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Chavez v. I.N.S.

United States District Court, N.D. Illinois, E.D
May 25, 1993
844 F. Supp. 1224 (N.D. Ill. 1993)

Summary

In Chavez, the plaintiff filed a complaint in the district court pursuant to Section 1447(b) after his application for naturalization had been pending with the INS for nearly a year, requesting that the court grant his application.

Summary of this case from Edobor v. Onyango

Opinion

No. 92 C 7654.

May 25, 1993.

Gary Sternberg, Kurt H. Yahn, Sternberg Associates, Chicago, IL, for petitioner.

James G. Hoofnagle, U.S. Attorney's Office, Chicago, IL, for respondent.


MEMORANDUM OPINION AND ORDER


Petitioner Jorge A. Chavez ("Chavez") filed an application for naturalization with the Immigration and Naturalization Service ("INS") almost two years ago. After nearly a year had passed without a decision by the INS, Chavez filed a complaint with this Court under 8 U.S.C. § 1447(b), asking us to grant his application. On December 22, 1992, we remanded the application to the INS with instructions to adjudicate the matter within sixty days.

On January 11, 1993, the INS took the first step in instituting deportation proceedings against Chavez by issuing an order to show cause against Chavez, along with a notice of hearing. Just over a month later, and before the sixty days elapsed, the INS denied Chavez' application for naturalization on the grounds that, by law, the agency could not consider the application of a person against whom deportation proceedings were pending. Later still, the order to show cause was served on the Immigration Judge.

8 U.S.C. § 1429 provides, in relevant part: . . . no application for naturalization shall be

considered by the Attorney General if there is pending against the applicant a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.

Additionally, 8 C.F.R. § 318 provides that for the purposes of § 1429, an order to show cause shall be regarded as a warrant of arrest.

Chavez now seeks to reinstate his complaint in this Court, arguing that the denial of his application is not grounded in law or fact, and that the INS has effectively circumvented our order to adjudicate his application within sixty days. Specifically, Chavez contends that he was not the subject of deportation hearings at the time the INS denied his application. Chavez relies on 8 C.F.R. § 3.14(a), which provides that deportation proceedings do not commence until an order to show cause is filed with the Office of the Immigration Judge. In this case, the order was not filed with the Immigration Judge until after Chavez' application was denied.

The INS disputes Chavez' contentions, arguing that under 8 U.S.C. § 1429, it is the date on which the order to show cause is issued which determines an applicant's eligibility for naturalization, not the date on which the order is filed with the Immigration Judge. The agency goes on to maintain that in any event, Chavez may not seek judicial review of the denial until he has exhausted his administrative remedies. See 8 U.S.C. § 1421(c) ("A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such a person resides. . . ."). Because Chavez has not sought a hearing before an immigration officer, as provided in 8 U.S.C. § 1447(a), the government contends that he cannot properly seek judicial review at this time.

8 U.S.C. § 1447(a) provides:

If, after an examination under section 1446 of this title, an application for naturalization is denied, the applicant may request a hearing before an immigration officer.

In response, Chavez argues that he need not exhaust his administrative remedies in this instance, because this Court already has jurisdiction under § 1447(b) to hear his complaint and to ensure that our previous order was carried out. Because we cannot determine whether Chavez' application was "adjudicated," as instructed, without reaching the merits of the decision, Chavez is essentially asking us to review the INS' denial without the benefit of a hearing before an immigration officer. We cannot agree with Chavez, however, that the legislature ever intended § 1447(b) to permit a district court to circumvent the appeals process provided for by statute. Accordingly, we deny petitioner's motion to reinstate his complaint. It is so ordered.

This ruling does not deprive Chavez of judicial review of the denial, it merely guarantees that the statutory review process is followed.


Summaries of

Chavez v. I.N.S.

United States District Court, N.D. Illinois, E.D
May 25, 1993
844 F. Supp. 1224 (N.D. Ill. 1993)

In Chavez, the plaintiff filed a complaint in the district court pursuant to Section 1447(b) after his application for naturalization had been pending with the INS for nearly a year, requesting that the court grant his application.

Summary of this case from Edobor v. Onyango

stating that Congress did not intend "to permit a district court to circumvent the appeals process provided for by statute"

Summary of this case from Omari v. Gonzales

stating that Congress did not intend "to permit a district court to circumvent the appeals process provided for by statute"

Summary of this case from Adiemereonwu v. Gonzales

stating that Congress did not intend "to permit a district court to circumvent the appeals process provided for by statute"

Summary of this case from SAAD v. BARROWS
Case details for

Chavez v. I.N.S.

Case Details

Full title:Jorge A. CHAVEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE…

Court:United States District Court, N.D. Illinois, E.D

Date published: May 25, 1993

Citations

844 F. Supp. 1224 (N.D. Ill. 1993)

Citing Cases

U.S. v. Hovsepian

A district court should exercise immediate judicial review only in compelling, exceptional circumstances if…

Ogunfuye v. Acosta

These cases do not address the situation here, where § 1429 is the sole cause for the 120-day delay. Chavez…