05-4315-ag
Azize v. BCIS, et al.



                              UNITED STATES COURT OF APPEALS

                                  FOR THE SECOND CIRCUIT

                                     August Term 2009

Heard: August 26, 2009                                Decided: February 1, 2010
                                  Docket No. 05-4315-ag

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WILLIAM AZIZE,
          Petitioner,

                         v.

BUREAU OF CITIZENSHIP AND IMMIGRATION
SERVICES, DEPARTMENT OF HOMELAND
SECURITY, and UNITED STATES ATTORNEY
GENERAL,
          Respondents.
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Before:          JACOBS, Chief Judge, NEWMAN, Circuit Judge, and
                 TRAGER,* District Judge.

         Petition for review of an order of the Board of Immigration

Appeals denying an application for cancellation of removal on the

ground that the applicant was improperly denied an opportunity to

complete an application for naturalization.

         Remanded for further proceedings to the District Court, from

which a petition for a writ of habeas corpus had been transferred.

         Chief Judge Jacobs dissents with a separate opinion.



         *
      Honorable David G. Trager, of the United States District Court
for the Eastern District of New York, sitting by designation.
                             Hagit M. Elul, Hughes Hubbard & Reed LLP,
                               New York, N.Y., for Petitioner.

                             F. James Loprest, Jr., Special Asst. U.S.
                               Atty., New York, N.Y. (Lev L. Dassin,
                               Acting U.S. Atty., Sarah S. Normand,
                               Asst. U.S. Atty., New York, N.Y., on the
                               brief), for Respondents.

JON O. NEWMAN, Circuit Judge.

     This petition to review an order for removal entered by the Board

of Immigration Appeals (“BIA”) presents a novel claim concerning an

allegedly improper denial of naturalization.             William Daneris Azize

seeks review of an October 10, 2001, order of the BIA summarily

affirming a September 8, 2000, decision of an Immigration Judge

(“IJ”).    The IJ’s decision denied an application for cancellation of

removal and ordered Azize removed to the Dominican Republic.                 The

removal petition was referred to this Court by the District Court for

the Southern District of New York (Sidney H. Stein, District Judge)

after Azize filed a petition for a writ of habeas corpus in the

District Court.

     Azize contends that two applications for his naturalization were

improperly denied in 1987 and 1989.           He seeks relief from the removal

order     or,   alternatively,   nunc     pro    tunc   determination   of   his

applications for naturalization.              The Government has commendably

informed this Court that “it does not oppose [P]etitioner’s request

for a remand to the district court of the petition to the extent that


                                        -2-
it relates to Azize’s claim for equitable relief pertaining to his

naturalization applications . . . should the Court deem such a remand

appropriate.” Letter from F. James Loprest, Jr., to Catherine O’Hagan

Wolfe (October 7, 2009).      Having concluded that such a remand is

appropriate under the unusual circumstances of this case, we remand to

the District Court.

                               Background

     Facts concerning Azize.1 Azize, now 44 years old, was born in the

Dominican Republic in 1965.    He came to the United States with his

mother when he was five years old and has lived here since then.     He

became a legal permanent resident in 1971 and received a Resident

Alien Receipt Card, known as a “green card.”        He enlisted in the

military in 1984 and was honorably discharged in 1990.     He lives in

Florida with his elderly mother, who is a United States citizen.     He

has three children and three brothers, all of whom are United States

citizens.

     Naturalization proceedings.    In 1987, Azize filed an Application

to File Petition for Naturalization, Form N-400, with the Immigration

and Naturalization Service (“INS”).      He stated, among other things,

that he could write and speak English, that his last tax return was



     1
      The facts, which we assume are true for purposes of this appeal,
are taken from Azize’s petition and other papers filed in the District
Court.

                                   -3-
filed in 1986,2 and that he was willing to bear arms on behalf of the

United     States.    He   was   administered     and   passed     a    citizenship

examination and was issued a notice for a preliminary naturalization

hearing, which was held on February 26, 1988.           At that hearing, an INS

officer requested that Azize turn in his green card, stating that he

would not need it any more.         Azize explained that his green card had

been stolen and that he had applied for a replacement card.                    A not

entirely    legible    photocopy    of   that   application   is   in    the   joint

appendix for this appeal.3         Azize told the INS officer that she could

locate his application for a replacement card in the INS files and put

a stop on it, and that she should “swear me in,” by which he

presumably meant that the officer should attest that he had sworn to

the truth of the application.            The INS officer told Azize that he

should wait for the replacement card to be mailed to him and come back

when he received it.

     Form N-400 contains two blank lines at the bottom of the form.

The first follows the printed words “Non Filed,” and the second

follows the printed word “Reasons.” On Azize’s 1987 application form,



     2
      He answered “No” to the question “Since becoming a permanent
resident of the United States, have you failed to file an income tax
return because you regarded yourself as a nonresident?”.
     3
      The Government asserts that the application for a replacement
card was approved on July 16, 1987, but make no representation as to
whether a replacement card was ever mailed to Azize.

                                         -4-
the    line   following   the   printed   words   “Non   Filed”   contains   some

undecipherable letters, which the Government believes are the INS

officer’s initials, and the date “2/26/88.”              The line following the

printed word “Reasons” is not filled in.

       On April 7, 1989, Azize submitted a second application for

naturalization.      On this application he gave all of the same answers

as on his 1987 application, with one difference, which might be

pertinent to his pending appeal.          To the question asking, “When was

your last federal income tax return filed?” he answered “none.”                On

the lines after the printed words “Non Filed and “Date, reasons” the

following appears: “Does not have PP. - never filed taxes 87-87

elected not to file” followed by what appears to be the initials of

the INS officer and the date of 7/17/89.            The Government interprets

“PP” to mean “passport” and contends that “elected not to file” refers

to Azize’s decision not to file the second Form N-400.

       Criminal convictions.        Several years after his unsuccessful

second attempt to become a citizen, Azize became addicted to drugs

and, in the words of his counsel, “entered a dark period of his life.”

 On September 17, 1997, he was sentenced to six months’ imprisonment

upon    his   plea   of   guilty   to   attempted   seventh    degree   criminal

possession of a controlled substance in violation of New York Penal

Law § 220.03 (McKinney 2008).       While free on bail prior to sentencing,

Azize was arrested for another narcotics offense, attempted third

                                        -5-
degree sale of a controlled substance in violation of New York Penal

Law § 220.39, for which he was sentenced to one year’s imprisonment.

Azize was also convicted in the District of Columbia of selling the

substance known as “ecstacy” in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). See     United States v. Azize, 88 Fed. Appx. 416 (D.C. Cir.

2004).

     Removal proceedings.      In 1998 the INS began removal proceedings

based    on   Azize’s   September   17,   1997,   conviction.   He   conceded

removability and requested cancellation of removal pursuant to section

240A of the Immigration and Nationality Act, 8 U.S.C. § 1229b.            In

September 2000, an IJ denied cancellation on the ground that Azize’s

second conviction was for an aggravated felony, which disqualified him

from cancellation. See 8 U.S.C. § 1229b(a)(3). The IJ ordered removal

to the Dominican Republic.          In October 2001, the BIA summarily

affirmed.

     After serving time for his federal drug offense, Azize was placed

in detention by INS authorities.            His counsel represents that he

rehabilitated himself while in detention, completed a substance abuse

program, and earned the praise of detention personnel for his help to

detention staff and inmates.         In November 2006, he was placed on

supervised release and has been living and working in Florida since

then.

     Habeas corpus proceedings. In December 2004, Azize, proceeding

                                      -6-
pro se, initiated a habeas corpus proceeding in the District Court for

the Southern District of New York.            He styled his papers “Nunc Pro

Tunc Petition for Naturalization Status” and sought relief including

(1) cancellation of his removal order on the ground that the INS had

violated   its   regulations     in   connection      with   his    naturalization

application and (2) an order directing the Bureau of Citizenship and

Immigration Services to grant his application for citizenship nunc pro

tunc.

     In August 2005, the District Court transferred the petition to

this Court “to the extent it challenges the order to remove” Azize,

stayed removal pending further order of this Court, and retained

jurisdiction over Azize’s application for release on bail.                  Transfer

of the challenge to removal was required by the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005).             The District Court

subsequently appointed counsel for Azize. The application for release

apparently    became   moot   when    the    United   States       Immigration    and

Enforcement voluntarily released Azize in November 2006.                   This Court

appointed as pro bono counsel Hagit M. Elul, Esq., who has very ably

represented Azize.

                                  Discussion

     Azize    primarily   contends     that    his    initial      application    for

citizenship   was   improperly    denied,     that    but    for    this    allegedly

improper denial he would have become a naturalized citizen, and that,

                                       -7-
as a citizen, he would not have been subject to removal proceedings.

He frames his legal position as asserting both (1) a denial of the

constitutional right to have the Government follow its own procedures,

see Morton v. Ruiz, 415 U.S. 199, 235 (1974), which he contends

applies in the immigration context, see Montilla v. INS, 926 F.2d 162,

164 (2d Cir. 1991), and (2) an estoppel against the Government, see

Thom v. Ashcroft, 369 F.3d 158, 165 n.13 (2d Cir. 2004).

      Azize bases his claim of improper denial of his application for

citizenship on what he alleges was the INS’s termination of the

processing of his first application upon his failure to surrender his

green card, which he had informed the INS officer had been stolen and

for which an application for a replacement card was pending.           This

action,   Azize   contends,   violated   the   INS   regulation   concerning

surrender of a green card, 8 CFR § 338.14 (1988).          That regulation

states:

           No certificate of naturalization shall be delivered by
      the clerk of the court in any case in which the
      representative of the Service in attendance at the final
      naturalization hearing notifies the clerk of court that the
      naturalized   person   has   not   surrendered   his   alien
      registration receipt card.     Upon subsequent receipt of
      notice from the district director that he has waived the
      surrender of the card or that the card has been surrendered,
      the certificate shall be delivered by the clerk of court.

Id.

      This regulation, Azize contends, makes it clear that failure to

surrender a green card is not a basis to terminate a naturalization

                                   -8-
proceeding, much less to deny the applicant the opportunity to take

the oath of citizenship and thereby become a citizen, but is at most

only a bar to receiving from a court clerk the formal certificate of

naturalization.       And even this bar, Azize further alleges, is not

absolute,    since    the    District   Director   may     waive    the    surrender

requirement.    Thus, Azize contends, the INS officer should not have

terminated the naturalization proceeding for failure to surrender the

green card, but should have completed all the steps in the process,

except for notifying the court clerk after naturalization had occurred

that   the   card    had    been   surrendered.    These    steps    include:    the

applicant swears to or affirms the application, see 8 CFR § 332.11,

the INS officer signs the application, see id., the applicant files a

petition for naturalization (Form N-405) with a district court, see

id. § 334.13, An INS employee recommends for or against granting the

petition, see id. § 335.12, and notifies the applicant of the date and

place of the final hearing, see id. § 335.13.                 Upon the court’s

granting of the petition, the applicant takes an oath of allegiance to

the United States in open court. See id. § 337.1. See Boromeo Escaler

v. United States Citizenship and Immigration Services, 582 F.3d 288,

289-90(2d Cir. 2009).

       If it is established that the INS officer terminated Azize’s

first naturalization proceeding because he did not surrender his green

card, termination on that basis would have been improper.                 It does not

                                         -9-
follow, however, that Azize would have successfully completed the

naturalization process and become a citizen.             Apart from any factual

circumstances that the Government might yet be able to develop that

would have precluded naturalization in 1988, there is on the current

record the notation on Azize’s second application that as of April 7,

1989, when he signed that application, he had not filed any income tax

returns.      If he had not filed any required returns, he might not have

been eligible for citizenship. See 8 CFR 316.10(b)(3)(iii) (applicant

lacks required good moral character if the applicant has “[c]ommitted

unlawful acts that adversely reflect upon the applicant’s moral

character.”)      However, the circumstances concerning his tax return

record   is    placed    in   some   doubt   by   his   response   on   his   first

application that he had filed his last (1986) return, and by the

notation of the INS officer on his second application of the curious

entry “87-87" after the words “never filed taxes.”

     With such an important matter as citizenship potentially at

stake, we think        the facts should be ascertained.       We will therefore

remand to the District Court to make the factual determinations

necessary for an adjudication of Azize’s claims and, if those facts

are found in favor of Azize, to proceed to the legal issues on which

his claims for relief depend.           Without attempting to circumscribe the

District Court’s inquiry, we think those factual issues include: the

circumstances     of    Azize’s   tax    return   filings,   whether    his   first

                                         -10-
naturalization proceeding was terminated for failure to surrender his

green card,4 and if a premature termination occurred, whether Azize

would have proceeded to the point in the process where he would have

become eligible to take the oath of allegiance.     The legal issues

include the nature of the relief to which Azize might now be entitled,

both with respect to his quest for naturalization and his effort to

resist removal.5   Since only this Court has jurisdiction to consider

the merits of the challenge to the removal order, we will request the

District Court to conduct appropriate fact-finding, resolve whatever

legal issues appear to be within its jurisdiction, and, if it believes

any relief from removal is warranted, recommend, in the capacity of a

special master, such relief to this Court.

     We appreciate that the Government has presented substantial



     4
      The dissent contends that the citizenship proceeding was not
terminated for lack of a green card, but only interrupted until a
replacement card was produced. This is an issue that ought not to be
resolved against Azize until appropriate fact-finding has occurred,
and any relevant legal issues, based on the facts as found, have been
adjudicated.
     5
      The dissent misinterprets this opinion as contemplating a court
ordered grant of citizenship nunc pro tunc.       Not so.   We simply
believe that Azize’s factual and legal claims deserve plenary
consideration to determine what relief, if any, he may be entitled to.
Moreover, we do not accept the dissent’s premise that such an order is
the only relief that could prevent removal. Just as the Government
has decided not to oppose a remand, it might well elect not to press
ahead with removal if exploration of the facts indicates that Azize
should have been permitted to proceed with his application for
citizenship up to the point of taking the oath.

                                 -11-
procedural and substantive arguments against any relief for Azize.

Nevertheless, we accept the Government’s invitation to determine

whether a remand is “appropriate,” a characterization we believe we

may make without adjudicating at this point any of the Government’s

legal arguments.         The equities that Azize has asserted persuade us to

exercise the broad authority set forth in 18 U.S.C. § 2106,6 and, in

light       of   the   Government’s   decision   not   to   oppose   a   remand,   to

determine that such a remand is “appropriate” under the circumstances

of this case.

     Accordingly, the case is remanded to the District Court for

further proceedings not inconsistent with this opinion.                    From any

final order of the District Court, either party may restore our

jurisdiction by prompt notice to the Clerk of this Court, in which

event the case will be returned to this panel. See United States v.

Jacobson, 15 F.3d 19 (2d Cir. 1994).              The stay of removal will be

continued unless and until terminated by order of this Court.




        6
      The dissent marshalls factors that it contends weigh against any
equitable relief.    Omitted are the factors that weigh in Azize’s
favor, such as his United States citizen children, his United States
citizen mother, his financial support for his mother, his commendable
assistance to INS detention staff, and the length of time that the
Government has permitted him to remain in the United States since the
BIA ordered his removal. Whether or not all of the equities, taken
together, weigh in favor of ultimate relief for Azize, we believe they
at least weigh in favor of a remand.

                                         -12-
Dennis Jacobs, Chief Judge, 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


                                      -2-
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 expressly 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 (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.



                                      -3-
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


                                    -4-
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 (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


                                   -5-
         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,

         and   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.




                                   -6-
