Zegrean v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-3714

SEBASTIAN DAN ZEGREAN,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(Agency No. A029-115-082)

Argued: March 11, 2010

Before: BARRY, JORDAN and VAN ANTWERPEN,
Circuit Judges

(Opinion Filed: April 13, 2010)

David Kaplan, Esq. (Argued)
James J. Orlow, Esq.
Orlow, Kaplan & Hohenstein
620 Chestnut Street
Suite 656
Philadelphia, PA 19106-0000

Counsel for Petitioner

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Kevin J. Conway, Esq. (Argued)
Sharon Clay, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

BARRY, Circuit Judge

I.

A federal regulation states that “[a]n immigration judge may
terminate removal proceedings to permit the alien to proceed to a
final hearing on a . . . petition for naturalization when the alien has
established prima facie eligibility for naturalization and the matter
involves exceptionally appealing or humanitarian factors.” 8
C.F.R. § 1239.2(f). The Board of Immigration Appeals (“BIA”)
has interpreted this regulation to require that the Department of
Homeland Security (“DHS”) present “some affirmative
communication regarding [an alien’s] prima facie eligibility for
naturalization” before removal proceedings can be terminated. In
re Acosta Hidalgo, 24 I. & N. Dec. 103, 107-08 (BIA 2007); see
also Matter of Cruz, 15 I. & N. Dec. 236, 237 (BIA 1975). Those
courts that have reviewed the BIA’s interpretation, to which we
accord deference, have concluded that it is neither “erroneous [n]or
inconsistent with the regulation,” and we agree.1 See, e.g.,

1
Our standard of review for questions of law which, of
course, would include statutory interpretation, is de novo. Fadiga

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Perriello v. Napolitano, 579 F.3d 135, 142 (2d Cir. 2009) (quoting
Auer v. Robbins, 519 U.S. 452, 461 (1997)); Hernandez de
Anderson v. Gonzales, 497 F.3d 927, 934 (9th Cir. 2007).

Juxtaposed against § 1239.2(f), as interpreted by the BIA,
is a federal statute which states, as relevant here, that “no
application for naturalization shall be considered by the Attorney
General if there is pending against the applicant a removal
proceeding.” 8 U.S.C. § 1429. But if an application for
naturalization cannot even be considered while a removal
proceeding is pending, how, then, can the requisite “affirmative
communication regarding [an alien’s] prima facie eligibility for
naturalization” be provided such that an immigration judge can
decide whether removal proceedings may be terminated? See
Hidalgo, 24 I. & N. Dec. at 107-08. The obvious answer is, “It
can’t.” Removal proceedings quite simply have priority over
naturalization applications.

It is this tension between 8 C.F.R. § 1239.2(f) and 8 U.S.C.
§ 1429 that we are called upon to attempt to reconcile—the knot
we are asked to untangle. As the Second Circuit put it in Perriello
v. Napolitano, “[t]he law, in effect, seems to be chasing its tail.”
579 F.3d at 138. The petition before us illustrates the accuracy of
that observation. In July 2006, DHS, citing 8 U.S.C. § 1429,
denied petitioner Sebastian Zegrean’s application for naturalization
because “there is a removal proceeding pending against you, [and
thus] you are ineligible for naturalization.” (AR at 24.) In August
2007, the Immigration Judge (“IJ”) denied petitioner’s motion to
terminate the removal proceedings because he had not established
prima facie eligibility for naturalization, and the BIA affirmed.2
(Id. at 2, 28-30.) Indeed, because petitioner had applied for
naturalization after the removal proceedings against him had

v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007).
2
When, as here, the BIA “simply states that it affirms the
IJ’s decision for the reasons set forth in that decision, . . . the IJ’s
opinion effectively becomes the BIA’s, and, accordingly, a court
must review the IJ’s decision.” Zhang v. Gonzales, 405 F.3d 150,
155 (3d Cir. 2005) (quotation omitted).

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commenced, it was impossible for him to establish eligibility for
naturalization.

II.

We need not discuss the course of naturalization law that
has led to this awkward if not altogether unworkable result—most
recently, Perriello has more than adequately done so. Rather, we
move directly to why the answer to this conundrum is not to do as
petitioner suggests and permit the IJ to make the prima facie
determination. First, the BIA’s conclusion in Hidalgo that it
cannot consider eligibility is consistent with 8 U.S.C. § 1421,
which dictates that the “sole authority to naturalize persons as
citizens . . . is conferred upon the Attorney General.” See
Perriello, 579 F.3d at 142. To do as petitioner suggests would, in
Hidalgo’s words, “require the [IJ] and the Board to render
decisions on an alien’s prima facie eligibility . . . where we not only
lack jurisdiction over the ultimate issue, but may also lack expertise
as to the specific issue regarding prima facie eligibility.” 24 I. &
N. Dec. at 108. The issue of expertise aside, we owe deference to
the BIA’s conclusion as to the scope of its jurisdiction since,
whether it was interpreting a statute or a regulation, the
interpretation was not arbitrary or capricious, nor plainly erroneous
or inconsistent with the regulation. See Chen v. Ashcroft, 381 F.3d
221, 224 (3d Cir. 2004) (“[W]henever Congress has explicitly left
a gap for the agency to fill, . . . the agency’s [interpretation] is
given controlling weight unless [it is] arbitrary, capricious, or
manifestly contrary to the statute.” (internal quotation marks and
citations omitted)); Abdille v. Ashcroft, 242 F.3d 477, 484-85 (3d
Cir. 2001) (“[W]hen an agency is interpreting its own regulation,
rather than a statute it administers, . . . the agency’s interpretation
[is] controlling ‘unless it is plainly erroneous or inconsistent with
the regulation.’” (internal citations omitted)). Second, the plain
language of 8 U.S.C. § 1429 prohibits the Attorney General from
even considering an application for naturalization if a removal
proceeding is pending against the applicant. As the Perriello Court
noted, it 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.”

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Perriello, 579 F.3d at 142.

There is, indeed, “considerable confusion” in the interplay
between a reasonably interpreted federal regulation and an
otherwise unchallenged federal statute, confusion caused by the
failure to amend § 1239.2(f). Id. This confusion, however, is not
for us to resolve and the tension between the regulation and the
statute is not for us to attempt to reconcile. That job is, rather, for
the DHS or for Congress, and we urge that it be undertaken
expeditiously.

III.

Because petitioner has not established prima facie eligibility
for naturalization under § 1239.2(f)—indeed, given the “prevailing
muddle,” id. at 141, he cannot do so as long as removal
proceedings are pending against him—the petition for review will
be denied.

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