Tuesday, November 16, 2010

DHS Has Authority Over Naturalization

Barnes v. Holder
No. 09-1782       
United States Court of Appeals for the Fourth Circuit
2010 U.S. App. LEXIS 23293
November 10, 2010

Mr. Barnes immigrated to the United States in 1979 and joined the U.S. Army.  In 1982, a military court convicted Mr. Barnes of possessing, transporting and selling an illicit substance.  In 1999 he applied for naturalization and disclosed the conviction.  The Immigration and Naturalization Service interviewed Mr. Barnes.  INS told Mr. Barnes that the conviction barred him from naturalization.  He was told to withdraw his application, and he did in May 2000.

 In 2004, Mr. Barnes was placed in removal proceedings and charged with removability based on his 1982 conviction.  At an April 2005 hearing, Mr. Barnes admitted removability but indicated he would apply for relief.  In September 2006 Mr Barnes submitted a second naturalization application, and a motion to the court requesting to terminate removal proceedings pursuant to 8 CFR §1239.2(f).  The regulation in question grants the immigration judge (IJ) power to terminate removal proceedings if the individual establishes prima facie eligibility for naturalization, thereby allowing an alien to proceed to a final hearing on his naturalization application.  The IJ denied the motion, but continued the case to allow DHS to adjudicate Mr. Barnes’ naturalization application.  DHS schedule a naturalization interview, but then cancelled.  When Mr. Barnes appeared again before the IJ, DHS opposed any further continuances. Mr. Banes filed a request for a new interview, a new 123.2(f) motion and a request for 212(c) relief.  The IJ denied the motions and ordered removal.

Mr. Barnes appealed to the Board of Immigration Appeals (BIA) arguing that he merited §1239.2(f) relief.  The BIA denied.  Citing to Matter of Acosta Hidalgo, 24 I&N. Dec. 103 (BIA 2007), the BIA ruled that in order for the IJ to grant §1239.2(f) relief, the DHS must first communicate to the court that the individual is prima facie eligible for naturalization. Mr. Barnes appealed to the Fourth Circuit.  The Fourth Circuit affirmed the BIA’s interpretation.  It noted that the DHS is the only body statutorily vested with the power to make naturalization decisions (8 USC §1421(a)), and it is therefore reasonable to conclude that only DHS has authority to make prima facie determinations of naturalization eligibility.  It is also efficient to have DHS make the determination before the IJ evaluates the §1239.2(f) request because naturalization eligibility is a pre-requisite to obtaining the relief.  Finally, the determination can be made without actually granting the application, therefore there is no conflict with 8 USC §1429 which prohibits a grant of naturalization to a person in removal proceedings.    Through this ruling the Fourth Circuit joined four other courts that have adopted the Acosta-Hidalgo construction of §1239.2(f).  The other cases are Ogunfuye v. Holder, 610 F. 3d 303, 308 (5th Cir. 2010); Zegrean v. Att’n Gen. Of the United States, 602 F.3d 273, 274-275 (3d Cir. 2010); Perriello v. Napolitano, 579 F.3d 135, 142 (2nd Cir. 2009); Hernandez de Anderson v. Gonzalez, 497 F3d 927, 933-34 (9th Cir.2007).  



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