Team AE Brief Respondent

Case No. 12-L-00345

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT

October Term, 2016

Katie Kimmer, Petitioner-Appellant,

v.

City of North Shore, Respondent-Appellee,

Eric Holder, et al.,

Respondents.

On Appeal From the District Court for the District of Franklin

BRIEF OF RESPONDENT-APPELLEE

Team AE Attorneys for Respondent

Oral Argument Requested

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………………………………………………...iv

QUESTIONS PRESENTED…………………………………………………………………….1

OPINIONS BELOW.…………………………………………………………………………….2

CONSTITUTIONAL AND STATUTORY PROVISIONS……………………………...……2

STATEMENT OF THE CASE…………………………………………………………….……2

SUMMARY OF THE ARGUMENT…...………………………………………………………3

ARGUMENT AND AUTHORITIES…………...……………...………………...……..………4

I. THE FOURTEENTH CIRCUIT SHOULD UPHOLD THE DECISION OF THE DISTRICT COURT FOR THE DISTRICT OF FRANKLIN BECAUSE THE CITY OF NORTH SHORE LOCAL SAFE RENTERS ORDINANCE IS NEITHER FIELD NOR CONFLICT PREEMPTED BY FEDERAL IMMIGRATION LAW.……………………………………………4

A. North Shore’s Local Rental Ordinance is Not Field Preempted

Because the Ordinance Regulates State Powers Over Housing and Congress Has Not Indicated a Clear And Manifest Intent to Occupy that Power.………………………………………………………………..5

B. North Shore’s Local Ordinance is Not Conflict Preempted Because

the Ordinance Works Independently and Concurrently with Federal Law Within a State Purpose Recognized by the Supreme Court.……………………………………….…………………………….7

II. THE FOURTEENTH CIRCUIT SHOULD REVERSE THE DISTRICT COURT BECAUSE 8 U.S.C. § 1429 IS A PRIORITY PROVISION WHICH RESTRICTS THE ATTORNEY GENERAL FROM NATURALIZING, REMOVES SUBJECT MATTER JURISDICTION FROM DISTRICT COURTS TO REVIEW NATURALIZATION DENIALS AND GRANT DECLARATORY RELIEF WHEN DEPORTATION PROCEEDINGS ARE PENDING AGAINST THE PETITIONER.…………………..……………….9 A. Federal District Courts Do Not Have Subject Matter Jurisdiction

Under 8 U.S.C. § 1421(c) To Review Petitioner’s Denied Naturalization Application When There Is A Removal Proceeding Against The Petitioner Which Has Priority Over Naturalization Under 8 U.S.C. § 1429.………………………………………………….10

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B. Petitioner Is Also Barred From Receiving Declaratory Relief When

There Is A Deportation Proceeding Pending Against Her Under 8 U.S.C. § 1429.…………………………………………………...………14

CONCLUSION…………………………………………………………………………………17

APPENDIX A……………………………………………………..…………………………….19

iv

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Arizona v. United States, 132 S. Ct. 2492 (2012) ...................................................................4, 5, 6

Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001) .................................................4, 5

Chamber of Commerce of the U.S. v. Whiting, 563 U.S. 582 (2011) ....................................passim

De Canas v. Bica, 424 U.S. 351 (1976) ............................................................................….passim

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ............................................5, 7

Gade v. Nat’l Solid Wastes Mgmt. Assn, 505 U.S. 88 (1992)………………………………..…..7

Hines v. Davidowitz, 312 U.S. 52 (1941) ...............................................................................5, 7, 8

Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419 (1982) ..........................................5

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)…………………………………………….………5

Plyler v. Doe, 457 U.S. 202 (1982) .........................................................................................6, 7, 8

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ...................................................................5

Shomberg v. United States, 348 U.S. 540 (1955) ...................................................................13, 14

United States v. Locke, 529 U.S. 89 (2000) ....................................................................................6

Wyeth v. Levine, 555 U.S. 555 (2009) ............................................................................................5

UNITED STATES CIRCUIT COURT CASES: Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008)………...............................................…………..16

Barnes v. Holder, 625 F.3d 801 (4th Cir. 2010)…………..........................................10, 11, 12, 15

Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004) ................................................10, 12, 13, 16

Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013) ................................................................7

Klene v. Napolitano, 697 F.3d 666 (7th Cir. 2012)……….....................................…14, 15, 16, 17

Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010) ...............................................................7

v

Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007)….......................................................….15

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ............................................................7

Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir. 2012) ..................7

Zayed v. United States, 368 F.3d 902 (6th Cir. 2004) ...........................................................passim

U.S. CONSTITUTION U.S. Const. art. VI, cl. 2 ..................................................................................................................4

STATUTES 8 U.S.C. § 1429 (2012) ..........................................................................................................passim

8 U.S.C. § 1421(c) (2012) ......................................................................................................passim

8 U.S.C. §§ 1302(a) (2012) ............................................................................................................ 8

8 U.S.C. §§ 1304(e) (2012) ............................................................................................................ 8

8 U.S.C. §§ 1306 (2012)..................................................................................................................8

8 U.S.C. § 1324 (2012) ..........................................................................................................passim

28 U.S.C. § 2201 (2012) ........................................................................................................passim

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QUESTIONS PRESENTED I. Whether a local ordinance is valid because development of federal immigration law, has

neither explicitly nor implicitly preempted local control of ordinances when the ordinance’s standard of rejection comes from the immigration statutes?

II. Whether a federal district court has subject matter jurisdiction for de novo review of a

naturalization application under 8 U.S.C. § 1421(c) (2012) and authority to grant declaratory relief under 28 U.S.C. § 2201 (2012) notwithstanding 8 U.S.C. § 1429 when there is an ongoing deportation proceeding?

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OPINIONS BELOW The order of the United States District Court for the District of Franklin is unreported and

appears in the Record at 15-20. The order was issued on July 27, 2014, upheld North Shore’s

Safe Renter’s Ordinance, and found Plaintiff eligible for naturalization.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves 8 U.S.C.§ 1421(c) (2012), 28 U.S.C. § 2201 (2012), and 8 U.S.C. §

1429 (2012) of the United States Code which are reproduced in Appendix “A.”

STATEMENT OF THE CASE

Katie Kimmer is a national of Austria, who met Damian Grey in summer 2003 while he

vacationed in Austria. R. at 3. The two married that summer, “right before Mr. Grey's return to

the United States.” Id. Ms. Kimmer immigrated to the United States in 2004 as a conditional

permanent resident, and was granted lawful permanent resident status in 2007. Id. Ms. Kimmer

found work as a saleswoman and has lived continuously within North Shore. Id. While working

as a saleswoman, Ms. Kimmer “worked closely” with her supervisor, Aaron Smith. Id. In 2010,

Ms. Kimmer applied for naturalization. R. at 4. Her application was denied for failing to

continuously reside with Mr. Grey. Id. Investigation revealed evidence that Ms. Kimmer had

been living with Aaron Smith, having separated from her husband, since 2008. Id.

Ms. Kimmer exhausted her administrative remedies, and filed a Section 1421(c) motion

for review of her naturalization denial, in the District Court of Franklin. R. at 4. Ms. Kimmer

also requested declaratory relief. Id. Simultaneously, the city of North Shore in which Ms.

Kimmer resides passed the “The City of North Shore Safe Renters Ordinance” which requires

that all occupants of rental housing apply for and receive a valid occupancy permit. R. at 4. Proof

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of legal citizenship/residency is required to obtain an occupancy permit. Id. However, non-lease

living situations do not require an occupancy permit. R. at 11.

SUMMARY OF THE ARGUMENT

This case presents whether a city ordinance, requiring confirmation of lawful presence in

the United States prior to property rental, is preempted by federal law, and whether a district

court has subject matter jurisdiction to review and grant relief to a denial of naturalization in

pursuit of that lawful presence, or whether both are prohibited by 8 U.S.C. § 1429 (2012).

North Shore’s Ordinance (“Ordinance”) falls within the traditional police powers

reserved to the states, and is given the strong presumption of not being field preempted by

federal law. This presumption requires Congress to show a “clear and manifest” intent to

overrule the state police powers. Congress has not shown that requisite intent. Rather, it

preserved the States’ powers to independently regulate illegal aliens within those police powers,

such as licensing and housing. Conflict preemption is also inapplicable. Congress preserved the

States’ powers to independently regulate aspects of the illegal immigration crisis, so long as it

does not conflict with the Federal registration scheme, alien removal, or other objectives. The

Ordinance conflicts with no federal control over any aspect of immigration, and so is not conflict

preempted.

Under 8 U.S.C. § 1421(c) (2012), applicants denied naturalization can seek judicial

review in a district court, however, entitlement to judicial review changes when the applicant has

pending removal proceedings against them. Under 8 U.S.C. § 1429, the U.S. Attorney General

(“AG”), is prohibited from naturalizing an applicant when the applicant has a pending removal

proceeding. The Immigration and Nationality Act (INA) also suspends final hearings on

naturalization where removal proceedings are commenced. When examining the Amendments

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made by Congress to the INA, as well as the language in § 1429, the original intent of Congress

was to emphasize deportation proceedings over naturalization, and to avoid a race between an

alien seeking to be naturalized and immigration authorities seeking to complete removal.

Congress’ intent would be frustrated if district courts could also review naturalization denials for

an applicant with pending removal proceedings, and grant their naturalization under § 1421(c). If

district courts lack subject matter jurisdiction to review naturalization while removal is pending,

district courts power to further grant declaratory relief is terminated. This Court should reverse

the decision of Franklin District Court because the district court lacked the ability to naturalize or

declare naturalization eligibility while the removal proceedings are pending.

ARGUMENT AND AUTHORITIES

The district court granted summary judgment for North Shore and correctly determined

that the Ordinance was constitutional and is not field or conflict preempted. R. at 20. The district

court erred in granting summary judgment on eligibility for naturalization and stated that Ms.

Kimmer’s marriage was legitimate, thus making her entitled to naturalization. Id.

I. THE FOURTEENTH CIRCUIT SHOULD UPHOLD THE DECISION OF THE DISTRICT COURT FOR THE DISTRICT OF FRANKLIN BECAUSE THE CITY OF NORTH SHORE LOCAL SAFE RENTERS ORDINANCE IS NEITHER FIELD NOR CONFLICT PREEMPTED BY FEDERAL IMMIGRATION LAW.

The Supremacy Clause of the United States Constitution dictates that the laws of the

United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl.2. To that end, state laws

shall be preempted when federal law either expressly or implicitly preempts state law. Chamber

of Commerce of the U.S. v. Whiting, 563 U.S. 582, 594 (2011).

Absent an express preemption, state law may be implicitly preempted in two ways: field

preemption and conflict preemption. Arizona v. United States 132 S.Ct. 2492, 2495 (2012). Field

5

preemption occurs when states attempt to regulate in fields “that Congress has determined must

be regulated by its exclusive governance.” Id. Conflict preemption occurs either when a State

law “stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), or where “compliance

with both federal and state regulations is a physical impossibility.” Fla. Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963).

Preemption analysis always requires addressing two prongs. Wyeth v. Levine, 555 U.S.

555, 565 (2009). First, that “the purpose of Congress is the ultimate touchstone in every

preemption case.” Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Second, that

courts should assume that “historic police powers of the States are not superseded . . . unless that

was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947). State laws challenged as preempted “must be examined under these preemption

principles.” Arizona v. United States, 132 S.Ct. 2492, 2501 (2012).

A. North Shore’s Local Rental Ordinance is Not Field Preempted Because the Ordinance Regulates State Powers Over Housing and Congress Has Not Indicated a Clear And Manifest Intent to Occupy that Power.

Courts start a preemption analysis with a presumption against preemption. Wyeth, 555

U.S. at 565. This presumption against preemption is strong in fields which fall within the

traditional State police powers. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347

(2001). The presumption against preemption applies strongly to the Ordinance because its

subject is a licensing scheme to regulate the leasing of local housing within North Shore. Loretto

v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 424 (1982) (holding that local conditions

on leases fall within traditional State police power); See also Whiting, 63 U.S. at 583 (holding

that Congress has expressly preserved the power of the states to regulate immigration via

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licensing). Because the presumption against preemption is strong, Congressional intent to usurp a

new field must be “clear and manifest.” Arizona, 132 S.Ct. at 2501.

Congress has not indicated the requisite clear and manifest purpose to occupy any field

addressed by the Ordinance. Field preemption that rises to the “clear and manifest” standard only

occurs where “Congress ha[s] left no room for state regulation.” United States v. Locke, 529 U.S.

89, 11 (2000). A “complete ouster of state power” is required in the subject matters addressed by

the Ordinance. De Canas, 424 U.S. at 357-58.

This complete ouster does not exist. It would be counter intuitive to find a complete

ouster in fields where state enforcement and regulation is invited. This invitation exists in both

the housing licensing and anti-harboring context. Congress expressly preserved the power of the

states to regulate immigration via licensing laws. 8 U.S.C. § 1324a(h)(2) (2012). The Court has

interpreted this congressional preservation broadly, beyond even traditional licensing laws,

Whiting, 563 U.S. at 599, and those broad powers being preserved, this Court has held the States

may utilize those powers to “deter” illegal immigration, Plyler v. Doe, 457 U.S. 202, 228 n.23

(1982).

The same is true of anti-harboring. While Congress criminalized the bringing in and

harboring of aliens, this single statute is insufficient to usurp an entire field. Congress expressly

authorized state involvement in the enforcement of anti-harboring laws when it authorized arrests

to be made by state officers. § 1324(c) (authorizing “all other officers whose duty it is to enforce

criminal laws.”). This invitation contradicts Congressional intent towards complete occupation of

this field, evidencing the opposite of a “complete ouster.” De Canas, 424 U.S. at 357-58.

7

Because field preemption is an all or nothing doctrine, and there is evidence of

Congressional intent to invite State regulation in areas addressed by the Ordinance, the “clear

and manifest” intent standard to preempt the Ordinance is not met.

B. North Shore’s Local Ordinance Is Not Conflict Preempted Because The Ordinance Works Independently And Concurrently With Federal Law Within A State Purpose Recognized By The Supreme Court.

State laws may also be implicitly preempted through conflict preemption. See e.g., Fla.

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963). Conflict preemption may

occur when compliance with state and federal law presents a “physical impossibility,” id., or

when a State law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.” Hines, 312 U.S. at 67.

However, the Supreme Court has recognized that “a high threshold must be met if a state

law is to be preempted for conflicting with the purposes of a federal Act.” Whiting, 563 U.S. at

607 (citing Gade v. Nat’l Solid Wastes Management Assn., 505 U.S. 88, 110 (1992) (Kennedy,

J., concurring)). Simple “tension” between state law and federal objectives is insufficient. Id. The

Supreme Court has explicitly recognized the ability of the States to deter aliens from ever

entering. Plyler, 457 U.S. at 228 n.23. The Ordinance falls within this recognized purpose of the

state, so the Ordinance does not meet the high standards for conflict preemption.1

The district court correctly narrowed conflict preemption arguments to three possibilities.

See R. at 17. First, that the occupancy license scheme was an obstacle to the INA’s removal

discretion and would harm international relations. R. at 17-18. Second, that the registration

provision could conflict with federal control of a registration system. R. at 18. Third, that the 1 Four circuit courts have addressed and ruled on the preemption of immigration housing provisions being conflict preempted by federal law. See United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir. 2012); Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010); contra Keller v. City of Fremont, 719 F.3d 931, 955 (8th Cir. 2013). Of those circuit courts, which have addressed the issue, only the Eighth Circuit in Keller, addressed the Supreme Court ruling of Plyler, and reached the correct conclusion that such housing ordinances are not conflict preempted. Keller, 719 F.3d at 949.

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anti-harboring provision could conflict with the § 1324(a)(1)(A)(iii). prohibition on harboring

unlawful aliens. R. at 18. The district court correctly found no conflict preemption.

The Occupancy Licensing provision does not conflict with federal removal procedures,

because it does not theoretically or practically remove anyone. R. at 16. This is perhaps best

exemplified by the Plaintiff herself, who has continuously resided in North Shore, despite the

existence of this statute. R. at 2. While the federal government has an admitted need to control

alien removal, the Supreme Court has recognized the ability of the states to deter aliens from

ever entering. See Plyler, 457 U.S. at 228 n.23 (emphasis added). Deterrence through licensing is

therefore permissible combined with the broad interpretation of Whiting. Whiting, 563 U.S. at

599. Acting as a permissible form of deterrence under both Whiting and Plyler, it cannot be said

that the Ordinance rises to the high standards required under conflict preemption analysis.

The Ordinance does not conflict with federal control over registration. The Supreme

Court recognizes the importance of federal control over alien registration, and has struck down

state laws which conflicted with that control. Hines, 312 U.S. at 67. However, the Ordinance

does not address aliens who do not lease property in North Shore or aliens who reside in non-

rental homes, and applies equally to U.S. citizens. R. at 4. It does not require fingerprinting,

identification cards, or registration with a separate system. See, e.g., 8 U.S.C. §§ 1302(a),

1304(e), 1306 (2012). Finally, it does not permit independent determinations of alien registration

status, requiring state officials to adopt the federal determination of registration status. R. at 18.

Absent any characteristics of any national alien registration law, the Ordinance cannot be said to

conflict with that federal control. Simply addressing lawful residence is not enough.2

2 Arguendo, if the Ordinance conflicts with the federal alien registration system, then so do all other state licensing systems which address lawful status in any way, including every driver's licenses statute which allow the issuing of driver's licenses to aliens. See, e.g,. Arkansas S. 27-16-1209 (b)(3); Idaho S. 49-319 (6); Colorado S. 42-2-104 (2)(e). Even statutes, which grant licenses to unlawful aliens but address their status, would be preempted.

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Finally, the anti-harboring ordinance of the Ordinance cannot conflict with the federal

prohibition on harboring of illegal aliens. The Supreme Court has recognized that states may

concurrently enforce laws against the same conduct prohibited by federal law, particularly when

the law “closely tracks” federal law. Whiting, 131 U.S. at 600. The same is true for the

Ordinance’s anti-harboring provision. See 8 U.S.C. § 1324(a)-(c) compare R. App’x at 11-14.

By folding the anti-harboring provision into its licensing scheme, the Ordinance

successfully sidesteps conflict with federal anti-harboring laws. See, e.g., R. App’x at 14. The

anti-harboring provision is a civil enforcement of licensing violations, rather than the criminal

statute provided by federal law. See § 1324(a)-(c) compare App’x A at 14. Any conflicts are

minor conflicts based on a definition of harboring, and minor conflicts must be reconciled

“rather than holding [the state law] to be completely ousted.” De Canas, 424 U.S. at 357 n.5

(internal quotation omitted). Under this presumption, this Court cannot find that the Ordinance’s

local, civil license enforcement conflicts directly with a national law of criminal enforcement.

II. THE FOURTEENTH CIRCUIT SHOULD REVERSE THE DISTRICT COURT BECAUSE 8 U.S.C. § 1429 IS A PRIORITY PROVISION WHICH RESTRICTS THE ATTORNEY GENERAL FROM NATURALIZING, REMOVES SUBJECT MATTER JURISDICTION FROM DISTRICT COURTS TO REVIEW NATURALIZATION DENIALS AND GRANT DECLARATORY RELIEF WHEN DEPORTATION PROCEEDINGS ARE PENDING AGAINST THE PETITIONER

An applicant whose naturalization application has been denied is normally entitled to

seek judicial review in a district court under 8 U.S.C. § 1421(c) (2012). However, the entitlement

to judicial review changes when the applicant also has a pending removal proceeding against

them. Under 8 U.S.C. § 1429 (2012), the United States Attorney General (“AG”), is prohibited

from naturalizing an applicant when “there is pending against the applicant a removal proceeding

pursuant to a warrant of arrest issued.” In § 1429, the AG is precluded from considering a

naturalization application during pending removal proceedings. See Zayed v. United States, 368

10

F.3d 902, 904 (6th Cir. 2004). The institution of the removal also divests the district courts of

subject matter jurisdiction to review the denial. Id. When comparing § 1421(c) and § 1429, many

courts held that the purpose of § 1429 is to give priority to removal proceedings over

naturalization, and that the priority of the removal, weighs against the jurisdiction that district

courts have over naturalization under § 1421(c). See e.g., Bellajaro v. Schiltgen, 378 F.3d 1042,

1046 (9th Cir. 2004). Finally, the Amendments made to the Immigration and Nationality Act

(“INA”) and § 1429 in the years of 1952 and 1990 also reflect Congress’ intent for removal

proceedings to have priority over naturalization. Id. at 1043. Since removal proceedings divest

district courts of subject matter jurisdiction to review a naturalization denial under § 1429, it is

also unable to grant declaratory relief under 28 U.S.C. § 2201 (2012).

A. Federal District Courts Do Not Have Subject Matter Jurisdiction Under 8 U.S.C. § 1421(c) To Review Petitioner’s Denied Naturalization Application When There Is A Removal Proceeding Against The Petitioner Which Has Priority Over Naturalization Under 8 U.S.C. § 1429.

Amendments made by Congress to the INA and § 1429 demonstrate that the intent of

Congress was “to emphasize deportation proceedings over the naturalization process, and to

avoid a race between an alien seeking to be naturalized and immigration authorities seeking to

complete removal proceedings.” Zayed, 368 F.3d at 904. Congress’ intent for removal to have

priority over naturalization would be frustrated if judicial review of naturalization decisions by

district courts were also available under § 1421(c). Bellajaro, 378 F.3d at 1043.

“Several courts found that in passing § 1429, Congress clearly intended to give removal

proceedings priority over naturalization.” Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010).

“For this reason, § 1429 has become known as the INA's “priority provision.” Id. Once a

removal proceeding is initiated against a petitioner, that proceeding strips the district court of

jurisdiction to review a naturalization denial. Ms. Kimmer failed to show The United States

11

Citizenship and Immigration Services (USCIS) that she has the moral character that would allow

her to be naturalized. R. at 4. Ms. Kimmer is also accused of trying to deceive USCIS by

presenting a fraudulent marriage to Damian Grey. Id. On the grounds of the fraudulent marriage,

removal proceedings were initiated against Ms. Kimmer. Id. Ms. Kimmer’s case is similar to

Barnes, where an application for naturalization was denied based on Barnes’ drug conviction.

625 F.3d at 802. The conviction caused the Department of Homeland Security to initiate removal

proceedings, and an Immigration Judge to order his removal. Id. at 803. Barnes appealed to the

Fourth Circuit, which held that he had no statutory right to review of his naturalization

application. Id. at 806. The court stated that under § 1429, “an alien in removal proceedings does

not have a right to have his application adjudicated, it follows that he cannot possibly have a

right to have the adjudication judicially reviewed.” Id. This Court should follow the Fourth

Circuit’s reasoning and hold that under §1429, Ms. Kimmer no longer has a right to receive

naturalization or to have her denial judicially reviewed. Her removal proceedings take priority

over naturalization.

Congress’ intention for handling aliens who apply for naturalization, but have pending

removal proceedings, can be found in the courts’ examinations of legislative history. See, e.g.,

Zayed, 368 F.3d at 904. Zayed, requested review of her naturalization denial, but also had a

pending removal proceeding against her based on the grounds of a fraudulent divorce. Id. The

district court denied Zayed’s request for review and reasoned that legislative history showed that

in 1952, Congress enacted § 1429 to place removal proceedings over naturalization. Id. 904-05

(“no petition for naturalization shall be finally heard by a naturalization court if there is pending

against the petitioner a [removal] proceeding.”). Then in 1990, Congress removed naturalization

powers from the district courts and vested them solely in the AG under § 1429. Id. Section 1429

12

makes clear that the AG who now has the power over naturalization, is prohibited from

considering naturalization applications where removal proceedings are pending, but the statute

also emphasizes that deportation proceedings have priority over naturalization. Congress’ intent

to prioritize deportation proceedings cannot be implemented, if district courts also have

jurisdiction to review and grant naturalization to an applicant like Ms. Kimmer, who is also

facing possible deportation. The District Court of Franklin erred by reviewing Ms. Kimmer’s

naturalization denial by the USCIS because they lacked the requisite subject matter jurisdiction.

When interpreting a statute, “rules of statutory construction require that we give meaning

to all statutory provisions and seek an interpretation that permits us to read them with

consistency.” Barnes, 625 F.3d at 806. A harmonious reading of § 1421(c) and § 1429 leads to

the conclusion that an alien has a statutory right to review of his naturalization application,

unless he is in removal proceedings. Id. However, courts still tend to reach different conclusions

about whether judicial review is allowed. See, e.g., Bellajaro, 378 F.3d at 1045–46. Bellajaro,

filed for naturalization but was denied by the Immigration and Naturalization Service (INS) due

to a failure to establish good moral character. Id. at 1044. INS also initiated removal proceedings

because Bellajaro was convicted of a felony. Id. Bellajaro moved to terminate the removal

proceedings but his motion was denied. Id. He filed suit in district court seeking a grant of his

naturalization, or a declaration that he was eligible for naturalization. Id. INS moved for

summary judgment, asserting that the district court lacked subject-matter jurisdiction to review

Bellajaro’s naturalization application and that Congress intended § 1429 to limit the AG and

jurisdiction of the district court, when an alien is in removal proceedings. Id. The district court

agreed, and entered judgment for INS. Id. On appeal, the Ninth Circuit explained the conflict in

which some circuits have concluded that the purpose of § 1429 is to give priority to removal over

13

naturalization. Id. at 1046. Therefore the priority of removal weighs against the district court

jurisdiction over naturalization under § 1421(c). Id. “Others, including the Sixth Circuit . . .

interpret § 1429 as limiting the scope of review and the relief available, but not as stripping

district courts of jurisdiction solely because removal proceedings are pending.” Id.

This Court should adopt the reasoning of the district court in Bellajaro and following

circuits that have determined that § 1429 divests district courts of subject matter jurisdiction

when removal is pending. Therefore, the District Court of Franklin did not have subject matter

jurisdiction to review Ms. Kimmer’s naturalization denial.

The Ninth and the Sixth circuits stated that nothing in the text of § 1429 leads to the

conclusion that jurisdiction vested in district courts by § 1421(c) is limited when removal

proceedings are pending. See Bellajaro, 378 F.3d at 1046; Zayed, 368 F.3d at 906. However, the

failure to find an explicit textual basis does not justify ignoring Congressional intent.

This Court must go beyond the plain text of the statute and interpret Congress’ intent

through their actions, following the Supreme Court’s example. See Shomberg v. United States,

348 U.S. 540, 545-46 (1955). Shomberg filed for naturalization two days before the Immigration

and Nationality Act of 1952 (“INA”) became effective. Id. at 541. However, Shomberg also had

a criminal record. Id. at 542. The 1952 INA, “suspend[ed] final hearings on naturalization where

deportation proceedings were instituted” and subjected aliens with convictions to removal. Id. at

541-42. Shomberg argued that he was saved from removal under the savings clauses of the Act.

Id. at 542-43. The Supreme Court examined the legislative history and stated that the 1952 Act

took effect immediately and contained no savings clause, although it introduced new grounds for

deportation which were to be retroactively applied Id. at 544. Congress added language in § 318

regarding naturalization petitions, and stated “Notwithstanding the provisions of section 405(b) .

14

. . no application for naturalization shall be considered by the Attorney General if there is

pending against the applicant a removal proceeding pursuant to a warrant of arrest.” Id. at 545.

The Supreme Court reasoned that through the “notwithstanding” language, Congress clearly

manifested its intent to prevent judicial review of naturalization applicants during pending

removal proceedings, by overriding the 405(b) savings clause in the INA and the rights that

petitioners ordinarily have under 405(b). Id. “Any other interpretation of the changes in the 1950

law would render the ‘notwithstanding’ clause meaningless.” Id. at 547.

Like the Supreme Court, this Court should follow Congress’ intent instead of looking for

language in § 1429 that expressly divest district courts of jurisdiction. See, e.g., id. Through

revisions to the INA in 1952, and § 1429 in 1990, Congress demonstrated its intention to end the

race between naturalization and deportation. Ms. Kimmer was unable to prove to INS that she

qualifies for naturalization and must face the pending removal proceeding against her. To ensure

that the changes made to § 1429 and the INA are not meaningless, this Court must interpret those

changes as preventing the district court from having jurisdiction to review naturalization while

Ms. Kimmer has removal proceedings pending against her.

B. Petitioner Is Also Barred From Receiving Declaratory Relief When There Is A Deportation Proceeding Pending Against Her Under 8 U.S.C. § 1429.

“[T]he restraints that § 1429 imposes upon the Attorney General prevent a district court

from granting effective relief under § 1421(c) so long as removal proceedings are pending.”

Zayed, 368 F.3d at 906. In circuits that believe district courts have subject matter jurisdiction, to

review naturalization when removal proceedings are pending, they hold that removal

proceedings “prevent the courts from providing a remedy, so judgment must go for the agency

on the merits.” Klene v. Napolitano, 697 F.3d 666, 667 (7th Cir. 2012). The District Court of

Franklin lacked power to grant an effective remedy in this case. USCIS first denied Ms.

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Kimmer’s application on September 19, 2011, and affirmed their decision when she appealed. R.

at 4. When Ms. Kimmer filed her § 1421(c) motion in the District Court, the court initially had

subject matter jurisdiction to review and grant declaratory relief. Id. However, when USCIS

issued a Notice to Appear and commenced removal proceedings against Ms. Kimmer, the

District Court of Franklin was divested of their authority to grant declaratory relief.

Only one circuit court has held that subject matter jurisdiction continues and that a

remedy is possible. Klene, 697 F.3d at 667–68. In Klene, the United States Citizenship and

Immigration Services (“the agency”) denied Klene’s naturalization application due to a

fraudulent marriage. Id. at 667. Klene asked a district court for relief under 8 U.S.C. § 1421(c),

and subsequently USCIS opened removal proceedings and asked the district court to dismiss

Klene's suit. Id. The district court dismissed the suit and Klene appealed to the Seventh Circuit.

Id. The appellate court explained, that only the Third Circuit has held that subject matter

jurisdiction continues and that relief is possible by district courts once removal proceedings

begin. Id. at 668. The other six circuits, disagree with the Third Circuit and would dismiss

requests for declaratory relief; despite the fact that these circuits conflict on whether or not

district courts have jurisdiction to review naturalization when removal proceedings are pending.

Id. at 667. This Court should adopt the reasoning of the Fourth and Fifth Circuits and hold that

“district courts lose subject-matter jurisdiction once the removal proceedings begin. Barnes v.

Holder, 625 F.3d 801 (4th Cir.2010); Saba–Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007).”

Id. With no subject matter jurisdiction to review, the question of whether the District Court of

Franklin had the power to further grant declaratory relief to Ms. Kimmer is terminated.

However even if this Court finds that district courts have subject matter jurisdiction to

review naturalization while removal proceedings are pending; this Court should dismiss Ms.

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Kimmer’s petition for declaratory relief based on the reasoning of the Second, Sixth, and Ninth

circuits. These circuits held that § 1429 does not affect subject-matter jurisdiction but it does

prevent courts from providing a remedy, so judgment must be for the agency. See generally

Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008); Zayed, 368 F.3d at 902; Bellajaro, 378 F.3d at

1042.

Even if district courts have subject matter jurisdiction to review a naturalization denial, a

request for declaratory relief can be denied. Bellajaro 378 F.3d 1042. Bellajaro was denied

naturalization by the Immigration and Naturalization Service (INS) on the basis of § 1429

because removal proceedings were pending against him. Id. at 1044. The district court ruled in

favor of INS and he appealed. Id. at 1045. The Ninth Circuit clarified that where “the INS

precludes a naturalization application from being considered while removal proceedings are

pending, the district courts have jurisdiction to review the denial but the scope of review is

limited to “such” denial. Id. at 1046–47. Where petitioner doesn't contest the ground for the

denial but rather wants the district court to determine entitlement to naturalization; “[t]his is a

determination that the [AG] has not yet made because of § 1429, and it is one that the district

courts, which no longer have authority to naturalize, cannot make in the first instance.” Id at

1046. The limitation on jurisdiction according to Bellajaro would have only allowed the District

Court of Franklin to review the grounds for Ms. Kimmer’s naturalization denial. Ms. Kimmer

did not contest the grounds and is therefore left with no ability to receive declaratory relief.

District courts should use caution and allow Congress to clarify whether courts have the

power to review denied naturalization applications when removal proceedings are pending.

Although the Seventh Circuit in Klene, 697 F.3d at 669, stated that the existence of overlapping

proceedings does not diminish a district court's power, they did not automatically express that

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declaratory relief should be granted to Klene by the district court. The Seventh Circuit remanded

the case back to the district court and emphasized that “the existence of overlapping proceedings

. . . presents a question on which the judge should exercise sound discretion especially when the

judge is asked to enter a declaratory judgment that will dispose of some other case.” Id.

Similarly, as Klene shows, other circuits that have considered the interaction between § 1421(c)

and § 1429 have reached four different conclusions. Id. at 667. Instead of deciding like the

appellate court in Klene and placing a tremendous amount of discretion back in the hands of the

district court, this Court should follow Congressional intent as stated in Zayed. See 368 F.3d at

904. Zayed sought review of her naturalization denial in a district court under 1421(c). INS filed

a motion to dismiss and initiated removal proceedings against her on the grounds of a fraudulent

divorce. Id. The Sixth Circuit affirmed the dismissal of Zayed’s petition and stated that

“Congress intended to allow the restraints that § 1429 imposes upon the [AG] [to] prevent a

district court from granting effective relief under § 1421(c) so long as removal proceedings are

pending.” Id. at 906. “[T]he district court could not properly have entered an order granting the

application without reference to the [AG], Congress having decided that it would be the [AG]

who should have sole authority to naturalize persons.” Id. This Court should reverse the decision

of the District Court of Franklin which ignored Congressional intent by reviewing Ms. Kimmer’s

denial and declaring her eligible for naturalization. If the intent is not to have removal

proceedings prevent judicial review of naturalization, it should be left to Congress, not district

courts, to clarify the law.

CONCLUSION

For the foregoing reasons, Respondent asks this Honorable Court to reverse the United

States District Court for the District of Franklin decision on the basis that (1) the North Shore

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Ordinance is not preempted by federal law; (2) Petitioner failed to establish statutory eligibility

for naturalization; and (3) that the district court did not have proper jurisdiction over Petitioner’s

naturalization application.

Dated: October 14, 2016 Respectfully submitted,

By: __Team AE________ Attorneys for Respondent-Appellee

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APPENDIX A

8 U.S.C. § 1421—(c) Judicial review. A person whose application for naturalization under this title is denied, after a hearing before an immigration officer under section 336(a) [8 USCS § 1447(a)], may seek review of such denial before the United States district court or the district in which such person resides in accordance with chapter 7 of title 5, United States Code [5 USCS §§ 701 et seq.]. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application. 8 U.S.C. § 1429—Except as otherwise provided in this title, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry, in the custody of the Service. Notwithstanding the provisions of section 405(b) [8 USCS § 1101 note], and except as provided in sections 328 and 329 [8 USCS §§ 1439 and 1440] no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act; and no application for naturalization shall be considered by the Attorney General court if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Attorney General with respect to the question of whether such person has established his eligibility for naturalization as required by this title. 28 U.S.C. § 2201—(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986 [26 USCS § 7428], a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country. . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.