Duran-Pichardo v. Attorney General of United States , 695 F.3d 282 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2114
_____________
HECTOR DURAN-PICHARDO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A037-057-349)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Argued January 13, 2012
Before: MCKEE, Chief Judge, FUENTES and JORDAN
Circuit Judges
(Filed: August 31, 2012)
1
Herbert C. Shelley
Patricia B. Palacios
Jeremy Glen (Argued)
STEPTOE & JOHNSON
1330 CONNECTICUT
AVE., N.W.
WASHINGTON, DC 20036
Counsel for Appellant
Tony West
Assistant Attorney General
Civil Division
Luis E. Perez
Senior Litigation Counsel
Office of Immigration
Litigation
Rachel L. Browning
(Argued)
Trial Attorney
Office of Immigration
Litigation
Civil Division,
Department of Justice
P.O. Box 878,
Ben Franklin Station
Washington, DC 20044
Counsel for Appellee
_______________
OPINION
_______________
MCKEE, Chief Judge.
Hector Duran-Pichardo petitions for review of the
final order of his removal issued by the Board of
2
Immigration Appeals. For the reasons that follow, we will
deny the petition.
I.
Duran-Pichardo, is a native of the Dominican
Republic and he was lawfully admitted to the United States
as a legal permanent resident in 1981. He was married in
1988, and he subsequently fathered two children.1
On July 3, 1997, Duran-Pichardo applied for
naturalization as a United States citizen. On May 11, 1998,
he completed his examination under oath.2 Therefore the
only thing that remained before he could become a
naturalized citizen was taking the public oath of allegiance
and renunciation.3 After he successfully completed the
1
His wife became a naturalized citizen in 1998. Because his
two children from that marriage were born in the United
States, they are U.S. citizens.
2
The examination under oath authorizes a designated
examiner to take testimony pertaining to admissibility and
citizenship and permits the examiner to make a
recommendation regarding the applicant‘s fitness for
naturalization. See 8 U.S.C. §1446(b); see also, 8 U.S.C.
§1443(a) (―Such examination shall be limited to inquiry
concerning the applicant‘s residence, physical presence in the
United States, good moral character, understanding of and
attachment to the fundamental principles of the Constitution
of the United States, ability to read, write, and speak English,
and other qualifications to become a naturalized citizen as
required by law, and shall be uniform throughout the United
States.‖).
3
Congress commanded that an alien must take a specific oath
before the Attorney General or appropriate court prior to
becoming a naturalized citizen. See 8 U.S.C. § 1448. The
oath includes a pledge to: ―support the Constitution of the
United States; (2) . . . renounce . . . all allegiance . . . to any
foreign. . . sovereignty . . . (3). . . support and defend the
Constitution and the laws of the United States . . . [and] (4) to
3
examination, Duran-Pichardo was given a document that
stated: ―[the] INS will notify you later of the final decision
on your application.‖
When the ―final decision‖ did not come in the mail,
Duran-Pichardo made repeated calls to the agency in an
attempt to be scheduled to take the Oath. According to
Duran-Pichardo, he subsequently learned that part of his
naturalization file had been mislabeled and he was
ultimately advised that all or part of his naturalization file
had been lost. Although we cannot be sure of exactly what
happened to his file, it is clear that Duran-Pichardo never
took the Oath.
On March 17, 2008, nearly ten years after Duran-
Pichardo satisfactorily completed his naturalization
examination under oath, he pled guilty to conspiracy to
distribute and possess narcotics and possession with intent
to distribute cocaine and was sentenced to 51 months‘
imprisonment.
On October 26, 2008, the Government instituted
removal proceedings against Duran-Pichardo on the grounds
that he was an alien who had been convicted of a controlled
substance violation under 8 U.S.C. §1227(a)(2)(B)(i) and an
aggravated felony under 8 U.S.C. §1227(a)(2)(A)(iii).
Although he did not challenge the convictions and conceded
that they would otherwise make him eligible for removal, he
argued that he was not removable because his 1997
naturalization application had been finalized. He also
argued that, to the extent his naturalization application had
not been finalized, he should not be removed because the
Government‘s own actions precluded him from taking the
Oath and thereby prevented his naturalization and
citizenship. 4
bear . . . allegiance to the [United States] . . .‖ (the ―Oath‖).
Id.4
See 8 C.F.R. 335.3(a) (―A decision to grant or deny the
application shall be made at the time of the initial
examination or within 120-days after the date of the initial
examination of the applicant for naturalization . . ..‖).
4
While removal proceedings were pending, Duran-
Pichardo requested a hearing on his naturalization
application and attached evidence that his naturalization file
had been mislabeled and/or lost. On September 3, 2009, the
Government moved to consolidate two naturalization files
under Duran-Pichardo‘s name—conceding, at a minimum,
that Duran-Pichardo‘s primary naturalization file did not
contain all pertinent information.5
On July 31, 2009, despite the pending removal
proceedings, the Government formally denied Duran-
Pichardo‘s application for naturalization which had been
pending since 1997.6 The Government based that denial on
his 2008 convictions, and concluded that those convictions
made him ineligible for naturalization. His appeal of that
decision was denied.
Thereafter, the Immigration Judge presiding over the
removal proceedings found Duran-Pichardo removable
under 8 U.S.C. §§1227(a)(2)(A)(iii) and (B)(i), and ordered
him removed from the United States to the Dominican
Republic. The BIA dismissed Duran-Pichardo‘s appeal of
that order because it found that it lacked jurisdiction to
5
The Government did not, however, concede that any
administrative error was responsible for its failure to schedule
Duran-Pichardo for a ceremony to take the Oath.
6
The Government‘s denial of Duran-Pichardo‘s
naturalization application subsequent to the initiation of
removal proceedings exceeded its statutory authority. See 8
U.S.C. §1429 (―[N]o 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.‖). Though troubling, it does not alter the outcome of this
matter. As discussed more fully throughout this opinion,
because Duran-Pichardo had not taken the Oath prior to his
convictions, he remains an alien subject to removability. The
subsequent and ill-conceived denial of his naturalization
application does not affect his removal.
5
decide the issues he raised. Nevertheless, the BIA stated
that the Government could remove Duran-Pichardo even
though the delay in scheduling him to take the Oath resulted
from the Government‘s mishandling of his file. This Petition
for Review followed.
II.
On appeal, Duran-Pichardo argues -with some
justification - that absent the Government‘s own error, he
would have taken the Oath and become a naturalized citizen
before his convictions and thus would no longer be
removable. He therefore claims that he: (i) obtained a
protected liberty interest in the grant of his naturalization
application; (ii) is entitled to an order granting his
naturalization application; and/or (iii) is entitled to a nunc
pro tunc review of his naturalization application so that it
may be finalized (and presumably granted) without
consideration of convictions that occurred after he
completed the naturalization process.
Though we generally lack jurisdiction to review an
aggravated felon‘s final order of removal, we have
jurisdiction to review Duran-Pichardo‘s challenge to the
agency‘s denial of his citizenship claim because there are no
factual issues and we retain the authority to determine our
own jurisdiction. See 8 U.S.C. §1252(a)(2)(C); see also,
Brandao v. Att’y Gen. of the U.S., 654 F.3d 427, 428 (3d
Cir. 2011) (―[W]e do have jurisdiction to determine our
jurisdiction, particularly in cases such as this where the
petitioner claims to be a national of the United States, and
no material issues of fact are presented.‖). Section
1252(a)(2)(D) also provides that we retain jurisdiction to
consider constitutional questions and Duran-Pichardo argues
that he has unconstitutionally been deprived of a protected
liberty interest without due process of law. Because we
address a purely legal question, our review of the agency‘s
rejection of Duran-Pichardo‘s due process claim is plenary.
To become a naturalized citizen of the United States,
Duran-Pichardo was required to: (i) maintain five years‘
lawful permanent residence, physical presence in the United
States for at least half of that time, and continuous residence
6
from the date of application until admission to citizenship;
(ii) submit an application; (iii) pass a background check; (iv)
pass a test on United States history and government and
establish his proficiency in communicating in English; (v)
be examined under oath by an immigration official; and (vi)
publicly swear allegiance to the United States and renounce
allegiance to other sovereigns before the Attorney General
or a competent court. See 8 U.S.C. §§1423(a); 1427(a);
1445(a); 1446(a) & (b); 1448(a).
It is undisputed that Duran-Pichardo did everything
that was required for naturalization except take the Oath. He
claims that that omission should not defeat his claim to
citizenship because he was verbally informed that his
application for naturalization had been approved and the
date for the Oath ceremony was forthcoming. Duran-
Pichardo, however, concedes that he never actually took the
Oath as prescribed by statute.
Because Duran-Pichardo never took the Oath, he
never became a citizen and he remained subject to removal.
Congress requires that an alien publicly take the Oath before
the Attorney General (or his/her designee) as a condition of
naturalization. The statutory language is clear and
unambiguous. Therefore, Duran-Pichardo was still subject to
removal even though he completed all of the other
prerequisites to citizenship. See e.g., Okafor v. Attorney
General, 456 F.3d 531, 534 (5th Cir. 2006) (alien who
signed document containing oath of renunciation and
allegiance required of all applicants for naturalization, but
who did not take oath in public ceremony, had not met
requirements for becoming naturalized citizen); Tovar-
Alvarez v. Attorney General, 427 F.3d 1350, 1353 (11th Cir.
2005) (same).
Duran-Pichardo claims, nevertheless, that his
satisfactory completion of all of the other requirements for
naturalization created a liberty interest in citizenship that
cannot be undermined by something that was the result of the
Government‘s own delay in administering the Oath.7 The
7
Though Duran-Pichardo‘s argument is analogous to an
equitable estoppel claim, he contends that he is not making an
7
Government asserts that Duran-Pichardo could not acquire
any cognizable liberty interest until he had satisfied all of the
conditions for becoming a citizen, including taking the
statutorily-mandated oath.
The relevant naturalization regulation, 8 C.F.R.
335.3(a) provides:
USCIS[8] shall grant the [naturalization]
application if the applicant has complied with
estoppel argument. But see Appellant‘s Brief, pp. 17-18
(―Had the INS fulfilled its statutory duties in 1998, Mr. Duran
would have been a citizen for nearly ten years at the time of
his arrest, and the secondary (and much worse) punishment of
deportation would not have been an option. . . . [T]his Court
should now order the USCIS to fulfill that requirement, and
grant Mr. Duran his citizenship.‖). Nevertheless, his claim is
so similar to an assertion of estoppel that prudence requires
that we treat that claim as though it rested on an alleged
estoppel.
Despite the Government‘s purported negligence in
finalizing Duran-Pichardo‘s petition for citizenship, these
circumstances do not give rise to an estoppel. To establish
equitable estoppel here, Duran-Pichardo must show: (i) a
misrepresentation; (ii) upon which he reasonably relied; (iii)
to his detriment; and (iv) affirmative misconduct. See Mudric
v. Att’y General of the U.S., 469 F.3d 94, 99 (3d Cir. 2006).
We have previously held that delay in processing a
naturalization application does not give rise to an estoppel
claim. See id. (―[M]ere delay does not constitute ‗affirmative
misconduct‘ on the part of the Government.‖).
8
The Attorney General has delegated his statutory authority
to naturalize immigrants to the United States Customs and
Immigration Service (―USCIS‖). See 8 U.S.C. §1421; see
also, 8 C.F.R. §310.1. On March 1, 2003, Congress
transferred the functions of the Immigration and
Naturalization Service to the Bureau of Immigration and
Customs Enforcement (―ICE‖) and USCIS of the United
States Department of Homeland Security (―DHS‖). Zheng v.
Gonzales, 422 F.3d 98, 103 n. 2 (3d Cir. 2005).
8
all requirements for naturalization under this
chapter. A decision to grant or deny the
application shall be made at the time of the
initial examination or within 120-days after the
date of the initial examination of the applicant
for naturalization under §335.2. The applicant
shall be notified that the application has been
granted or denied and, if the application has
been granted, of the procedures to be followed
for the administration of the oath of allegiance
pursuant to part 337 of this chapter.
Id.; see also 8 U.S.C. §1446(d) (―The employee designated
to conduct any such examination shall make a determination
as to whether the application should be granted or denied,
with reasons therefor.‖) (emphasis added). If an applicant
for naturalization is not notified of a decision within 120
days of his/her examination under oath, s/he can apply to the
appropriate United States District Court for a hearing on the
naturalization application pursuant to 8 U.S.C. §1447(b).9
Thus, USCIS was only required to act on his
naturalization application within 120 days from the date of
his examination under oath, it was clearly not required to
grant the application before Duran-Pichardo satisfied the
statutory prerequisites to citizenship – nor could it have
done so without violating the very statute that establishes the
procedure for becoming a naturalized citizen. Moreover, it
is clear that the USCIS retained the discretion to deny
Duran-Pichardo‘s application for naturalization until he took
the Oath that is mandated by Congress. Thus, Duran-
9
8 U.S.C. § 1447(b) provides:
If there is a failure to make a determination
under section 1446 of this title before the end of
the 120-day period after the date on which the
examination is conducted under such section,
the applicant may apply to the United States
district court for the district in which the
applicant resides for a hearing on the matter.
9
Pichardo could not have obtained any recognizable interest
in the grant of his naturalization application without taking
that Oath.
Though the parties focus much of their arguments on
whether Duran-Pichardo‘s application was actually granted or
should have been granted, that is not the question before us.
We need only determine if Duran-Pichardo remained subject
to removal until he took the Oath. Since Congress requires
that an alien publicly take the Oath before the Attorney
General (or his/her designee) as a condition of naturalization,
that question is not difficult to answer. The statutory
language is clear and unambiguous. Duran-Pichardo was still
subject to removal even though he completed all of the other
prerequisites to citizenship. See e.g., Okafor v. Attorney
General, 456 F.3d 531, 534 (5th Cir. 2006) (alien who signed
document containing oath of renunciation and allegiance
required of all applicants for naturalization, but who did not
take oath in public ceremony, had not met requirements for
becoming naturalized citizen); Tovar-Alvarez v. Attorney
General, 427 F.3d 1350, 1353 (11th Cir. 2005) (same); Conn.
Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981) (―A
constitutional entitlement cannot be created-as if by estoppel-
merely because a wholly and expressly discretionary
[government] privilege has been granted generously in the
past.‖ (internal quotations and citations omitted) (emphasis in
original)); Mudric v. Att’y Gen. of the U.S., 469 F.3d 94, 99
(3d Cir. 2006) (―[T]he various discretionary privileges and
benefits conferred on aliens by our federal immigration laws
do not vest in aliens a constitutional right to have their
immigration matters adjudicated in the most expeditious
manner possible. . . . [The alien] simply had no due process
entitlement to the wholly discretionary benefits of which he . .
. [was] allegedly deprived, much less a constitutional right to
have them doled out as quickly as he desired.‖).
The facts, however, remain that the Government
failed to act on Duran-Pichardo‘s application within 120
days of his naturalization examination, and Duran-Pichardo
failed to apply to the District Court for a hearing on the
matter. Having failed to invoke the very statutory and
regulatory scheme that Congress enacted to address this type
10
of delay, Duran-Pichardo can not now assert that he was
deprived due process of law.
Now, Duran-Pichardo has no remedy because he has
committed an aggravated felony and removal proceedings
have been initiated against him. See 8. U.S.C. § 1429
(―[N]o 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 . . ..‖).
―Removal proceedings quite simply have priority
over naturalization applications. . . . [I]t would be ‗odd if the
Attorney General and district courts were barred from
considering naturalization applications while removal
proceedings are pending, yet the BIA and IJs—who have no
jurisdiction over such applications in any case—were not.‘‖
Zegrean v. Att’y Gen. of U.S, 602 F.3d 273, 274-5 (3d Cir.
2010) (quoting Perriello v. Napolitano, 579 F.3d 135, 142
(2d Cir. 2009)); But cf. Gonzalez v. Sec’y of Dep’t of
Homeland Sec., 678 F.3d 254, 259-61 (2012) (preserving
the availability of limited judicial review of naturalization
decisions during removal proceedings in circumstances not
presented by this case).
Duran-Pichardo argues that he is entitled to nunc pro
tunc review of his naturalization application. ―Nunc pro
tunc” consideration ―permits acts to be done after the time
they should have been done with a retroactive effect.‖
Barden v. Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990).
Essentially, Duran-Pichardo wants us to order the agency to
review his application as if he was not an aggravated felon
and, thus, still eligible for citizenship.
However, we clearly lack the authority to provide
nunc pro tunc relief here. Equitable relief is unavailable if it
would require agency review of an alien‘s naturalization
application while that alien is the subject of an outstanding
finding of deportability or a pending removal proceeding.
11
See 8 U.S.C. §1429; see also, Cheruku v. Att’y Gen. of U.S.,
662 F.3d 198, 209 (3d Cir. 2011) (―[A] court may not award
equitable relief in contravention of the expressed intent of
Congress.‖) (internal citations omitted); Ajlani v. Chertoff,
545 F.3d 229, 240-1 (2d Cir. 2008) (―[A]n alien cannot
secure naturalization from either the district court or the
Attorney General while removal proceedings are
pending….‖).
We realize that it may appear that we are turning the
proverbial ―blind eye‖ toward the Government‘s lapse in
handling Duran-Pichardo‘s application for naturalization.
However, it must be remembered that, but for his status as
an aggravated felon, and the criminal convictions that gave
rise to that status, he would still be eligible for
naturalization. We can undo neither his crimes nor his
convictions and therefore, as we have already explained,
Duran-Pichardo is removable and ineligible for the relief he
is requesting.
For the reasons set forth above, the petition for review
will be denied.
12