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O'SULLIVAN v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES

June 9, 2005.

DANIEL O'SULLIVAN, Petitioner,
v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Daniel O'Sullivan, a native of Jamaica and a legal permanent resident of the United States, seeks review pursuant to 8 U.S.C. § 1421(c) of the denial of his application for naturalization by respondent, the U.S. Citizenship and Immigration Services ("USCIS"). Petitioner argues that, notwithstanding a prior aggravated felony conviction, as a veteran of the Vietnam hostilities, he is entitled to naturalize under § 329 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1440, which lessens certain naturalization requirements for aliens who served in the U.S. military during a designated time of hostilities. See 8 U.S.C. § 1440; 8 C.F.R. § 329.2(a)(4).*fn1 Respondent argues that petitioner's application must be denied because § 1440 requires a showing of "good moral character," and that petitioner is statutorily barred from making such a showing because he has been convicted of an aggravated felony. For the reasons discussed below, the court denies the petition. BACKGROUND

Petitioner was born in Jamaica in 1958 and entered the United States as a lawful permanent resident in 1970. He enlisted in the Marine Reserves after graduating from high school, entering active duty in September 1976. Petitioner served in the Marines and the Air Force during the Vietnam hostilities and was honorably discharged from the military in December 1981.

  On August 16, 2000, petitioner was convicted in Wisconsin of being party to a crime of manufacture or delivery of less than five grams of cocaine. It was his first and only criminal arrest or conviction. After serving his Wisconsin sentence, petitioner was immediately transferred into the custody of the Department of Homeland Security ("DHS"), which had initiated removal proceedings against him. On August 5, 2003, petitioner was served with a Notice to Appear from respondent, then known as the Immigration and Naturalization Service ("INS"), stating that he was deportable based on his Wisconsin conviction.

  On March 4, 2004, before petitioner's removal proceedings were completed and while he remained in DHS custody, petitioner filed a naturalization petition under § 1440. Respondent denied his naturalization petition on June 24, 2004, on the grounds that he was unable to establish the requisite good moral character because of his conviction. Petitioner filed a request for a hearing pursuant to 8 U.S.C. § 1447. On December 1, 2004, DHS affirmed the denial of petitioner's naturalization petition without conducting a hearing. Petitioner timely filed the instant petition for review with this court on December 15, 2004.

  Subsequently, on April 25, 2005, the immigration judge in petitioner's removal proceedings, which had been pending since August 2003, ordered petitioner removed to Jamaica based on his aggravated felony conviction. Petitioner timely appealed the removal order, and his appeal is pending.

  DISCUSSION

  I. Jurisdiction

  Respondent challenges this court's jurisdiction for the first time in its reply brief, arguing that when the immigration judge found petitioner removable, this court was stripped of its jurisdiction over the pending naturalization petition. Respondent's argument is unpersuasive for two reasons. First, the procedural posture of petitioner's removal proceedings has not materially changed since he filed his petition with this court, at which point respondent concedes that removal proceedings were already pending against petitioner because he had been served with a Notice to Appear.*fn2 There is no final removal order against petitioner, as respondent conceded in open court on June 2, 2005, because petitioner's appeal of the immigration judge's removal order remains pending before the Board of Immigration Appeals ("BIA"). See 8 U.S.C. § 1101(a)(47)(B) (the order of deportation becomes final at the earlier of the BIA's determination affirming the order, or the expiration of the period in which the alien is permitted to seek review of the order).

  Second, respondent's argument is premised on a mistaken reading of 8 U.S.C § 1429 and the cases it cites in support are inapposite to the relatively narrow category of wartime veterans applying for naturalization pursuant to § 1440. Respondent characterizes § 1429, referred to as the "priority provision" because it gives precedence to administrative removal proceedings over judicial review of naturalization proceedings, as stripping district courts of jurisdiction in any case in which the petitioner is subject to removal proceedings. Respondent quotes selectively from § 1429, which in its entirety states:
"Notwithstanding the provisions of section 405(b) of this Act, and except as provided in sections 1439 and 1440 of this title 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 application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act. . . ." 8 U.S.C § 1429 (emphasis added).
  Respondent's quotation omits the first two clauses, which contain the most pertinent language for the purposes of the instant case and directly contradict respondent's argument that this court lacks jurisdiction here. By its clear language, the "priority provision" of § 1429 simply does not apply to applications under 8 U.S.C. § 1440.

  Federal regulations and case law support this reading. Federal regulations state that applicants under § 1440 who are concurrently in removal proceedings due to the issuance of a Notice to Appear, such as petitioner here, may be naturalized. "The [§ 1440] applicant may be naturalized even if an outstanding notice to appear pursuant to 8 C.F.R. part 239 (including a charging document issued to commence proceedings under section 236 or 242 of the [INA] prior to April 1, 1997) exists." 8 C.F.R § 329.2(e)(3). A court in the Eastern District of New York recently characterized this section of the regulations to "permit veterans to apply for naturalization during removal proceedings." Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 378 (E.D.N.Y. 2003). Respondent relies on three cases to support its argument that this court lacks jurisdiction, but none of these involve § 1440 petitioners, and are thus inapposite. See Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003); Tellez v. U.S.I.N.S., 91 F. Supp. 2d 1356 (C.D.Cal. 2000); Apokarina v. Ashcroft, 232 F. Supp. 2d 414 (E.D.Pa. 2002). Even if these cases were applicable, they have been abrogated or called into question. The Third Circuit questioned the holding in Apokarina in an unpublished opinion remanding the case to the district court. Apokarina v. Ashcroft, 93 Fed. Appx. 469, 2004 WL 742286, unpub. op. (3rd Cir. 2004). Since deciding Perdomo-Padilla and Tellez, the Ninth Circuit has explicitly held that a district court has jurisdiction to review the denial of a § 1440 naturalization petition while removal proceedings are pending, and abrogated its holding in Tellez. "As we see it, § 1421(c) plainly confers jurisdiction on district courts to review any denial of an application for naturalization." De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1043 (9th Cir. 2004). The petitioner in De Lara Bellajaro petitioned the district court for review of the BIA decision denying his application based on pending removal proceedings. The Ninth Circuit noted that "the scope of review extends only to the determination that was actually made by the agency." Id.

  In the instant case, respondent denied petitioner's application on the basis of its finding that he was statutorily barred by his aggravated felony conviction from fulfilling the good moral character requirement it found to be applicable to § 1440 applicants. A final order of removal has not been entered against petitioner. Accordingly, the court has jurisdiction to review the denial of petitioner's application for naturalization de novo. The question, then, is whether respondent properly found that petitioner was barred from demonstrating good moral character based on his aggravated felony conviction. II. Moral character requirement

  Naturalization of non-citizens is governed by Title 8 U.S.C. §§ 1421-1504. Section 1427(a) sets forth the general requirements for naturalization, including that "[n]o person shall be naturalized unless [the] petitioner, (1) immediately preceding the date of filing his petition for naturalization had resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years * * *, and (3) during all the period referred to in this subsection has been and still is a person of good moral character. . . ." The "period referred to" in § 1427(a)(3) is the five-year residency period set forth in § 1427(a)(1), and thus § 1427(a) creates a five-year good moral character requirement for petitioners for naturalization. See Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 383 (E.D.N.Y. 2003). Section 1439 governs naturalization for peacetime veterans, and lessens, inter alia, the residency and physical presence requirements of § 1427. Peacetime veterans are required to establish three years of honorable service and good moral character in order to be eligible for naturalization.

  Section 1440 provides further relaxed naturalization requirements for wartime veterans. Section 1440(a) requires that such aliens: (1) served honorably during a time of military conflict; and (2) were in the United States, or certain designated territories, at the time of their "enlistement, reenlistment, extension of enlistment, or induction" into the military, or "at any such time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence." Section 1440(b) states, in pertinent part, "A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter. . . ." Section 1440 thus incorporates the requirements of § 1427, including the five-year period of residence during which good moral character must be established, as well as other prerequisites such as knowledge of English and United States history. See 8 U.S.C. §§ 1423 and 1429; see also Boatswain, 267 F. Supp. 2d at 380. Subdivisions (b)(1)-(3) of § 1440, however, create certain exceptions to the requirement ...


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