F I L E D

United States Court of Appeals

Tenth Circuit

FEB 2 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________________________

GUSTAVO GALVEZ-LETONA,

Petitioner-Appellee,

v.

WAYNE KIRKPATRICK, Acting Officer

in Charge, JOSEPH GREENE, District

Director, Immigration & Naturalization

Service, JANET RENO, United States

Attorney General,

Respondents-Appellants,

________________________

AMERICAN IMMIGRATION

LAWYERS ASSOCIATION;

NATIONAL ASSOCIATION OF

PROTECTION & ADVOCACY

SYSTEMS; DISABILITY LAW

CENTER; THE ARC OF THE UNITED

STATES; THE ARC OF UTAH; THE

ARC OF ALLEGHENY; THE ARC OF

MONTGOMERY COUNTY,

PENNSYLVANIA; AMERICAN

ASSOCIATION ON MENTAL

RETARDATION; BAZELON CENTER

FOR MENTAL HEALTH LAW;

DISABILITY RIGHTS EDUCATION &

DEFENSE FUND; DISABILITY

RIGHTS COUNCIL OF GREATER

WASHINGTON; NATIONAL SENIOR

CITIZENS LAW CENTER; NEW YORK

LAWYERS FOR THE PUBLIC

INTEREST; ACCESS LIVING OF

METROPOLITIAN CHICAGO;

No. 99-4195

(D. Utah)

(D.C. No. 99-CV-83-K)
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PENNSYLVANIA COALITION OF

CITIZENS WITH DISABILITIES;

PENNSYLVANIA COUNCIL ON

INDEPENDENT LIVING;

PENNSYLVANIA STATEWIDE

INDEPENDENT LIVING COUNCIL;

PUBLIC INTEREST LAW CENTER OF

PHILADELPHIA; NORTHEAST

PENNSYLVANIA CENTER FOR

INDEPENDENT LIVING; VISION FOR

EQUALITY; AMERICAN JEWISH

CONGRESS; CATHOLIC CHARITIES

USA; UNITED JEWISH

COMMUNITIES; LUTHERAN

IMMIGRATION & REFUGEE

SERVICE; MEXICAN AMERICAN

LEGAL DEFENSE AND EDUCATION

FUND; ASIAN AMERICAN LEGAL

DEFENSE AND EDUCATION FUND;

FRIENDS COMMITTEE ON

NATIONAL LEGISLATION;

IMMIGRANT LEGAL RESOURCE

CENTER; IMMIGRATION AND

REFUGEE SERVICES OF AMERICA;

NATIONAL ASIAN PACIFIC

AMERICAN LEGAL CONSORTIUM;

NATIONAL CENTER ON POVERTY

LAW; NATIONAL IMMIGRATION

LAW CENTER; NATIONAL COUNCIL

OF LA RAZA; ASIAN PACIFIC

AMERICAN LEGAL CENTER OF

SOUTHERN CALIFORNIA; FUND FOR

IMMIGRANTS AND REFUGEES;

CAPITAL AREA IMMIGRANTS'

RIGHTS COALITION; FLORIDA

JUSTICE INSTITUTE; FLORIDA

IMMIGRANT ADVOCACY CENTER;

FLORIDA LEGAL SERVICES; UTAH

MINORITY BAR ASSOCIATION;
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HEARTLAND ALLIANCE FOR

HUMAN NEEDS AND HUMAN

RIGHTS; HEBREW IMMIGRANT AID

SOCIETY AND COUNCIL

MIGRATION SERVICE OF

PHILADELPHIA; ILLINOIS

COALITION FOR IMMIGRANT AND

REFUGEE RIGHTS; INTERNATIONAL

INSTITUTE OF LOS ANGELES;

INTERNATIONAL INSTITUTE OF

THE EAST BAY; COUNCIL OF

SENIOR CENTERS AND SERVICES

OF NEW YORK CITY; LEGAL

ASSISTANCE FOR SENIORS; NEW

YORK IMMIGRATION COALITION;

NORTHWEST IMMIGRANT RIGHTS

PROJECT; SOUTHEAST REGIONAL

IMMIGRATION AND CITIZENSHIP

COALITION; ALBUQUERQUE

BORDER CITY PROJECT; AMERICAN

ASSOCIATION OF JEWS FROM THE

FORMER USSR; AMERICAN

NETWORK OF COMMUNITY

OPTIONS AND RESOURCES; ASIAN

COMMUNITY AND CULTURAL

CENTER; ASIAN LAW ALLIANCE;

ASIAN PACIFIC DEVELOPMENT

CENTER; CABRINI IMMIGRANT

SERVICES; CARIBBEAN WOMEN'S

HEALTH ASSOCIATION; CATHOLIC

CHARITIES COMMUNITY AND

IMMIGRANT SERVICES; LINCOLN

INTERFAITH COUNCIL; CLARE'S

WELL; LUTHERAN SOCIAL

SERVICES OF MINNESOTA;

MASSACHUSETTS IMMIGRANT AND

REFUGEE ADVOCACY COALITION;

MONTAGNARD/DEGA

ASSOCIATION; KOREAN AMERICAN
 

*This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

 

**Honorable John L. Kane, Jr., United States District Judge for the District of

Colorado, sitting by designation.

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COALITION; NATIONAL

EVANGELICAL SLAVIC

ASSOCIATION; NATIONAL

FEDERATION OF FILIPINO

AMERICAN ASSOCIATIONS;

OFICINA LEGAL/IMMIGRANT LAW

CENTER; SISTERS OF ST. JOSEPH OF

ORANGE; UTICA CITIZENS IN

ACTION; VERMONT REFUGEE

RESETTLEMENT PROGRAM,

Amici Curiae.

_______________________________

ORDER AND JUDGMENT*

_______________________________

Before MURPHY and ANDERSON, Circuit Judges, and KANE, District Judge.**

_______________________________

Respondents-Appellants Wayne Kirkpatrick, Joseph Greene and Janet Reno

(collectively the Immigration and Naturalization Service (“INS”)) seek reversal of the

district court order granting the application for naturalization of Petitioner-Appellee

Gustavo Galvez-Letona (“Galvez”) and ordering the INS to naturalize him forthwith. 

The INS had denied Galvez’s application for citizenship because he could not

demonstrate that he was attached to the principles of the Constitution, understood the oath
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of allegiance and was willing to take the oath as provided in sections 316(a) and 337(a) of

the Immigration and Nationality Act, 8 U.S.C. §§ 1427(a), 1448(a). There is no dispute

that the only reason Galvez could not make this showing was because of physical

disabilities and mental impairment resulting from severe Downs Syndrome. It is

undisputed that Galvez otherwise met all qualifications for citizenship.

The district court ordered the INS to grant Galvez’s request for naturalization upon

finding that the INS had violated section 504 of the Rehabilitation Act, which prohibits

any executive agency from denying a government benefit to an “otherwise qualified

individual . . . solely by reason of her or his disability.” 29 U.S.C. § 794(a). In the

district court and on appeal, the INS argued against this result on the ground that the oath

of allegiance and attachment are essential requirements for naturalization that cannot be

waived pursuant to the Rehabilitation Act or otherwise. 

After this appeal was submitted for decision, Congress amended the Immigration

and Nationality Act expressly to grant the Attorney General discretion to waive the oath

and attachment requirement if, in the opinion of the Attorney General, the applicant was

unable to understand or comply with this requirement as a result of a disability or mental

impairment. Pub. L. 106-448, 114 Stat. 1939 (2000) (amending 8 U.S.C. § 1448(a)). In

supplemental briefing, the INS represented to the Court that Galvez is qualified for

waiver of the oath and attachment requirements under this provision and that it had

decided to waive these requirements for Galvez and approve his application for
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naturalization. The INS further asserted that these representations moot this appeal and

require us to vacate the district court judgment. 

We disagree. Pursuant to the district court’s order, the INS issued Galvez a

certificate of citizenship in November, 1999. The INS maintains that this certificate will

terminate and Galvez’s right to citizenship pursuant to it will be void ab initio if this Court

vacates or reverses the district court’s order. Conversely, if we affirm the district court’s

judgment, the INS has stated that it will acknowledge Galvez’s citizenship for all purposes

as conferred by the November, 1999 certificate and will formally notify Galvez of such

acknowledgment. In its supplemental briefing to this Court, the INS indicated that,

notwithstanding its recent decision to waive the oath and attachment requirement for

Galvez and approve his request for naturalization, it will require Galvez to obtain a new

certificate of naturalization rather than affirm the validity of Galvez’s existing certificate

and any benefits he has obtained in reliance on it. Under these circumstances, the validity

of Galvez’s November, 1999 certificate of naturalization remains at issue and this case is

not moot. See City of Albuquerque v. Browner, 97 F.3d 415, 420 (10th Cir. 1996)(case is

not moot unless effects of alleged misconduct are “completely and irrevocably

eradicated.”).

Turning to the merits of the appeal, we affirm the district court’s judgment, but on
 

1

 As a result, we do not address the district court’s holding that the INS violated

section 504 of the Rehabilitation Act when it denied Galvez’s application for

naturalization.

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grounds other than those stated by that court.1 As described above, Congress’ recent

amendment of the Immigration and Naturalization Act grants the INS discretion to waive

the oath and attachment requirement for disabled persons. This amendment applies to all

persons applying for naturalization “before, on, or after the date of the enactment of this

Act.” Pub. L. 106-448, § 2. The INS has informed the Court that Galvez is eligible for

this waiver and that it would exercise its discretion to approve Galvez’s application for

naturalization if the application was newly presented to it. This INS determination is

applicable to the Galvez naturalization application acted upon by the district court. As the

INS has determined that the oath and attachment requirement should be waived for Galvez

and that he is otherwise entitled to naturalization, we AFFIRM on this basis the district

court order directing the INS to grant Galvez’s application for naturalization. 

In light of this decision, we deny the INS’s Motion to Vacate the Judgment of the

District Court and to Remand With Direction to Dismiss, and deny as moot Galvez’s

Motion for Summary Affirmance.

Entered for the Court

John L. Kane, Jr.

District Judge