Court Says Competing Immigration Actions Can Coexist

Trinidad Klene applied for citizenship. The U.S. Citizenship and Immigration Services denied the application after concluding that Klene's marriage to a U.S. citizen had been fraudulent.

Klene asked a district court for relief under 8 U.S.C. §1421(c), which allows a judge to make an independent decision about an alien's entitlement to be naturalized. Later, CIS opened removal proceedings. Once the administrative removal proceedings were under way, the agency asked the district court to dismiss Klene's suit.

So what's a district court to do in this situation? The Seventh Circuit says that both cases can move forward.

The agency relied on 8 U.S.C. §1429, which provides: 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 under the provisions of this chapter or any other Act."

The Circuit Courts of Appeals have considered the interaction between §1421(c) and §1429 have reached four different conclusions:

• The Tenth Circuit held that the judicial proceeding becomes moot as soon as the administrative proceeding begins, so the suit must be dismissed for lack of a case or controversy.
• The Fourth and Fifth Circuits have held that district courts lose subject-matter jurisdiction once the removal proceeding begins.
• The Second, Sixth, and Ninth Circuits have held that §1429 does not affect subject-matter jurisdiction but does prevent the courts from providing a remedy, so judgment must go for the agency on the merits.
• The Third Circuit held that subject-matter jurisdiction continues and that a remedy is possible-- a declaratory judgment of entitlement to citizenship.

The Third Circuit reasoned that a declaratory judgment of entitlement to citizenship would not violate §1429, because it would not order the Attorney General to naturalize the alien while a removal proceeding was ongoing. And a declaratory judgment in the alien's favor, (or example,a judgment declaring that Klene's marriage was bona fide), would bring the removal proceeding to a prompt close, allowing the Attorney General to naturalize the alien.

The alien could plead the declaratory judgment in the removal proceedings, because the United States as a whole is bound by principles of mutual issue and claim preclusion. This approach, according to the Seventh Circuit, preserves the alien's entitlement under §1421(c) to an independent judicial decision while respecting the limit that §1429 places on the Attorney General's powers.

The panel noted that a judge asked to enter a declaratory judgment, (which, as a practical matter would dispose of some other case), should consider whether a multi-track course of litigation is the best way to resolve the dispute.

In Klene's case the judge mistakenly thought he had no discretion, so the Seventh Circuit remanded the case with instructions to decide whether it is appropriate to resolve the dispute through a declaratory judgment and, if so, to decide the merits.

Related Resources:

• Trinidad Klene v. Janet Napolitano (Seventh Circuit Court of Appeals)
• Lying on an Asylum Application is a Really Bad Idea (FindLaw's Seventh Circuit Blog)
• No Duty to Mitigate: Immigration Law Mandates Spousal Support (FindLaw's Seventh Circuit Blog)