                                         PRECEDENTIAL




UNITED STATES COURT OF APPEALS FOR THE THIRD
                  CIRCUIT
                   ______

                      No. 11-2276
                        ______

           JOSE GONZALEZ, A007 638 441
                    Appellant

                           v.

SECRETARY OF DEPT OF HOMELAND SECURITY;
MICHAEL AYTES, Acting Deputy Director United States
       Citizenship and Immigration Services;
  JOHN THOMPSON, District Director United States
       Citizenship and Immigration Services

                        ______

 On Appeal from the United States District Court for the
                 District of New Jersey
           (D.C. Action No. 2:09-cv-03426)
     District Judge: Honorable William J. Martini
                         ______
                           1
                 Argued November 17, 2011
                         ______

    Before: FUENTES and CHAGARES, Circuit Judges,
                 and POGUE,* Judge

              (Opinion Filed: March 19, 2012)

James V. Scarlata
56 Ferry St.
Newark, NJ 07105

Tarik D. Scarlata [argued]
1292 Yeamand Hall Road
Hanahan, SC 29410

      Attorneys for Petitioner-Appellant

Tony West
Assistant Attorney General
Elizabeth Stevens
Assistant Director
Sherease Pratt [argued]
United States Department of Justice
Civil Division

      *
         Hon. Donald C. Pogue, Chief Judge, United States
Court of International Trade, sitting by designation.

                             2
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20530

       Attorneys for Respondents-Appellees


                            ______

                 OPINION OF THE COURT
                         ______

       POGUE, Judge.

       Jose Gonzalez (AGonzalez@ or AAppellant@) appeals the
District Court of New Jersey=s grant of summary judgment
dismissing his petition for review of the United States
Citizenship and Immigration Service=s (AUSCIS@) denial of his
naturalization application.        USCIS denied Gonzalez=s
application on good moral character grounds for giving false
testimony in an immigration proceeding after Gonzalez affirmed
during his I-751 interview that he had no children and later held
out two children, YGP and AGP, as his own. The District Court
held that because uncontradicted evidence indicated that
Gonzalez lied in his I-751 interview, there was no genuine issue
of material fact for trial. For the reasons that follow, we hold
that no genuine issue of material fact existed on the record
before the District Court and will affirm the District Court=s
grant of summary judgment.
                               3
                     I. BACKGROUND

       Gonzalez is a native of Panama and a citizen of Spain.
He entered the United States as a non-immigrant visitor in or
around 1998. Around 1999, Gonzalez met a United States
citizen, Inez Otero, and the two were married on February 4,
2000. By virtue of his marriage to Otero, Gonzalez=s status was
adjusted to conditional lawful permanent resident on May 19,
2001. On August 3, 2004, Gonzalez and Otero appeared
together at an interview in support of Gonzalez=s Form I-751
Petition to Remove the Conditions on Residence (AForm I-751@).
 During the interview Gonzalez affirmed, under oath, his written
statement on Form I-751 that he did not have children of his
own. Following the interview, the conditions on Gonzalez=s
residence were lifted. On March 7, 2005, Gonzlez=s marriage to
Otero was legally dissolved through a Judgment of Divorce.

        Otero was not the only woman with whom Gonzalez was
romantically involved. Beginning in 1998, and through the
duration of his marriage, Gonzalez was also romantically
involved with Margarete Picinin. During this time, Picinin gave
birth to two children: YGP in 2000 and AGP in 2001. Gonzalez
supported Picinin financially before, during, and after her
pregnanciesCall while still married to Otero. In early August of
2004, prior to his divorce, Gonzalez moved out of his marital
home and into the apartment occupied by Picinin and her
children. On March 31, 2005, following the Judgment of
Divorce, Gonzalez amended the birth certificates of YGP and
AGP to reflect that he was their father.


                               4
       On December 19, 2006, Gonzalez filed a Form N-400
Application for Naturalization (AForm N-400@). On his Form N-
400, Gonzalez listed YGP and AGP as his children for the first
time in the course of his immigration proceedings. Noting that
this was inconsistent with his statements in the I-751 interview,
USCIS determined that Gonzalez had provided false testimony
during that interview and, on October 26, 2007, denied his
petition on the grounds that he lacked the requisite good moral
character.

       Following administrative appeal, Gonzalez received a
final denial of naturalization on June 12, 2009. On June 24,
2009, USCIS served on Gonzalez a Form I-862 Notice to
Appear and filed the Notice with the Newark New Jersey
Immigration Court, thereby initiating removal proceedings
against him.1 On July 10, 2009, Gonzalez filed a petition for de
novo review with the District Court for the District of New
Jersey pursuant to 8 U.S.C. ' 1421(c) (2006).2 On cross
motions for summary judgment, the District Court denied
Gonzalez=s motion and granted the Government=s motion,
holding that Athe uncontradicted evidence is that Petitioner,
while under penalty of perjury, gave false evidence in order to
receive a benefit in an immigration proceeding.@ Gonzalez v.
Napolitano, No. 2:09-cv-03426, 2011 WL 941299, at *7 (D.N.J.

       1
        The removal proceedings against Gonzalez remain
pending as of this appeal.
       2
         All subsequent citations to the United States Code will
be to the 2006 edition unless otherwise noted.

                               5
Mar. 16, 2011). Gonzalez timely appealed the District Court=s
decision on May 10, 2011.

  II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this action
pursuant to 8 U.S.C. ' 1421(c),3 and we have jurisdiction over
this appeal pursuant to 28 U.S.C. ' 1291.

        We review a ADistrict Court=s grant of summary judgment
de novo, applying the same standard the District Court applied.@
Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007)
(citing Doe v. County of Centre, Pa., 242 F.3d 437, 447 (3d Cir.
2001)). When reviewing a grant of summary judgment the court
Amust view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party=s favor.@
Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist.,
587 F.3d 597, 603 (3d Cir. 2009) (quoting Norfolk S. Ry. Co. v.
Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008)).


       3
          Whether a district court may review a denial of
naturalization pursuant to 8 U.S.C. ' 1421(c) when a removal
proceeding is pending is currently in dispute among the courts of
appeals. This question was decided by the District Court in a
separate opinion, see Gonzalez v. Napolitano, 684 F. Supp. 2d
555 (D.N.J. 2010), and raised before this court in a footnote of
the Government=s brief, see Appellee=s Br. 2 n.2. Because we
have not previously resolved this issue, it is discussed below in
section III.A.

                               6
                        III. ANALYSIS

    A. District Court Review under 8 U.S.C. ' 1421(c)

       Prior to 1990, the authority to naturalize aliens and the
authority to remove aliens were vested, respectively, in the
courts and the Attorney General. See 8 U.S.C. '' 1251, 1421(a)
(1988); see also Shomberg v. United States, 348 U.S. 540,
543B44 (1955). As naturalization and removal were mutually
exclusive, this bifurcation of authority sometimes led to Aa race
between the alien to gain citizenship and the Attorney General to
deport him.@ Id. at 544. In 1950, intending to end this race,
Congress enacted 8 U.S.C. ' 1429, providing that Ano petition
for naturalization shall be finally heard by a naturalization court
if there is pending against the petitioner a deportation
proceeding . . . .@ 8 U.S.C. ' 1429 (1952); see also Shomberg,
348 U.S. at 544B45.

        In 1990, Congress conferred upon the Attorney General,
Asole authority to naturalize persons as citizens of the United
States . . . .@ Immigration Act of 1990, Pub. L. No. 101-649,
' 401(a), 104 Stat. 4978, 5038 (1990) (codified at 8 U.S.C. '
1421(a)). With authority for both naturalization and removal
vested in the Attorney General, ' 1429 was amended to read,
Ano 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; ' 407(d)(3), 104
Stat. at 5041 (amending 8 U.S.C. ' 1429). Thus, priority for
removal proceedings was maintained. The Immigration Act of
1990 did not, however, remove the courts entirely from the
naturalization process. Rather, the Act reaffirmed the right of a
                                7
petitioner to judicial review by giving the district courts the
power to review, de novo, decisions by the Attorney General
denying naturalization. ' 401(c), 104 Stat. at 5038 (codified at 8
U.S.C. ' 1421(c)).4

        We are now faced with the question, unresolved by the
statute, of whether ' 1429 forecloses judicial review pursuant to
' 1421(c) whenever a removal proceeding is pending. Prior to
the 1990 amendments, we held in In re Terzich, 256 F.2d 197,
200 (3d Cir. 1958), that courts could not exercise jurisdiction
over naturalization so long as a removal proceeding was
pending. However, we have since questioned, in a non-
precedential opinion, whether Terzich remains valid in light of
the 1990 amendments. See Apokarina v. Ashcroft, 93 F. App=x.

       4
           Section 1421(c) reads in relevant part:

       A person whose application for naturalization
       under this subchapter is denied, after a hearing
       before an immigration officer under section
       1447(a) of this Title, may seek review of such
       denial before the United States district court for
       the district in which such person resides in
       accordance with chapter 7 of title 5. Such review
       shall be de novo, and the court shall make its own
       findings of fact and conclusions of law and shall,
       at the request of the petitioner, conduct a hearing
       de novo on the application.

8 U.S.C. ' 1421(c).

                                 8
469, 471B72 (3d Cir. 2004). Today we resolve the question
raised in Apokarina by holding that district courts have
jurisdiction to review a denial of naturalization during the
pendency of removal proceedings and may issue a declaratory
judgment regarding the lawfulness of such denial.

        In resolving this question, we must address both the
district courts= jurisdiction and their capacity to grant effective
relief. On the issue of jurisdiction, we find the Ninth Circuit=s
analysis of the issue compelling. See De Lara Bellajaro v.
Schiltgen, 378 F.3d 1042 (9th Cir. 2004). In Bellajaro, the
Ninth Circuit found that

       [n]othing in the text [of ' 1421(c)] limits the
       jurisdiction so conferred to review of denials
       when there is no removal proceeding pending. By
       the same token, the text of ' 1429 B which does
       constrain consideration of naturalization
       applications during the pendency of a removal
       proceeding B clearly applies to the Attorney
       General. There is no hint in the language of '
       1429 that it also applies to the courts.

Id. at 1046. Based on the plain language of the statute, we
concur with the Ninth Circuit that there is Ano textual basis for
concluding that jurisdiction vested in district courts by ' 1421(c)
is divested by ' 1429.@ Id.; see also Zayed v. United States, 368
F.3d 902, 906 (6th Cir. 2004) (A[W]e do not read the amended '
1429 as divesting the district courts of the jurisdiction granted
under ' 1421(c).@).

                                9
        The Ninth Circuit ultimately concluded that the district
court could not review the denial of naturalization in Bellajaro
because, while ' 1429 did not remove the court=s jurisdiction, it
did limit the scope of review. Bellajaro, 378 F.3d at 1043B44.
The Ninth Circuit held that Awhere . . . the INS has denied an
application for naturalization on the basis of ' 1429 because
removal proceedings are pending, the district courts have
jurisdiction to review the denial but the scope of review is
limited to >such= denial.@ Id. at 1046B47; see also Zayed, 368
F.3d at 906 (AWhere the INS has denied an application for
naturalization on the ground that removal proceedings are
pending, therefore, the district court=s de novo review is limited
to review of that threshold determination.@). A denial by the
Attorney General pursuant to ' 1429, however, is different from
the situation presented in this case, where Gonzalez=s
naturalization application was denied by the Attorney General
on the merits. As the decision under review is on the merits,
jurisdiction is appropriate for a review and decision on the
merits pursuant to ' 1421(c). Cf. Bellajaro, 378 F.3d at 1046
(A[A decision on the merits] is a determination that the Attorney
General has not yet made because of ' 1429, and it is one that
the district courts, which no longer have the authority to
naturalize, can not make in the first instance.@).

        Resolving the question of jurisdiction, however, is not the
end of the matter. Having decided that district courts have
jurisdiction, we must now address the more difficult issue of
what, if any, relief a district court may grant.5 This issue is more

       5
           Unlike the dissent, we do not think we can affirm the

                                10
vexed because, pursuant to ' 1421(c), the sole authority to
naturalize rests with the Attorney General, and such authority is
limited by ' 1429. This has led the Sixth Circuit to declare that
Athe restraints that ' 1429 imposes upon the Attorney General
prevent a district court from granting effective relief under '
1421(c) so long as removal proceedings are pending.@ Zayed,
368 F.3d at 906.




District Court=s decision to take jurisdiction and decide the case
on the merits without addressing the capacity to grant relief. In
order for a district court to decide the case on the merits, it must
it must be able to provide a meaningful remedy B otherwise dismissal for failure to
state a claim would be the appropriate outcome as in Zayed, 368 F.3d at 906 (A[W]e
do not read the amended ' 1429 as divesting the district courts of the jurisdiction
granted under ' 1421(c). . . . [T]he restraints that ' 1429 imposes upon the Attorney
General prevent a district court from granting effective relief under ' 1421(c) so long
as removal proceedings are pending.@), and Ajlani v. Chertoff, 545 F.3d 229, 241 (2d
Cir. 2008) (A[W]e conclude that the district court properly dismissed Ajlani=s
' 1447(b) claim [permitting district court review if a petition for naturalization is not
decided within 120 days] for failure to state a claim on which naturalization relief
could be granted while removal proceedings were pending.@).


                                          11
       We are in agreement with the Sixth Circuit that Congress
did not Aintend[] the priority of removal proceedings over
naturalization proceedings to be altered by the 1990
amendments.@ Id. at 905B06. In light of this conclusion, we also
agree that a district court cannot order the Attorney General to
naturalize an alien who is subject to pendent removal
proceedings. See id. at 906 n.5 (disagreeing with Ngwana v.
Att=y Gen., 40 F. Supp. 2d 319, 322 (D. Md. 1999) (ordering
alien naturalized despite pendency of removal proceedings)).6
However, we do not conclude that district courts are, therefore,
precluded from hearing a denial of naturalization case on the
basis that no effective relief can be granted.7 Rather, we find

       6
          For this same reason, although we agree with the
District Court=s determination that it had both jurisdiction and
the capacity to grant relief in this case, we do not endorse the
District Court=s rationale. The District Court found that ' 1429=s
prohibition on the Attorney General Aconsidering an application
for naturalization@ is inapplicable to a court order of
naturalization because an order is not an application. Gonzalez,
684 F. Supp. 2d at 562B63. Thus, a court order to naturalize an
alien while in removal proceedings does not run afoul of the
post-1990 version of ' 1429. Id. We cannot endorse the
District Court=s reasoning because it does not comport with the
priority of removal proceedings. Unlike the District Court we
find no reason to believe that the 1990 amendments altered the
priority of removal that was established with the introduction of
' 1429 in 1950. See Zayed, 368 F.3d at 905B06.
       7
           In this regard, we disagree with the Second Circuit=s

                                12
that declaratory relief is appropriate and sufficient in this
context.




holding in Ajlani, 545 F.3d at 241 and the Fifth Circuit=s holding
in Saba-Bakare v. Chertoff, 507 F.3d 337, 340B41 (5th Cir.
2007).


                               13
        The Sixth Circuit raised the possibility of declaratory
relief in Zayed but did not endorse it for two reasons. First, the
plaintiff in Zayed did not request declaratory relief. Zayed, 368
F.3d at 906. Second, the Court determined that declaratory
relief would likely be effective only in light of the Board of
Immigration Appeals= (ABIA@) decision in In re Cruz, 15 I. & N.
Dec. 236 (1975). Zayed, 368 F.3d at 906B07. In In re Cruz, the
BIA held that a court declaration could provide prima facie
eligibility for 8 C.F.R. ' 1239.2(f) (2011) (formerly 8 C.F.R. '
242.7), which Apermit[s] the alien to proceed to a final hearing
on a pending application or petition for naturalization when the
alien has established prima facie eligibility for naturalization
and the matter involves exceptionally appealing or humanitarian
factors . . . .@ The BIA reasoned that, because Aneither [the BIA]
nor immigration judges have authority with respect to the
naturalization of aliens,@ prima facie eligibility for naturalization
could be established only Aby an affirmative communication
from the [Immigration and Naturalization Service8] or by
declaration of a court . . . .@ In re Cruz, 15 I. & N. Dec. at 237.
However, the Sixth Circuit noted that whether In re Cruz
remained good law after the 1990 amendments to the INA is in
question. Zayed, 368 F.3d at 907 n.6 (citing Apokarina, 93 F.
App=x at 472).

       8
        Pursuant to the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002), the Immigration and
Naturalization Service has ceased to exist, and its enforcement
functions have been transferred to the Department of Homeland
Security.

                                 14
        Since Zayed, the BIA has reaffirmed its decision in In re
Cruz. See In re Hidalgo, 24 I. & N. Dec. 103, 106 (2007); see
also Zegrean v. Att=y Gen., 602 F.3d 273, 275 (3d Cir. 2010)
(deferring to the BIA=s interpretation of ' 1239.2(f)).
Recognizing that the 1990 amendments to the INA divested the
district courts from jurisdiction to grant or deny applications for
naturalization in the first instance, the BIA found that an
affirmative declaration from the Department of Homeland
Security would be required to establish prima facie eligibility.
See In re Hidalgo, 24 I. & N. Dec. at 106. We are confident that
the BIA would also accept the declaration of a district court
properly exercising its jurisdiction under 8 U.S.C. ' 1421(c).
But we do not rest our decision on this basis. Rather, for the
reasons discussed below, we find that declaratory relief is
appropriate notwithstanding whatever role it may play in
terminating a removal proceeding under 8 C.F.R. ' 1239.2(f).

       Declaratory relief strikes a balance between the
petitioner=s right to full judicial review as preserved by '
1421(c) and the priority of removal proceedings enshrined in
' 1429. Maintaining the petitioner=s right to judicial review of a
naturalization denial is consistent with Congressional intent, as
evidenced by the creation of ' 1421(c). Rather than vest full
and final authority to grant or deny a naturalization application
with the Attorney General, Congress gave the district courts the
power of de novo review.9 To hold that district courts are

       9
        The legislative history of the Immigration Act of 1990
also supports this view. In discussing HB 1630 C the House
companion bill to SB 358, which introduced the Immigration

                                15
precluded from review by ' 1429 whenever removal
proceedings are pending raises the possibility that review may
be cut off by the actions of the Attorney General. See
Kestleboym v. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J. 2008);
Ngwana, 40 F. Supp. 2d at 321B22. Such a possibility is
contrary to the intent of Congress as expressed in the structure
of the statute. Declaratory relief, in the form of a judgment
regarding the lawfulness of the denial of naturalization, permits
the alien a day in court, as required by ' 1421(c), while not
upsetting the priority of removal over naturalization established
in ' 1429 because it affects the record forCbut not the priority
ofCremoval       proceedings,     thereby preserving         both
congressionally mandated goals, a de novo review process and
the elimination of the race to the courthouse.

             B. Genuine Issue of Material Fact

       Having determined that the District Court=s review of

and Nationality Act of 1990 C on the floor of the House, the
bill=s sponsor, Rep. Bruce Morrison, remarked that AH.R. 1630
does not take away any of the judicial review rights accorded
applicants today.@ 135 Cong. Rec. 16,996 (1989). The Senate
Judiciary Committee wrote in its Report, that A[t]he Committee
strongly believes that although few cases for naturalization have
been denied, citizenship is the most valued governmental benefit
of this land and applicants should receive full recourse to the
Judiciary when the request for that benefit is denied.@ S. Rep.
No. 101-187, at 14 (1989).


                               16
Gonzalez=s naturalization denial was proper, we address whether
summary judgment was properly granted in favor of the
Appellee. AThe court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.@
Fed. R. Civ. P. 56(a). A Amaterial fact@ is one Athat might affect
the outcome of the suit under the governing law . . . .@ Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
Agenuine@ if Athe evidence is such that a reasonable jury could
return a verdict for the nonmoving party.@ Id.

        In order for Gonzalez to succeed in his naturalization
petition, he must show that he is a person of good moral
character. 8 U.S.C. ' 1427(a).10 The INA defines Agood moral
character@ to exclude any person Awho has given false testimony
for the purpose of obtaining any benefits@ under the immigration
and nationality laws of the United States. 8 U.S.C. '
1101(f)(6).11 The Supreme Court has held that ' 1101(f)(6)

       10
          ANo person . . . shall be naturalized unless such
applicant . . . during all periods referred to in this subsection has
been and still is a person of good moral character . . . .@ 8 U.S.C.
' 1427(a).
       11
         ANo person shall be regarded as, or found to be, a
person of good moral character who, during the period for
which good moral character is required to be established, is, or
was one who has given false testimony for the purpose of
obtaining any benefits under this chapter.@ 8 U.S.C. '
1101(f)(6). Unfortunately for Gonzalez, the statute will not

                                 17
requires Aoral statements made under oath . . . with the
subjective intent of obtaining immigration benefits.@ Kungys v.
United States, 485 U.S. 759, 780 (1988) (citations omitted). A
misrepresentation under ' 1101(f)(6) need not be material to
undermine an applicant=s good moral character. Id. (A[The
statute] denominates a person to be of bad moral character on
account of having given false testimony if he has told even the
most immaterial of lies with the subjective intent of obtaining
immigration or naturalization benefits.@).




permit acts of good moral characterCsuch as taking
responsibility for, and giving priority to, his natural familyCto
be recognized as exception or mitigation to his testimony.


                               18
        Two key facts are undisputed in this case: (1) Gonazlez
stated in his I-751 interview that he had no children of his own,
and (2) Gonzalez has now recognized YGP and AGP as his
children.12 What is in dispute is whether there are material facts
sufficient to raise a genuine dispute over Gonzalez=s subjective
intent to give false testimony during his I-751 interview.

        Gonzalez makes three arguments supporting the
existence of a genuine dispute. In his first argument, Gonzalez
asserts that his petition cannot be denied on summary judgment
because there is no admissible evidence on the record that he
gave false testimony. Appellant=s Br. 14B17. Gonzalez argues
that the declaration of USCIS officer Makesha Clark,
Declaration of Makesha Clark, App. 203B04 (hereinafter AClark
Decl.@), is inadmissible hearsay and cannot be considered on
summary judgment. Appellant=s Br. 15B16.13 Because this is the
       12
         We, like the District Court, take judicial notice of the
amended birth certificates for YGP and AGP listing Gonzalez as
the father. Amended Birth Certificate of YGP, App. 231;
Amended Birth Certificate of AGP, App. 235.
       13
         Gonzalez also argues that the Clark Declaration is not
evidence that Gonzalez gave false testimony because it is not
clear whether Otero or Gonzalez made relevant statements in the
interview. This argument is without merit as Clark=s
Declaration clearly states that A[Gonzalez] was asked to orally
affirm his written answers to each question. . . . In his sworn
testimony Mr. Gonzlez represented that he . . . had no children.@
Clark Decl. && 5 & 7, App. 204.

                               19
only evidence of oral statements by Gonzalez, if it is
inadmissible there is no evidence on the record that Gonzalez
gave false testimony. See Kungys, 485 U.S. at 780
(A>[T]estimony= is limited to oral statements made under oath.@).

       Affidavits and declarations considered on summary
judgment must, Aset out facts that would be admissible in
evidence . . . .@ Fed. R. Civ. P. 56(c)(4). Hearsay statements are
inadmissible, Fed. R. Evid. 802, and the Federal Rules of
Evidence define hearsay as Aa statement that: (1) the declarant
does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.@ Fed. R. Evid. 801(c).

        Clark=s declaration is not hearsay because it is not being
offered for the truth of the mattered asserted, i.e., that Gonzalez
did or did not have children; rather, Clark=s declaration is being
offered to prove what Gonzalez said at his I-751 interview. AIf
the significance of an offered statement lies solely in the fact
that it was made, no issue is raised as to the truth of anything
asserted, and the statement is not hearsay.@ Fed. R. Evid. 801(c)
advisory committee=s note; see also Anderson v. United States,
417 U.S. 211, 219B20 (1974) (holding statements non-hearsay
where Athe point of the prosecutor=s introducing those statements
was simply to prove that the statements were made so as to
establish a foundation for later showing, through other
admissible evidence, that they were false@ (footnotes omitted)).

         As non-hearsay, Clark=s declaration would be admissible
at trial; therefore, it is admissible for the purpose of summary

                                20
judgment.

        Gonzalez next argues that he could not have made a false
statement because, at the time of his I-751 interview, YGP and
AGP were not his children according to the definition of a child
in the INA. Appellant=s Br. 9B14. Gonzalez asserts that YGP
and AGP, who were illegitimate at the time of Gonzalez=s I-751
interview, and therefore do not meet any of the enumerated
definitions of a child found at 8 U.S.C. ' 1101(b)(1). Whether
YGP and AGP fall outside the statutory definition is irrelevant
because that definition does not control in the context of Form I-
751 or the I-751 interview.

       The definition of a child found in ' 1101(b)(1) is a
statutory definition. It establishes the meaning of the word
Achild@ when that word is used in the context of the INA, not
elsewhere. When Gonzalez was asked to fill out Form I-751
and to affirm his answers during the interview, he was not being
asked to enforce or interpret the INA.14 To assume such is to

       14
           Had the immigration benefit Gonzalez was seeking
during his I-751 interview depended upon whether YGP and
AGP were his children, and was the question of whether YGP
and AGP were legally children of Gonzalez under the INA
before this court, then 8 U.S.C. ' 1101(b)(1) would be relevant.
 That, however, is not the situation in this case. Before us is the
question of whether Gonzalez knew he had children and lied
about it to immigration authorities. See Fiallo v. Bell, 430 U.S.
787, 788B89 (1977) (noting that 8 U.S.C. ' 1101(b)(1) exists to
provide immigration preferences to some and deny them to
others, particularly illegitimate children seeking preference
through the paternal relationship and vice-versa). As Gonzalez
was not seeking immigration preference based on his parent-
child relationship his recourse to this definition is unwarranted.


                                21
export a term of art from the statute into conventional usage,
which invites unnecessarily legalistic and absurd outcomes.15

        Because the statutory definition is inapplicable to
Gonalez=s case and applying the definition is unwarranted and
ill-advised, we hold that this argument is unavailing.

        Gonzalez=s final argument is that he lacked the subjective
intent to give false testimony because he did not believe AGP
and YGP were his children; in short, Gonzalez argues that, at the
time of his I-751 interview, he honestly believed he had no
children. Appellant=s Br. 17B19. At issue is whether Gonzalez=s
own statements in this regard are sufficient to survive summary
judgement on the question of his intent to give false testimony.

       As a general proposition, Aconclusory, self-serving
affidavits are insufficient to withstand a motion for summary
judgment.@ Kirleis v. Dickie, McCamey & Chilcote, P.C., 560
F.3d 156, 161 (3d Cir. 2009) (citation omitted) (internal
quotation marks omitted); see also Lujan v. Nat=l Wildlife Fed=n,
497 U.S. 871, 888B89. Though we have held that under certain
circumstances, Aa sworn assertion of an absence of knowledge

       15
           Section 1101(b)(1) defines a child first as Aan
unmarried person under twenty-one years of age,@ and then goes
on to define various categories of Achild@ for the purposes of the
immigration statute. ' 1101(b)(1). According to Gonzalez=s
argument, if an individual were asked whether he or she has
children during an immigration proceeding, this question would
not include any progeny who had married or passed their
twenty-first birthday. It stretches reason to think that USCIS
does not consider these persons children of the applicant or that
Congress intended to create such a situation when it wrote the
definition of a child into the INA.


                               22
can suffice to create a genuine issue of material fact,@ we have
also noted that Aa bare but sworn assertion of a claimant=s lack
of knowledge will not suffice to create a material dispute of fact
where that assertion is impeached by a well supported showing
to the contrary.@ United States v. 717 S. Woodward St., 2 F.3d
529, 533 (3d Cir. 1993).

       In this case, Gonzalez=s own, sworn statements are
insufficient to survive summary judgment. First, we note that
the District Court made several findings that it determined were
Arevelatory that [Gonzalez] is the father.@ Gonzalez, 2011 WL
941299, at *5. These findings included:

       He was having relations with the mother at
       around the time each child was conceived. His
       relationship with the mother continued over time
       and continues to this day. He helped support the
       mother over the course of her pregnancy, and
       increased his support when, in the late stages of
       pregnancy, she was unable to work. When the
       children were born, the mother told him that he
       was the father. There is some evidence to support
       the inference that he took tax deductions for these
       children in the years immediately following their
       births. He allowed the children to call him Adad.@
       And, as explained, [Gonzalez] amended (with the
       mother) the birth certificates.

Id. (footnote omitted). Counterposed to the evidence relied
upon by the District Court is only Gonzalez=s own statements
that he did not know or believe that YGP and AGP were his
children at the time of his I-751 interview. However, any issue
of material fact raised by Gonzalez=s assertion is insufficient in
light of the circumstantial evidence of his knowledge. He had
relations with the mother around the time of conception; he was

                               23
told by the mother that the children were his; he developed a
relationship with the children; he did not adopt the children but
amended the birth certificates to reflect himself as the biological
fatherCall of which indicates that if Gonzalez was ignorant of
his paternal relationship it was a willful ignorance. Cf. 717 S.
Woodward St., 2 F.3d at 534 (AAn affidavit of the claimant
denying knowledge is competent evidence tending to show this
and in the absence of other evidence rendering it incredible,
such an affidavit creates a genuine issue of material fact.@
(emphasis added)).

       Because state of mind is the key issue on the merits,
Gonzalez=s own statements cannot be dismissed simply because
they are bare and self-serving. However, the circumstantial
evidence offered by the Appellee both undermines and
outweighs Gonzalez=s claim of ignorance, such that this is a case
where Athe court, based on all of the evidence, can say with
confidence that a rational trier of fact could not credit the
claimant=s denial . . . .@ Id.

       Because there is no genuine dispute regarding Gonzalez=s
false testimony in his I-751 interview, we find the District
Court=s grant of summary judgment in favor of the Appellee
appropriate.

                      IV. CONCLUSION

       For the foregoing reasons we will affirm the decision of
the District Court granting summary judgment in favor of the
Defendant-Appellee.




                                24
Gonzalez v. Sect’y of Dep’t of Homeland Sec., No. 11-2276


CHAGARES, Circuit Judge, concurring in part and dissenting
in part.

        While I concur with my learned colleagues that the
District Court had jurisdiction to review a denial of
naturalization while removal proceedings were pending and
that the District Court properly granted summary judgment in
favor of the Secretary, I respectfully disagree with the
majority insofar as it determined that Gonzalez could have
received declaratory relief had he proven his case on the
merits.

        I believe it is unnecessary and perhaps problematic for
the Court to decide this thorny issue for several reasons.
First, we conclude (as did the District Court) that Gonzalez’s
claims fail on the merits, so there is no need to opine about
relief that might have been available to him had he succeeded.
See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393,
397 (2003) (declining to reach the issue of the availability of
private injunctive relief under 18 U.S.C. § 1964(c) where
there was no underlying violation of the RICO statute);
Steamfitters Local Union No. 420 Welfare Fund v. Philip
Morris, Inc., 171 F.3d 912, 935 n.20 (3d Cir. 1999) (same);
see generally 13 Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure § 3531.3
(3d ed. 2008) (noting “our tradition that unnecessary judicial
decisions should be avoided”). Second, Gonzalez never
specifically requested declaratory relief and, of course, the
District Court never granted him declaratory relief. Third, the
parties did not brief this issue on appeal, so I believe we
should avoid resolving the issue. See United States v. McKie,
73 F.3d 1149, 1155 (D.C. Cir. 1996) (noting “the parties did
not brief the issue and we generally hesitate to decide non-
jurisdictional questions without briefing”); see also Bd. of
Trs. v. Garrett, 531 U.S. 356, 360 n.1 (2001) (declining to
decide whether employment discrimination claims can be
brought under Title II of the Americans With Disabilities Act
“when the parties have not favored us briefing on the
statutory question”); NLRB v. Washington Heights-W.
Harlem-Inwood Mental Health Council, Inc., 897 F.2d 1238,
1248 (2d Cir. 1990) (declining to resolve an issue “because
the parties did not brief this issue and because its resolution is
not necessary to our holding today”). Fourth, and as the
majority acknowledges, our decision in this regard is contrary
to that reached by three of our sister Courts of Appeals and,
as a result, creates a split in authority. See generally 13
Wright, Miller, & Cooper, supra, § 3531.3 (“The concern that
unnecessary decisions be avoided has its most important
justification in the prospect that unnecessary decisions may
be wrong decisions.”).

      For these reasons, I would avoid reaching the issue and
would leave the issue to another day when its resolution is
necessary and the issue is properly briefed by the parties.




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