Azize v. BCIS, et al., 05-4315-ag (2d Cir. Feb. 1, 2010).

Where an INS officer terminated the petitioner’s naturalization proceeding because he did not surrender his green card, termination on that basis is improper. A failure to surrender a green card is not a basis to terminate a naturalization proceeding, much less to deny the applicant the opportunity to take the oath of citizenship and thereby become a citizen, but is at most only a bar to receiving from a court clerk the formal certificate of naturalization. And even this bar is not absolute, since the District Director may waive the surrender requirement.

The INS officer should not have terminated the naturalization proceeding for failure to surrender the green card, but should have completed all the steps in the process, except for notifying the court clerk after naturalization had occurred that the card had been surrendered. These steps include: the applicant swears to or affirms the application, the INS officer signs the application, the applicant files a petition for naturalization (Form N-405) with a district court, and an INS employee recommends for or against granting the petition and notifies the applicant of the date and place of the final hearing, see id. § 335.13.

Where the naturalization applicant stated in his first application in 1986 that he had filed his last (1986) tax return, and where an INS officer on the applicant’s second and subsequent naturalization application put in the curious notation of “87-87” after the words “never filed taxes,” this court remands to the District Court to make the factual determinations of whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether the petitioner would have proceeded to the point in the process where he would have become eligible to take the oath of allegiance. On remand, the District Court should also address the legal issues, including the nature of the relief to which the petitioner might now be entitled, both with respect to his quest for naturalization and his effort to resist removal. Since only this Court has jurisdiction to consider the merits of the challenge to the removal order, the District Court is requested to conduct appropriate fact-finding, resolve whatever legal issues appear to be within its jurisdiction, and, if it believes any relief from removal is warranted, recommend, in the capacity of a special master, such relief to this Court. This Court appreciates that the Government has presented substantial procedural and substantive arguments against any relief for the petitioner. Nevertheless, this court accepts the Government’s invitation to determine whether a remand is “appropriate,” a characterization this court believes it may make without adjudicating at this point any of the Government’s legal arguments. The equities that the petitioner has asserted persuade this court to exercise the broad authority set forth in 18 U.S.C. § 2106, and, in light of the Government’s decision not to oppose a remand, to determine that such a remand is “appropriate” under the circumstances of this case. Accordingly, this case is remanded to the District Court for further proceedings not inconsistent with this opinion. From any final order of the District Court, either party may restore our jurisdiction by prompt notice to the Clerk of this Court, in which event the case will be returned to this panel.