Ortega v. Holder (7th Cir. Jan. 15, 2010)
RIPPLE Flaum Manion
Angela Ortega was put into removal proceedings in 2002, but obtained termination with prejudice in 2003 after proving that she had acquired citizenship through her father. At the time the IJ terminated proceedings, USCIS had already denied her N-600 application (without any hearing), and she had appealed to the AAU. The AAU denied the appeal, again without any hearing and without hearing any evidence. She sought reopening from the AAU, sending them evidence from the removal proceedings; the AAU refused to reopen. She then filed a declaratory action in District Court, seeking a declaration of her citizenship. The Govt argued that there was no jurisdiction, because her citizenship had first arisen in removal proceedings. 8 USC 1503(a) bars a declaratory judgment action where the citizenship claim was related to removal proceedings: "no such action may be instituted in any case if the issue of such person’s status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding." The District Court agreed, and dismissed. Ms. Ortega appealed.
The 7th Cir, after reviewing the statutory scheme, found that Congress would have wanted to provide some remedy for individuals like Ms. Ortega.
There certainly is nothing in the language of the statute or in the legislative history of § 1503(a) that would justify the conclusion that Congress meant to leave an individual, with more than a colorable claim of nationality, in legal limbo—able to remain in this Country, but without any means of establishing her nationality. Congress’s solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congress’s concern that individuals be able to settle, definitively, the issue of citizenship. Indeed, it would be disrespectful to impute to Congress a desire to leave someone in Ms. Ortega’s situation permanently out in the cold.
The Court then adopted the Government's proposed reading of the statute, under which Ms. Ortega could make a new application for citizenship would be treated as not "arising from" the then-terminated removal proceedings.
It went on to consider whether Ms. Ortega fell within that understanding. Citing 8 C.F.R. § 341.6, the CtApp held that a motion to reopen or reconsider was the proper means of reasserting a claim of citizenship after proceedings were terminated. It also suggested in passing that an IJ order terminating proceedings would be sufficient grounds for an exception to the normal 30 day period for filing such motions to reopen.
We believe that an individual, such as Ms. Ortega, who is armed with an order of an IJ terminating removal proceedings in her favor, certainly will make at least a prima facie showing that both her change of status (as nonremovable) and the termination of removal proceedings constitute new facts for purposes of a motion to reopen. Cf. Johnson v. United States, 544 U.S. 295, 302 (2005) (holding that the vacatur of an underlying state-court judgment is a fact, the discovery of which triggers the running of the statute of limitations under 28 U.S.C. § 2255). Although such an individual still must rely on the agency’s discretion to reopen such proceedings, we have to believe that the agency will exercise this discretion judiciously and with an eye to accomplishing Congress’s purpose in enacting § 1503(a) and § 1252(b).
The Court then found that Ms. Ortega had taken the appropriate steps in seeking reopening; and thus found that 1503(a) did not bar the action.
On further review of Ms. Ortega’s administrative file, however, we have ascertained that Ms. Ortega in fact has accomplished this necessary step. As we have discussed in some detail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship be filed as a motion to reconsider or to reopen. In this case, Ms. Ortega did file a motion to reconsider or to reopen after the AAO denied her appeal and after her removal proceedings had been terminated. * * *
Because Ms. Ortega’s motion to reopen or reconsider is, by the Government’s own regulation, the correct substitute for a second application for a certificate of citizenship, Ms. Ortega’s motion satisfied the Government’s requirement that she reinstitute an administrative action after the termination of removal proceedings. Having done so, and having been denied administrative relief, there is no longer a jurisdictional impediment to her instituting a declaratory judgment action under § 1503(a) because the action that she is challenging is not tainted by its connection to removal proceedings.
N.b.: NIJC pro bono attorney James Morsch, of Butler Rubin, LLP, represented Ms. Ortega in this matter.