Zegrean: IJ Must Get DHS To State Immigrant Is Prima Facie Eligible For Naturalization

Zegrean v. Holder

No. 08-3714
http://www.ca3.uscourts.gov/opinarch/083714p.pdf

Precedential

April 13, 2010

Judges Barry, Jordan, and Van Antwerpen. Opinion by Judge Barry.

For Mr. Zegrean, David Kaplan (argued) and James J. Orlow of Orlow, Kaplan & Hohenstein in Philadelphia, PA. For the government, Kevin J. Conway (argued) and Sharon Clay.

The USCIS arm of DHS that decides naturalization applications cannot tell an IJ that someone is prima facie eligible because it is not allowed to consider naturalization applications from anyone in removal proceedings. The Third Circuit held that it would be wrong to empower an IJ to make the determination of whether someone is prima facie eligible to naturalize.

It left open the question of who, then, would be empowered to announce that someone is prima facie eligible. It suggested that DHS or Congress should undertake clarifying the situation expeditiously.

The Third Circuit did not explain any solutions -- but maybe the solution would be for ICE counsel to undertake the task of announcing whether someone is prima facie eligible for naturalization.