                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

Apokarina v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4265




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                                                                    NOT-PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 02-4265


                                  DANIL APOKARINA

                                             v.

                         JOHN ASHCROFT, ATTORNEY
                       GENERAL OF THE UNITED STATES;
                         KENNETH ELWOOD, DISTRICT
                            DIRECTOR, U.S.I.N.S.

                                                  Danil Apokarina a.k.a
                                                  Danil Apokarin,

                                                        Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 02-cv-00210)
                    District Judge: Honorable Eduardo C. Robreno


                                   Argued July 31, 2003

       Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                               (Opinion filed: April 7, 2004)

James J. Orlow, Esquire (Argued)
Orlow & Orlow
6 th & Chestnut Streets
656 Public Ledger Building
Philadelphia, PA 19106

      Attorney for Appellant
Patrick L. Meehan, United States Attorney
Virginia A. Gibson, Assistant United States Attorney
Susan R. Becker, Assistant United States Attorney (Argued)
615 Chestnut Street, Ste. 1250
Philadelphia, PA 19106-4476

       Attorneys for Appellee




                                         OPINION


AM BRO, Circuit Judge

       The issue in this case was initially straightforward. Under 8 U.S.C. § 1429, the

Attorney General of the United States may not consider naturalization applications of

aliens against whom removal proceedings are pending. We were asked to decide whether

a district court has jurisdiction under 8 U.S.C. § 1421(c) to review the denial of a

naturalization application when that denial is based on § 1429 (i.e., there was, apparently,

a pending removal proceeding at the time the naturalization application was denied).

       At oral argument, however, it came to our attention that the Attorney General

(apparently in line with a long-standing practice dating back to 1975, see Matter of Cruz,

15 I. & N. Dec. 236 (1975)), has been considering, and granting, applications to terminate

removal proceedings to permit persons to proceed on their naturalization applications in

exceptional cases. Because this practice— in the face of a seemingly clear statutory bar to

considering naturalization applications while formal removal attempts are underway—



                                              2
suggests questions that require further development, we remand.

                           I.   Facts and Procedural History

       In 1980, Petitioner Danil Apokarina, a native of Russia, entered the United States

as a refugee. He became a permanent resident on October 29, 1981. Between 1984 and

1993, Apokarina was convicted of a variety of crimes in Pennsylvania and New Jersey,

including resisting arrest, theft, improper gifts to public servants, possession of a weapon,

reckless endangerment, and possession of a controlled substance. In 1996 the

Immigration and Naturalization Service (“INS”) 1 began removal proceedings against

Apokarina by issuing an Order to Show Cause and Notice of Hearing (“Order to Show

Cause”) on the basis of his criminal convictions. In 1997 the INS issued a second Order

to Show Cause after Apokarina tried to cross from the United States to Canada without

proper immigration papers.

       Apokarina submitted an application for naturalization in February 1999. He

acknowledged on his application that he was in removal proceedings. The record,

however, reflects that Apokarina’s removal proceedings were administratively closed by

agreement of the parties in 1998, and not reopened by the INS until April 2000. We are

thus unclear as to the basis for the District Court’s opinion that Apokarina’s naturalization




  1
   As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice
and its enforcement functions have been transferred to the Department of Homeland
Security. For convenience, we refer solely to the INS throughout this opinion.

                                              3
application was submitted “while the removal proceedings were still pending.” 2 Per its

delegated authority from the Attorney General to naturalize immigrants, see 8 U.S.C. §

1421, the INS rejected his naturalization application in July 2000, citing to § 318 of the

Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1429, which states that “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.” 3

       Apokarina appealed and sought a hearing before an immigration officer. At the

hearing in January 2001, he presented evidence of the ways in which he had rehabilitated

his good moral character subsequent to his criminal convictions.4 In August 2001 the INS

Acting District Director affirmed the July 2000 decision. In doing so, he apparently

considered and rejected Apokarina’s naturalization application on the merits. He

emphasized Apokarina’s extensive criminal record and concluded that he lacked the good

moral character that must be demonstrated by an applicant for naturalization.



  2
     Apokarina does not challenge this assertion on appeal— as noted, he stated in his
naturalization application that removal proceedings were pending. No argument or
briefing was presented to us on the question whether, during the period between the time
that removal proceedings are administratively closed and the time that those proceedings
are reopened, they are properly deemed pending.
  3
   An Order to Show Cause constitutes a warrant of arrest for the purposes of this
section. 8 C.F.R. § 318.1.
  4
   In order to be eligible for naturalization, an applicant must show, inter alia, that he or
she possesses good moral character. 8 U.S.C. § 1427(a).

                                              4
         In January 2002 Apokarina filed a complaint seeking judicial review by the

District Court of the denial of his application for naturalization under 8 U.S.C. § 1421(c),

which provides that “a person whose application for naturalization . . . is denied . . . may

seek review [in the] United States district court.” The Government argued that because

the Attorney General lacked jurisdiction to consider Apokarina’s naturalization

application, so too did the District Court. In November 2002 the District Court granted

the Government’s motion to dismiss for lack of subject matter jurisdiction. This appeal

followed.5

                                   II.   Basis for Remand

         Prior to 1990, the INA conferred on district courts exclusive jurisdiction to

naturalize aliens. INA § 310, 8 U.S.C. § 1421(a). These courts were, however, statutorily

precluded from granting the naturalization applications of aliens when removal

proceedings against them were underway in connection with a warrant of arrest. The

prior version of 8 U.S.C. § 1429 read: “No person shall be naturalized against whom there

is outstanding a final finding of deportability pursuant to a warrant of arrest . . . ; and no

application for naturalization shall be finally heard by a deportation court if there is

pending against the petitioner a removal proceeding pursuant to a warrant of arrest.”

Consequently, district courts lacked subject matter jurisdiction to entertain an application

for naturalization filed by an alien against whom a removal proceeding was pending. See,



  5
      We have appellate jurisdiction under 28 U.S.C. § 1291.

                                               5
e.g., Petition of Terzich, 256 F.2d 197, 200 (3d Cir. 1958); United States v. Ali, 757 F.

Supp. 710, 713-14 (W.D. Va. 1991).

       The Immigration Act of 1990 transferred jurisdiction to consider naturalization

applications from district courts to the Attorney General. Pub. L. No. 101-649, § 401,

104 Stat. 4978. While the Attorney General now has the sole authority to naturalize

aliens, 8 U.S.C. § 1421(a), he or she (like district courts under the prior law) may not

consider an application for naturalization if there is pending against the applicant a

removal proceeding pursuant to a warrant of arrest. 8 U.S.C. § 1429. But no mention is

made of what district courts may do in § 1429. They may review denials of naturalization

petitions, without regard to the basis for the denial. 8 U.S.C. § 1421(c). Thus it is an

open question whether a district court has jurisdiction under § 1421(c) to review the

Attorney General’s denial of a naturalization petition based on § 1429.

       Adding additional complexity to this area is that, since the 1990 amendment, the

Attorney General has entertained petitions for naturalization and ruled on their

merits—rather than dismissing them for lack of jurisdiction due to pending removal

proceedings—in at least four cases in addition to Apokarina’s. See Zayed v. United

States, 221 F. Supp. 2d 813 (N.D. Ohio 2002); Tellez v. INS, 91 F. Supp. 2d 1356 (C.D.

Cal. 2000); Gatcliffe v. Reno, 23 F. Supp. 2d 581 (D.V.I. 1998); Mosleh v. Strapp, 992 F.

Supp. 874 (N.D. Tex. 1998).

       The only possible authority that we find for the Attorney General to do this is the



                                              6
1975 decision of the Board of Immigration Appeals entitled Matter of Cruz, 15 I. & N.

Dec. 236 (1975). There the BIA held that, if an alien can establish prima facie eligibility

for naturalization, he can move to have removal proceedings terminated under 8 C.F.R. §

242.7.6 But Cruz was decided prior to the 1990 statutory amendments, and the BIA based

its conclusion on the fact that “neither we nor immigration judges have authority with

respect to the naturalization of aliens.” 15 I. & N. Dec. at 237. But with the Attorney

General having sole authority to naturalize aliens since 1990 under 8 U.S.C. § 1421(a), is

Cruz still viable?7

       All of this spawns many questions.

       (1) Does the Attorney General view Cruz as continuing authority for considering

the merits of naturalization petitions in the face of pending removal proceedings? If not,

does it have any other authority to do so?

       (2) If the Attorney General derives no authority from Cruz or elsewhere for

considering the merits of naturalization petitioners in the face of pending removal

proceedings, why does it continue to consider those petitions on the merits?

       (3) Did the Attorney General consider the merits of Apokarina’s naturalization

application as part of the discretionary administrative process enabling termination of



  6
   Until last year upon regulatory repeal, this procedure was codified in the INS
regulations at 8 C.F.R. § 239.2(f). 68 Fed. Reg. 35276 (June 13, 2003).
  7
   While we requested and received post-argument briefing from the parties on the status
of Cruz, this resulted in raising more questions than answers.

                                             7
removal proceedings under Cruz? (If the Attorney General is considering the merits of

his application notwithstanding limits on his jurisdiction imposed by 8 U.S.C. § 1429,

then the case for the District Court’s jurisdiction to review the Attorney General’s

decision is stronger.)

       (4) What is the effect, if any, of the repeal of 8 C.F.R. § 329.2(f), on the Attorney

General’s policy regarding Cruz?

       (5) Were removal proceedings against Apokarina in fact pending at the time he

filed his naturalization application?

                         *         *          *          *          *

       In this context, we remand this case for further proceedings consistent with this

opinion.




                                              8
