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July 22, 1997

United States of America, Plaintiff,
One 1989 Mercedes Benz, Defendants.

The opinion of the court was delivered by: SCOTT

 Before the Court is the defendant's motion for summary judgment (Docket Item No. 19) *fn1" and the plaintiff's cross-motion for summary judgment (Docket Item # 24). *fn2" Oral argument was heard on Monday April 7, 1997.


 This is a forfeiture action which revolves around a 1989 Mercedes Benz registered to Kerry Hui, who is the claimant in this action. The vehicle was seized by the Immigration and Naturalization Service on December 16, 1995 for allegedly being used in an attempt to illegally transport an individual, Eddie Chan, into the United States.

 The following facts appear undisputed. *fn3" Hui is a naturalized citizen of Canada. On December 16, 1995, Hui drove the vehicle at issue in this action (hereafter referred to as "the Mercedes") to the primary inspection booth at the Rainbow Bridge Port of Entry in Niagara Falls, New York. In the car with Hui was Chan.

 The government further alleges that at the time of the inspection, Hui presented the Immigration and Naturalization Service ("INS") Inspector his Canadian citizenship card for himself and a California identification card for Chan. The government alleges that Chan claimed to be a United States citizen at that time. The government further alleges that when the INS agent questioned Chan, Hui attempted to speak for Chan and had to be instructed to allow Chan to speak for himself. The government asserts that when the INS Inspector asked Chan for further identification, Hui reached into the glove box and produced a California birth certificate in the name of Edward Kuen Choek Chan. Subsequently, Chan was found to possess a Social Security Card numbered 556-50-6038. The government states that after Chan's identification documents were found to be counterfeit, Hui admitted that the documents were, in fact, counterfeit; that Chan was not legally in Canada; and that Chan's passport was carried over the U.S. border in a trail car driven by Sunny K. Cheng. It is alleged that Cheng was found by INS agents in the Howard Johnson's parking lot where, as Hui had allegedly advised the agents, Cheng was told to wait for Hui and Chan. Finally, during oral argument the government further alleged that this plan was undertaken because Chan had previously been deported from Canada, and thus, disclosure of Chan's actual status would have alerted officials to the fact that Chan had been in Canada illegally. Although Hui admits that Chan falsely claimed to be a United States citizen, Hui does not admit to the government's full description of what transpired at the primary and secondary inspections. *fn4"

 The plaintiff argues that notwithstanding any false documents, Chan possessed a valid B-1/B-2 visa in his Hong Kong identity certificate upon which Chan was admitted to the United States at San Francisco, California on December 14, 1995.

 The government does not dispute that Chan possessed a valid visitor's visa and that Chan was lawfully admitted into the United States at San Francisco two days prior to being stopped at the Rainbow Bridge. The government argues, however, that notwithstanding his valid visitor's visa, Chan attempted to enter the United States illegally by misrepresenting his citizenship status in violation of 8 U.S.C. § 1325. Thus, the government argues that it is entitled to seize Hui's automobile under 8 U.S.C. § 1324.


 Standard of Review

 Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2nd Cir. 1992) citing Bryant v. Maffucci, 923 F.2d 979 (2nd Cir. 1991). The non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information Co., 970 F.2d 1110, 1112 (2nd Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A fact is material:

when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."

 General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In fact, "the non-moving party must come forward with enough evidence to support a jury verdict ... and the ... motion will not be defeated merely ... on the basis of conjecture or surmise. " Trans Sport, supra, 964 F.2d at 188, quoting Bryant v. Maffucci, supra. If undisputed material facts are properly placed before the court by the moving party, those facts will be deemed admitted, unless they are properly controverted by the nonmoving party. " Glazer v. Formica Corp., 964 F.2d 149, 154 (2nd Cir. 1992), citing Dusanenko v. Maloney, 726 F.2d 82 (2nd Cir. 1984). The ...

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