Motion To Reopen Citizenship Application After Termination Of Removal Proceedings Eliminates The §1503(a) Bar
ORTEGA v. HOLDER (January 15, 2010)
Angie Ortega was the target of removal proceedings brought by the government in 2001. She asserted as a defense in those proceedings that she was a United States national. While the proceeding was pending, she filed an application for citizenship with the Immigration and Naturalization Service. When her application was denied, she appealed to the Office of Administrative Appeals (AAO). Meanwhile, the Immigration Judge in the removal proceedings dismissed with prejudice, concluding that she had in fact proven her citizenship. Months later, the AAO denied her appeal. She filed a motion to reopen and to reconsider, in which she referred to the ruling of the Immigration Judge. The AAO, four years later, denied her motion. It concluded that her motion was untimely in that it had been filed with the wrong office. It also concluded that it was at best a motion to reconsider rather than a motion to reopen. Although the regulations permit consideration of untimely motions to reopen upon a showing of reasonableness, they do not allow such discretion for a motion to reconsider. Ortega brought an action in federal court seeking a declaration of nationality under 8 U.S.C. §1503(a). On the government's motion, the district court dismissed the action on the ground that her citizenship arose in connection with her removal proceeding and her claim therefore fell within the §1503(a) exclusion. Ortega appeals.
In their opinion, Judges Flaum, Ripple and Sykes reversed and remanded. The Court began with the language of the statute. It provides that a person who is denied a right or privilege of citizenship on the ground that she is not a national may bring an action for a declaration of citizenship. The statute contains an exception. It prohibits an action if the issue of the person’s status as a national arose "by reason of, or in connection with" a removal proceeding. The Court emphasized that its interpretation of the words of the statute must also consider its context and its relationship to other provisions. In doing so, the Court stated that the exceptions were designed to prevent judicial interference into removal proceedings and to maintain a single, exclusive opportunity to challenge a removal order. Examining the various options for obtaining a declaration of citizenship, the Court concluded that Congress failed to consider the scenario in which worked Ortega found herself. A judicial declaration of citizenship, when it is pursued through the removal route, is available only when there is an order of removal that can be reviewed under §1252. Since Ortega prevailed at her removal proceeding, there was no order of removal to challenge. The Court was quite certain that Congress did not purposefully leave those in Ortega's situation without a remedy. The proper approach in such a case is to begin the application process anew after the termination of the removal proceedings. Although the government suggested a resubmission of one's application was required, the Court preferred a motion to reopen the citizenship proceedings on the “new fact” of the termination of removal proceedings. That re-instituted matter would no longer be burdened with the “arose by reason of” exclusion of §1503. Here, Ortega already filed a motion to reconsider after the removal proceedings had been terminated. She was then denied relief. Her status as a national is no longer considered to have arisen in the removal proceeding. She can avail herself of the declaratory judgment relief available under §1503.
