Is the Statutory Right To Judicial Review Extinguished When The Government Denies Naturalization And Institutes Removal Proceedings?
By Lory Rosenberg, Esq. – Of Counsel to Mona Shah & Associates
A petition for a writ of certiorari to the Eleventh Circuit filed on November 15, 2012 in HONG HUANG, a.k.a. Linda Huang v. SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY may provide a vehicle to resolve the circuit split over federal court jurisdiction that arises when respondents whose petitions for naturalization have been denied are placed immediately into removal proceeding. The conflict is between the statutory right to de novo review in district court under. 8 U.S.C. § 1421(c) following a petition denial, and the statutory prohibition against consideration of a petition for naturalization once removal proceedings are pending. 8 U.S.C. § 1429.
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The apparent conflict is created by the need for exhaustion of administrative remedies prior to a district court having jurisdiction to review a petition denial, and the government’s ability to decline further agency review by instituting removal proceedings and relying on the statutory prohibition to divest itself of the power to complete the agency process. In the Huang case, USCIS denied an applicant’s request for naturalization and instituted removal proceedings, then invoked the prohibition against further agency consideration and refused to provide the necessary hearing before an immigration officer as prescribed by the statute. When the petitioner sought de novo review in federal district court, the court dismissed the case on the basis that the petitioner had failed to exhaust her administrative remedies.
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This situation is fraught with the opportunity for government manipulation leaving an applicant in an untenable situation. By initiating removal proceedings before an applicant can avail herself of review before an officer as contemplated by §1421, the government effectively is able to deprive such an applicant of the statutory right to district court review. Resolution of this conflict in the circuit courts of appeal has been varied and inconsistent. [1]
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Most recently, the 7th Circuit Court of Appeals followed the course taken by the 3rd circuit in finding subject matter jurisdiction and holding that district courts not only retain jurisdiction over the cases before them, but also retain the ability to issue declaratory relief on the merits of the application. Thus, if an applicant can manage to get into district court before removal proceedings begin, the federal court’s ruling may have an impact on the outcome of the IJ hearing that can resolve the matter. But unless a federal action is pending when removal proceedings are initiated, §1429 will prevent the naturalization issue itself from being reviewed. This critical window of opportunity, following denial of the naturalization application but before the government initiates removal proceedings, is easily shuttered by the agency’s making a practice of immediately filing a Notice to Appear with the Immigration Court, and provides support for the need for a writ to issue allowing resolution by the Supreme Court.
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