Gildernew v. Gantner, No. 08-6301 (2d Cir. 2010)
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08-6301-cv Gildernew v. Gantner UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2009 (Argued: January 25, 2010 Decided: February 4, 2010) Docket No. 08-6301-cv FRANCIS B. GILDERNEW, Plaintiff-Appellant, v. ANDREA QUARANTILLO, District Director, New York City District Office, United States Citizenship and Immigration Services; EDUARDO AGUIRRE, Director of the United States Citizenship and Immigration Services; JANET NAPOLITANO, 1 Secretary of the Department of Homeland Security; ERIC H. HOLDER, JR., Attorney General of the United States; UNITES STATES CITIZENSHIP AND IMMIGRATION SERVICES, BUREAU OF CUSTOMS AND BORDER PROTECTION; KIP HAWLEY, Administrator of Transportation Security Administration Defendants-Appellees. 2 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet Napolitano has automatically been substituted for Michael Chertoff as a defendant in this action in her official capacity as Secretary of the Department of Homeland Security. 2 The Clerk of the Court is respectfully directed to amend the official caption in this action to conform to the caption in this opinion. Page 1 of 9 Before: L EVAL, S TRAUB, AND W ESLEY, Circuit Judges. Appeal from an order of the United States District Court for the Southern District of New York (Berman, J.), entered on October 30, 2008, denying Plaintiff s motion for summary judgment and granting Defendants cross-motion for summary judgment. A FFIRMED. EAMONN DORNAN, Dornan & Associates, P.L.L.C., New York, New York, for Plaintiff-Appellant. F. JAMES LOPREST, JR., United States Attorney s Office for the Southern District of New York (DAVID S. JONES, of counsel), New York, New York, for Defendants-Appellees. 1 2 P ER CURIAM: Plaintiff, a native and citizen of Ireland, commenced 3 this action seeking, inter alia, a declaratory judgment that 4 he was entitled to naturalize, as well as a grant of 5 naturalized citizenship following the denial of his 6 application by the United States Citizenship and Immigration 7 Services ( CIS ). 8 improperly denied his application because his absence from 9 the country for over fourteen months from September 16, 10 2004 to November 23, 2005 does not, as the CIS contends, Plaintiff contends that the CIS Page 2 of 9 1 disqualify him from naturalized citizenship under 8 U.S.C. 2 § 1427. 3 District of New York (Berman, J.) denied Plaintiff s motion 4 for summary judgment and granted the Defendants cross- 5 motion for summary judgment, thereby affirming the decision 6 of the CIS. 7 10851(RMB), 2008 WL 4938289 (S.D.N.Y. Oct. 29, 2008). 8 Plaintiff now appeals from that ruling. The United States District Court for the Southern Gildernew v. Quarantillo, No. 05 Civ. 9 10 Background 11 On February 13, 2002, Plaintiff applied to the New York 12 District office of the former Immigration and Naturalization 13 Service ( INS ) to become a naturalized citizen of the 14 United States. 15 before the agency for a naturalization exam and demonstrated 16 his fitness for citizenship by satisfying certain statutory 17 criteria, including a basic knowledge of United States 18 history and the ability to communicate in English. On December 10 of that year, he appeared 19 In April of 2004, while his application was still 20 pending, Plaintiff applied to the CIS (the successor agency 21 to the INS) for a reentry permit to allow him to return to Page 3 of 9 1 the United States after a proposed trip to Ireland to take 2 care of family affairs. 3 expected to leave the United States in June of 2004 and 4 remain abroad for one year. 5 an applicant for naturalized citizenship. 6 Plaintiff indicated that he He did not indicate that he was In September of 2004, Plaintiff voluntarily left the 7 United States. 8 presented for inspection at the United States Bureau of 9 Customs and Border Protection ( CBP ) at Dublin Airport in Plaintiff alleges that in April 2005, he 10 Ireland, but was told that he could not enter the United 11 States because he was on the no-fly list maintained by the 12 Transportation Security Administration ( TSA ). 13 finding that there was no derogatory information on file 14 to preclude Plaintiff s admission to the country, he was 15 ultimately permitted to return to the United States in 16 November of 2005. 17 Upon a On May 8, 2006, the CIS notified Plaintiff that his 18 application for naturalized citizenship had been approved 19 and scheduled a ceremony for his oath of citizenship to be 20 administered later that month. However, when the CIS learned 21 that Plaintiff had been outside the country for over Page 4 of 9 1 fourteen months, the agency issued a motion to reopen his 2 application. 3 application because his absence from the country for over 4 one year while his application was pending made him 5 ineligible for naturalized citizenship. On July 17, 2006, the CIS denied Plaintiff s 6 The agency relied on 8 U.S.C. § 1427, which provides in 7 relevant part, [n]o person, except as otherwise provided in 8 this subchapter, shall be naturalized unless such applicant 9 ... has resided continuously within the United States from 10 the date of the application up to the time of admission to 11 citizenship. 12 that [a]bsence from the United States for a continuous 13 period of one year or more during the period for which 14 continuous residence is required for admission to 15 citizenship (whether preceding or subsequent to the filing 16 of the application for naturalization) shall break the 17 continuity of such residence. § 1427(a)(2). The statute further provides § 1427(b). 18 19 Discussion 20 21 We review de novo a district court s grant of summary Page 5 of 9 1 judgment. 2 Cir. 2003). 3 U.S.C. § 1427 precludes the naturalization of the Plaintiff 4 on the facts of this case. 5 does, the judgment of the district court is affirmed. 6 See Sheppard v. Beerman, 317 F.3d 351, 354 (2d We are faced with the question of whether 8 Because we conclude that it Plaintiff first argues that the one-year absence bar in 7 § 1427(b) applies only to the period preceding the 8 naturalization interview, and does not extend to the period 9 following the interview. That argument is unavailing 10 because it is clearly contrary to the language of the 11 statute. 12 period for which continuous residence is required, whether 13 preceding or subsequent to the filing of the application for 14 naturalization. 15 that applies to his case. 16 By its terms, § 1427(b) applies to the entire Plaintiff indicates no statutory exception Plaintiff does rely on language in the paragraph 17 preceding the one quoted above, which provides that 18 [a]bsence from the United States of more than six months 19 but less than one year during the period for which 20 continuous residence is required for admission to 21 citizenship, immediately preceding the date of filing the Page 6 of 9 1 application for naturalization, or during the period between 2 the date of filing the application and the date of any 3 hearing under section 1447(a) of this title, shall break the 4 continuity of such residence. 5 have us read that paragraph to define the period for which 6 continuous residence is required as only that period 7 immediately preceding the date of filing the application 8 for naturalization. 9 based on a misreading of the statute. 10 § 1427(b). Plaintiff would That argument fails because it is First, the paragraph relied upon by Plaintiff applies 11 only to absences ranging from six months to less than one 12 year, as its prefatory words clearly indicate. 13 even if that first paragraph of § 1427(b) did apply to the 14 circumstances of Plaintiff s case it would not save him. 15 The paragraph does not, as Plaintiff maintains, limit the 16 continuous residency requirement to that period of time 17 preceding the filing of the application, nor even to that 18 period of time preceding the naturalization interview. 19 next clause clearly states: or during the period between 20 the date of filing the application and the date of any 21 hearing under section 1447(a) of this title. § Page 7 of 9 And second, The 1 1427(b)(emphasis added). 2 administrative hearing before an immigration officer 3 following the denial of an application for naturalization. 4 The two clauses, read together, therefore embody the entire 5 relevant period with respect to continuous residence: the 6 period immediately preceding the filing of the application, 7 and the period subsequent to the filing of the application 8 until the sooner of the applicant s admission to 9 citizenship, or an administrative hearing following denial Section 1447(a) provides for an 10 of the application. 11 occurred on or around November 26, 2006, over one year after 12 his return to the United States, even if the first paragraph 13 of § 1427(b) applied to the facts of Plaintiff s case it 14 would clearly be no help to him. 15 Because Plaintiff s § 1447(a) hearing Plaintiff further contends that nothing in the 16 legislative history surrounding § 1427 suggests that 17 Congress intended for the one-year absence bar to apply 18 against post-interview absences. 19 clear and unambiguous, we will not endeavor to divine the 20 intent of Congress by resort to legislative history. 21 Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d Cir. 2003). Page 8 of 9 But because the statute is See 1 Finally, while Plaintiff concedes that his initial 2 departure was voluntary, he maintains that his continued 3 absence was involuntary because the CBP would not permit him 4 to reenter the country in April of 2005, as he originally 5 intended. 6 eligibility because he attempted to return to the United 7 States at that time, but was prohibited from boarding his 8 flight as the result of bureaucratic errors on the part of 9 the Defendant-agencies. Plaintiff argues that it is unfair to deny him Even assuming that relief from the 10 clear terms of the statute would be warranted under a 11 different set of facts, the circumstances of this case do 12 not support such a result. 13 the continuous residence requirement nor does he present a 14 set of facts that would warrant an estoppel. Plaintiff is neither exempt from 15 16 Conclusion 17 18 The Court has reviewed Plaintiff s remaining arguments 19 and finds them to be without merit. 20 judgment of the district court is hereby AFFIRMED. Page 9 of 9 Accordingly, the
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