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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3714

 

SEBASTIAN DAN ZEGREAN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

(Agency No. A029-115-082)

 

Argued: March 11, 2010

 

Before: BARRY, JORDAN and VAN ANTWERPEN, 

Circuit Judges

(Opinion Filed: April 13, 2010)

 

David Kaplan, Esq. (Argued)

James J. Orlow, Esq.

Orlow, Kaplan & Hohenstein

620 Chestnut Street

Suite 656

Philadelphia, PA 19106-0000

Counsel for Petitioner
Our standard of review for questions of law which, of 1

course, would include statutory interpretation, is de novo. Fadiga

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Kevin J. Conway, Esq. (Argued)

Sharon Clay, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

I.

A federal regulation states that “[a]n immigration judge may

terminate removal proceedings to permit the alien to proceed to a

final hearing on a . . . petition for naturalization when the alien has

established prima facie eligibility for naturalization and the matter

involves exceptionally appealing or humanitarian factors.” 8

C.F.R. § 1239.2(f). The Board of Immigration Appeals (“BIA”)

has interpreted this regulation to require that the Department of

Homeland Security (“DHS”) present “some affirmative

communication regarding [an alien’s] prima facie eligibility for

naturalization” before removal proceedings can be terminated. In

re Acosta Hidalgo, 24 I. & N. Dec. 103, 107-08 (BIA 2007); see

also Matter of Cruz, 15 I. & N. Dec. 236, 237 (BIA 1975). Those

courts that have reviewed the BIA’s interpretation, to which we

accord deference, have concluded that it is neither “erroneous [n]or

inconsistent with the regulation,” and we agree. See, e.g.,

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v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007). 

 When, as here, the BIA “simply states that it affirms the 2

IJ’s decision for the reasons set forth in that decision, . . . the IJ’s

opinion effectively becomes the BIA’s, and, accordingly, a court

must review the IJ’s decision.” Zhang v. Gonzales, 405 F.3d 150,

155 (3d Cir. 2005) (quotation omitted). 

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Perriello v. Napolitano, 579 F.3d 135, 142 (2d Cir. 2009) (quoting

Auer v. Robbins, 519 U.S. 452, 461 (1997)); Hernandez de

Anderson v. Gonzales, 497 F.3d 927, 934 (9th Cir. 2007). 

Juxtaposed against § 1239.2(f), as interpreted by the BIA,

is a federal statute which states, as relevant here, that “no

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. But if an application for

naturalization cannot even be considered while a removal

proceeding is pending, how, then, can the requisite “affirmative

communication regarding [an alien’s] prima facie eligibility for

naturalization” be provided such that an immigration judge can

decide whether removal proceedings may be terminated? See

Hidalgo, 24 I. & N. Dec. at 107-08. The obvious answer is, “It

can’t.” Removal proceedings quite simply have priority over

naturalization applications. 

It is this tension between 8 C.F.R. § 1239.2(f) and 8 U.S.C.

§ 1429 that we are called upon to attempt to reconcile—the knot

we are asked to untangle. As the Second Circuit put it in Perriello

v. Napolitano, “[t]he law, in effect, seems to be chasing its tail.”

579 F.3d at 138. The petition before us illustrates the accuracy of

that observation. In July 2006, DHS, citing 8 U.S.C. § 1429,

denied petitioner Sebastian Zegrean’s application for naturalization

because “there is a removal proceeding pending against you, [and

thus] you are ineligible for naturalization.” (AR at 24.) In August

2007, the Immigration Judge (“IJ”) denied petitioner’s motion to

terminate the removal proceedings because he had not established

prima facie eligibility for naturalization, and the BIA affirmed.2

(Id. at 2, 28-30.) Indeed, because petitioner had applied for

naturalization after the removal proceedings against him had
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commenced, it was impossible for him to establish eligibility for

naturalization. 

II.

We need not discuss the course of naturalization law that

has led to this awkward if not altogether unworkable result—most

recently, Perriello has more than adequately done so. Rather, we

move directly to why the answer to this conundrum is not to do as

petitioner suggests and permit the IJ to make the prima facie

determination. First, the BIA’s conclusion in Hidalgo that it

cannot consider eligibility is consistent with 8 U.S.C. § 1421,

which dictates that the “sole authority to naturalize persons as

citizens . . . is conferred upon the Attorney General.” See

Perriello, 579 F.3d at 142. To do as petitioner suggests would, in

Hidalgo’s words, “require the [IJ] and the Board to render

decisions on an alien’s prima facie eligibility . . . where we not only

lack jurisdiction over the ultimate issue, but may also lack expertise

as to the specific issue regarding prima facie eligibility.” 24 I. &

N. Dec. at 108. The issue of expertise aside, we owe deference to

the BIA’s conclusion as to the scope of its jurisdiction since,

whether it was interpreting a statute or a regulation, the

interpretation was not arbitrary or capricious, nor plainly erroneous

or inconsistent with the regulation. See Chen v. Ashcroft, 381 F.3d

221, 224 (3d Cir. 2004) (“[W]henever Congress has explicitly left

a gap for the agency to fill, . . . the agency’s [interpretation] is

given controlling weight unless [it is] arbitrary, capricious, or

manifestly contrary to the statute.” (internal quotation marks and

citations omitted)); Abdille v. Ashcroft, 242 F.3d 477, 484-85 (3d

Cir. 2001) (“[W]hen an agency is interpreting its own regulation,

rather than a statute it administers, . . . the agency’s interpretation

[is] controlling ‘unless it is plainly erroneous or inconsistent with

the regulation.’” (internal citations omitted)). Second, the plain

language of 8 U.S.C. § 1429 prohibits the Attorney General from

even considering an application for naturalization if a removal

proceeding is pending against the applicant. As the Perriello Court

noted, it would be “odd if the Attorney General and district courts

were barred from considering naturalization applications while

removal proceedings are pending, yet the BIA and IJs—who have

no jurisdiction over such applications in any case—were not.”
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Perriello, 579 F.3d at 142. 

There is, indeed, “considerable confusion” in the interplay

between a reasonably interpreted federal regulation and an

otherwise unchallenged federal statute, confusion caused by the

failure to amend § 1239.2(f). Id. This confusion, however, is not

for us to resolve and the tension between the regulation and the

statute is not for us to attempt to reconcile. That job is, rather, for

the DHS or for Congress, and we urge that it be undertaken

expeditiously. 

III.

Because petitioner has not established prima facie eligibility

for naturalization under § 1239.2(f)—indeed, given the “prevailing

muddle,” id. at 141, he cannot do so as long as removal

proceedings are pending against him—the petition for review will

be denied.