Barnes v. Holder
2010 U.S. App. LEXIS 23293
| 4th Cir. | 2010Background
- Barnes, Panama native, admitted as a U.S. permanent resident in 1979 and joined the Army.
- In 1982 Barnes was convicted of possessing, transporting, and selling a controlled substance.
- In 1999 Barnes disclosed the conviction in a naturalization application and withdrew it after an immigration official advised it barred naturalization.
- DHS initiated removal proceedings in March 2004 based on the 1982 conviction.
- In September 2006 Barnes filed a second naturalization application and a motion to terminate removal under 8 C.F.R. § 1239.2(f); the IJ denied the motion but continued to allow DHS to adjudicate the naturalization application.
- In March 2007 Barnes informed the IJ that DHS scheduled a naturalization interview, later canceled; Barnes sought a second § 1239.2(f) motion and filed multiple related motions on May 16, 2007; the IJ denied, and the BIA affirmed Hidalgo’s interpretation that a DHS affirmative communication is required to terminate under § 1239.2(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who may determine prima facie naturalization eligibility under §1239.2(f)? | Barnes argues IJs can determine prima facie eligibility. | The BIA/Hidalgo hold DHS must determine prima facie eligibility. | upheld Hidalgo: DHS must provide affirmative communication; IJs may not determine prima facie eligibility. |
| Whether DHS affirmative communication is a prerequisite to terminating removal under §1239.2(f). | Barnes contends plain text allows termination without DHS communication. | BIA/Hidalgo require affirmative communication from DHS. | affirmed Hidalgo interpretation; affirmative communication is required. |
| Does Hidalgo's interpretation affect the right to judicial review of a naturalization application under 1421(c) and the priority provision 1429? | Barnes argues Hidalgo impairs statutory review rights. | Removal priority over naturalization limits review; 1429 governs priority. | 1429 priority preserved; Hidalgo interpretation does not contravene review rights while removal proceedings exist. |
Key Cases Cited
- Zegrean v. Att’y Gen. of United States, 602 F.3d 273 (3d Cir. 2010) (supports DHS-exclusive authority over prima facie eligibility and regulatory gap filling)
- Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009) (discusses DHS sole authority and removal priority over naturalization)
- Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2007) (limits on IJ authority to determine naturalization eligibility)
- Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010) (treats §1239.2(f) interpretation consistency across circuits)
- AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir. 2009) (courts defer to BIA interpretation of its own regulations)