08-6301-cv
Gildernew v. Gantner

                       UNITED STATES COURT OF APPEALS

                            F OR THE S ECOND C IRCUIT



                             August Term, 2009

(Argued: January 25, 2010                        Decided: February 4, 2010)

                           Docket No. 08-6301-cv


                           FRANCIS B. GILDERNEW,

                                                        Plaintiff-Appellant,

                                     –v.–

    ANDREA QUARANTILLO, District Director, New York City
District Office, United States Citizenship and Immigration
  Services; EDUARDO AGUIRRE, Director of the United States
  Citizenship and Immigration Services; JANET NAPOLITANO, 1
     Secretary of the Department of Homeland Security;
ERIC H. HOLDER, JR., Attorney General of the United States;
UNITES STATES CITIZENSHIP AND IMMIGRATION SERVICES, BUREAU
OF CUSTOMS AND BORDER PROTECTION; KIP HAWLEY, Administrator
          of Transportation Security Administration

                                                     Defendants-Appellees. 2




       1
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet
Napolitano has automatically been substituted for Michael Chertoff as a
defendant in this action in her official capacity as Secretary of the
Department of Homeland Security.

       2
       The Clerk of the Court is respectfully directed to amend the official
caption in this action to conform to the caption in this opinion.

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     Before:
                     L EVAL, S TRAUB, AND W ESLEY, Circuit Judges.

          Appeal from an order of the United States District
     Court for the Southern District of New York (Berman, J.),
     entered on October 30, 2008, denying Plaintiff’s motion for
     summary judgment and granting Defendants’ cross-motion for
     summary judgment.

           A FFIRMED.



                    EAMONN DORNAN, Dornan & Associates, P.L.L.C., New
                         York, New York, for Plaintiff-Appellant.

                    F. JAMES LOPREST, JR., United States Attorney’s
                         Office for the Southern District of New York
                         (DAVID S. JONES, of counsel), New York, New
                         York, for Defendants-Appellees.



 1   P ER CURIAM:

 2         Plaintiff, a native and citizen of Ireland, commenced

 3   this action seeking, inter alia, a declaratory judgment that

 4   he was entitled to naturalize, as well as a grant of

 5   naturalized citizenship following the denial of his

 6   application by the United States Citizenship and Immigration

 7   Services (“CIS”).        Plaintiff contends that the CIS

 8   improperly denied his application because his absence from

 9   the country for over fourteen months – from September 16,

10   2004 to November 23, 2005 – does not, as the CIS contends,

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 1   disqualify him from naturalized citizenship under 8 U.S.C.

 2   § 1427.   The United States District Court for the Southern

 3   District of New York (Berman, J.) denied Plaintiff’s motion

 4   for summary judgment and granted the Defendants’ cross-

 5   motion for summary judgment, thereby affirming the decision

 6   of the CIS.   Gildernew v. Quarantillo, No. 05 Civ.

 7   10851(RMB), 2008 WL 4938289 (S.D.N.Y. Oct. 29, 2008).

 8   Plaintiff now appeals from that ruling.

 9

10                             Background

11       On February 13, 2002, Plaintiff applied to the New York

12   District office of the former Immigration and Naturalization

13   Service (“INS”) to become a naturalized citizen of the

14   United States.   On December 10 of that year, he appeared

15   before the agency for a naturalization exam and demonstrated

16   his fitness for citizenship by satisfying certain statutory

17   criteria, including a basic knowledge of United States

18   history and the ability to communicate in English.

19       In April of 2004, while his application was still

20   pending, Plaintiff applied to the CIS (the successor agency

21   to the INS) for a reentry permit to allow him to return to



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 1   the United States after a proposed trip to Ireland to “take

 2   care of family affairs.”   Plaintiff indicated that he

 3   expected to leave the United States in June of 2004 and

 4   remain abroad for one year.   He did not indicate that he was

 5   an applicant for naturalized citizenship.

 6       In September of 2004, Plaintiff voluntarily left the

 7   United States.   Plaintiff alleges that in April 2005, he

 8   presented for inspection at the United States Bureau of

 9   Customs and Border Protection (“CBP”) at Dublin Airport in

10   Ireland, but was told that he could not enter the United

11   States because he was on the “no-fly” list maintained by the

12   Transportation Security Administration (“TSA”).   Upon a

13   finding that there was “no derogatory information” on file

14   to preclude Plaintiff’s admission to the country, he was

15   ultimately permitted to return to the United States in

16   November of 2005.

17       On May 8, 2006, the CIS notified Plaintiff that his

18   application for naturalized citizenship had been approved

19   and scheduled a ceremony for his oath of citizenship to be

20   administered later that month. However, when the CIS learned

21   that Plaintiff had been outside the country for over



                                Page 4 of 9
 1   fourteen months, the agency issued a motion to reopen his

 2   application.    On July 17, 2006, the CIS denied Plaintiff’s

 3   application because his absence from the country for over

 4   one year while his application was pending made him

 5   ineligible for naturalized citizenship.

 6       The agency relied on 8 U.S.C. § 1427, which provides in

 7   relevant part, “[n]o person, except as otherwise provided in

 8   this subchapter, shall be naturalized unless such applicant

 9   ... has resided continuously within the United States from

10   the date of the application up to the time of admission to

11   citizenship.”    § 1427(a)(2).   The statute further provides

12   that “[a]bsence from the United States for a continuous

13   period of one year or more during the period for which

14   continuous residence is required for admission to

15   citizenship (whether preceding or subsequent to the filing

16   of the application for naturalization) shall break the

17   continuity of such residence.”      § 1427(b).

18

19                              Discussion

20

21       We review de novo a district court’s grant of summary



                                 Page 5 of 9
 1   judgment.     See Sheppard v. Beerman, 317 F.3d 351, 354 (2d

 2   Cir. 2003).     We are faced with the question of whether 8

 3   U.S.C. § 1427 precludes the naturalization of the Plaintiff

 4   on the facts of this case.     Because we conclude that it

 5   does, the judgment of the district court is affirmed.

 6       Plaintiff first argues that the one-year absence bar in

 7   § 1427(b) applies only to the period preceding the

 8   naturalization interview, and does not extend to the period

 9   following the interview.     That argument is unavailing

10   because it is clearly contrary to the language of the

11   statute.    By its terms, § 1427(b) applies to the entire

12   period for which continuous residence is required, “whether

13   preceding or subsequent to the filing of the application for

14   naturalization.”     Plaintiff indicates no statutory exception

15   that applies to his case.

16       Plaintiff does rely on language in the paragraph

17   preceding the one quoted above, which provides that

18   “[a]bsence from the United States of more than six months

19   but less than one year during the period for which

20   continuous residence is required for admission to

21   citizenship, immediately preceding the date of filing the



                                  Page 6 of 9
 1   application for naturalization, or during the period between

 2   the date of filing the application and the date of any

 3   hearing under section 1447(a) of this title, shall break the

 4   continuity of such residence.”     § 1427(b).   Plaintiff would

 5   have us read that paragraph to define the “period for which

 6   continuous residence is required” as only that period

 7   “immediately preceding the date of filing the application

 8   for naturalization.”   That argument fails because it is

 9   based on a misreading of the statute.

10       First, the paragraph relied upon by Plaintiff applies

11   only to absences ranging from six months to less than one

12   year, as its prefatory words clearly indicate.      And second,

13   even if that first paragraph of § 1427(b) did apply to the

14   circumstances of Plaintiff’s case it would not save him.

15   The paragraph does not, as Plaintiff maintains, limit the

16   continuous residency requirement to that period of time

17   preceding the filing of the application, nor even to that

18   period of time preceding the naturalization interview.      The

19   next clause clearly states: “or during the period between

20   the date of filing the application and the date of any

21   hearing under section 1447(a) of this title.” §



                                Page 7 of 9
 1   1427(b)(emphasis added).   Section 1447(a) provides for an

 2   administrative hearing before an immigration officer

 3   following the denial of an application for naturalization.

 4   The two clauses, read together, therefore embody the entire

 5   relevant period with respect to continuous residence: the

 6   period immediately preceding the filing of the application,

 7   and the period subsequent to the filing of the application

 8   until the sooner of the applicant’s admission to

 9   citizenship, or an administrative hearing following denial

10   of the application.   Because Plaintiff’s § 1447(a) hearing

11   occurred on or around November 26, 2006, over one year after

12   his return to the United States, even if the first paragraph

13   of § 1427(b) applied to the facts of Plaintiff’s case it

14   would clearly be no help to him.

15       Plaintiff further contends that nothing in the

16   legislative history surrounding § 1427 suggests that

17   Congress intended for the one-year absence bar to apply

18   against post-interview absences.         But because the statute is

19   clear and unambiguous, we will not endeavor to divine the

20   intent of Congress by resort to legislative history.         See

21   Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d Cir. 2003).


                                Page 8 of 9
 1       Finally, while Plaintiff concedes that his initial

 2   departure was voluntary, he maintains that his continued

 3   absence was involuntary because the CBP would not permit him

 4   to reenter the country in April of 2005, as he originally

 5   intended.   Plaintiff argues that it is unfair to deny him

 6   eligibility because he attempted to return to the United

 7   States at that time, but was prohibited from boarding his

 8   flight as the result of bureaucratic errors on the part of

 9   the Defendant-agencies.   Even assuming that relief from the

10   clear terms of the statute would be warranted under a

11   different set of facts, the circumstances of this case do

12   not support such a result.     Plaintiff is neither exempt from

13   the continuous residence requirement nor does he present a

14   set of facts that would warrant an estoppel.

15

16                             Conclusion

17

18       The Court has reviewed Plaintiff’s remaining arguments

19   and finds them to be without merit.        Accordingly, the

20   judgment of the district court is hereby AFFIRMED.




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