Dalal Zayed v. United States of America

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0149P (6th Cir.)
File Name: 04a0149p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DALAL ZAYED,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
et al.,
Respondents-Appellees.
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No. 02-4011
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-00241—Donald C. Nugent, District Judge.
Argued: February 6, 2004
Decided and Filed: May 24, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Keevin J. Berman, Cleveland, Ohio, Abraham
Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio,
for Appellant. Patricia M. Corrales-Talleda, UNITED
STATES DEPARTMENT OF JUSTICE, Los Angeles,
2 Zayed v. United States, et al. No. 02-4011
1Subject to a proviso that has no bearing on this case, 8 U.S.C.
§ 1429 provides, in pertinent part, that “no application for naturalization
shall be considered by the Attorney General if there is pending against the
applicant a removal proceeding pursuant to a warrant of arrest issued
unde r the provisions of this chapter or any other A ct . . . .”
California, for Appellee. ON BRIEF: Abraham Kay, LAW
OFFICE OF ABRAHAM KAY, Cleveland, Ohio, for
Appellant. Patricia M. Corrales-Talleda, UNITED STATES
DEPARTMENT OF JUSTICE, Los Angeles, California,
Michelle R. Slack, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Kathleen L. Midian,
ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. The U.S. Attorney
General, whose duties include the processing of applications
for naturalization, is prohibited by statute from considering
the naturalization application of any person against whom
there is pending a proceeding for removal from this country.
See 8 U.S.C. § 1429, the relevant portion of which is set forth
in the margin.1
The question presented in the case at bar is whether § 1429
likewise prohibits a United States district court from
exercising jurisdiction to review an administrative denial of
a naturalization application once a removal proceeding has
been instituted against the applicant. The court below
answered this question with an unqualified “yes” – an answer
that led the court to dismiss, without prejudice, a petition for
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

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

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No. 02-4011 Zayed v. United States, et al. 5
§ 1421(a), as amended), a conforming amendment was
adopted to prohibit “the Attorney General,” rather than the
“naturalization court,” from considering naturalization
applications where removal proceedings were pending. The
district court concluded that the substitution of “the Attorney
General” for the “naturalization court” did not reflect any
change in the underlying intent of Congress. That intent, the
district court said in its memorandum opinion, remained what
it had been for many years: “to emphasize deportation
proceedings over the naturalization process, and to avoid a
race between an alien seeking to be naturalized and
immigration authorities seeking to complete removal
proceedings.”
Adopting the approach to statutory interpretation urged
upon it by the government — an approach pioneered by the
Supreme Court in Church of the Holy Trinity v. United States,
143 U.S. 457 (1892) — the district court elected to follow
what it saw as the true intent of Congress without necessarily
adhering to the letter of the statutory language. The petition
for review was dismissed without prejudice, as we have said,
and Ms. Zayed has filed a timely appeal.
II
A
We have jurisdiction of Ms. Zayed’s appeal under
28 U.S.C. § 1291, the appeal having been taken from a final
decision of the district court. Although the petition was
dismissed without prejudice, the dismissal clearly terminated
the action; Ms. Zayed could not cure the defect by
amendment. Where an action, and not merely an amendable
complaint (or petition), is dismissed without prejudice, the
order of dismissal is final and appealable. See Thompson v.
Michigan Dep’t of Corrections, 23 Fed. Appx. 486, 487-88
(6th Cir. 2001); CompuServe Inc. v. Saperstein, No. 97-4038,
1999 WL 16481, at **2-3 (6th Cir. Jan. 8, 1999).
6 Zayed v. United States, et al. No. 02-4011
B
Under 8 U.S.C. § 1421(c), federal district courts are given
jurisdiction to review administrative denials of naturalization
applications. “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). Ms. Zayed
contends that the commencement of removal proceedings
cannot divest a district court of the jurisdiction granted by
§ 1421(c). The INS responds that such divestiture is
automatic under 8 U.S.C. § 1429.
It is difficult to square the agency’s response with the plain
language of § 1429. By its terms, the statute limits the
authority of “the Attorney General” – not the authority of the
district courts – to act on applications for naturalization: “no
application for naturalization shall be considered by the
Attorney General if there is pending against the applicant a
removal proceeding . . . .” (Emphasis supplied.)
Although courts — particularly inferior courts such as ours
— are generally well advised to be cautious about letting the
actual language of a statute be trumped by an unarticulated
congressional intent, we have some sympathy for the district
court’s conclusion as to what Congress intended when it
changed the law in 1990. The history of the Immigration Act
of that year does suggest that Congress intended removal
proceedings to have priority over naturalization proceedings.
It is important to recall that while authority to naturalize
aliens was vested in the district courts until 1990, removal of
aliens was the province of the Attorney General. And until
1952, when § 1429 was adopted, the usual practice had been
“for both the [removal] and naturalization processes to
proceed along together until either [the] petitioner’s [removal]
or naturalization ipso facto terminated the possibility of the
other occurring.” Shomberg v. United States, 348 U.S. 540,

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

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No. 02-4011 Zayed v. United States, et al. 9
6W 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).
Attorney General, Congress having decided that it would be
the Attorney General who should have “sole authority to
naturalize persons . . . .” See 8 U.S.C. § 1421(a).
An alternative form of relief is suggested by Gatcliffe v.
Reno, 23 F. Supp. 2d 581, 583, 585 (D.V.I. 1998), where the
district court declared an applicant to be eligible for
naturalization “but for the pendency of [removal]
proceedings.” In the case at bar, however, Ms. Zayed did not
request declaratory relief — and a declaration that she would
be eligible for naturalization but for the pendency of removal
proceedings might well have been a vain act in any event.
In the Gatcliffe case the court reasoned that its finding
would allow the applicant to move for termination of the
removal proceedings. See Gatcliffe, 23 F. Supp. 2d at 583.
The court apparently had in mind a regulation giving
immigration judges the power to terminate removal
proceedings “when the alien has established prima facie
eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors.” See
8 C.F.R. § 1239.2(f). Under a 1975 decision of the Board of
Immigration Appeals, prima facie eligibility can be
established by “a declaration of a court.” In re Cruz, 15 I. &
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
10 Zayed v. United States, et al. No. 02-4011
naturalization. The § 1239.2(f) procedure is thus inapplicable
here.
In these circumstances, we believe that the dismissal of Ms.
Zayed’s petition for review must be affirmed. The fact that
the statute precludes the relief sought requires this result. Our
affirmance, however, does not mean that the court will never
be able to grant effective relief. The petition having been
dismissed without prejudice, Ms. Zayed will have an
opportunity to file a new petition if she prevails in the
removal proceedings.
There is one additional issue. Ms. Zayed argues that the
district court materially erred in finding that the INS initiated
removal proceedings against her before it finally denied her
application for naturalization. The finding was indeed
incorrect, but we agree with the INS that the error is
immaterial. Regardless of when removal proceedings are
initiated, the Attorney General may not naturalize an alien
while such proceedings remain pending. See 8 U.S.C.
§ 1429.
The dismissal of the petition for review is therefore
AFFIRMED.

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