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Keywords

jurisdictionhearingmotionnaturalization
jurisdictionhearingpleamotionmisdemeanornaturalization

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Gizzo v. INS

Facts

The petitioner, an Italian national, has been a lawful permanent resident of the United States since 1960. He applied for naturalization on February 8, 1999, but the INS denied his application, claiming he lacked good moral character due to three arrests. The petitioner contended that he had only been arrested twice. The INS later vacated its denial, leading to the current petition for review.

The facts applicable [**2] to this motion are not disputed. Petitioner, an Italian national, has been a lawful permanent resident of the United States since 1960. On February 3, 1972, petitioner was arrested for possession of stolen property in Mt. Vernon, New York, but this charge was dismissed. (Declaration of F. James Loprest, Jr. ('Loprest Decl.'), sworn to Nov. 3, 2006, at 172.) Some years later on July 12, 1993, petitioner pleaded guilty to the misdemeanor of failure to file income taxes for 1986, 1987 and 1988 and was sentenced to a term of four months imprisonment. ( Id. at 153.) Petitioner surrendered himself to serve that sentence on January 3, 1994. ( Id. at 148.)

Issue

Whether the court has subject matter jurisdiction to review the alien's petition for naturalization after the INS vacated its prior denial.

Whether the court has subject matter jurisdiction to review the alien's petition for naturalization after the INS vacated its prior denial.

Rule

Under 8 U.S.C. 1421(c), a person whose application for naturalization is denied after a hearing may seek review of such denial in the United States district court. However, if the denial is vacated, there is no final agency denial to review.

Under 8 U.S.C. 1421(c), a person whose application for naturalization is denied after a hearing may seek review of such denial in the United States district court. However, if the denial is vacated, there is no final agency denial to review.

Analysis

The court determined that since the INS vacated its denial of the petitioner's application, he was no longer a person whose application for naturalization had been denied. Therefore, the court found it lacked subject matter jurisdiction to hear the case, as there was no final agency action to review under 1421(c).

The court determined that since the INS vacated its denial of the petitioner's application, he was no longer a person whose application for naturalization had been denied. Therefore, the court found it lacked subject matter jurisdiction to hear the case, as there was no final agency action to review under 1421(c).

Conclusion

The court granted the motion filed by the INS and dismissed the alien's petition for lack of subject matter jurisdiction.

The court granted the motion filed by the INS and dismissed the alien's petition for lack of subject matter jurisdiction.

Who won?

The Immigration and Naturalization Service (INS) prevailed because the court found that it lacked jurisdiction to review the petition after the INS vacated its prior denial.

The Immigration and Naturalization Service (INS) prevailed because the court found that it lacked jurisdiction to review the petition after the INS vacated its prior denial.

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