The opinion of the court was delivered by: Gilbert, District Judge
This matter comes before the Court on Plaintiff's Motion for Summary Judgment (Doc. 13) and for a declaration from the Court that he is eligible to become a naturalized citizen. Defendants have responded (Doc 18) and filed a cross Motion for Summary Judgment (Doc. 19), to which Plaintiff has responded (Doc. 21).
Plaintiff David Angel (Angel) was born in Mexico. He entered the United States at the age of 14 and has lived in the U.S. for 30 years. He was awarded permanent resident alien status in 1989. In 1993, Angel moved to Effingham, Illinois and opened the El Rancherito restaurant with money he and his wife had saved from years of working in restaurants. Angel's restaurant was a success, and over the years he has opened more than 20 restaurants throughout central and southern Illinois. He pays his taxes and employs dozens of workers. By all accounts he has a stable marriage and home life. His wife is a citizen of the United States, as are his five children.
As regards his businesses, Angel has had some problems with the federal government. In November 2003, Angel and El Rancherito, Inc. entered into a consent agreement with the Department of Labor (DOL) in response to accusations that Angel and El Rancherito, Inc. owed back wages to certain of their workers who had been paid less than minimum wage or had not been paid properly calculated overtime wages.
Additionally, some of El Rancherito, Inc.'s workers were found to have entered the United States illegally and were removed (deported). Twice, the Department of Homeland Security (DHS) brought removal proceedings against Angel and his brother for assisting such illegal immigrants in entering the country. However, both proceedings were dismissed. The first was dismissed without prejudice when DHS admitted it had brought the proceedings improvidently. The second was dismissed with prejudice in a settlement agreement entered into after DHS's only witness affirmatively denied having any knowledge that the Angel brothers knowingly hired or helped smuggle unauthorized aliens.
Angel filed a petition for naturalization on March 31, 2003 with United States Citizenship and Immigration Services (USCIS). In order to be eligible for naturalization, a resident alien must meet certain continuous residency requirements, and show that he is of "good moral character." Angel appeared before a USCIS officer for an initial examination on his application on October 2, 2003 at USCIS's St. Louis sub-office. In response to some of the questions from USCIS's interviewer, Angel requested the presence of counsel. Accordingly, USCIS continued the interview. Despite attempts from Angel's counsel to schedule the follow- up interview, USCIS did not hold the examination until nearly three years had passed, conducting the interview on September 11, 2006.
In the interim, in July 2004, Angel attempted to enter Mexico from Laredo, Texas. An inspection by United States Customs and Border Protection revealed that Angel had secreted more than $90,000.00 in unreported cash in an ice chest. In July 2006, Angel pled guilty to the offense of failing to file a currency and monetary instrument report in violation of 31 U.S.C. § 5316(a)(1)(B) and § 5322(a). He was fined and sentenced to three years probation.
USCIS denied Angel's application on September 21, 2006, citing 8 C.F.R. 316.10(c)(1), which prohibits USCIS from approving a petition for naturalization while the petitioner remains on probation, although serving a sentence of probation does not preclude a finding that the petitioner is of good moral character. Angel appealed this decision to an immigration hearing officer who, on February 14, 2007, denied Angel's appeal. Having exhausted his administrative remedies, Angel requests the Court review his petition for naturalization de novo, as is his right under 8 U.S.C. § 1421.*fn1
I. Chevron Deference is not Appropriate in § 1421 Setting
There is some conflict among the circuits as to what degree of deference the Court owes USCIS's determination that Angel does not meet (indeed cannot meet during the period of his probation) the statutory requirement that he be of good moral character.
USCIS submits that its determination should be afforded so-called Chevron deference. That is, that when reviewing an agency's construction of a statute which the agency administers, a court must give great deference to the agency's construction of the statute. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). The Second Circuit has held that Chevron deference is appropriate in a § 1421 setting. See Boatswain v. Gonzales, 414 F.3d 413 (2d Cir.2005).
However, the Seventh Circuit expressly repudiated the notion that such deference was warranted in a § 1421 setting in O'Sullivan v. United States Citizenship & Immigration Services, 453 F.3d 809, 812 (7th Cir. 2006). The statute itself specifically instructs the court to review the claim "de novo, and the court shall make its own findings of fact and conclusions of law." 8 U.S.C. § 1421(c).
The Seventh Circuit examined this language:
Congress specifically calls for de novo review in naturalization cases, while ordering great deference in other immigration contexts. We do not find this to be coincidental. A person who is arguably entitled to be a United States citizen, with all of the privileges citizenship entails, is not rightly at the grace of the Attorney General, as other aliens are often considered to be. Therefore, before denying citizenship and the rights attendant to it, it would stand to reason that the district court should review the Attorney General's decision as if it were reviewing a citizen's claim that the government is unfairly denying him his rights. Section 1421(c) seems to ...