dissenting:
I respectfully dissent.
William Azize, an alien born in the Dominican Republic, accumulated three drug dealing convictions over a seven year period, 1997-2004. Unless Mr. Azize is exceedingly unlucky, his record evidences a busy and persistent career as a drug dealer. Under 8 U.S.C. § 1227(a)(2)(B)(I), the then — INS duly convened proceedings in 1998 to remove him from this country. In 2000, an Immigration Judge ruled that Azize was ineligible for relief from removal and directed that he be removed to the Dominican Republic. In 2001, the Board of Immigration Appeals affirmed. I see no impediment to his removal, and the majority opinion offers no convincing reason for derailing the process of removal.
The majority opinion designates the district court as a special master to find out whether, more than 20 years ago, an immigration officer suspended Azize’s citizenship proceedings because he could not produce his green card (which Azize contended had been stolen). Even accepting Azize’s account as true, he took no steps to appeal or reopen — or to come forward with a replacement green card. Then, sometime in the intervening twenty years after the application was marked non-filed, the proceedings were terminated. Rather than come forward with the replacement green card and continue the application— or appeal, or take some other step — Azize simply filed another application for citizenship more than a year later. Again, Azize failed to appear with the necessary paperwork; again, he never remedied his omission; again, he did not become a citizen. In any event, there is no basis for the majority’s repeated statement that the proceedings were allegedly “terminated” for failure to produce the green card. All that Azize alleges is that “[t]he INS informed him that he could not proceed with Mr. Azize’s naturalization application until he received a replacement card.” Failure to produce his green card did not cause termination, as the majority implicitly acknowledges when it characterizes Azize’s allegation as “[t]he INS officer told Azize that he should wait for the replacement card to be mailed to him and come back when he received it.” He was told to come back, not to go away (or to reapply).
In ordering the district court to find out whether the 1987 citizenship proceedings were terminated for failure to produce the green card, the majority concludes that such a termination would have been improper. Unless the government can show another reason why Azize would not have been entitled to citizenship, the majority apparently plans to order citizenship for Azize, and to do so nunc pro tunc (as that is the only relief that could prevent his removal). The following are among the most serious defects in the majority’s approach.
Even if it were found that an INS employee at Azize’s preliminary February 26, 1988 hearing asked him to present his green card, this would not constitute a violation of INS regulations. The INS had no regulation precluding employees from asking for an alien’s green card; the most Azize argues is that the regulations do not *93expressly require presentation. The INS’s standard notice for the hearing, which Azize received, stated that aliens “must bring” their green card to the hearing. Asking for proof of a green card during the naturalization process serves the statutory requirement that an alien must prove five years of continuous, legal residency before filing a naturalization application. 8 U.S.C. § 1427(a); see also INS v. Pangilinan, 486 U.S. 875, 886, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (holding that the burden of demonstrating every aspect of eligibility for citizenship is on the alien). So it was not inappropriate to ask Azize to produce his green card as proof of lawful residence and compliance with the immigration laws. See, 8 U.S.C. 1304(e) (requiring legal aliens above 18 years of age to carry green card at all times).
Accordingly, even if (as Azize alleges) he was prevented from further pursuit of citizenship at that time, that would have been in accordance with the law. The majority apparently would have allowed the INS to ask for the green card (indisputably, the applicant must demonstrate his eligibility and identity), but would place no legal consequence on the failure to produce the green card that the hearing notice required him to bring — not even a temporary suspending of the proceeding while he gets it. Such a reading of the regulations, which would require the INS to make someone a citizen in such instances before ensuring that they had a green card, is improper.
The majority’s apparent purpose for remanding is to see if there is a factual predicate for the majority to intervene to compel the grant of citizenship upon Azize. The majority opinion does not convince me that this Court has the power to confer citizenship on anyone. “[T]he power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers.... Rather, it has been given [to] them as a specific function to be performed in strict compliance with the terms of an authorizing statute which says that ‘[a] person may be naturalized ... in the manner and under the conditions prescribed in this subchapter, and not otherwise..’ 8 U.S.C. § 1421(d).” INS v. Pangilinan, 486 U.S. 875, 883-884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (emphasis in original). Absent statutory authorization, there is no reason to believe that the federal courts have the power to grant citizenship — which is what the majority says is “potentially at stake” here.
Finally, none of this would do Azize the slightest good unless citizenship is conferred upon him nunc pro tunc — that is, as of 1987, before the first of his serial convictions as a drug dealer. A great flaw in this approach is that the grant of relief nunc pro tunc is an equitable remedy. Edwards v. INS, 393 F.3d 299, 308 (2d Cir.2004); Iavorski v. INS, 232 F.3d 124, 130 n. 4 (2d Cir.2000). For several reasons, this is no case for the exercise of equity:
• Azize could have taken steps more than 20 years ago to pursue the relief that he now seeks nunc pro tunc.
• Azize did in fact commence a second citizenship proceeding, which he abandoned rather than satisfy the documentary burden placed upon him by law.
• Azize commenced an active career as a drug dealer more than a decade ago and persisted notwithstanding repeated convictions and incarcerations.
• The last offense for which he was convicted occurred while a removal order was pending, conduct that reflects a contempt for the laws of this country, *94and a fixed intent to continue his drug dealing career.
• To support the idea that Azize is no longer a dealer, the majority cites no better authority than Azize’s appellate brief, which characterizes Azize’s lengthy drug-dealing career “a dark period in his life.” But the bare assertion of counsel does not constitute record support.
These equitable considerations all militate against granting citizenship nunc pro tunc for the purpose of eliding the salient fact that Azize has been a drug dealer. For these reasons, I would deny Azize’s petition for review.