08-6301-cv
Gildernew v. Gantner
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
                         
August Term, 2009
(Argued: January 25, 2010         Decided: February 4, 2010)
Docket No. 08-6301-cv
                         
FRANCIS B. GILDERNEW,
Plaintiff-Appellant,
–v.– 
ANDREA QUARANTILLO, District Director, New York City
District Office, United States Citizenship and Immigration
Services; EDUARDO AGUIRRE, Director of the United States
Citizenship and Immigration Services; JANET NAPOLITANO,1
Secretary of the Department of Homeland Security; 
ERIC H. HOLDER, JR., Attorney General of the United States;
UNITES STATES CITIZENSHIP AND IMMIGRATION SERVICES, BUREAU
OF CUSTOMS AND BORDER PROTECTION; KIP HAWLEY, Administrator
of Transportation Security Administration
Defendants-Appellees.2
                         
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet
Napolitano has automatically been substituted for Michael Chertoff as a
defendant in this action in her official capacity as Secretary of the
Department of Homeland Security.   
2 The Clerk of the Court is respectfully directed to amend the official
caption in this action to conform to the caption in this opinion.
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Before:
LEVAL,  STRAUB, AND WESLEY,  Circuit Judges.
Appeal from an order of the United States District
Court for the Southern District of New York (Berman, J.),
entered on October 30, 2008, denying Plaintiff’s motion for
summary judgment and granting Defendants’ cross-motion for
summary judgment.   
AFFIRMED.
                         
EAMONN DORNAN, Dornan & Associates, P.L.L.C., New
York, New York, for Plaintiff-Appellant.
F. JAMES LOPREST, JR., United States Attorney’s
Office for the Southern District of New York
(DAVID S. JONES, of counsel), New York, New
York,  for Defendants-Appellees.
                         
1
PER CURIAM:
2
Plaintiff, a native and citizen of Ireland, commenced
3
this action seeking, inter alia, a declaratory judgment that
4
he was entitled to naturalize, as well as a grant of
5
naturalized citizenship following the denial of his
6
application by the United States Citizenship and Immigration
7
Services (“CIS”).  Plaintiff contends that the CIS
8
improperly denied his application because his absence from
9
the country for over fourteen months – from September 16,
10
2004 to November 23, 2005 – does not, as the CIS contends,
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disqualify him from naturalized citizenship under 8 U.S.C. 
2
§ 1427.  The United States District Court for the Southern
3
District of New York (Berman, J.) denied Plaintiff’s motion
4
for summary judgment and granted the Defendants’ cross-
5
motion for summary judgment, thereby affirming the decision
6
of the CIS.  Gildernew v. Quarantillo, No. 05 Civ.
7
10851(RMB), 2008 WL 4938289 (S.D.N.Y. Oct. 29, 2008). 
8
Plaintiff now appeals from that ruling.      
9
10
Background
11
On February 13, 2002, Plaintiff applied to the New York
12
District office of the former Immigration and Naturalization
13
Service (“INS”) to become a naturalized citizen of the
14
United States.  On December 10 of that year, he appeared
15
before the agency for a naturalization exam and demonstrated
16
his fitness for citizenship by satisfying certain statutory
17
criteria, including a basic knowledge of United States
18
history and the ability to communicate in English. 
19
In April of 2004, while his application was still
20
pending, Plaintiff applied to the CIS (the successor agency
21
to the INS) for a reentry permit to allow him to return to
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the United States after a proposed trip to Ireland to “take
2
care of family affairs.”  Plaintiff indicated that he
3
expected to leave the United States in June of 2004 and
4
remain abroad for one year.  He did not indicate that he was
5
an applicant for naturalized citizenship.   
6
In September of 2004, Plaintiff voluntarily left the
7
United States.  Plaintiff alleges that in April 2005, he
8
presented for inspection at the United States Bureau of
9
Customs and Border Protection (“CBP”) at Dublin Airport in
10
Ireland, but was told that he could not enter the United
11
States because he was on the “no-fly” list maintained by the
12
Transportation Security Administration (“TSA”).  Upon a
13
finding that there was “no derogatory information” on file
14
to preclude Plaintiff’s admission to the country, he was
15
ultimately permitted to return to the United States in
16
November of 2005. 
17
On May 8, 2006, the CIS notified Plaintiff that his
18
application for naturalized citizenship had been approved
19
and scheduled a ceremony for his oath of citizenship to be
20
administered later that month. However, when the CIS learned
21
that Plaintiff had been outside the country for over
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fourteen months, the agency issued a motion to reopen his
2
application.  On July 17, 2006, the CIS denied Plaintiff’s
3
application because his absence from the country for over
4
one year while his application was pending made him
5
ineligible for naturalized citizenship.  
6
The agency relied on 8 U.S.C. § 1427, which provides in
7
relevant part, “[n]o person, except as otherwise provided in
8
this subchapter, shall be naturalized unless such applicant
9
... has resided continuously within the United States from
10
the date of the application up to the time of admission to
11
citizenship.”  § 1427(a)(2).  The statute further provides
12
that “[a]bsence from the United States for a continuous
13
period of one year or more during the period for which
14
continuous residence is required for admission to
15
citizenship (whether preceding or subsequent to the filing
16
of the application for naturalization) shall break the
17
continuity of such residence.”  § 1427(b).  
18
19
 Discussion
20
21
We review de novo a district court’s grant of summary
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judgment.  See Sheppard v. Beerman, 317 F.3d 351, 354 (2d
2
Cir. 2003).  We are faced with the question of whether 8
3
U.S.C. § 1427 precludes the naturalization of the Plaintiff
4
on the facts of this case.  Because we conclude that it
5
does, the judgment of the district court is affirmed.
6
Plaintiff first argues that the one-year absence bar in
7
§ 1427(b) applies only to the period preceding the
8
naturalization interview, and does not extend to the period
9
following the interview.  That argument is unavailing
10
because it is clearly contrary to the language of the
11
statute.  By its terms, § 1427(b) applies to the entire
12
period for which continuous residence is required, “whether
13
preceding or subsequent to the filing of the application for
14
naturalization.”  Plaintiff indicates no statutory exception
15
that applies to his case.   
16
Plaintiff does rely on language in the paragraph
17
preceding the one quoted above, which provides that
18
“[a]bsence from the United States of more than six months
19
but less than one year during the period for which
20
continuous residence is required for admission to
21
citizenship, immediately preceding the date of filing the
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application for naturalization, or during the period between
2
the date of filing the application and the date of any
3
hearing under section 1447(a) of this title, shall break the
4
continuity of such residence.”  § 1427(b).  Plaintiff would
5
have us read that paragraph to define the “period for which
6
continuous residence is required” as only that period
7
“immediately preceding the date of filing the application
8
for naturalization.”  That argument fails because it is
9
based on a misreading of the statute.  
10
First, the paragraph relied upon by Plaintiff applies
11
only to absences ranging from six months to less than one
12
year, as its prefatory words clearly indicate.  And second,
13
even if that first paragraph of § 1427(b) did apply to the
14
circumstances of Plaintiff’s case it would not save him. 
15
The paragraph does not, as Plaintiff maintains, limit the
16
continuous residency requirement to that period of time
17
preceding the filing of the application, nor even to that
18
period of time preceding the naturalization interview.  The
19
next clause clearly states: “or during the period between
20
the date of filing the application and the date of any
21
hearing under section 1447(a) of this title.” §
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1427(b)(emphasis added).  Section 1447(a) provides for an
2
administrative hearing before an immigration officer
3
following the denial of an application for naturalization. 
4
The two clauses, read together, therefore embody the entire
5
relevant period with respect to continuous residence: the
6
period immediately preceding  the filing of the application,
7
and the period subsequent  to the filing of the application
8
until the sooner of the applicant’s admission to
9
citizenship, or an administrative hearing following denial
10
of the application.  Because Plaintiff’s § 1447(a) hearing
11
occurred on or around November 26, 2006, over one year after
12
his return to the United States, even if the first paragraph
13
of § 1427(b) applied to the facts of Plaintiff’s case it
14
would clearly be no help to him.    
15
Plaintiff further contends that nothing in the
16
legislative history surrounding § 1427 suggests that
17
Congress intended for the one-year absence bar to apply
18
against post-interview absences.  But because the statute is
19
clear and unambiguous, we will not endeavor to divine the
20
intent of Congress by resort to legislative history.  See
21
Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d Cir. 2003). 
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Finally, while Plaintiff concedes that his initial
2
departure was voluntary, he maintains that his continued
3
absence was involuntary because the CBP would not permit him
4
to reenter the country in April of 2005, as he originally
5
intended.  Plaintiff argues that it is unfair to deny him
6
eligibility because he attempted to return to the United
7
States at that time, but was prohibited from boarding his
8
flight as the result of bureaucratic errors on the part of
9
the Defendant-agencies.  Even assuming that relief from the
10
clear terms of the statute would be warranted under a
11
different set of facts, the circumstances of this case do
12
not support such a result.  Plaintiff is neither exempt from
13
the continuous residence requirement nor does he present a
14
set of facts that would warrant an estoppel.  
15
16
Conclusion
17
18
The Court has reviewed Plaintiff’s remaining arguments
19
and finds them to be without merit.  Accordingly, the
20
judgment of the district court is hereby AFFIRMED.
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