*1 GONZALEZ, A007 Jose 441, Appellant DEPT. OF
SECRETARY OF HOME- SECURITY; Aytes,
LAND Michael
Acting Deputy Director United States Immigration Services;
Citizenship and Thompson,
John District Director Citizenship
United States and Immi-
gration Services.
No. 11-2276. Appeals,
United States Court
Third Circuit.
Argued Nov.
Filed: March *2 NJ, Scarlata, Newark,
James V. Tarik Hanahan, SC, [argued], D. Scarlata for Petitioner-Appellant.
Tony West, Attorney General, Assistant Stevens, Director, Elizabeth Assistant United [argued], Sherease Pratt States Division, Justice, Department Civil Of- Litigation, fice of District Immigration D.C., Section, Washington, Re- Court spondents-Appellees. CHAGARES,
Before: and FUENTES POGUE,* Judges, Judge. Circuit and OF THE COURT OPINION POGUE, Judge. Chief (“Gonzalez” or “Appel- Jose Gonzalez lant”) appeals the District Court New judgment Jersey’s grant summary dis- * designation. Pogue, Judge, Hon. C. Chief United Donald Trade, sitting of International States Court
missing petition for review of the Unit- Otero was not only woman with Citizenship Immigration ed States whom Gonzalez romantically involved. (“USCIS”) Beginning in through Service’s denial of his natural- the dura- *3 tion of application. marriage, his Gonzalez ization USCIS denied Gonza- was also romantically involved Margarete with Pici- good lez’s on moral character time, During nin. gave Picinin birth grounds giving testimony false in an to two children: YGP in 2000 and AGP in immigration proceeding after Gonzalez af- 2001. supported Gonzalez Picinin finan- during firmed his 1-751 interview that he before, cially during, and preg- after her had no children and later held out two nancies—all while still married to Otero. children, AGP, YGP and as his own. The early 2004, In August of prior to his di- District Court held because uncontra- vorce, Gonzalez moved out of his marital dicted evidence indicated that Gonzalez home and apartment into the occupied by interview, lied in his 1-751 there was no Picinin 31, and her children. On March genuine issue of material fact for trial. 2005, following Divorce, the Judgment of follow, For the reasons hold Gonzalez amended the birth certificates of no issue of material fact existed on YGP and AGP to reflect that he was their the record before the District Court and father. will affirm the District Court’s 19, summary judgment. 2006, On December Gonzalez filed a Form Application N-400 for Naturalization (“Form N-400”). N^400, On his Form I. BACKGROUND Gonzalez listed YGP and AGP as his chil- dren for the first time in the course of his Gonzalez is a native of Panama and a immigration proceedings. Noting that this Spain. citizen of He entered the United was inconsistent with his statements in the a non-immigrant States as visitor in or interview, USCIS determined that 1999, around 1998. Around Gonzalez met Gonzalez had provided false citizen, Otero, United States Inez during and, 26, interview on October 4, two were married on February 2007, denied his petition on grounds By Otero, virtue of marriage Gonza- that he requisite lacked the good moral adjusted lez’s status was to conditional character. lawful permanent May 19, resident on 3, 2004, 2001. On August Gonzalez and Following appeal, administrative Gonza- appeared Otero together at an interview in lez received a final denial of naturalization support of Gonzalez’s Form 12, 1-751 Petition 24, on June 2009, 2009. On June US- to Remove the Conditions on Residence CIS served on Gonzalez a Form 1-862 (“Form 1-751”). During the interview Notice to Appear and filed the Notice with affirmed, oath, Gonzalez under his written the Newark Jersey New Immigration statement on Form Court, 1-751 that he did not thereby initiating proceed- removal have children of his Following own. ings against July 10, 2009, him.1 On Gon- interview, the conditions on Gonzalez’sres- zalez filed a petition for de novo review idence were lifted. On March with the District Court for the District of Gonzalez’s marriage to Otero legally Jersey pursuant New to 8 U.S.C. through (2006).2 dissolved a Judgment of Divorce. On cross summary motions for 1. The proceedings against removal subsequent Gonzalez 2. All citations to the United States pending appeal. remain as of this Code will be to the 2006 edition unless other- wise noted. vested, in the respectively, were courts Court denied Gon- judgment, Attorney and the General. See 8 U.S.C. Govern- zalez’s motion 1251,1421(a) (1988); §§ see also Shomberg “the motion, holding that uncontra- ment’s States, 543-44, v. United Petitioner, while is that dicted evidence (1955). As S.Ct. L.Ed. 624 natu- gave false evi- penalty perjury, mutually ralization and removal were ex- in an to receive benefit dence in order clusive, authority this bifurcation of some- v. Na- immigration proceeding.” Gonzalez times led to “a race the alien to between 2:09-cv-03426, 2011 WL politano, No. Attorney gain citizenship and the General (D.N.J. 16, 2011). Mar. Gon- *7at deport 75 S.Ct. him.” Id. at *4 timely appealed zalez Court’s 1950, race, intending In to end this Con- 10, May 2011. decision on 1429, § gress providing enacted 8 U.S.C. petition “no shall for naturalization be AND STANDARD II. JURISDICTION finally by heard a naturalization court if REVIEW OF the pending against petitioner there is jurisdiction had over The District Court deportation 8 proceeding____” U.S.C. 1421(c),3 § to 8 U.S.C. pursuant this action (1952); Shomberg, § 1429 see also 348 appeal over this jurisdiction and we have 544-45, at 75 509. U.S. S.Ct. § 1291. pursuant to 28 U.S.C. 1990, upon In Congress conferred the grant a “District Court’s of We review General, Attorney authority to “sole natu- novo, applying de the summary judgment persons ralize as citizens of the United ” applied.” the District Court same standard 1990, Immigration Act of States.... States, Alcoa, 173, 509 F.3d Inc. v. United 101-649, 401(a), § Pub.L. No. 104 Stat. Cir.2007) (3d Doe v. (citing County 175 (1990) (codified at 8 U.S.C. (3d Centre, 437, Pa., 447 242 F.3d Cir. 1421(a)). authority § for both With natu- 2001)). reviewing of sum When in ralization and removal vested the At- mary the court “must view the judgment torney General, § 1429 was amended to in light most favorable to the read, facts the “no for naturalization all and draw inferences nonmoving party by Attorney shall be considered the Gen- in favor.” Stratechuk v. Bd. party’s against if there the pending appli- eral is Dist., Educ., Orange-Maplewood Sch. proceeding....” S. cant a 8 removal U.S.C. Cir.2009) (3d 1429; (quoting 407(d)(3), § § 587 603 at F.3d 104 Stat. 5041 Inc., 1429). Thus, priori- § v. Basell USA 512 Ry. (amending S. Co. 8 U.S.C. Norfolk Cir.2008)). (3d ty proceedings F.3d 91 for removal was main- The Immigration
tained.
Act of 1990 did
not, however,
entirely
the courts
remove
III. ANALYSIS
Rather,
process.
from the naturalization
Review
A. District Court
under
right
petition-
Act
of a
the
reaffirmed the
1421(c)
§
8 U.S.C.
judicial
by giving
to
er
review
district
novo,
review,
authority
power
to
de
Prior
naturalize
courts
to
deci-
to
by
Attorney
denying
to
sions
General
authority
aliens
remove aliens
and the
may
Napolitano,
F.Supp.2d
see
v.
684
court
review a deni-
Whether a district
Gonzalez
(D.N.J.2010),
pursuant
555
and raised before
court
al of
8 U.S.C.
naturalization
brief,
1421(c)
proceeding
in a footnote of the Government's
see
§
a removal
is
when
dispute
Appellee’s
2
Because we have not
currently
among
in
Br.
n. 2.
pending is
issue,
previously
it is
question
resolved this
discussed
appeals.
courts
This
was decided
separate opinion,
below in section III.A.
by the
Court in a
District
401(c),
ney
§
at
104 Stat.
General. There is no hint
naturalization.
1421(c)).4
(codified
§of
language
applies
§
1429that it also
at 8 U.S.C.
the courts.
the ques
are now
We
faced with
language
Based on
tion,
statute,
plain
Id.
of whether
by
unresolved
statute, we concur
Ninth
with the
judicial
pursuant
§ 1429 forecloses
review
1421(c)
Circuit that there is “no textual
proceed
§
basis
whenever a
removal
jurisdiction
concluding that
in dis-
vested
pending.
Prior to
1990 amend
ing
ments,
Terzich,
trict courts
is divested
we held in In re
Id.;
see
Zayed
1429.”
also
Cir.1958),
courts
United
could
(6th Cir.2004)
States,
F.3d
jurisdiction
exercise
naturaliza
not
over
(“[W]e
do
read the
1429 as
so
amended
long
proceeding
tion
as a removal
However,
divesting
jurisdic-
the district courts of the
ques
since
pending.
have
1421(c).”).
tioned,
tion
opinion,
non-precedential
light
whether Terzich remains valid
ultimately
The Ninth Circuit
concluded
Apokarina
the 1990 amendments.
See
court
the district
could not review the
*5
Ashcroft,
Fed.Appx.
93
denial of naturalization in
be-
Bellajaro
Cir.2004). Today
question
we
the
resolve
cause,
§
while
1429 did
the
not remove
Apokarina
holding
in
that dis
by
raised
jurisdiction,
scope
it
court’s
did limit the
of
jurisdiction
trict courts have
to
review
Bellajaro,
review.
[njothing § the text by [of ] limits threshold A denial jurisdiction the to Attorney so conferred review of pursuant § the General to pro- however, denials when there is no removal is different from the situation ceeding token, pending. By case, same presented the where Gonzalez’s § the text of 1429'—whichdoes constrain application naturalization was denied consideration applica- Attorney of naturalization General on the As merits. during pendency merits, tions of a removal decision review is on the to proceeding clearly applies jurisdiction appropriate the Attor- is for a review — part: 4. Section person reads in relevant such resides in with accordance 7 chapter of title be 5. Such review shall de person A whose for naturaliza- novo, denied, and the court shall make its own subchapter tion under this after a hearing findings of fact and law and immigration before an officer conclusions of un- Title, shall, 1447(a) request may der petitioner, section at con- of this seek hearing review of application. such denial before the United duct a de novo on the 1421(c). States district § court for the district which 8 U.S.C. with the agreement are to We pursuant merits on the decision 1421(c). F.3d at 1046 “in Bellajaro, Congress did not Sixth Circuit Cf. (“[A is a determina- merits] on the decision proceedings removal priority tend[ ] yet Attorney has not General tion that al proceedings naturalization be over and it is one made because by the 1990 amendments.” Id. at tered courts, have longer no which the district conclusion, we also light 905-06. In of this naturalize, make can not authority to agree that a district court cannot order the instance.”). in the first Attorney to naturalize an alien General subject pro removal pendent who is jurisdic Resolving question (disagreeing n. 5 ceedings. See id. tion, however, of the matter. is not the end Gen., Atty. F.Supp.2d courts have Ngwana that district with Having decided (D.Md.1999) must now address jurisdiction, natu (ordering alien what, any, if relief issue of more difficult despite pendency proc of removal ralized This issue is may grant.5 district court However, we do not conclude eedings)).6 because, pursuant vexed more therefore, are, preclud courts that district 1421(c), authority to naturalize the sole hearing a denial of naturalization ed from General, and such Attorney with the rests that no effective relief case on the basis has 1429. This authority is limited Rather, we find that granted.7 can be that “the to declare led the Sixth Circuit declaratory relief is and suffi appropriate upon the imposes § 1429 restraints cient in this context. a district court Attorney prevent General *6 possibility the The Sixth Circuit raised relief under effective granting from Zayed in but not declaratory relief did 1421(c) proceedings as removal long § so First, the at endorse it for two reasons. F.3d 906. Zayed, 368 pending.” are dissent, capacity jurisdiction the had both we do not think we can the 5. Unlike case, decision to take the grant the District Court's relief in this we do not endorse affirm the case on the merits jurisdiction and decide District Court District Court’s rationale. The addressing capacity to re- the without prohibition § 1429's on the Attor- found to decide the for a district court lief. In order "considering ney an for General merits, it must be able to it must case on inapplicable to a court or- naturalization” meaningful remedy dis- provide a —otherwise an order is not der of naturalization because be to state a claim would missal for failure Gonzalez, F.Supp.2d application. 684 at an Zayed, 368 appropriate outcome as in Thus, to naturalize an a court order 562-63. ("[W]e the amended do not read F.3d at 906 proceedings does not alien while in removal divesting § the district courts of 1429 as § post-1990 version of run afoul of the 1421(c).... § granted under jurisdiction District Court’s Id. We cannot endorse the imposes upon § 1429 restraints that [T]he comport reasoning with because it does not Attorney prevent a district court from General priority proceedings. Unlike of removal 1421(c) § granting under so effective relief Court we find no reason to believe pending.”), long proceedings are as removal priority altered the that the 1990 amendments Ajlani Chertoff, 241 545 F.3d with the in- of removal that was established Cir.2008) ("[W]e conclude that the district Zayed, § See troduction of 1429 in 1950. 1447(b) Ajlani’s § properly dismissed court at F.3d 905-06. [permitting court review if a claim district is not decided with- petition for naturalization regard, disagree with the Second days] a claim on 7.In we for failure to state Ajlani, be at 241 holding naturalization relief could 545 F.3d which Circuit’s pending.”). proceedings were holding while removal Fifth Circuit’s in Saba-Bakare and the (5th Chertoff, Cir. F.3d reason, agree although we 6. For this same 2007). that it Court's determination with the District (3d Cir.2010) Zayed request not declara- plaintiff (deferring did to the BIA’s inter- 1239.2(f)). tory Zayed, pretation § at Recognizing relief. 906. Sec- ond, the Court determined declarato- the 1990 amendments to the INA divested ry likely only jurisdiction be effective in the relief would district courts from light Immigration Appeals’ grant deny applications of the Board of or for naturaliza- (“BIA”) Cruz, instance, decision in In re 15 I. & N. tion in the first BIA found (1975). Zayed, Dec. 236 that an F.3d 906- affirmative declaration from the Cruz, In In the BIA a Department Security re held that of Homeland would provide prima court declaration could required prima eligi- facie be to establish facie 1239.2(f) (2011) § eligibility bility. Hidalgo, for 8 C.F.R. In re 24 I. See & N. Dec. 242.7), (formerly “per- 8 C.F.R. which at 106. We are confident the BIA proceed the alien to to a final accept mit[s] hear- would also the declaration of a dis- ing pending application petition properly on a or trict exercising jurisdic- court its 1421(c). naturalization when alien has estab- tion under 8 U.S.C. But we do prima eligibility lished facie for naturaliza- our rest decision on this basis. Rath- er, tion exceptionally ” below, and the matter involves for the reasons discussed appealing or humanitarian declaratory factors.... find that appropriate relief is that, The BIA reasoned because “neither notwithstanding may whatever role it play immigration judges [the nor have in terminating BIA] proceeding removal 1239.2(f). authority respect with to the naturalization 8 C.F.R. aliens,” prima eligibility facie for natu- Declaratory relief strikes a balance be- only “by ralization could be an established petitioner’s tween the right judicial to full affirmative communication from the [Im- preserved review as and the migration and Naturalization or Service8] priority of removal proceedings enshrined Cruz, by declaration a court....” In re §in 1429. Maintaining petitioner’s However, I. 15 & N. Dec. at 237. right judicial review of a naturalization Sixth Circuit noted that whether In re denial is consistent with Congressional in- Cruz good remained law after the 1990 tent, *7 by as evidenced the creation of question. amendments to the INA is in 1421(c). § Rather than vest full and final
Zayed, at (citing Apoka- 368 F.3d 907 n. 6 authority to deny or a naturalization rina, 472). Fed.Appx. 93 General, with the Attorney Zayed, Since BIA the has reaffirmed its Congress gave the pow- district courts the decision in In Hidalgo, re Cruz. See In re er of de novo review.9 To hold that dis- 24 I. (2007); & N. Dec. 106 see also precluded trict courts are from review Gen., Zegrean Atty. § 275 1429 whenever removal proceedings are Morrison, Security Pursuant to the Homeland Act of remarked that "H.R. 1630 does not 107-296, Pub.L. No. 116 Stat. 2135 away any judicial rights take of the review (2002), Immigration and Naturalization applicants today.” Cong. accorded 135 Rec. exist, Service has ceased to and its enforce- 16,996 (1989). Judiciary The Senate Com- ment functions have been transferred to the Report, mittee wrote in its Com- ”[t]he Department Security. of Homeland strongly although mittee believes that few denied, cases for naturalization have been legislative history 9. The Immigration of the citizenship governmental is the most valued supports Act of 1990 also this view. In dis- applicants benefit land and should cussing companion HB 1630'—the House bill Judiciary full receive recourse to the when the SB Immigration to which introduced the request for that S.Rep. benefit is denied.” Nationality and Act of 1990—on the floor of 101-187, (1989). No. at 14 House, sponsor, Rep. the bill’s Bruce
261 jury is that a reasonable could that review dence such possibility raises pending nonmoving party.” the Attor return a verdict actions of off may be cut Chertoff, Kestelboym v. Id. See ney General. (D.N.J.2008); F.Supp.2d 538 in In order for Gonzalez succeed Such a at 321-22. F.Supp.2d
Ngwana,
he must show
petition,
his naturalization
contrary
the intent of Con
possibility is
person
good
moral charac
that he is
structure of
expressed
gress as
1427(a).10
The INA de
ter. 8 U.S.C.
relief, in the form of
Declaratory
statute.
moral character” to exclude
“good
fines
regarding the lawfulness
judgment
given
“who has
false
any person
naturalization,
the alien a
permits
denial of
obtaining any
benefits”
purpose
for the
1421(c),
court,
by §
required
as
day in
nationality
and
laws
immigration
under the
priority
of removal
upsetting
while
the United
States.
8 U.S.C.
§in
naturalization established
over
1101(f)(6).11
has
Supreme
The
Court
for—but not
it affects the record
because
1101(f)(6)
requires
“oral state
held
proceedings,
of—removal
priority
made under oath ... with the sub
ments
congressionally
thereby preserving both
immigration
jective
obtaining
intent of
process
a de novo review
goals,
mandated
States,
Kungys
benefits.”
v. United
of the race to the
the elimination
759, 780,
108 S.Ct.
99 L.Ed.2d
U.S.
courthouse.
(1988) (citations omitted).
misrep
A
1101(f)(6)
need not be
resentation under
Material Fact
B.
Issue of
Genuine
applicant’s good
to undermine an
material
the Dis
Having determined
(“[The
character.
Id.
de
statute]
moral
of Gonzalez’s natural
trict Court’s review
person
to be of bad moral
nominates
address
proper,
ization denial
having given
account of
false
character on
properly
summary judgment was
whether
testimony if he has told even the most
“The
Appellee.
in favor of the
subjective in
immaterial of lies with the
if the
grant summary judgment
court shall
obtaining
or natural
immigration
tent of
no
shows that
there is
movant
benefits.”).
ization
any material fact and the
as to
dispute
in this
key
undisputed
Two
facts are
judgment
as a matter
movant is entitled
(1)
1-751 in-
56(a).
Gonzalez stated
case:
A “material
of law.” Fed.R.Civ.P.
own,
that he had no children of his
terview
might
“that
affect the outcome
fact” is one
(2)
recognized
now
YGP
Gonzalez has
governing
under the
law....”
of the suit
Inc.,
and AGP as his children.12 What
Liberty Lobby,
U.S.
Anderson
*8
whether there are material facts
242, 248,
dispute
is
91 L.Ed.2d
S.Ct.
(1986).
genuine dispute
to raise a
over
if “the evi-
sufficient
dispute
“genuine”
A
is
Gonzalez,
per-
nately
the statute will not
person
unless
for
... shall be naturalized
"No
during
periods
applicant
good
...
all
referred
such
of
moral character —such as
mit acts
for,
and still is a
in this subsection has been
giving priority
to
taking responsibility
good
U.S.C.
person
moral character....”
of
to,
recognized
family
as
his natural
be—to
1427(a).
testimony.
mitigation
exception or
to his
as,
person
regarded
or found
11. "No
shall be
Court,
12.We,
judicial
take
like
who,
be, person
good
character
moral
certificates for
of the amended birth
notice
during
period
good
which
moral char-
listing Gonzalez as the father.
YGP and AGP
established, is,
required
or was
acter is
to be
YGP,
231;
App.
Birth Certificate of
Amended
given
for the
one who has
false
AGP, App.
Birth Certificate
Amended
any
purpose
obtaining
benefits under this
1101(f)(6).
Unfortu-
chapter.”
8 U.S.C.
subjective
give
significance
Gonzalez’s
intent
false
terview. “If the
anof
offered
testimony during
solely
his 1-751 interview.
statement lies
in the fact that it was
made, no issue is raised as to the truth of
arguments
Gonzalez makes three
asserted,
anything
and the statement
is
supporting
the existence of a
dis
hearsay.”
advisory
Fed.R.Evid.
In
pute.
argument,
his first
Gonzalez as
note;
committee’s
also
see
Anderson v.
that
petition
serts
cannot be denied on
States,
211, 219-20,
United
summary judgment because there is no
(1974)
(holding
S.Ct.
L.Ed.2d 20
admissible
on
evidence
the record
he
non-hearsay
point
statements
where “the
gave
testimony. Appellant’s
false
Br. 14-
prosecutor’s introducing
those state-
argues
17. Gonzalez
that the declaration
simply
prove
ments was
that the state-
Clark,
of USCIS officer Makesha
Declara
ments were made so as to establish a
(here
Clark,
tion of
App.
Makesha
showing, through
foundation for later
oth-
Deck”),
inafter “Clark
is inadmissible hear
evidence,
er
they
admissible
were
say
summary
and cannot be considered on
(footnotes omitted)).
false”
judgment. Appellant’s Br. 15-16.13 Be
non-hearsay,
As
Clark’s declaration
only
cause this is the
evidence of oral
trial;
therefore,
would be admissible at
it
Gonzalez,
statements
if it is inadmissi
purpose
admissible for the
of summary
ble there is no evidence on the record that
judgment.
gave
testimony.
Gonzalez
false
See Kun
gys, 485
U.S.
Clark’s declaration
hearsay
is not
be-
The definition of a child found in
1101(b)(1)
cause it is not being
offered for the truth
statutory
is a
definition.
It
asserted, i.e.,
of the mattered
meaning
Gonza-
establishes
of the word
children; rather,
lez did or did not have
“child” when that word
is used
being
INA,
Clark’s declaration is
offered to
context of the
not elsewhere. When
*9
prove what Gonzalez said at his 1-751 in- Gonzalez
asked to fill out Form
was
argues
13. Gonzalez also
that the Clark Decla-
orally
"[Gonzalez] was asked to
affirm his
gave
ration is not evidence that Gonzalez
false
question____
answers to each
written
In his
testimony because it is not clear whether Ote-
sworn
represented
Mr. Gonzalez
ro or Gonzalez made relevant statements in
that he ... had no children.” Clark Deck
argument
the interview. This
is without mer-
¶ ¶
7, App.
&5
clearly
it as Clark's Declaration
states that
(1990).
3177,
allowed And, explained, [Gonzalez] as amended foregoing For the we will affirm reasons mother) (with the the birth certificates. granting decision District Court summary judgment in favor of the Defen- (footnote omitted). Counterposed Id. danb-Appellee. upon by the evidence relied only own Court Gonzalez’s statements CHAGARES, Judge, concurring Circuit that he did not know or believe that YGP part dissenting in part. and AGP his children at the time of were I my While concur with learned col- However, any his 1-751 interview. issue leagues juris- that the District Court had by of material fact raised Gonzalez’s asser- diction to review denial of naturalization light tion is insufficient in of the circum- proceedings pending while removal were knowledge. stantial evidence of his He and that the District properly grant- Court had relations with the mother around the summary judgment ed in favor of the Sec- conception; time of he was told retary, I respectfully disagree with the his; mother that were children he majority insofar as it determined that Gon- children; developed relationship with the zalez declaratory could have received relief adopt he did not the children but amended proven had he his case on the merits. the birth certificates to reflect himself as biological father —all of which indicates I unnecessary believe it is and perhaps that if ignorant pater- Gonzalez was of his problematic for the Court to decide this relationship nal it ignorance. was willful thorny First, issue for several reasons. St., 717 S. (as Woodward F.3d at 534 Court) we conclude did the District Cf. (“An affidavit of claimant denying merits, that Gonzalez’sclaims fail on the so knowledge is competent tending evidence opine there is no need to about relief that to show this and in the absence other might have been him available to had he incredible, rendering evidence it such an succeeded. See Scheidler v. Org. Nat’l affidavit creates a issue Inc., of materi- Women 123 S.Ct. added)). al (emphasis fact.” (2003) (declining L.Ed.2d to reach availability the issue of the private in Because key state of mind is the issue junctive relief under 18 U.S.C. merits, on the own Gonzalez’s statements where there underlying was no violation of simply cannot be they dismissed because statute); the RICO Local Steamfitters However, are bare and self-serving. Union No. Fund v. Philip 420 Welfare circumstantial evidence Ap- offered Morris, Inc., 935 n. 20 pellee both undermines and outweighs Cir.1999) (same); see generally 13 Charles ignorance, Gonzalez’s claim of such that Miller, Wright, Alan Arthur R. & Edward court, this is a case where “the based on H. Cooper, Federal Practice and Proce evidence, say all of the can with confidence (3d ed.2008) dure 3531.3 (noting “our that a rational trier of fact could not credit unnecessary judicial tradition that deci the claimant’s denial....” Id. avoided”). Second, sions should be Gonza genuine dispute Because there is no specifically re- lez never requested declaratory garding and, course, Gonzalez’s false in his relief the District Court interview, we find the District declaratory never him relief. *11 Third, did not brief this issue parties Sylvester LESLIE, Appellant Neville I so we should avoid appeal,
on believe resolving the issue. See United States v. (D.C.Cir.1996) McKie, 1149, 1155 78 F.3d ATTORNEY GENERAL OF UNIT- not brief the (noting parties “the did issue STATES; Mary Sambol, ED Warden non- generally and we hesitate decide County Prison; of York Thomas jurisdictional questions briefing”); without Decker, Pennsyl- District Director of Garrett, also Bd. Trs. v. see Detention; vania Field Office for Jan- 360 n. S.Ct. 148 L.Ed.2d Napolitano, Secretary et of the U.S. (2001) (declining to decide whether Department Security. of Homeland employment discrimination claims can be II brought under Title of the Americans No. 11-2442. Act parties
With Disabilities “when the United States Appeals, Court of briefing have not favored us on the statu- Third Circuit. NLRB tory question”); Washington Heights-W. Harlem-Inwood Mental Argued Feb. Council, Inc.,
Health Filed: March Cir.1990) (declining to an resolve issue parties “because did brief this is-
sue and because its resolution is not neces-
sary holding today”). Fourth, to our majority acknowledges,
as the our decision regard contrary
in this to that reached Appeals three of our sister Courts of
and, result, split as a creates a in authori- Miller,
ty. generally Wright, See & (“The
Cooper, supra, 3531.3 concern unnecessary decisions be avoided has justification in important pros-
its most
pect unnecessary may decisions be decisions.”).
wrong reasons,
For these I would avoid reach-
ing the issue and would leave the issue to day
another when its resolution is neces-
sary properly and the issue is briefed parties.