U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

Application for Naturalization Denied While Removal Proceeding Pending

Zegrean v. U.S. Attorney General, No. 08-3714, involved a challenge to the BIA's affirmance of the Department of Homeland Security's denial of petitioner's application for naturalization on the ground that a removal proceeding was pending against petitioner.

In addressing petitioner's argument that the tension between 8 C.F.R. section 1239.2(f) and 8 U.S.C. section 1429 must be reconciled, the court explained that the BIA's conclusion that it cannot consider eligibility is consistent with 8 U.S.C. section 1421 which states that the sole authority to naturalize persons as citizens is conferred upon the Attorney General.  Furthermore, the plain language of the section prohibits the Attorney General from even considering an application for naturalization if removal proceeding is pending against the applicant.

Thus, the decision of the BIA is affirmed as petitioner has not established prima facie eligibility for naturalization under section 1239.2(f) and cannot do so as long as removal proceedings are pending against him.

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