November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Peter R. Schlam

In the U.S. District Court for the Eastern District of New York. Judge Frederic Block affirmed an INS order turning down naturalization to a wartime veteran who failed to show "good moral character," and Judge Raymond Dearie granted a writ of habeas corpus to a petitioner who had been held too long in INS detention following an order of removal.


In Boatswain v. Ashcroft, 99 CV 8517 (EDNY, June 9, 2003), Judge Block, affirming an order of the Immigration and Naturalization Service (INS), held that, despite the relaxed naturalization requirements for aliens who served in the U.S. military during designated times of hostility, 8 USC § 1440, petitioner still had to establish his "good moral character"–and is statutorily barred from doing so given his criminal history.

Petitioner, a legal permanent resident, came to this country from Trinidad in 1974 and served in the U.S. Army in Hawaii during the Vietnam War. In 1976 he was honorably discharged.

In the 1980s, he was convicted numerous times for state marijuana offenses and Theft of Services, resulting in several short periods of incarceration. His criminal history qualifies him as an aggravated felon under the Immigration and Nationality Act.

In September 1999, while in INS detention, petitioner applied for naturalization. Pending a ruling on that application, an immigration judge found him removable. After the INS denied naturalization, petitioner sought review in federal court, and Judge Block conducted a de novo hearing to determine petitioner's eligibility for citizenship. Petitioner argued that as a wartime veteran, under § 1440 he did not have to show "good moral character."

Guided by a sparse case law, Judge Block turned primarily to the "patchwork" of statutes and regulations (with their "inconsistencies and vagaries') and to the legislative history.

Section 1427(a) of the act provides that "[n]o person shall be naturalized unless [the] petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence within the United States for at least five years ..., and during all [that] period ... has been and still is a person of good moral character." In determining whether the applicant has shown good character during the five-year period, the INS may consider his conduct prior to that period (§ 1427(e)).

Applicants who have served in the armed forces during a war benefit from relaxed requirements. For purposes of this case, § 1440(a) sets forth two relevant requirements for such applicants: (1) that they served honorably during a military conflict; and (2) that they were in the United States or its territories at the time of enlistment. Petitioner meets both requirements. While applicants "shall comply in all other respects" with the requirements of Subchapter III (governing naturalization), they need not meet the usual residency requirements. § 1440(b)(2).

The act does not specifically mention good moral character requirements for wartime veterans. But an INS regulation states that an applicant for naturalization under § 1440(a) must show that he or she:

Has been, for at least one year prior to filing the application ..., and continues to be, of good moral character ....

Finally, § 1101(f) contains statutory bars to a finding of good character. The final bar, § 1101(8), applies to "one who at any time has been convicted of an aggravated felony.'

In Judge Block's view there was no escape here from the sweeping reach of that bar to naturalization. Section 1440(b)(2) relieves the war veteran of the need to show good character throughout the five-year period under § 1427(a)(3). Yet "because § 1440(b) incorporates all other provisions of Subchapter III, § 1440(b)(2) does not eliminate the residual requirement that the applicant still is a person of good moral character." Slip op. 18-19. The word "still," the court stated, should apply to the applicant's character from the filing of the application until its resolution.

The court's reading of § 1440 found support in earlier naturalization statutes and in sections of Subchapter III exempting other classes of applicants from § 1427(a)'s residency requirements but not its good moral character requirements.

In short, Congress could not have intended to jettison good character requirements for wartime veterans. "To hold otherwise would allow those who have committed serious crimes subsequent to their discharge ... to naturalize." Slip op. 21.

Even if § 1101(f)(8) did not bar petitioner, as an aggravated felon, from an individualized assessment, he would not be entitled to naturalize, the court concluded, because the evidence in petitioner's favor (his military service, his virtues as a father) could not overcome his recidivist criminal history.

Habeas Corpus: INS Detention

In Rajigah v. Conway, 03 CV 1717 (EDNY, June 12, 2003), Judge Dearie, granting Mr. Rajigah's habeas corpus petition under 28 USC § 2241, held that the government had delayed excessively the completion of petitioner's removal from the United States. The court ordered petitioner's immediate release.

Mr. Rajigah, a citizen of Guyana and a lawful permanent resident of the United States is married to a U.S. citizen. In 1998, petitioner was convicted of statutory rape in Kings County, N.Y., and sentenced to six month's incarceration. His conviction was affirmed on appeal. Mr. Rajigah began serving his sentence in February 2000.

In April 2000, the INS commenced removal proceedings against Mr. Rajigah on the ground that he had been convicted of an aggravated felony. The INS took him into custody on June 19, 2000, pending a final order of removal. On Aug. 25, 2000, an immigration judge in Louisiana ordered Mr. Rajigah removed to Guyana. That decision was affirmed in April 2001.

Petitioner filed several unsuccessful challenges in the Eastern District to his underlying state conviction and INS detention and removal order. In November 2001, the INS secured an emergency travel document from the Guyanese Embassy, but the U.S. Court of Appeals for the Second Circuit granted a stay pending appeal. After the Second Circuit dismissed one appeal and the petitioner withdrew the other, in November 2002 he appealed to the INS to exercise its prosecutorial discretion and defer action against him. In support of this application, petitioner submitted letters from the prosecutor, the sentencing judge and several members of Congress advocating his release.

The INS denied petitioner's application for deferred action in November 2002 and formally requested Guyana to issue travel documents. In a March 2003 letter, the Guyanese Embassy stated it would not issue the documents because petitioner was planning to file another court action and suffered from an eye condition requiring treatment not available in Guyana. Petitioner submitted documentation to the court confirming the eye condition and his need for frequent ophthalmic examinations. After contending that its ophthalmologist had examined petitioner and found no need for special treatment, the government conceded that the petitioner had been examined by an optometrist and not an ophthalmologist.

Mr. Rajigal filed his habeas petition with the court in April 2003. The Guyanese ambassador then advised the Bureau of Immigration and Customs Enforcement that it would not issue a travel document for petitioner because of the pending petition and his eye condition. The government asserted that it would file a dCzmarche with the government of Guyana threatening sanctions if it did not issue a travel document. The government never filed a dCzmarche.

In granting the petition, Judge Dearie relied on Zadvydas v. Davis, 533 US 678 (2001), which held that the attorney general could continue post-removal period detention only for a period that is "reasonably necessary to bring about the alien's removal from the United States." 533 US at 689. The Supreme Court recognized six months as a presumptively reasonable time period for accomplishing removal.

Although the government contended that petitioner had failed to exhaust his administrative remedies, the Headquarters Post-order Detention Unit (HQPDU), established by the attorney general to evaluate whether or not a significant likelihood of removal existed, failed to respond to his written request for deferred action setting forth his belief that it was unlikely he would be removed in the foreseeable future. The court therefore deemed his administrative remedies exhausted.

Mr. Rajigah argued here that his post-order removal detention had exceeded two years (well over the six-month period mentioned in Zadvydas) and that he had never been adjudged to be a flight risk or a danger to the community. Judge Dearie rejected the INS' contention that Mr. Rajigah had acted to frustrate it efforts to remove him, tolling the period. Because petitioner had sought and received stays of removal through judicial action, he had not demonstrated any bad faith failure to cooperate. Even if months in which judicial stays were in place were deducted from the two years, Judge Dearie concluded, the INS had more than six unencumbered months to complete removal.

Petitioner also satisfied his burden of showing no significant likelihood of removal in the reasonably foreseeable future. This burden was met by submission of the March 2003 letter from the Guyanese ambassador.

Finally, the government's rebuttal evidence was "speculative at best." Slip op. 14. As the court observed, although Guyana had issued travel documents to its nationals and had issued such documents to petitioner in 2001, it must have had a specific reason for not issuing documents to petitioner at this time. The government also failed to show that the proposed dCzmarchCz had been filed. Nor did the government submit reliable evidence to rebut petitioner's medical reports.

Habeas Corpus: § 2254

In last month's column we reported on Judge Jack B. Weinstein's recent memoranda setting forth procedures for expedited resolution, by Judge Weinstein with the assistance of a special master, of habeas corpus petitions challenging state court convictions. In furtherance of the objectives outlined in those memoranda, during the first several weeks of June Judge Weinstein has issued some 38 written decisions ruling on habeas petitions.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the July 11, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]