No. 04 50728 JOSE FRANCISCO LOPEZ v. TROY HENLEY, District Director, Bureau of Immigration

*District Judge of the Northern District of Texas, sitting
by designation.
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United States Court of Appeals
Fifth Circuit
F I L E D
July 12, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04 50728
____________________
JOSE FRANCISCO LOPEZ,
Petitioner-Appellant,
v.
TROY HENLEY, District Director, Bureau of Immigration and Customs
Enforcement; MICHAEL GARCIA, Assistant Secretary, Bureau of
Immigration and Customs Enforcement; MICHAEL CHERTOFF, SECRETARY,
DEPARTMENT OF HOMELAND SECURITY; ALBERTO R. GONZALES, U.S.
ATTORNEY GENERAL; RUDY FRANCO, Warden, Reeves County Detention
Center,
Respondents - Appellees.
__________________
Appeal from the United States District Court
For the Western District of Texas
_______________________
Before KING, Chief Judge, DAVIS, Circuit Judge, and FITZWATER*,
District Judge.
W. EUGENE DAVIS, Circuit Judge:
This case presents the issue of whether a legal resident
alien, who is a veteran of active service in the Vietnam War, is
exempt from the requirement of demonstrating “good moral
character” in order to be naturalized. Because we find the
Immigration and Naturalization Act (INA) ambiguous on this issue

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2The INS no longer exists as an independent agency, certain
of its functions having been transferred as of March 1, 2003 to
the Department of Homeland Security (DHS). To reduce confusion,
the Court will continue to refer to “the INS”.
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and find reasonable the Immigration and Naturalization Service’s
(INS’2) implementing regulation answering this question in the
affirmative, we affirm the district court’s order. We therefore
conclude that Appellant Jose Francisco Lopez (Lopez) was properly
deported because his criminal conviction for drug possession
rendered him unable to demonstrate the requisite good moral
character.
I.
Lopez is a Mexican citizen who has been a lawful permanent
resident of the United States since 1960. He joined the United
States Army and from 1967 - 1969 served on active duty in
Vietnam, during the Tet offensive, and received an honorable
discharge. In 1995, Appellant Lopez pled guilty in federal court
to attempting to possess a controlled substance and was sentenced
to a 108-month term of imprisonment.
In 2002, while Lopez was still serving his federal sentence
the INS served him with a Notice to Appear in Removal
Proceedings.
After a hearing, the presiding Immigration Judge (IJ)
determined that Lopez was removable from the U.S. for the reasons
asserted by the INS. Lopez moved, unsuccessfully, for termination
of the removal proceedings or, alternatively, for the proceedings

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to be held in abeyance pending an adjudication of an application
for naturalization under Section 329 of the INA. 8 U.S.C. § 1440.
The IJ noted Appellant’s active duty service in the Army and that
Section 329 of the INA makes citizenship by naturalization
available to aliens who served honorably in the U.S. armed forces
during wartime. However, she concluded that Appellant would not
be eligible to file a naturalization application under this
provision because he could not show “good moral character” as
required by the implementing regulation, 8 C.F.R. § 329(d).
Although the IJ denied Lopez’s request for relief from the
removal order, she certified the case to the Board of Immigration
Appeals (BIA) for review. The BIA affirmed the IJ’s decision
without a written opinion.
Lopez then filed a petition for a writ of habeas corpus,
alleging that the IJ and BIA erred as a matter of law when they
concluded that Appellant did not qualify for naturalization under
INA § 329 because his federal conviction precludes a showing of
good moral character. Lopez asked the district court to grant his
writ application, declare that Section 329 of the INA does not
require an applicant who is otherwise qualified under that
section to make a showing of good moral character, and to enjoin
his deportation.
The district court, after finding that it had jurisdiction
over Lopez’s habeas claim, ruled against Lopez on the merits. The

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district court dissolved the Order Staying Removal and denied all
affirmative relief requested by Appellant. Lopez was later
deported to Mexico.
II.
Appellant Lopez argues that Congress intended, with the
passage of § 329, to reward alien veterans of the U.S. armed
services with liberal eligibility requirements and procedures for
naturalization. Lopez’s main argument is that the good moral
character requirement is intrinsic to the residency requirements
for naturalization and, since § 329 exempts active service
veterans from the residency requirement, it must also exempt them
from the need to show good moral character.
While Lopez is correct that Congress did, through § 329,
loosen the naturalization requirements for veteran aliens, we
agree with the Second Circuit that the statute is unclear as to
the good moral character requirement. We also agree with the
Second Circuit that the INS’ reasonable interpretation of § 329
as incorporating a good moral-character requirement must be
upheld. Nolan v. Holmes, 334 F.3d 189, 194 (2nd Cir. 2003).
Section 329 of the INA establishes conditions of
“naturalization through active-duty service in the Armed Forces
during World War I, World War II, Korean hostilities, Vietnam
hostilities, or other periods of military hostilities”. 8 U.S.C.
§ 1440. Under this section, veterans of active-duty service are

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exempted from the residency requirements required of other
applicants. § 329 is silent on the issue of the good moral
character requirement, but says that “[a] person filing an
application under subsection (a) of this section shall comply in
all other respects with the requirement of this subchapter”. 8
U.S.C. § 1440(b). The subchapter includes INA § 316(a), which
lays out the residency requirements for naturalization and reads
as follows:
No person, except as otherwise provided in this subchapter,
shall be naturalized unless such applicant, (1) immediately
preceding the date of filing his application for
naturalization has resided continuously, after being
lawfully admitted for permanent residence, within the United
States for at least five years and during the five years
immediately preceding the date of filing his application has
been physically present therein for periods totaling at
least half of that time, and who has resided within the
State or within the district of the Service in the United
States in which the applicant filed the application for at
least three months, (2) has resided continuously within the
United States from the date of the application up to the
time of admission to citizenship, and (3) during all the
periods referred to in this subsection has been and still is
a person of good moral character, attached to the principles
of the Constitution of the United States, and well disposed
to the good order and happiness of the United States.
8 U.S.C. § 1427(a)(emphasis added). The issue then is whether §
329(b)’s incorporation by reference of other sections includes §
316(a)’s “good moral character” requirement or whether §
329(b)(2)’s exemption from the residency requirement also exempts
the veteran applicant from the obligation to demonstrate good
moral character. Because § 329 fails to address the issue, and

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the INA does not otherwise address whether veterans of active
service must fulfill the good moral character requirement, we
conclude that the statute is ambiguous on the issue. See Nolan v.
Holmes.
When reviewing a challenge to an administrative agency’s
interpretation of a statute, where the governing statute is
ambiguous and fails to speak clearly to the issue before the
Court, this Court must uphold the agency interpretation as long
as it is reasonable. Wilson v. INS, 43 F.3d 211, 213 (5th Cir.
1995), citing Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.
1993); Chevron, U.S.A., Inc. v. National Resources Defense
Counsel, Inc., 467 U.S. 837 (1984). The INS, as the
administrative agency charged with interpreting the INA,
promulgated regulations interpreting the requirements of § 329.
Under those regulations, a veteran of active military service
seeking naturalization must
compl[y] with all...requirements for naturalization as
provided in part 316 of this chapter, except that:
(1) The applicant may be of any age;
(2) The applicant is not required to satisfy the residence
requirements under § 316.2(a)(3) through (a)(6) of this
chapter; and
(3) The applicant may be naturalized even if an outstanding
notice to appear pursuant to 8 C.F.R. part 239 (including a
charging document issued to commence proceedings under
sections 236 or 242 of the Act prior to April 1, 1997)
exists.
8 C.F.R. § 329.2(e). Therefore, under the INS’s interpretation of
§ 329, a veteran of active military service must demonstrate his

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good moral character as a prerequisite for naturalization. In
finding this interpretation to be reasonable, we agree with the
Second Circuit’s reasoning in Nolan. In that decision, the Court
reasoned as follows:
The potentially conflicting policy concerns here are the
specific desire to provide aliens who have served in the
United States Armed Forces with benefits in the form of
relaxed requirements for naturalization, and the general
goal of attempting to ensure that persons admitted to United
States citizenship through naturalization be of good moral
character. Proof of good moral character clearly is a
requirement for most applicants; and it is explicitly
required for persons who served in the Armed Forces at
various times in non-active-duty status. Notwithstanding
Congress’s desire to reward aliens who have served the
United States in its Armed Forces, it hardly seems
unreasonable for the INS to have inferred that Congress
would not have intended to single out persons trained and/or
experienced in physical confrontations for elimination of
the requirement of good moral character.
Nolan, 334 F.3d at 198.
III.
For the reasons stated above, we affirm the order of the
district court and conclude that a veteran alien, seeking
naturalization under § 329, must demonstrate his good moral
character.
AFFIRMED.

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