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Case: 11-55796    10/25/2011    ID: 7940570   DktEntry: 17   Page: 1 of 32                               No. 11-55796     ...
Case: 11-55796            10/25/2011          ID: 7940570           DktEntry: 17          Page: 2 of 32                   ...
Case: 11-55796            10/25/2011          ID: 7940570           DktEntry: 17          Page: 3 of 32        2.       Th...
Case: 11-55796           10/25/2011        ID: 7940570         DktEntry: 17        Page: 4 of 32                          ...
Case: 11-55796             10/25/2011          ID: 7940570           DktEntry: 17          Page: 5 of 32Saba-Bakare v. Che...
Case: 11-55796             10/25/2011           ID: 7940570           DktEntry: 17          Page: 6 of 328 U.S.C. § 1252(a...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 7 of 32                                INTRODUCTION  ...
Case: 11-55796     10/25/2011    ID: 7940570     DktEntry: 17   Page: 8 of 32(“E.R.”), p. 15). Instead, her principle argu...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 9 of 32                                  JURISDICTION...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 10 of 32                          STATEMENT OF THE CA...
Case: 11-55796      10/25/2011    ID: 7940570   DktEntry: 17    Page: 11 of 32(Id., pp. 3-5).1 The district court noted th...
Case: 11-55796     10/25/2011     ID: 7940570   DktEntry: 17   Page: 12 of 32                              STATEMENT OF FA...
Case: 11-55796     10/25/2011    ID: 7940570     DktEntry: 17   Page: 13 of 32           THE HISTORY AND APPLICATION OF SE...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 14 of 32      In 1990, Congress amended the Immigrati...
Case: 11-55796    10/25/2011    ID: 7940570    DktEntry: 17   Page: 15 of 32      Pursuant to the Department of Homeland S...
Case: 11-55796     10/25/2011     ID: 7940570     DktEntry: 17   Page: 16 of 32naturalization application because, otherwi...
Case: 11-55796    10/25/2011    ID: 7940570    DktEntry: 17   Page: 17 of 32because, unlike Mr. Bellajaro, Ms. Sanchez fil...
Case: 11-55796   10/25/2011    ID: 7940570    DktEntry: 17   Page: 18 of 32       Third, Ms. Sanchez raises a due process ...
Case: 11-55796      10/25/2011    ID: 7940570     DktEntry: 17    Page: 19 of 32      A.     The Plain Language of Section...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 20 of 325131619, *3 (N.D. Cal. Dec. 5, 2008) (Bellaja...
Case: 11-55796     10/25/2011    ID: 7940570     DktEntry: 17   Page: 21 of 32F.3d at 240. Under such an interpretation of...
Case: 11-55796    10/25/2011     ID: 7940570    DktEntry: 17   Page: 22 of 32of naturalization decisions” by initiating re...
Case: 11-55796    10/25/2011    ID: 7940570     DktEntry: 17   Page: 23 of 32naturalization application. If the immigratio...
Case: 11-55796     10/25/2011      ID: 7940570   DktEntry: 17   Page: 24 of 32      A.     The Government Cannot Approve A...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17    Page: 25 of 32is barred from considering an application fo...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17    Page: 26 of 32(1986) (listing ten different definitions of...
Case: 11-55796     10/25/2011    ID: 7940570    DktEntry: 17   Page: 27 of 32not articulate factors that the government is...
Case: 11-55796    10/25/2011    ID: 7940570    DktEntry: 17   Page: 28 of 323.     Ms. Sanchez’s Constitutional Argument I...
Case: 11-55796    10/25/2011    ID: 7940570    DktEntry: 17   Page: 29 of 32process that is due to her. See id. She has no...
Case: 11-55796    10/25/2011      ID: 7940570   DktEntry: 17   Page: 30 of 32proceedings and final removal orders are to t...
Case: 11-55796      10/25/2011   ID: 7940570    DktEntry: 17   Page: 31 of 32          STATEMENT WITH RESPECT TO ORAL ARGU...
Case: 11-55796       10/25/2011      ID: 7940570       DktEntry: 17     Page: 32 of 32  9th Circuit Case Number(s) 11-5579...
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USCIS N-400 Brief to Sanchez-Fayad in 9th 10-25-2011

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Transcript of "USCIS N-400 Brief to Sanchez-Fayad in 9th 10-25-2011"

  1. 1. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 1 of 32 No. 11-55796 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUISA EVELIN SANCHEZ FAYARD, Plaintiff-Appellant, v. JANET NAPOLITANO, et al., Defendants-Appellees.ON APPEAL FROM THE SOUTHERN DISTRICT OF CALIFORNIA No. 10-cv-01109 BRIEF FOR DEFENDANTS-APPELLEES TONY WEST Assistant Attorney General Civil Division ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation - DCS AARON S. GOLDSMITH Trial Attorney Office of Immigration Litigation - DCS U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4107 Attorneys for Defendants-Appellees
  2. 2. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 2 of 32 TABLE OF CONTENTSINTRODUCTION. ................................................................................................... 1JURISDICTION. ...................................................................................................... 3STANDARD OF REVIEW. ..................................................................................... 3ISSUE PRESENTED................................................................................................ 3STATEMENT OF THE CASE................................................................................. 4STATEMENT OF FACTS. ...................................................................................... 6THE HISTORY AND APPLICATION OF SECTION 1429. ................................. 7 A. The History Of Section 1429. .............................................................. 7 B. The Bellajaro Opinion. ........................................................................ 9SUMMARY OF LEGAL ARGUMENTS.............................................................. 10LEGAL ARGUMENTS. ........................................................................................ 12 1. Regardless Of When An Applicant Files An Action Under Section 1421(c), If Removal Proceedings Are Pending, The Applicant’s Claim Is Barred By Section 1429....................................................... 12 A. The Plain Language of Section 1429 Does Not Support Ms. Sanchez’s Interpretation Of This Provision...................... 13 B. Ms. Sanchez’s Interpretation Of Section 1429 Is Contrary To The Underlying Rationale Behind This Provision................... 14 C. Ms. Sanchez Does Not Explain Why The Scope Of Section 1429 Should Turn On The Timing Of The Filing Of Her Lawsuit..................................................................................... 15 i
  3. 3. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 3 of 32 2. There Is No Merit In Ms. Sanchez’s Argument That Even If USCIS Cannot “Consider” A Naturalization Application, It Still Has The Authority To Grant It. ........................................................................ 20 A. The Government Cannot Approve A Naturalization Application If It Is Barred From Considering It. ..................... 18 B. Ms. Sanchez’s Strained Reading Of The Word “Consider” Is Contrary To The Plain Meaning Of The Word As Used In the Context Of Section 1429.......................................................... 19 3. Ms. Sanchez’s Constitutional Argument Is Without Merit. ............... 22 4. Ms. Sanchez’s Argument That Naturalization Should Take Precedence Over Removal Proceedings Is Disposed Of By Bellajaro............................................................................................. 23CONCLUSION....................................................................................................... 24STATEMENT WITH RESPECT TO ORAL ARGUMENTSTATEMENT OF RELATED CASESCERTIFICATE OF COMPLIANCE ii
  4. 4. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 4 of 32 TABLE OF AUTHORITIES CASESAjlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008). ............................................................. 2, passimAye Aye Kyi v. Chertoff, No. 08-03383, JSW, 2008 WL 5131619 (N.D. Cal. Dec. 5, 2008) ............. 13Barnes v. Holder, 625 F.3d 801 (4th Cir. 2010). ................................................................. 14, 19De Lara Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004). ........................................................... 1, 21, 23EEOC v. Fed. Labor Relation Auth., 476 U.S. 19 (1986). ...................................................................................... 20Gonzalez v. Napolitano, 684 F. Supp. 2d 555 (D.N.J. 2010)......................................................... 17, 22Kemp v. Blake, 476 U.S. 998 (1985). .................................................................................... 20Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir. 1991). .......................................................................... 5North County Alliance, Inc. v. Salazar, 573 F.3d 738 (9th Cir. 2009). ......................................................................... 3Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). .................................................................................... 23Rahman v. Napolitano, No. 09-3437, 2010 WL 2777271 (6th Cir. July 13, 2010). .................... 18, 24 iii
  5. 5. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 5 of 32Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007). ....................................................................... 14Schomberg v. U.S., 348 U.S. 540 (1955). ...................................................................................... 7Todorovic v. Pierre, No. 10-cv-1538, 2010 WL 5313484 (S.D. Cal. 2010). ................................ 13U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004). ..................................................................... 16U.S. v. Luong, Nos. 03-10700, 03-10701, 04-1007, 2005 WL 661287 (9th Cir. March 11, 2005)............................................................................. 20Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160, 1173 (E.D. Cal. 2006). ............................................. 20Zayed v. U.S., 368 F.3d 902 (6th Cir. 2004). ............................................................ 2, passim STATUTES6 U.S.C. § 101........................................................................................................... 96 U.S.C. § 271(b)(2). ................................................................................................ 96 U.S.C. § 521(c). ..................................................................................................... 98 U.S.C. § 1229(c)(3)(A). ....................................................................................... 228 U.S.C. § 1229a. .................................................................................................... 238 U.S.C. § 1229a(b)(4)............................................................................................ 228 U.S.C. § 1252(b). ................................................................................................. 23 iv
  6. 6. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 6 of 328 U.S.C. § 1252(a)(5)........................................................................................ 17, 228 U.S.C. § 1252(b). ................................................................................................. 228 U.S.C. § 1252(d)(1). ...................................................................................... 17, 228 U.S.C. § 1421(a). ............................................................................................... 4, 88 U.S.C. § 1421(c). ...................................................................................... 4, passim8 U.S.C. § 1429............................................................................................ 1, passim8 U.S.C. § 1447(b). ................................................................................................. 1328 U.S.C. § 1291....................................................................................................... 328 U.S.C. § 1331....................................................................................................... 3 Immigration Act of 1990:Pub. L. No. 101-649, 104 Stat. 4978, 5038. ............................................................. 8 Naturalization Act of 1906:Pub. L. No. 59-338, Stat. 596, 596, 599. .................................................................. 7 Department of Homeland Security Act of 2002:Pub. L. No. 107-296, Stat. 2135. .............................................................................. 9 REGULATIONS8 C.F.R. § 3. .............................................................................................................. 98 C.F.R. § 1003. ........................................................................................................ 9 v
  7. 7. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 7 of 32 INTRODUCTION This case involves the meaning and scope of the priority provision in8 U.S.C. § 1429. See De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1046-47 (9thCir. 2004). In Bellajaro, this Court found that when an application fornaturalization is denied because the applicant is in removal proceedings, 8 U.S.C.§ 1429 bars judicial review of the denial. Bellajaro, 378 F.3d at 1046-47. ThisCourt explained that, under prior immigration law, when an alien seekingnaturalization was in removal proceedings, there was a “race” between the federaldistrict court (who heard the petition for naturalization) and the Attorney General(who had authority over deportation (now removal) proceedings). Id. at 1045.Congress ended this “race” enacting 8 U.S.C. § 1429 (1952) which stated thatonce an alien was placed in removal proceedings, the alien’s petition fornaturalization could not be heard. Id. Although U.S. immigration law haschanged over the years, 8 U.S.C. § 1429 continues to give precedence to removalproceedings over naturalization applications by barring the consideration ofapplications for naturalization by the government when an applicant is in removalproceedings. See id. In this action, Ms. Sanchez does not challenge the holding of the Bellajaroopinion, conceding that it is “the controlling case here.” (Excerpts of the Record
  8. 8. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 8 of 32(“E.R.”), p. 15). Instead, her principle argument is that Bellajaro isdistinguishable from the present case because in Bellajaro, the applicant wasplaced in removal proceedings before commencing a lawsuit in federal court and,in contrast, she was placed in removal proceedings after filing her lawsuit.(Appellant’s Op. Br., pp. 6, 16, 25-26). The district court rejected this argument finding that, notwithstanding thisdifference in timing, 8 U.S.C. § 1429 still barred Ms. Sanchez’s claim for judicialreview of the denial of her application for naturalization. (E.R., p. 4). In supportof this conclusion, it cited the two appellate decisions that analyzed this issue andfound that an applicant’s claim is barred by 8 U.S.C. § 1429 irrespective ofwhether the applicant commences litigation before or after being placed inremoval proceedings. (E.R., p. 4, citing Ajlani v. Chertoff, 545 F.3d 229, 238-41(2d Cir. 2008); Zayed v. U.S., 368 F.3d 902, 906 (6th Cir. 2004)). As these casesexplain, to interpret 8 U.S.C. § 1429 otherwise would restart the “race” betweennaturalization and removal that Congress sought to end by enacting 8 U.S.C.§ 1429. (Id.). At issue on appeal is whether the district court correctly interpreted8 U.S.C. § 1429 or whether, as Ms. Sanchez suggests, an applicant has the right tosimultaneously litigate a claim for naturalization in federal court while contestingremovability in proceedings before an immigration judge. 2
  9. 9. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 9 of 32 JURISDICTION The district court had subject matter jurisdiction under 28 U.S.C. § 1331.The district court entered a final order of dismissal on April 22, 2011. (E.R., pp.2-5); see 28 U.S.C. § 1291. Ms. Sanchez timely noted her appeal by filing a noticeof appeal on May 17, 2011. (E.R., p. 1); Fed. R. App. P. 4 (a)(1). STANDARD OF REVIEW The parties are in agreement that questions of law are reviewed de novo.(See Appellant’s Op. Br., p. 4); see, e.g., North County Alliance, Inc. v. Salazar,573 F.3d 738, 740 (9th Cir. 2009). Ms. Sanchez is not challenging the factualfindings of the district court judge, which are undisputed. (Appellant’s Op. Br.,p. 4; E.R., p. 2). ISSUE PRESENTED 1. Sole authority to grant a naturalization application is committed inU.S. Citizenship and Immigration Services (USCIS). If USCIS is barred by 8U.S.C. § 1429 from considering a naturalization application because the applicantis in removal proceedings, may a federal court nonetheless order USCIS to grantthe naturalization application? 3
  10. 10. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 10 of 32 STATEMENT OF THE CASE On May 21, 2010, Ms. Sanchez commenced litigation in federal courtseeking judicial review, under 8 U.S.C. § 1421(c), of USCIS’s denial of hernaturalization application. (E.R., p. 3.). On September 14, 2010, USCIS filed amotion to dismiss, or in the alternative, for summary judgment. (Id.). The districtcourt, after examining the interplay of 8 U.S.C. §§§ 1421(a), 1421(c), and 1429,granted the motion to dismiss and denied the motion for summary judgment asmoot. (Id., pp. 3-5). The district court observed that: (i) The sole authority to naturalize citizens is committed to the government under 8 U.S.C. § 1421(a); (ii) Congress gave district courts the authority to review denials of naturalization applications under 8 U.S.C. § 1421(c); and (iii) Under 8 U.S.C. § 1429, no application for naturalization shall be considered by the government if there is a removal proceeding pending against the applicant.(E.R., pp. 3-4). Because it is undisputed that Ms. Sanchez is in removalproceedings, the district court concluded that 8 U.S.C. § 1429 barred Ms.Sanchez’s claim for judicial review of the denial of her naturalization application. 4
  11. 11. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 11 of 32(Id., pp. 3-5).1 The district court noted that 8 U.S.C. § 1429 does not specify anytiming restriction and simply refers to pending removal proceedings. (Id., p. 3).The district court further ruled that Ms. Sanchez is not entitled to any discoverybecause access to discovery is not a reason to go to trial and is not a claim forrelief that a court may grant. (Id., p. 5). On May 17, 2011, Ms. Sanchez filed her Notice of Appeal. (E.R., p. 1).On appeal, Ms. Sanchez does not challenge this Court’s holding in Bellajaro.(Appellant’s Op. Br., p. 1). Instead, she limits her appeal to whether the districtcourt correctly found that 8 U.S.C. § 1429 strips all federal question jurisdictionand judicial review if a naturalization applicant is charged as removable.(Appellee’s Op. Br., p. 1 “Statement of Issues Presented for Review”).2 1 The district court properly took notice of the fact that Ms. Sanchez is inremoval proceedings in ruling on the motion to dismiss. See Kramer v. TimeWarner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (courts “routinely” take judicialnotice of documents filed in other courts, not for the truth of the matters asserted,but rather to establish the fact of such litigation and related filings). Any argumentthat the district court erred in doing so was waived by Ms. Sanchez’s failure toobject at the district court level or assign error in her opening brief. (Appellant’sOp. Br., p. 3). 2 USCIS notes that this description of the district court’s holding isinaccurate. (See Appellee’s Op. Br., p. 1). The district court expressly stated that 8U.S.C. § 1429 “does not strip the courts of jurisdiction to review the denial ofapplications.” (Id., p. 4, citing Bellajaro, 378 F.3d at 1043). An applicant is stillentitled to review of whether or not the applicant is in removal proceedings. SeeBellajaro, 378 F.3d at 1043. 5
  12. 12. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 12 of 32 STATEMENT OF FACTS Ms. Sanchez entered the United States on June 18, 1994, on a visitor visa.(E.R., p. 2). On September 3, 1998, she purportedly married a U.S. citizen. (Id.).On February 7, 2000, USCIS granted Ms. Sanchez conditional lawful permanentresident status based on her purported marriage to a U.S. citizen. (Id.). OnJanuary 4, 2002, USCIS removed the contingency and granted Ms. Sanchez thestatus of lawful permanent resident. (Id.). In July 2002, Ms. Sanchez divorced herpurported husband. (Id.). After the divorce, her purported former husband toldimmigration officers that Ms. Sanchez had paid him to marry her and to maintainthe illusion of marriage. (Id., pp. 2-3). On June 17, 2005, Ms. Sanchez applied for naturalization. (Id., p. 2). OnSeptember 9, 2009, USCIS denied Ms. Sanchez’s application, in part, on thegrounds that she failed to establish good moral character and provided falsetestimony in order to obtain an immigration benefit. (Id.). Ms. Sanchez’sadministrative appeal of this decision was denied. (Id.). On September 7, 2010, after this action was commenced, Ms. Sanchez wasplaced in removal proceedings. (Id., pp. 2, 32-4 (copy of the Notice to Appear);Appellant’s Op. Br., p. 3). 6
  13. 13. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 13 of 32 THE HISTORY AND APPLICATION OF SECTION 1429 This action turns on the application of 8 U.S.C. § 1429. Before addressingMs. Sanchez’s arguments, USCIS will briefly: (a) describe the history thisprovision, and (b) explain how this Court previously interpreted this provision inthe Bellajaro opinion (which Ms. Sanchez concedes is “controlling”). (E.R.,p. 15). A. The History Of Section 1429 Before 1990, district courts had the authority to naturalize and the AttorneyGeneral had the authority to deport (now “remove”) aliens. Bellajaro, 378 F.3d at1045; see also Naturalization Act of 1906, Pub. L. No. 59-338, §§ 3, 11, 34, Stat.596, 596, 599. This differentiation of function gave rise to a “race between thealien to gain citizenship and the Attorney General to deport . . .” Bellajaro, 378F.3d at 1045 citing Schomberg v. U.S., 348 U.S. 540, 544 (1955). In 1952,Congress enacted 8 U.S.C. § 1429 to put an end to this race. Bellajaro, 378 F.3dat 1045; see also Zayed, 368 F.3d at 905 (further discussing the history of 8 U.S.C.§ 1429). This provision provided that “no petition for naturalization shall befinally heard by a naturalization court if there is pending against the petitioner adeportation proceeding . . .” Bellajaro, 378 F.3d at 1045 citing 8 U.S.C. § 1429(1952). 7
  14. 14. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 14 of 32 In 1990, Congress amended the Immigration and Nationality Act (INA) tovest all authority to naturalize aliens in the Attorney General, 8 U.S.C. § 1421(a).Bellajaro, 378 F.3d at 1045. There is no evidence that in enacting this 1990amendment, Congress intended to change the priority of removal proceedings overnaturalization proceedings. See Zayed, 368 F.3d at 905-6. In order to conform 8U.S.C. § 1429 to the 1990 amendments to the INA, Congress replaced “anaturalization court” with “the Attorney General” so that § 1429 now reads inrelevant part: [N]o application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding . . . .Bellajaro, 378 F.3d at 1045; see also Immigration Act of 1990, Pub. L. No. 101-649, § 401(a), 104 Stat. 4978, 5038. At the same time, Congress provided for judicial review of denials ofnaturalization applications: A person whose application for naturalization . . . . is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides . . . . Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.Id., citing 8 U.S.C. § 1421(c). 8
  15. 15. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 15 of 32 Pursuant to the Department of Homeland Security Act of 2002, Pub. L. No.107-296, 116 Stat. 2135, 6 U.S.C. §§ 101-557, as of March 1, 2003, theImmigration and Naturalization Service (INS) was abolished and its functionswere transferred from the Department of Justice (DOJ) to the newly createdDepartment of Homeland Security (DHS). The authority to adjudicateapplications for naturalization was committed to USCIS (a component of DHS).6 U.S.C. § 271(b)(2). Immigration judges, who are part of the Executive Officeof Immigration Review (EOIR), remained part of DOJ. See 6 U.S.C. § 521(c);8 C.F.R. §§ 3 and 1003. B. The Bellajaro Opinion In Bellajaro, the INS denied Mr. Bellajaro’s application for naturalizationon the merits finding that he failed to establish good moral character. 378 F.3d at1044. The INS commenced removal proceedings against him. Id. Mr. Bellajarofiled a subsequent application for naturalization and moved to terminate theremoval proceedings. Id. This motion was denied. Id. INS denied hisapplication for naturalization. Id. Mr. Bellajaro filed an administrative appealwhich was denied under 8 U.S.C. § 1429. Id. Mr. Bellajaro then filed an actionunder 8 U.S.C. § 1421(c). Id. Mr. Bellajaro argued that, even though he was inremoval proceedings, he must have an opportunity for judicial review of his 9
  16. 16. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 16 of 32naturalization application because, otherwise, the government would always be ina position to circumvent judicial review by placing an applicant in removalproceedings. Id. at 1044-45. This Court rejected Mr. Bellajaro’s argumentholding that he was not entitled to relief under 8 U.S.C. § 1421(c) because of thepriority provision of 8 U.S.C. § 1429. Id. at 1045-46. This Court also rejected Mr. Bellajaro’s secondary argument that even if afederal court was barred from deciding that he was entitled to naturalization, acourt should still be able to declare that he is eligible for naturalization but for thependency of removal proceedings. Id. at 1047. This Court found that such reliefwould be “purely advisory” given the pendency of his removal proceedings. Seeid. As a result, Mr. Bellajaro was not entitled to any relief under 8 U.S.C.§ 1421(c). Id. SUMMARY OF LEGAL ARGUMENTS In this action, the district court correctly found that Ms. Sanchez is notentitled to relief under 8 U.S.C. § 1421(c) because she is currently in removalproceedings. (See E.R., pp. 3-5); see Bellajaro, 378 F.3d at 1045. On appeal, Ms.Sanchez raises four arguments as to why the district court erred in reaching thisconclusion. First, she argues that the present case is distinguishable from Bellajaro 10
  17. 17. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 17 of 32because, unlike Mr. Bellajaro, Ms. Sanchez filed an action under 8 U.S.C.§ 1421(c) before she was placed in removal proceedings.3 (Appellant’s Op. Br.,pp. 6, 16). As a result, she contends her claim is not barred by 8 U.S.C. § 1429.(Id.) This argument ignores the plain language and underlying rationale of8 U.S.C. § 1429. See Ajlani, 545 F.3d at 234-35; Zayed, 368 F.3d at 907.Moreover, Ms. Sanchez does not explain why the scope of 8 U.S.C. § 1429 shouldturn on the timing of the filing of a lawsuit by an applicant when this provisionmakes no mention of such a lawsuit. Second, Ms. Sanchez argues that even if USCIS lacks the authority toconsider Ms. Sanchez’s naturalization application because she is in removalproceedings, a federal judge can still order USCIS to approve the application.(Appellant’s Op. Brief, pp. 18, 21). This argument has been rejected by the twoappellate courts that have addressed it. See Ajlani, 545 F.3d 234-35; Zayed, 368F.3d at 907. Moreover, Ms. Sanchez’s argument ignores the plain meaning of theword “consider” as used in the context of 8 U.S.C. § 1429. 3 To be clear, in both Bellajaro and this action the applicant filed anapplication for naturalization before being placed in removal proceedings. See378 F.3d at 1044. The difference is that in Bellajaro, the applicant filed asubsequent application for naturalization that was denied because he was inremoval proceedings and it was this subsequent application that was the subject oflitigation. See id. In contrast, here, Ms. Sanchez never filed a subsequentapplication for naturalization after being placed in removal proceedings. 11
  18. 18. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 18 of 32 Third, Ms. Sanchez raises a due process challenge. (Appellant’s Op. Brief,pp. 13-16). This challenge must fail because she cannot explain how the districtcourt’s interpretation of 8 U.S.C. § 1429 amounts to a violation of her due processrights or how she has been deprived of any process that is due to her by law. Fourth, Ms. Sanchez argues that naturalization applications should takepriority over removal proceedings. (Appellant’s Op. Br., p. 25). This argument iseasily disposed of by the holding of Bellajaro. 378 F.3d at 1045. LEGAL ARGUMENTS1. Regardless Of When An Applicant Files An Action Under Section 1421(c), If Removal Proceedings Are Pending, The Applicant’s Claim Is Barred By Section 1429. Ms. Sanchez argues that this action is distinguishable from Bellajarobecause, unlike Mr. Bellajaro, Mr. Sanchez filed an action under 8 U.S.C. § 1429before she was placed in removal proceedings. (Appellant’s Op. Br., pp. 6, 16).As a result, she contends that her claims are not barred by 8 U.S.C. § 1429. Herposition is contrary to: (a) the plain language of 8 U.S.C. § 1429, and (b) theunderlying rationale of 8 U.S.C. § 1429. Moreover, she does not explain why thisdifference in procedural posture should be dispositive. 12
  19. 19. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 19 of 32 A. The Plain Language of Section 1429 Does Not Support Ms. Sanchez’s Interpretation Of This Provision. There is nothing in the plain language of 8 U.S.C. § 1429 suggesting that itsscope turns on when an applicant files a lawsuit under 8 U.S.C. § 1421(c). (SeeE.R., p. 4). In fact, 8 U.S.C. § 1429 makes no reference to 8 U.S.C. § 1421(c). In recognition of this fact, both appellate courts that have addressed thisquestion have concluded that the scope of this provision does not turn on when thelawsuit was filed. Ajlani, 545 F.3d 234-35 (“Ajlani is correct that no removalproceedings were pending against him at the time he filed his federal complaint. . . . [but] [t]he sequence of events does not, however, assist Ajlani in challengingthe district court’s judgment of dismissal”);4 Zayed, 368 F.3d at 907 (“Regardlessof when removal proceedings are initiated, the Attorney General may notnaturalize an alien while such proceedings remain pending.”); see also Todorovicv. Pierre, No. 10-cv-1538, 2010 WL 5313484, *2 (S.D. Cal. 2010) (“it is notUSCIS’s reason for denying Petitioner’s application that renders the Court unableto grant Petitioner effective relief. Rather, it is the fact that Petitioner is now inremoval proceedings”); Aye Aye Kyi v. Chertoff, No. 08-03383 JSW, 2008 WL 4 USCIS notes for the sake of completeness that in Aljani, the plaintiffsought an order of naturalization under 8 U.S.C. § 1447(b) rather than 8 U.S.C.§ 1421(c). See Aljani, 545 F.3d at 237-38. This difference in procedural postureis immaterial. 13
  20. 20. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 20 of 325131619, *3 (N.D. Cal. Dec. 5, 2008) (Bellajaro is “dispositive” notwithstandingthat denial was not based on the pendency of removal proceedings).5 For this reason alone, this Court should conclude that the scope of 8 U.S.C.§ 1429 does not turn on the timing of the filing of a lawsuit by an applicant. B. Ms. Sanchez’s Interpretation Of Section 1429 Is Contrary To The Underlying Rationale Behind This Provision. As this Court has recognized, 8 U.S.C. § 1429 was enacted to end the “race”between an applicant seeking naturalization and the government seeking removal.See Bellajaro, 378 F.3d at 1045. This rationale applies with equal force regardlessof whether an applicant files a lawsuit before or after being placed in removalproceedings. If this Court were to accept Ms. Sanchez’s invitation and create anexception to Bellajaro for applicants who were placed in removal proceedingsafter filing a lawsuit, it would re-start the “race” that Congress sought to end byenacting 8 U.S.C. § 1429. See Bellajaro, 378 F.3d at 1045; see also Ajlani, 545 5 The Fourth Circuit Court of Appeals, citing Bellajaro, reached a similarresult in Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010) (holding that8 U.S.C. § 1429 barred review of naturalization application because applicant wasin removal proceedings). Barnes is distinguishable from the present actionbecause it arose in the context of a petition for review and does not expresslyanalyze the question of timing raised here. The Fifth Circuit Court of Appealsalso reached a similar result on somewhat different grounds. Saba-Bakare v.Chertoff, 507 F.3d 337, 340 (5th Cir. 2007). 14
  21. 21. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 21 of 32F.3d at 240. Under such an interpretation of 8 U.S.C. § 1429, an applicant wouldbe able to litigate a claim under 8 U.S.C. § 1421(c) in federal court whilesimultaneously contesting removability before an immigration judge. Whicheverjudge ruled first would take precedence (i.e., if the district court orderednaturalization, the immigration judge could not order the applicant removed and ifan immigration judge ordered the applicant removed, the applicant would nolonger be eligible for naturalization before the district court). Not only wouldsuch an outcome waste scarce judicial resources, it would be contrary to 8 U.S.C.§ 1429. See Bellajaro, 378 F.3d at 1045. For these reasons, this Court should not create an exception to the holdingof Bellajaro by finding that an applicant can simultaneously proceed both infederal court under 8 U.S.C. § 1421(c) and before an immigration judge inremoval proceedings. C. Ms. Sanchez Does Not Explain Why The Scope Of Section 1429 Should Turn On The Timing Of The Filing Of Her Lawsuit. Ms. Sanchez argues that she should be allowed to pursue her claim infederal court, notwithstanding the pendency of removal of removal proceeding,because otherwise the government can effectively “circumvent . . . judicial review 15
  22. 22. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 22 of 32of naturalization decisions” by initiating removal proceedings. (Appellant’s Op.Br., pp. 25-26); see also Aljani, 545 F.3d at 241 (addressing this argument). ThisCourt has already rejected this very argument in Bellajaro. 378 F.3d 1044-45(“Bellajaro contends that he must have this opportunity for judicial review becauseotherwise, the government would always be in a position to circumvent it byplacing an applicant in removal proceedings . . .”).6 Moreover, Ms. Sanchez isincorrect in asserting that 8 U.S.C § 1429 prevents federal courts from reviewingthe government’s actions. If Ms. Sanchez prevails in her removal proceeding, shecould then seek judicial review under 8 U.S.C. § 1421(c) of the denial of her 6 In her opening brief, Ms. Sanchez also references U.S. v. Hovsepian, 359F.3d 1144 (9th Cir. 2004). (Appellant’s Op. Br., p. 22). Ms. Sanchez incorrectlystates that in Hovsepian, the district court took jurisdiction even though one of theplaintiffs was in removal proceedings. (Appellant’s Op. Br., p. 22). In fact, theHovsepian Court specifically found that removal proceedings were “nevercommenced” against either of the plaintiffs. 359 F.3d at 1165. Although the INSmay have been planning to commence removal proceedings, its intentions were“irrelevant” in determining whether plaintiffs’ claims were barred by 8 U.S.C.§ 1429. Id. As the Court explained: [N]o removal proceedings were ‘pending’ against Hovsepian or Yacoubin . . . . Thus, § 1429 did not bar the district court from considering their naturalization applications.Id. By negative implication, the Hovsepian opinion suggests that if removalproceedings had been pending against the plaintiffs, then the district court wouldhave been barred by 8 U.S.C. § 1429 from considering the merits of plaintiffs’naturalization applications. See id. 16
  23. 23. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 23 of 32naturalization application. If the immigration judge rules against Ms. Sanchez, shemay, after she has exhausted her administrative remedies, seek judicial review ofthe immigration judge’s decision by filing a petition for review with this Court.See 8 U.S.C. §§ 1252(a)(5); (d)(1). Section 1429 does not insulate the governmentfrom judicial review; it merely dictates the avenue for such review. In sum, this Court should find that the scope of 8 U.S.C. 1429 does not turnon whether an applicant filed a lawsuit before or after removal proceedings werecommenced.2. There Is No Merit In Ms. Sanchez’s Argument That Even If USCIS Cannot “Consider” A Naturalization Application, It Still Has The Authority To Grant It. Ms. Sanchez argues that even if USCIS lacks the authority to “consider” hernaturalization application under 8 U.S.C. § 1429 because she is in removalproceedings, it still has the authority to grant it. (Appellant’s Op. Brief, pp. 18,21). This Court has never directly ruled on this question and at least one federaldistrict court agrees with Ms. Sanchez. See Gonzalez v. Napolitano, 684 F. Supp.2d 555, 562-63 (D. N.J. 2010). But this contention is contrary to: (a) the weightof authority, and (b) the plain meaning of the word “consider” as used in thecontext of 8 U.S.C. § 1429. 17
  24. 24. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 24 of 32 A. The Government Cannot Approve A Naturalization Application If It Is Barred From Considering It. Courts cannot order the government to approve a naturalization applicationwhen the government is barred from considering the application under 8 U.S.C.§ 1429. See Aljani, 545 F.3d at 240 (it would seem to work against the statutoryframework for a district court to undertake an evaluation of a naturalizationapplication where Congress has expressly prohibited the agency from doing so);Barnes, 625 F.3d at 806 (“Because, under § 1429, an alien in removal proceedingsdoes not have a right to have his application adjudicated, it follows that he cannotpossibly have a right to have the adjudication judicially reviewed); Zayed, 368F.3d at 906-7 (“We are at something of a loss, however, to understand howjudicial fiat can overcome the statutory bar of § 1429.”); see generally, Rahman v.Napolitano, No. 09-3437, 2010 WL 2777271, *3 (6th Cir. July 13, 2010) (whenremoval proceedings are pending the district court may not compel USCIS to grantthe application for naturalization). As the Sixth Circuit Court of Appeals explained, Congress committed theexclusive authority to naturalize aliens with the government. See Zayed, 368 F.3dat 906. Federal courts cannot ignore this Congressional allocation of authority inruling on a request for entry of an order granting the application. Id. If the agency 18
  25. 25. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 25 of 32is barred from considering an application for naturalization, a district court cannotorder the government to approve it. See id.; see also Barnes, 625F.3d at 806.Moreover, as discussed above, to rule otherwise would restart the “race” thatCongress sought to end between naturalization and removal proceedings inenacting 8 U.S.C. § 1429. See Aljani, 545 F.3d at 240. This conclusion isconsistent with this Court’s holding in the Bellajaro opinion. In Bellajaro, theplaintiff sought, as an alternative remedy, a declaration from the district court thathe was eligible for naturalization but for the pendency of removal proceedings.This Court denied this request on the grounds that this relief would be “purelyadvisory.” Bellajaro, 378 F.3d at 1047. Implicit in this holding is the recognitionthat a federal court cannot order the government to naturalize an applicant whenthe applicant is in removal proceedings. Otherwise, the request sought by Mr.Bellajaro would not be “purely advisory;” the district court could have simplyordered Mr. Bellajaro naturalized notwithstanding the bar of 8 U.S.C. § 1429. Seeid; see also Aljani, 545 F.3d at 239-40 (analyzing the Bellajaro opinion). B. Ms. Sanchez’s Strained Reading Of The Word “Consider” Is Contrary To The Plain Meaning Of The Word As Used In the Context Of Section 1429. The word “consider” has several meanings. See WEBSTER’S THIRD NEWINTERNATIONAL DICTIONARY (Unabridged) (hereafter “WEBSTER’S”) 483 19
  26. 26. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 26 of 32(1986) (listing ten different definitions of the word including “to think of: come toview, judge, or classify”). Depending on context, the word “consider” can refer tothe preliminary evaluation of a factor in making a decision. See, e.g., Gonzalez,684 F. Supp. 2d at 562 citing Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp.2d 1160, 1173 (E.D. Cal. 2006) (“[A] congressional requirement that a decisionmaker ‘consider’ a factor . . . requires an actor to merely ‘investigate and analyze’the specified factor, but not necessarily to act upon it.”). But the word “consider”can also be used to refer to the authority or jurisdiction of a decision-maker to act.See, e.g., EEOC v. Fed. Labor Relation Auth., 476 U.S. 19, 23 (1986) (citationsomitted) (“Court of Appeal is without jurisdiction to consider an issue not raisedbefore the Board”); Kemp v. Blake, 476 U.S. 998, 999 (1985) (Because there wasno final judgment “the court was without jurisdiction to consider the appeal”);U.S. v. Luong, Nos. 03-10700, 03-10701, 04-1007, 2005 WL 661287, *1 (9th Cir.March 11, 2005) (“we conclude we also lack jurisdiction to consider theirargument”). It would make no sense to say that a court was without jurisdiction to“consider the appeal” but that it nonetheless had the authority to grant the appeal.Used in this context, the word “consider” applies to the authority of a decision-maker to act or “judge” a matter. See WEBSTER’S 483; Kemp, 476 U.S. at 999. Section 1429 uses the word “consider” in this context. This provision does 20
  27. 27. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 27 of 32not articulate factors that the government is required to evaluate in adjudicating anapplication. See 8 U.S.C. § 1429. Rather, it creates a bar on the government’sauthority to adjudicate an application for naturalization. Id. Any other reading of the word “consider” would turn the 1990 amendmentsto the INA on their head. Prior to 1990, naturalization applications (known aspetitions) were adjudicated by district courts, and 8 U.S.C. § 1429 placed alimitation on their authority. See Bellajaro, 378 F.3d at 1045. In 1990, the districtcourt’s authority to adjudicate naturalization applications was transferred to theAttorney General (now USCIS). See id. There is no evidence that in enacting thischange, Congress intended to alter the scope of 8 U.S.C. § 1429. See Zayed, 368F.3d at 905-6. It would make no sense to read an amendment that transferrednaturalization authority from district courts to the government as implicitlyconferring upon district courts the authority to adjudicate (or “judge”)naturalization applications when the applicant is in removal proceedings (authoritywhich district courts had not had since 8 U.S.C. § 1429 was first enacted in 1952).See Bellajaro, 378 F.3d at 1045. In sum, there is no merit in Ms. Sanchez’s suggestion that USCIS has theauthority to approve an application for naturalization even if it is barred by8 U.S.C. § 1429 from considering the application. 21
  28. 28. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 28 of 323. Ms. Sanchez’s Constitutional Argument Is Without Merit. Ms. Sanchez also seeks to raise a constitutional argument as to why thedistrict court erred in dismissing her claim under 8 U.S.C. § 1421(c). (Appellant’sOp. Brief, pp. 13-16). It is difficult to determine exactly what this constitutionalargument is. She appears to be arguing that her purported husband’s statementthat she paid him to marry her and to maintain the illusion of marriage may havebeen “procured by corruption, spite, or any number of other improper issues.”(Appellant’s Op. Brief, pp. 15-16). As a result, in her view, it is unconstitutionalto hold this statement against her. (Id.). Ms. Sanchez has a forum in which to challenge the validity of this statement– her removal proceedings. Her rights in these proceedings are set forth in 8U.S.C. § 1229a(b)(4). See also 8 U.S.C. § 1229(c)(3)(A) (requiring that theimmigration judge’s decision must be based “upon reasonable, substantial, andprobative evidence”). If the immigration judge rules against her, she can (after sheexhausts her administrative appeals) raise any constitutional challenge she mighthave by filing a petition for review of the removal order with this Court. See 8U.S.C. §§§ 1252(a)(5); (b); (d)(1); see also Aljani, 545 F.3d at 235 (holding thedistrict court lacked jurisdiction to review Mr. Aljani’s constitutional argumentregarding removal). This is the process established by Congress, and this is the 22
  29. 29. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 29 of 32process that is due to her. See id. She has no right to an advisory opinion fromthis Court regarding the accuracy of a statement provided by her purported formerhusband for use in her removal proceedings. See Bellajaro, 378 F.3d at 1047(denying plaintiff’s request for a similar declaration for use in his removalproceeding). Nor does she have the right to maintain an action in federal courtsimply as a vehicle for obtaining discovery for use in her removal proceeding. Seegenerally Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)(requested discovery was outside the scope of permissible discovery because itwas not sought for any bearing that it might have on issues in the case). In sum, Ms. Sanchez has the right to challenge the government’s evidencethat she committed immigration fraud and lied about it, but she does not have theright to do so by litigating the present action in federal court. See 8 U.S.C.§§ 1229a, 1252(b).4. Ms. Sanchez’s Argument That Naturalization Should Take Precedence Over Removal Proceedings Is Disposed Of By Bellajaro. On appeal, Ms. Sanchez argues that it is “far more just” to resolve questionsin federal district court than in administrative proceedings. (Appellant’s Op. Br.25). But Congress decided otherwise when it enacted 8 U.S.C. § 1429. SeeBellajaro, 378 F.3d at 1045 (the natural reading of 8 U.S.C. § 1429 is that removal 23
  30. 30. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 30 of 32proceedings and final removal orders are to take precedence over naturalizationapplications); see also, Rahman, No. 09-3437, 2010 WL 2777271, at *3(“regarding “the long-standing priority that removal proceedings are to have overnaturalization proceedings.”). Thus, this argument is easily disposed of. CONCLUSION For all the foregoing reasons, this Court should affirm the decision of thedistrict court and deny the appeal. Respectfully submitted, TONY WEST Assistant Attorney General Civil Division ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation - DCS s/ AARON S. GOLDSMITH Aaron S. Goldsmith Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation-DCS P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 532-4107Dated: October 25, 2011 Attorneys for Defendants-Appellees 24
  31. 31. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 31 of 32 STATEMENT WITH RESPECT TO ORAL ARGUMENT USCIS respectfully requests oral argument to the extent such argument mayassist in the Court in addressing outstanding factual or legal issues which theCourt deems relevant. STATEMENT OF RELATED CASES USCIS knows of no related cases, as defined by Circuit Court Rule 28-2.6,pending before this Court. CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(c), I certify that the text of the attachedanswering brief is double spaced, proportionally spaced using Times New Roman14-point typeface and contains 5,369 words of text.October 25, 2011 s/ AARON S. GOLDSMITH Aaron S. Goldsmith Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, D.C. 20044 (202) 532-4107
  32. 32. Case: 11-55796 10/25/2011 ID: 7940570 DktEntry: 17 Page: 32 of 32 9th Circuit Case Number(s) 11-55796 NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Oct 25, 2011 I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) s/Aaron S. Goldsmith********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Signature (use "s/" format)

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