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Escaler v. United States Citizenship and Immigration Services

September 11, 2009

JAIME BORROMEO ESCALER, PLAINTIFF-APPELLANT,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; EDWARD MCELROY, DISTRICT DIRECTOR; ERIC H. HOLDER JR., UNITED STATES ATTORNEY GENERAL; DEPARTMENT OF HOMELAND SECURITY,*FN1 DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from an order by the United States District Court for the Southern District of New York (Barbara S. Jones, Judge) granting the United States Citizenship and Immigration Services' ("CIS") motion to dismiss. After his application for citizenship was approved, appellant failed to take the oath of allegiance in the familiar public ceremony, and left the United States for more than a year. The CIS found that this absence violated the requirement of continuous residence between the initiation of a naturalization application and the completion of naturalization. Appellant now seeks an order compelling CIS either to issue him a Certificate of Naturalization or to reopen his application nunc pro tunc to the time between the application's approval and his leaving the United States. We hold that appellant's failure to exhaust his administrative remedies prevents the federal courts from reviewing appellant's case. We therefore affirm.

The opinion of the court was delivered by: Winter, Circuit Judge

Argued: March 9, 2009

Before: WINTER and SACK, Circuit Judges, and COGAN, District Judge.*fn2

Jaime Borromeo Escaler brought the present action seeking an order compelling the United States Citizenship and Immigration Services ("CIS") either to issue him a certificate of naturalization or to reopen his naturalization application nunc pro tunc to 1993. The CIS takes the position that appellant failed to take the required oath of allegiance in a public ceremony before leaving the United States for a period of time that rendered him out of compliance with the temporal naturalization requirements of residence and presence in the United States. Judge Jones denied appellant's motion for summary judgment and dismissed his action for lack of subject-matter jurisdiction. We affirm on the ground that appellant failed to exhaust his administrative remedies, and, therefore we cannot reach the merits.

BACKGROUND

Appellant was born in the Philippines in 1970. His mother is a United States citizen who had lived briefly in the United States as a child. In 1972, appellant moved to Hong Kong, where he lived until 1987, when he came to the United States and attended an American prep school. In March 1993, appellant applied to the Immigration and Naturalization Service ("INS") for naturalization as a United States citizen.

Becoming a naturalized U.S. citizen involves the completion of several steps: (i) maintaining five years' lawful permanent residence, physical presence in the United States for at least half of that time, and continuous residence from the date of application until admission to citizenship, 8 U.S.C. § 1427(a), 8 C.F.R. § 316.2(a); (ii) submitting an application, 8 U.S.C. § 1445(a), 8 C.F.R. § 316.4(a); (iii) passing a background check, 8 U.S.C. § 1446(a), 8 C.F.R. §§ 316.10, 335.1; (iv) passing a test of English proficiency and of knowledge of U.S. history and government, 8 U.S.C. § 1423(a), 8 C.F.R. §§ 312.1, 312.2; (v) being examined under oath by an immigration official, 8 U.S.C. § 1446(b), 8 C.F.R. §§ 316.14, 335.2; and (vi) taking an oath of allegiance to the United States "in a public ceremony," 8 U.S.C. § 1448(a); 8 C.F.R. § 337.1.

It is undisputed that, as of May 18, 1993, the date of his examination hearing, appellant had successfully completed (i)-(v) of these steps, and that the INS examiner approved appellant's application the same day. There is no record, however, of appellant's participation in step (vi), the public oath-taking ceremony. There is also no evidence of the INS notifying appellant of upcoming oath ceremonies that he might attend, 8 U.S.C. § 1421(b)(2)(B), or of appellant's having informed the INS of his new address when he left for Hong Kong, 8 U.S.C. § 1305(a). At his examination hearing, appellant did sign a document entitled "Declaration of Intention" which contained the text of the oath which the statute requires be used at naturalization ceremonies. 8 U.S.C. § 1448(a). However, the circumstances --- whether it was a "public" ceremony ---surrounding his signing of that document are not clear.

Six months after his interview and the examiner's approval of his application, appellant returned to Hong Kong to work. The record before us does not indicate exactly how long appellant lived abroad after his interview, but it is undisputed that appellant remained outside of the United States for more than a year.

Appellant later re-entered the United States under authorized non-immigrant status, having been told that he had abandoned his status as a United States permanent resident before becoming a citizen. Appellant sent letters to the INS seeking recognition as a naturalized United States citizen. In October 2003, after those efforts were unsuccessful, appellant brought the present action to compel CIS, a successor agency to the former INS, either to issue him a Certificate of Naturalization or to enable him to resume his application for naturalization as of May 1993.

CIS then undertook a review of appellant's file. Observing that appellant had spent extensive time abroad after his naturalization interview and that 8 U.S.C. § 1427(a) prohibits the naturalization of any person who has not "resided continuously within the United States from the date of the application up to the time of admission to citizenship," CIS issued a notice of its intent to reopen appellant's application in June 2004, pursuant to 8 C.F.R. § 335.5. Appellant responded with letters stating that he had fulfilled all the requirements of citizenship by signing the oath at the May 1993 hearing. In September 2005, CIS reopened appellant's application. Appellant argued that the reopening was a nullity because the present action had ousted the CIS of jurisdiction. The CIS District Director denied the reopened application on the grounds that appellant had failed to provide any reason to conclude that the information about his having left the country and thereby failing to comply with the residence requirement was incorrect. Although administrative procedures for appealing that ruling were available, appellant chose not to pursue them.

Following the denial of appellant's application, the district court dismissed the complaint both as moot and as beyond the court's jurisdiction in light of appellant's failure to exhaust his ...


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