LPR status and submitted false evidence in another immigration proceeding).

RELIEF " NATURALIZATION " IMMIGRATION JUDGE CAN TERMINATE REMOVAL PROCEEDINGS TO ALLOW NATURALIZATION ONLY IF DHS HAS GIVEN WRITTEN CONFIRMATION OF ELIGIBILITY
Barnes v. Holder, 625 F.3d 801 (4th Cir. Nov. 10, 2010) (removal proceedings may only be terminated pursuant to 8 C.F.R. 1239.2(f) where the DHS has presented an affirmative communication attesting to the alien's prima facie eligibility for naturalization).

CITIZENSHIP - NATURALIZATION
Lee v. USCIS, __ F.3d __ (4th Cir. Jan. 25, 2010) (district courts lack jurisdiction to review USCIS denial of adjustment of status on the basis that 8 C.F.R. 245.10(j) was invalid under the APA).

Sixth Circuit

RELIEF " NATURALIZATION " REMOVAL PROCEEDINGS
Shewchun v. Holder, 658 F.3d 557 (6th Cir. Sept. 8, 2011) (noncitizen must get agreement from DHS that noncitizen is primafacie eligible for naturalization in order to ask immigration judge to terminate removal proceedings in order to apply for naturalization; although DHS may not adjudicate naturalization application of noncitizen in removal proceedings, DHS may determine prima facie eligibility without making a final determination on the application itself), following Matter of Hidalgo, 24 I. & N. Dec. 103 (BIA 2007); Barnes v. Holder, 625 F.3d 801, 807 (4th Cir. 2010).

Seventh Circuit

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZED CITIZENSHIP " REVOCATION
United States v. Suarez, 666 F.3d 655 (7th Cir. Dec. 16, 2011) (INA 1101(f)(8) and the accompanying regulations prevent a person from establishing good moral character for naturalization or any other relief when the person committed criminal acts within statutory GMC period prior to naturalization, but was not indicted or convicted of the offenses until after naturalization occurred).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT JURISDICTION
Ortega v. Holder, ___ F.3d ___ (7th Cir. Jan. 15, 2010) (reversing district court dismissal for lack of subject matter jurisdiction of action for a declaration of nationality pursuant to 8 U.S.C. 1503(a), as the language of this statute makes it clear Congress intended individuals to pursue one of two routes to establish claims for nationality, including filing an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. 1503(a)).

Eighth Circuit

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

Ninth Circuit

CITIZENSHIP " NATURALIZATION " DENATURALIZATION
United States v. Arango, 670 F.3d 988, 2012 WL 89184 (9th Cir. Jan.12, 2012 (reversing denaturalization order where issue of fact remained as to whether noncitizen, who procured LPR status through fraudulent marriage, had entered into cooperation agreement with the INS allowing him to retain his LPR status).

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Romero-Mendoza v. Holder, 665 F.3d 1105, 2011 WL 6318336 (9th Cir. Dec. 19, 2011) (petitioner's claim of derivative citizenship, through USC mother alone, was defeated by evidence showing his paternity was legitimated under Salvadoran law when parents married after petitioner's birth).

DC Circuit

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

Other

RELIEF"NATURALIZATION"DISTRICT COURT
Hajro v. Barrett, 2012 WL 968087 (N.D. Cal., Mar. 21, 2012) (unpublished) (noncitizen eligible for naturalization, and was not barred as lacking good moral character for providing false testimony in connection with adjustment of status by failing to disclose service in Bosnian army or participating in Muslim religious practices; "false testimony" for purposes of good moral character must be oral statements given under oath).

CITIZENSHIP - NATURALIZATION - MILITARY RAPID NATURALIZATION
"The Armys one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Armys program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days.

"Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." The military has always had the wartime authority to enlist NIV holders and even EWIs.

Anyone who enlists in this program has to be in legal status at the time of enlistment. Nobody who is out of status is eligible. If they fall out of status after they enlist, they can still become citizens, because under INA 329 even an illegal immigrant can naturalize.

Thanks to Margaret Stock

DOD Fact Sheet on the program: www.defenselink. mil/news/ mavni-fact- sheet.pdf

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

ARMED FORCES ENLISTMENT " NATIONALITY REQUIREMENTS
See 10 U.S.C. 504(b) (requirements for enlistment in the Armed Forces: A person must be a U.S. national, lawful permanent resident, a citizen of certain Pacific Islands, or vital to the national interest in order to enlist lawfully; the Army checks a persons paperwork with DHS to see whether the person falls into one of those categories, and also runs a fingerprint check and other database checks).