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                           United States Court of Appeals
                                    Tenth Circuit
  
                                     FEB 2 2001
  
                                   PATRICK FISHER
                                        Clerk                           
							
				UNITED STATES COURT OF APPEALS
         
                               FOR THE TENTH CIRCUIT
                          _______________________________
         
         GUSTAVO GALVEZ-LETONA,           PENNSYLVANIA COALITION OF  CITIZENS
                                          WITH DISABILITIES;  PENNSYLVANIA
              Petitioner-Appellee,             COUNCIL ON  INDEPENDENT LIVING;
                                           PENNSYLVANIA STATEWIDE  INDEPENDENT
         v.                               LIVING COUNCIL;  PUBLIC INTEREST
                                          LAW CENTER OF  PHILADELPHIA;
         WAYNE KIRKPATRICK, Acting  OfficerNORTHEAST  PENNSYLVANIA CENTER
         in Charge, JOSEPH GREENE,  DistrictFOR  INDEPENDENT LIVING; VISION
         Director, Immigration &  NaturalizationFOR  EQUALITY; AMERICAN JEWISH
         Service, JANET RENO,  United      CONGRESS; CATHOLIC CHARITIES
         States Attorney General,          USA; UNITED JEWISH  COMMUNITIES;
                                          LUTHERAN  IMMIGRATION & REFUGEE
              Respondents-Appellants,           SERVICE; MEXICAN AMERICAN  LEGAL
         ________________________         DEFENSE AND EDUCATION  FUND;
                                          ASIAN AMERICAN LEGAL  DEFENSE
         AMERICAN IMMIGRATION  LAWYERS    AND EDUCATION FUND;  FRIENDS
         ASSOCIATION;  NATIONAL ASSOCIATIONCOMMITTEE ON  NATIONAL LEGISLATION;
         OF  PROTECTION & ADVOCACY  SYSTEMS; IMMIGRANT LEGAL RESOURCE  CENTER;
         DISABILITY LAW  CENTER; THE ARC  IMMIGRATION AND  REFUGEE SERVICES
         OF THE UNITED  STATES; THE ARC   OF AMERICA;  NATIONAL ASIAN PACIFIC
         OF UTAH; THE  ARC OF ALLEGHENY;   AMERICAN LEGAL CONSORTIUM;  NATIONAL
         THE ARC OF  MONTGOMERY COUNTY,   CENTER ON POVERTY  LAW; NATIONAL
          PENNSYLVANIA; AMERICAN  ASSOCIATIONIMMIGRATION  LAW CENTER; NATIONAL
         ON MENTAL  RETARDATION; BAZELON  COUNCIL  OF LA RAZA; ASIAN PACIFIC
         CENTER  FOR MENTAL HEALTH LAW;    AMERICAN LEGAL CENTER OF  SOUTHERN
          DISABILITY RIGHTS EDUCATION      CALIFORNIA; FUND FOR  IMMIGRANTS
         &  DEFENSE FUND; DISABILITY  RIGHTSAND REFUGEES;  CAPITAL AREA IMMIGRANTS'
         COUNCIL OF GREATER  WASHINGTON;   RIGHTS COALITION; FLORIDA  JUSTICE
         NATIONAL SENIOR  CITIZENS LAW    INSTITUTE; FLORIDA  IMMIGRANT
         CENTER; NEW YORK  LAWYERS FOR    ADVOCACY CENTER;  FLORIDA LEGAL
         THE PUBLIC  INTEREST; ACCESS     SERVICES; UTAH
         LIVING OF  METROPOLITIAN CHICAGO;
                                          

MINORITY BAR ASSOCIATION;  HEARTLAND ALLIANCE FOR  HUMAN NEEDS AND HUMAN  RIGHTS; HEBREW IMMIGRANT AID  
SOCIETY AND COUNCIL  MIGRATION SERVICE OF  PHILADELPHIA; ILLINOIS  COALITION FOR IMMIGRANT AND  REFUGEE RIGHTS; 
INTERNATIONAL  INSTITUTE OF LOS ANGELES;  INTERNATIONAL INSTITUTE OF  THE EAST BAY; COUNCIL OF  SENIOR CENTERS AND 
SERVICES  OF NEW YORK CITY; LEGAL  ASSISTANCE FOR SENIORS; NEW  YORK IMMIGRATION COALITION;  NORTHWEST IMMIGRANT RIGHTS  
PROJECT; SOUTHEAST REGIONAL  IMMIGRATION AND CITIZENSHIP  COALITION; ALBUQUERQUE  BORDER CITY PROJECT; AMERICAN  
ASSOCIATION OF JEWS FROM THE  FORMER USSR; AMERICAN  NETWORK OF COMMUNITY  OPTIONS AND RESOURCES; ASIAN  COMMUNITY 
AND CULTURAL  CENTER; ASIAN LAW ALLIANCE;  ASIAN PACIFIC DEVELOPMENT  CENTER; CABRINI IMMIGRANT  SERVICES; CARIBBEAN 
WOMEN'S  HEALTH ASSOCIATION; CATHOLIC  CHARITIES COMMUNITY AND  IMMIGRANT SERVICES; LINCOLN  INTERFAITH COUNCIL; CLARE'S  
WELL; LUTHERAN SOCIAL  SERVICES OF MINNESOTA;  MASSACHUSETTS IMMIGRANT AND  REFUGEE ADVOCACY COALITION;MONTAGNARD/DEGA  
ASSOCIATION; KOREAN AMERICAN  COALITION; NATIONAL EVANGELICAL SLAVIC  ASSOCIATION;  NATIONAL  FEDERATION OF FILIPINO
AMERICAN ASSOCIATIONS;  OFICINA  LEGAL/IMMIGRANT LAW  CENTER; SISTERS OF ST. JOSEPH OF  ORANGE; UTICA CITIZENS IN  ACTION; 
VERMONT  REFUGEE  RESETTLEMENT PROGRAM,
                                          
                                               Amici Curiae.
                                          
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     
                                 
                                          
                                          No. 99-4195                      
                                          
							(D. Utah)                        
                                          
							(D.C. No. 99-CV-83-K)            
                                          

                                 
                                          
                 _______________________________
         
         ORDER AND JUDGMENT(1)
                          _______________________________
         
         Before MURPHY and ANDERSON, Circuit Judges, and KANE, District Judge.(2)
                          _______________________________
         
              Respondents-Appellants Wayne Kirkpatrick, Joseph Greene and Janet Reno 

         (collectively the Immigration and Naturalization Service ("INS")) seek reversal of the 

         district court order granting the application for naturalization of Petitioner-Appellee 

         Gustavo Galvez-Letona ("Galvez") and ordering the INS to naturalize him forthwith. 

         The INS had denied Galvez's application for citizenship because he could not demonstrate that 
		 
		 he was attached to the principles of the Constitution, understood the 

         oath of allegiance and was willing to take the oath as provided in sections 316(a) and 

         337(a) of the Immigration and Nationality Act, 8 U.S.C. .. 1427(a), 1448(a).  There is 

         no dispute that the only reason Galvez could not make this showing was because of 

         physical disabilities and mental impairment resulting from severe Downs Syndrome.  It is 

         undisputed that Galvez otherwise met all qualifications for citizenship.

              The district court ordered the INS to grant Galvez's request for naturalization 

         upon finding that the INS had violated section 504 of the Rehabilitation Act, which 

         prohibits any executive agency from denying a government benefit to an "otherwise 

         qualified individual . . . solely by reason of her or his disability."  29 U.S.C. . 794(a).  In 

         the district court and on appeal, the INS argued against this result on the ground that the 

         oath of allegiance and attachment are essential requirements for naturalization that 

         cannot be waived pursuant to the Rehabilitation Act or otherwise.  

              After this appeal was submitted for decision, Congress amended the Immigration 

         and Nationality Act expressly to grant the Attorney General discretion to waive the oath 

         and attachment requirement if, in the opinion of the Attorney General, the applicant was 

         unable to understand or comply with this requirement as a result of a disability or mental 

         impairment.  Pub. L. 106-448, 114 Stat. 1939 (2000) (amending 8 U.S.C. . 1448(a)).  In 

         supplemental briefing, the INS represented to the Court that Galvez is qualified for 

         (1)     *This order and judgment is not binding precedent, except under the doctrines of law 
         of the case, res judicata, and collateral estoppel.  The court generally disfavors the 
         citation of orders and judgments; nevertheless, an order and judgment may be cited under 
         the terms and conditions of 10th Cir. R. 36.3.
         (2)     Honorable John L. Kane, Jr., United States District Judge for the District of 
         Colorado, sitting by designation.
         

         waiver of the oath and attachment requirements under this provision and that it had decided to waive 
		 
		 these requirements for Galvez and approve his application for 

         naturalization.  The INS further asserted that these representations moot this appeal and 

         require us to vacate the district court judgment.  

             We disagree.  Pursuant to the district court's order, the INS issued Galvez a 

        certificate of citizenship in November, 1999.  The INS maintains that this certificate will 

        terminate and Galvez's right to citizenship pursuant to it will be void ab initio if this 

        Court vacates or reverses the district court's order.  Conversely, if we affirm the district 

        court's judgment, the INS has stated that it will acknowledge Galvez's citizenship for all 

        purposes as conferred by the November, 1999 certificate and will formally notify Galvez 

        of such acknowledgment.  In its supplemental briefing to this Court, the INS indicated 

        that, notwithstanding its recent decision to waive the oath and attachment requirement for 

        Galvez and approve his request for naturalization, it will require Galvez to obtain a new 

        certificate of naturalization rather than affirm the validity of Galvez's existing certificate 

        and any benefits he has obtained in reliance on it.  Under these circumstances, the validity 

        of Galvez's November, 1999 certificate of naturalization remains at issue and this case is 

        not moot.  See City of Albuquerque v. Browner, 97 F.3d 415, 420 (10th Cir. 1996)(case is 

        not moot unless effects of alleged misconduct are "completely and irrevocably 

        eradicated.").

             Turning to the merits of the appeal, we affirm the district court's judgment, but on
        

        grounds other than those stated by that court.(1)  As described above, Congress' recent 

        amendment of the Immigration and Naturalization Act grants the INS discretion to waive 

        the oath and attachment requirement for disabled persons.  This amendment applies to all 

        persons applying for naturalization "before, on, or after the date of the enactment of this 

        Act."  Pub. L. 106-448, . 2.  The INS has informed the Court that Galvez is eligible for 

        this waiver and that it would exercise its discretion to approve Galvez's application for 

        naturalization if the application was newly presented to it.  This INS determination is 

        applicable to the Galvez naturalization application acted upon by the district court.  As the 

        INS has determined that the oath and attachment requirement should be waived for 

        Galvez and that he is otherwise entitled to naturalization, we AFFIRM on this basis the 

        district court order directing the INS to grant Galvez's application for naturalization.  

             In light of this decision, we deny the INS's Motion to Vacate the Judgment of the 

        District Court and to Remand With Direction to Dismiss, and deny as moot Galvez's 

        Motion for Summary Affirmance.

                                           Entered for the Court

        

                                           John L. Kane, Jr.
                                           District Judge

        (1)        As a result, we do not address the district court's holding that the INS violated 
        section504 of the Rehabilitation Act when it denied Galvez's application for 
        naturalization.



			   
			   


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