        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2       Zayed v. United States, et al.                     No. 02-4011
     ELECTRONIC CITATION: 2004 FED App. 0149P (6th Cir.)
                 File Name: 04a0149p.06                    California, for Appellee. ON BRIEF: Abraham Kay, LAW
                                                           OFFICE OF ABRAHAM KAY, Cleveland, Ohio, for
                                                           Appellant. Patricia M. Corrales-Talleda, UNITED STATES
UNITED STATES COURT OF APPEALS                             DEPARTMENT OF JUSTICE, Los Angeles, California,
                                                           Michelle R. Slack, UNITED STATES DEPARTMENT OF
               FOR THE SIXTH CIRCUIT                       JUSTICE, Washington, D.C., Kathleen L. Midian,
                 _________________                         ASSISTANT UNITED STATES ATTORNEY, Cleveland,
                                                           Ohio, for Appellee.
 DALAL ZAYED ,                        X
             Petitioner-Appellant, -                                               _________________
                                       -
                                       -  No. 02-4011                                  OPINION
               v.                      -                                           _________________
                                        >
                                       ,                     DAVID A. NELSON, Circuit Judge. The U.S. Attorney
 UNITED STATES OF AMERICA , -
 et al.,                                                   General, whose duties include the processing of applications
                                       -                   for naturalization, is prohibited by statute from considering
          Respondents-Appellees. -                         the naturalization application of any person against whom
                                       -                   there is pending a proceeding for removal from this country.
                                      N                    See 8 U.S.C. § 1429, the relevant portion of which is set forth
          Appeal from the United States District Court     in the margin.1
         for the Northern District of Ohio at Cleveland.
     No. 02-00241—Donald C. Nugent, District Judge.           The question presented in the case at bar is whether § 1429
                                                           likewise prohibits a United States district court from
                Argued: February 6, 2004                   exercising jurisdiction to review an administrative denial of
                                                           a naturalization application once a removal proceeding has
            Decided and Filed: May 24, 2004                been instituted against the applicant. The court below
                                                           answered this question with an unqualified “yes” – an answer
   Before: NELSON, GILMAN, and ROGERS, Circuit             that led the court to dismiss, without prejudice, a petition for
                     Judges.                               review of the denial of the petitioner’s naturalization
                                                           application. Our answer — a heavily qualified “no” — is
                   _________________                       different in form, but it leads us to the same result on the facts
                                                           presented here. Although § 1429 does not directly strip
                        COUNSEL
ARGUED: Keevin J. Berman, Cleveland, Ohio, Abraham             1
                                                                 Subject to a proviso that has no bearing on this case, 8 U.S.C.
Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio,           § 1429 provides, in pertinent part, that “no application for naturalization
for Appellant. Patricia M. Corrales-Talleda, UNITED        shall be considered by the Attorney General if there is pending against the
STATES DEPARTMENT OF JUSTICE, Los Angeles,                 applicant a removal proceeding pursuant to a warrant of arrest issued
                                                           unde r the provisions of this chapter or any other A ct . . . .”

                             1
No. 02-4011                    Zayed v. United States, et al.           3    4    Zayed v. United States, et al.              No. 02-4011

district courts of jurisdiction to review the denial of                        In September of 1999 the INS notified Ms. Zayed that it
applications for naturalization while removal proceedings are                intended to deny her application for naturalization. An
pending, the statutory scheme does, in our view, limit the                   investigation had revealed that the applicant lived with her
scope of judicial review and the availability of meaningful                  once-and-future husband for at least two years during the time
relief. In the case at bar, we believe, the district court lacked            she claimed to have been living with her parents. Because
the power to grant an effective remedy. We shall affirm the                  Ms. Zayed appeared to have lied about her past addresses –
dismissal on that basis.                                                     presumably to avoid casting doubt on the bona fides of her
                                                                             divorce – the INS reached the preliminary conclusion that Ms.
                                    I                                        Zayed lacked the good moral character required for
                                                                             naturalization. It also determined that she might be
   The petitioner, Dalal Zayed, is a native of Israel and a                  removable for using a sham divorce to obtain lawful
citizen of Sweden. She entered the United States as a visitor                permanent residence here as an unmarried daughter.
for pleasure in December of 1988. Her mother, who had
recently become a lawful permanent resident of this country,                   Ms. Zayed filed a response to the notice of intent, but her
then applied for a relative’s immigrant visa on Ms. Zayed’s                  response did not carry the day; the application for
behalf. Ms. Zayed was admitted for permanent residence in                    naturalization was denied. Ms. Zayed filed an administrative
April of 1991 as an unmarried daughter of a lawful permanent                 appeal, and a hearing followed. The INS affirmed its denial
resident.2                                                                   of the naturalization application in October of 2001.
  Ms. Zayed applied for naturalization in February of 1996.                    Seeking relief in the district court, Ms. Zayed filed her
She stated in her application that she had lived at her parents’             petition for review in February of 2002. A few weeks later
Chicago-area address from December of 1988 until June of                     the INS initiated removal proceedings against Ms. Zayed.
1991 and that she had lived in the Cleveland area ever since.                The agency then moved to dismiss Ms. Zayed’s petition for
She also stated that she had married Nabeel Zayed in 1982,                   lack of subject matter jurisdiction. The motion was based on
divorced him in 1988, and remarried him in 1992. She                         the theory that because 8 U.S.C. § 1429 precludes the
confirmed this information in an interview with an examiner                  Attorney General from considering a naturalization
for the Immigration and Naturalization Service. (A                           application while removal proceedings are pending, the
component of the Department of Justice, the INS took its                     institution of such proceedings divested the district court of
marching orders from the Attorney General.3)                                 jurisdiction to review the denial of the naturalization
                                                                             application.
                                                                               The district court granted the motion. After reviewing the
    2
      At the time in question, 8 U.S.C. § 1152(e)(2) provided that
                                                                             legislative history of § 1429, the court concluded that the
additional visas co uld be made availab le to spouses, unmarried sons, and   original intent of Congress in enacting the relevant portion of
unmarried daughters of lawful permanent residents after the fiscal yea r’s   the statute had survived a set of amendments adopted in the
quota of visas for citizens of the applicant’s country had been reached.     Immigration Act of 1990, Pub. L. No. 101-649, § 401.
    3
                                                                             Because the authority to naturalize aliens had been removed
      The Homeland Security Act of 2002 abolished the INS and                from the district courts, under the 1990 amendments, and had
transferred its functions to the Department of Homeland Security. See        been vested solely in the Attorney General (see 8 U.S.C.
Pub.L.No . 107-296, 116 Stat. 2135 (2002).
No. 02-4011               Zayed v. United States, et al.     5    6     Zayed v. United States, et al.               No. 02-4011

§ 1421(a), as amended), a conforming amendment was                                               B
adopted to prohibit “the Attorney General,” rather than the
“naturalization court,” from considering naturalization             Under 8 U.S.C. § 1421(c), federal district courts are given
applications where removal proceedings were pending. The          jurisdiction to review administrative denials of naturalization
district court concluded that the substitution of “the Attorney   applications. “Such review shall be de novo, and the court
General” for the “naturalization court” did not reflect any       shall make its own findings of fact and conclusions of law
change in the underlying intent of Congress. That intent, the     and shall, at the request of the petitioner, conduct a hearing de
district court said in its memorandum opinion, remained what      novo on the application.” 8 U.S.C. § 1421(c). Ms. Zayed
it had been for many years: “to emphasize deportation             contends that the commencement of removal proceedings
proceedings over the naturalization process, and to avoid a       cannot divest a district court of the jurisdiction granted by
race between an alien seeking to be naturalized and               § 1421(c). The INS responds that such divestiture is
immigration authorities seeking to complete removal               automatic under 8 U.S.C. § 1429.
proceedings.”
                                                                    It is difficult to square the agency’s response with the plain
  Adopting the approach to statutory interpretation urged         language of § 1429. By its terms, the statute limits the
upon it by the government — an approach pioneered by the          authority of “the Attorney General” – not the authority of the
Supreme Court in Church of the Holy Trinity v. United States,     district courts – to act on applications for naturalization: “no
143 U.S. 457 (1892) — the district court elected to follow        application for naturalization shall be considered by the
what it saw as the true intent of Congress without necessarily    Attorney General if there is pending against the applicant a
adhering to the letter of the statutory language. The petition    removal proceeding . . . .” (Emphasis supplied.)
for review was dismissed without prejudice, as we have said,
and Ms. Zayed has filed a timely appeal.                            Although courts — particularly inferior courts such as ours
                                                                  — are generally well advised to be cautious about letting the
                              II                                  actual language of a statute be trumped by an unarticulated
                                                                  congressional intent, we have some sympathy for the district
                              A                                   court’s conclusion as to what Congress intended when it
                                                                  changed the law in 1990. The history of the Immigration Act
  We have jurisdiction of Ms. Zayed’s appeal under                of that year does suggest that Congress intended removal
28 U.S.C. § 1291, the appeal having been taken from a final       proceedings to have priority over naturalization proceedings.
decision of the district court. Although the petition was
dismissed without prejudice, the dismissal clearly terminated        It is important to recall that while authority to naturalize
the action; Ms. Zayed could not cure the defect by                aliens was vested in the district courts until 1990, removal of
amendment. Where an action, and not merely an amendable           aliens was the province of the Attorney General. And until
complaint (or petition), is dismissed without prejudice, the      1952, when § 1429 was adopted, the usual practice had been
order of dismissal is final and appealable. See Thompson v.       “for both the [removal] and naturalization processes to
Michigan Dep’t of Corrections, 23 Fed. Appx. 486, 487-88          proceed along together until either [the] petitioner’s [removal]
(6th Cir. 2001); CompuServe Inc. v. Saperstein, No. 97-4038,      or naturalization ipso facto terminated the possibility of the
1999 WL 16481, at **2-3 (6th Cir. Jan. 8, 1999).                  other occurring.” Shomberg v. United States, 348 U.S. 540,
No. 02-4011                   Zayed v. United States, et al.         7    8       Zayed v. United States, et al.                      No. 02-4011

543 (1955).4 Section 1429 was designed to end this “race                  expressly conferred on it by the very act of Congress that
between the alien to gain citizenship and the Attorney General            amended § 1429.
to deport him.” Id. at 544. That objective was accomplished
by according priority to removal proceedings.                               A district court that is exercising its § 1421(c) jurisdiction
                                                                          can review only those decisions that § 1429 permits the
   Thus § 1429 provided that “no petition for naturalization              Attorney General to make, of course. See Apokarina v.
shall be finally heard by a naturalization court if there is              Ashcroft, 232 F. Supp. 2d 414, 416 (E.D. Pa. 2002) (“[T]he
pending against the petitioner a [removal] proceeding . . . .”            district court’s scope of review of the denial of a
And when the “sole authority” to naturalize aliens was                    naturalization petition, pursuant to section 1421(c), cannot be
transferred from the district courts to the Attorney General in           any greater than the authority of the Attorney General to
1990, see 8 U.S.C. § 1421(a), a corresponding change was                  consider the petition in the first place”), remanded, No. 02-
made in § 1429: “the Attorney General” replaced the                       4265, 2004 WL 742286 (3d Cir. Apr. 7, 2004). Where the
“naturalization court” as the entity precluded from acting on             INS has denied an application for naturalization on the ground
naturalization applications during the pendency of removal                that removal proceedings are pending, therefore, the district
proceedings. Section 1421(c) — which, as we have seen,                    court’s de novo review is limited to review of that threshold
provides for judicial review of denials of naturalization                 determination. Id.
applications — was also added at this time. We are aware of
no suggestion that Congress intended the priority of removal                Of greater importance to this appeal, Ms. Zayed’s
proceedings over naturalization proceedings to be altered by              application for naturalization having been denied on grounds
the 1990 amendments.                                                      other than the pendency of removal proceedings, the restraints
                                                                          that § 1429 imposes upon the Attorney General prevent a
  But we do not read the amended § 1429 as divesting the                  district court from granting effective relief under § 1421(c) so
district courts of the jurisdiction granted under § 1421(c). In           long as removal proceedings are pending. The exclusive
this we agree with Grewal v. Ashcroft, 301 F. Supp. 2d 692,               power to naturalize aliens rests with the Attorney General, as
696 (N.D. Ohio 2004), where the court declared that “Section              we have seen, and § 1429 bars the use of that power while
[1429] simply has no bearing on the district court’s                      removal proceedings are pending. In the case before us, then,
jurisdiction to review the administrative denial of a                     the district court could not properly have ordered the Attorney
naturalization application of an alien against whom removal               General to grant Ms. Zayed’s application for naturalization.5
proceedings have been initiated.” (Emphasis supplied.) The                And the district court could not properly have entered an
effect of § 1429, in our view, is to limit the scope of the               order granting the application without reference to the
court’s review and circumscribe the availability of effective
remedies, but not to oust the district court of a jurisdiction
                                                                              5
                                                                                W e recognize that at least one d istrict court has ordered the INS to
                                                                          grant an application for naturalization despite the pendency of removal
                                                                          proceedings against the app licant. See Ngwana v. Attorney General, 40
    4
                                                                          F. Supp. 2d 319, 322 (D . Md . 1999 ). We are at something of a loss,
     A person who has been naturalized cannot be removed, and a person    however, to und erstand how judicial fiat can overcome the statutory bar
who has been removed cannot be naturalized. See Apoka rina v. Ashcroft,   of § 1429. See U .S. Const., art. VI, cl. 2 (“This Constitution, and the
232 F. Supp. 2d 414 , 415 n.5 (E.D. Pa. 2002), remanded, No. 02-4265,     Laws of the United States which sha ll be ma de in P ursuan ce thereof . . .
2004 W L 7422 86 (3d C ir. Apr. 7, 2004).                                 shall be the supreme Law of the Land . . . .”).
No. 02-4011                  Zayed v. United States, et al.         9    10    Zayed v. United States, et al.               No. 02-4011

Attorney General, Congress having decided that it would be               naturalization. The § 1239.2(f) procedure is thus inapplicable
the Attorney General who should have “sole authority to                  here.
naturalize persons . . . .” See 8 U.S.C. § 1421(a).
                                                                           In these circumstances, we believe that the dismissal of Ms.
  An alternative form of relief is suggested by Gatcliffe v.             Zayed’s petition for review must be affirmed. The fact that
Reno, 23 F. Supp. 2d 581, 583, 585 (D.V.I. 1998), where the              the statute precludes the relief sought requires this result. Our
district court declared an applicant to be eligible for                  affirmance, however, does not mean that the court will never
naturalization “but for the pendency of [removal]                        be able to grant effective relief. The petition having been
proceedings.” In the case at bar, however, Ms. Zayed did not             dismissed without prejudice, Ms. Zayed will have an
request declaratory relief — and a declaration that she would            opportunity to file a new petition if she prevails in the
be eligible for naturalization but for the pendency of removal           removal proceedings.
proceedings might well have been a vain act in any event.
                                                                           There is one additional issue. Ms. Zayed argues that the
   In the Gatcliffe case the court reasoned that its finding             district court materially erred in finding that the INS initiated
would allow the applicant to move for termination of the                 removal proceedings against her before it finally denied her
removal proceedings. See Gatcliffe, 23 F. Supp. 2d at 583.               application for naturalization. The finding was indeed
The court apparently had in mind a regulation giving                     incorrect, but we agree with the INS that the error is
immigration judges the power to terminate removal                        immaterial. Regardless of when removal proceedings are
proceedings “when the alien has established prima facie                  initiated, the Attorney General may not naturalize an alien
eligibility for naturalization and the matter involves                   while such proceedings remain pending. See 8 U.S.C.
exceptionally appealing or humanitarian factors.” See                    § 1429.
8 C.F.R. § 1239.2(f). Under a 1975 decision of the Board of
Immigration Appeals, prima facie eligibility can be                       The dismissal of the petition for review is therefore
established by “a declaration of a court.” In re Cruz, 15 I. &           AFFIRMED.
N. Dec. 236, 237 (BIA 1975), cited in Gatcliffe, 23 F. Supp.
2d at 583.6
   Unfortunately for Ms. Zayed, the procedure contemplated
by the court in Gatcliffe is not available to her. An
immigration judge’s authority to terminate removal
proceedings exists for a particular purpose: “to permit the
alien to proceed to a final hearing on a pending application or
petition for naturalization.” 8 C.F.R. § 1239.2(f). Ms. Zayed
has already had a final hearing on her application for

    6
     W hether Cruz remains good law notwithstanding the 1990 transfer
of the naturalization power from the district courts to the Attorney
General is an open question. See Apok arina v. Ash croft, No. 02-4265,
2004 W L 7422 86, at *3 (3d Cir. Apr. 7, 2004).
