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Aljabri v. Holder

United States Court of Appeals, Seventh Circuit

March 11, 2014

SALEM FUAD ALJABRI, Plaintiff-Appellant,
ERIC H. HOLDER, JR., et al., Defendants-Appellees

Argued September 30, 2013.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-cv-00793 -- Charles R. Norgle, Judge.

For SALEM FUAD ALJABRI, Plaintiff - Appellant: Lisa Katharine Koop, Attorney, Charles Roth, Attorney, Chicago, IL.

For ERIC H. HOLDER, JR., Attorney General of the United States, JANET A. NAPOLITANO, Secretary of the Department of Homeland Security, ALEJANDRO MAYORKAS, Acting Director, U.S. Citizenship and Immigration Services, APHRODITE LOUTAS, Acting Director, Chicago Office, U.S. Citizenship and Immigration Services, Defendants - Appellees: Troy D. Liggett, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.

Before WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges.


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Wood, Chief Judge.

Salem Fuad Aljabri was born in Jordan, but he is of Palestinian descent. In 1997, he married a U.S. citizen; the marriage enabled him to become a lawful permanent resident in 2000. In February 2003, after three years had passed and he became eligible to be considered for naturalization under 8 U.S.C. § 1430, he filed an Application for Naturalization with U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS). USCIS conducted a naturalization interview in July 2003 and then sat on Aljabri's application for nearly nine years.

One might think that such a long delay would have prompted Aljabri to follow up somehow. But one would be wrong. Aljabri found his way into federal court under much worse circumstances, accused and then convicted in 2007 on multiple counts of wire fraud, 18 U.S.C. § 1343, money laundering, 18 U.S.C. § 1956(a)(1)(A)(i), and structuring (that is, deceptively organizing transactions so as not to trigger a financial institution's reporting requirements), 31 U.S.C. § 5324(a)(3). On appeal, this court vacated the money-laundering convictions but affirmed the wire fraud and structuring convictions. See United States v. Aljabri, 363 F. App'x 403 (7th Cir. 2010). On remand, Aljabri was resentenced to serve 84 months in prison. See United States v. Aljabri, 2013 WL 3975255 at *1 (N.D.Ill. July 30, 2013) (denying postconviction relief under 28 U.S.C. § 2255).

Catching wind of his turn to crime, DHS issued a Notice to Appear to Aljabri in 2008, alleging that he was removable from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony--namely, a crime causing a loss of more than $10,000 to victims. See 8 U.S.C. § 1101(a)(43)(M). (Aljabri maintains that the loss caused by

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his crimes was not sufficient to classify them as aggravated felonies, but that question is not relevant to this appeal.) He failed to appear at his immigration hearing in Dallas on April 28, 2010, perhaps, as he says, because he had a medical appointment that prison officials refused to reschedule, or maybe because he refused to leave his cell, as the government contends. Either way, he was ordered removed in absentia by the Immigration Judge.

Seeing the writing on the wall, Aljabri filed this lawsuit pro se in the Northern District of Illinois on February 3, 2011, asking the district court either to naturalize him or declare him a U.S. citizen based on the 2003 application for naturalization that was still languishing at USCIS. Either form of relief would have barred the government from removing him from the United States. The district court held on April 20, 2011, however, that it lacked subject-matter jurisdiction over Aljabri's action under 8 U.S.C. § 1252(a)(2)(B)(ii), which divests courts of jurisdiction to review any discretionary decision or action by the Attorney General or the Secretary of Homeland Security under " this subchapter" (except for grants of asylum). The court dismissed the case " with prejudice for lack of subject matter jurisdiction," and on January 10, 2012, it denied Aljabri's motion to alter or amend its judgment. The appeal was docketed in this court on January 30, 2012.

On May 3, 2012, USCIS at last got around to acting on Aljabri's naturalization application, which it denied on three grounds. First, it stated that it could not naturalize a person who was subject to a final order of removal. Second, it concluded that it could not naturalize Aljabri because the final order of removal meant that he was no longer a lawful permanent resident, and only permanent residents can be naturalized. Finally, it noted that Aljabri had been convicted of an aggravated felony and thus could not demonstrate the good moral character necessary for naturalization. In the meantime, Aljabri filed a motion to reopen his immigration case; initially that motion was denied, but on March 29, 2013, the Board of Immigration Appeals remanded ...

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