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Hector Duran-Pichardo v. Attorney General of the United States

August 31, 2012

HECTOR DURAN-PICHARDO,
PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES,
RESPONDENT



Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (Agency No. A037-057-349) Immigration Judge: Honorable Andrew Arthur

The opinion of the court was delivered by: Mckee, Chief Judge.

PRECEDENTIAL

Argued January 13, 2012

Before: MCKEE, Chief Judge, FUENTES and JORDAN Circuit Judges

OPINION

Hector Duran-Pichardo petitions for review of the final order of his removal issued by the Board of Immigration Appeals. For the reasons that follow, we will deny the petition.

I.

Duran-Pichardo, is a native of the Dominican Republic and he was lawfully admitted to the United States as a legal permanent resident in 1981. He was married in 1988, and he subsequently fathered two children.*fn1

On July 3, 1997, Duran-Pichardo applied for naturalization as a United States citizen. On May 11, 1998, he completed his examination under oath.*fn2 Therefore the only thing that remained before he could become a naturalized citizen was taking the public oath of allegiance and renunciation.*fn3 After he successfully completed the examination, Duran-Pichardo was given a document that stated: ―[the] INS will notify you later of the final decision on your application.‖

When the ―final decision‖ did not come in the mail, Duran-Pichardo made repeated calls to the agency in an attempt to be scheduled to take the Oath. According to Duran-Pichardo, he subsequently learned that part of his naturalization file had been mislabeled and he was ultimately advised that all or part of his naturalization file had been lost. Although we cannot be sure of exactly what happened to his file, it is clear that Duran-Pichardo never took the Oath.

On March 17, 2008, nearly ten years after Duran- Pichardo satisfactorily completed his naturalization examination under oath, he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine and was sentenced to 51 months' imprisonment.

On October 26, 2008, the Government instituted removal proceedings against Duran-Pichardo on the grounds that he was an alien who had been convicted of a controlled substance violation under 8 U.S.C. §1227(a)(2)(B)(i) and an aggravated felony under 8 U.S.C. §1227(a)(2)(A)(iii).

Although he did not challenge the convictions and conceded that they would otherwise make him eligible for removal, he argued that he was not removable because his 1997 naturalization application had been finalized. He also argued that, to the extent his naturalization application had not been finalized, he should not be removed because the Government's own actions precluded him from taking the Oath and thereby prevented his naturalization and citizenship. *fn4

While removal proceedings were pending, DuranPichardo requested a hearing on his naturalization application and attached evidence that his naturalization file had been mislabeled and/or lost. On September 3, 2009, the Government moved to consolidate two naturalization files under Duran-Pichardo's name--conceding, at a minimum, that ...


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