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Immigration – removal — citizenship

United States Court of Appeals For the Seventh Circuit

Civil

Immigration – removal — citizenship

A district court may order that a citizen be naturalized, despite the pendency of removal proceedings.

“What makes this possible is the fact that the Attorney General acted on Klene’s application before the agency commenced removal proceedings. If the application for naturalization had been pending when the removal proceedings began, then the Attorney General would not have made a final decision and §1421(c) would not have allowed Klene to ask the district court for relief. The agency wants us to treat the two situations as equivalent and to understand §1429 as announcing a general policy against multiple proceedings. But that isn’t what §1429 says. It tells the Attorney General to put an application aside once removal proceedings begin; it does not issue a similar directive to a court. Section 1421(c) gives the alien a right to an independent (‘de novo’) judicial decision, a right that can be valuable compared with the kind of review available following an order of removal. A court of appeals reviewing a removal decision under §1252 makes an independent decision on legal questions (subject to the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)) but on factual issues asks only whether substantial evidence supports the agency’s conclusion. The existence of overlapping proceedings does not diminish a district court’s power but does present a question on which the judge should exercise sound discretion.”

Vacated and Remanded.

12-1223 Klene v. Napolitano

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Easterbrook, J.


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