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Home Archive Volume 63 Volume 63, Issue 2 COMMENT: Checking the DHS: Constitutional and Subconstitutional Approaches to Resolving Whether Noncitizens in Removal Proceedings Can Obtain Effective Judicial Review of Naturalization Decisions
COMMENT: Checking the DHS: Constitutional and Subconstitutional Approaches to Resolving Whether Noncitizens in Removal Proceedings Can Obtain Effective Judicial Review of Naturalization Decisions

By Michael Castle Miller | 63 Am. U. L. Rev. 497 (2013)

Forgotten in the current legislative debates regarding immigration policy is a deep divide among seven federal circuits over whether immigrants who face deportation, after applying for and being denied citizenship, can obtain judicial review of the citizenship denial. Under a plain reading of the Immigration and Nationality Act, the answer seems to be yes—courts must exercise de novo review notwithstanding the pendency of removal proceedings. One provision prevents the U.S. Department of Homeland Security (DHS) from considering applications filed by people facing deportation, but nothing limits federal courts’ powers when the DHS has already made a decision on the application or has delayed making a decision for a reason unrelated to the pending removal proceedings. 

Nevertheless, perhaps because of the tremendous deference that the DHS enjoys under the plenary power doctrine, five U.S. circuit courts of appeal have construed these statutes to deny judicial review. In practice, the statute has been turned upside down in these circuits: the DHS regularly considers naturalization applications even while removal proceedings are pending and federal courts cannot review the DHS naturalization decisions. Furthermore, according to an oft-referenced Bureau of Immigration Appeals case, once the DHS initiates removal proceedings, immigration judges cannot lift the process to allow consideration of the naturalization applications without the DHS’s approval. 

Consequently, the DHS effectively has discretion to circumvent judicial review of its naturalization decisions in these circuits whenever it can find a justification for initiating removal proceedings against the applicant. Therefore, despite their severity, removal proceedings have now become a litigation tactic for permanently silencing review of naturalization decisions. This Comment demonstrates that the DHS’s power can be challenged both on constitutional grounds under the procedural due process exception to the plenary power doctrine and on subconstitutional grounds under the plain text of the statutes and regulations. 

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