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ASAMOAH v. U.S. IMMIGRATION AND NATURALIZATION SERVICE

April 1, 2004.

BENJAMIN ASAMOAH, Plaintiff/Petitioner -against- UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, JAMES ZIGLAR, COMMISSIONER, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, and EDWARD J. MCELROY, DISTRICT DIRECTOR, NEW YORK DISTRICT, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendants


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

MEMORANDUM OPINION & ORDER

Benjamin Asamoah ("Petitioner") has filed a petition for a de novo review, pursuant to 8 U.S.C.A. § 1421(c), of the denial by the United States Immigration and Naturalization Service ("INS") of his application for naturalization. Presently before the court are petitioner's motion for summary judgment and defendants' cross-motion for summary judgment, both made pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, both motions are denied without prejudice.

I. BACKGROUND

  Petitioner is a fifty-two year old Ghanaian, who was granted the status of lawful permanent resident of the United States on July 17, 1985.

  Criminal History

  On May 4, 1987, petitioner was arrested in New York City, and on September 7, 1988, pleaded guilty in New York State Supreme Court, New York County, to nine counts of offering a false instrument for filing in the first degree. On October 21, 1988, he was sentenced to five years of probation on each count, to run concurrently. On January 20, 1993, a petition for and Page 2 termination of probation was signed by probation officials, who stated that during the four years and three months of probation completed by petitioner "No problems or dysfunctional behavior have been reported." The petition included the following statements: "We believe that the probationer is no longer in need of such guidance, training and other assistance which would otherwise be administered through probation supervision. We believe that the probationer has complied with the terms and conditions of probation." In response to that recommendation, the County Court of Westchester County, New York, discharged petitioner from probation on February 8, 1993.

  Initial Application for Naturalization

  On or about April 30, 1997, petitioner filed an Application for Naturalization on form N-400 with the New York District Office of the INS. The details of petitioner's prior arrest and guilty plea were included in the application. Petitioner's preliminary examination was conducted by District Adjudication Officer J. Seon ("Seon") on August 20, 1999. When questioned as to his good moral character, petitioner admitted his prior arrest and guilty plea. Seon requested further supporting documentation from petitioner at the close of the examination, including, inter alia, the disposition of his arrest. This documentation was supplied by petitioner on September 9, 1999. In a decision dated September 26, 2000, petitioner's application was denied. The decision quoted extracts from 8 C.F.R. § 316.2(b),*fn1 316.10(a),*fn2 and 316.10(c),*fn3 and described petitioner's criminal history in the following way:

  A review of Service records shows that on 8/27/87, you were arrested, and charged, under the New York Penal Code, on indictment for offering a false instrument for filing in the first degree. On 9/7/88, you pled guilty to the crime. On 10/21/88, you were sentenced to five years probation.

  The decision then concluded:

  Based on the foregoing you have failed to establish your good moral character. Consequently, you have failed to establish your eligibility for citizenship under the Page 3 provisions of Section 316 of the [Immigration and Nationality] Act; and therefore, your application is denied as a matter of law. This denial is without prejudice to your filing an application for citizenship when you become eligible under the applicable provisions of the Act.

  Administrative Appeal

  Petitioner filed an administrative appeal of the denial on October 24, 2000. On April 23, 2001, District Adjudication Officer Earline Wilson ("Wilson") conducted an examination of petitioner. On August 22, 2001, Wilson issued a decision denying petitioner's application. The decision assessed petitioner's claim in the following way:
A review of service records indicated that you were still on probation during the statutory period. Therefore you were ineligible for naturalization on this application.
8 C.F.R. § 103.2(b)(12) says:
"An application or petition shall be denied where evidence submitted in response for a request for initial evidence does not establish filing eligibility at the time the application or petition was filed."
Also, C.F.R. § 316.10(c)(1) indicates:
"An application (for naturalization) will not be approved until after the probation, parole, or suspended sentence has been completed."
In view of the foregoing, the decision to deny your application for naturalization must remain unchanged.
The Instant Proceedings
  On November 30, 2001, petitioner filed a petition for a de novo review of the denial of his application for naturalization, pursuant to 8 U.S.C.A. § 1421(c). Petitioner gives as the two grounds for his petition that (a) "The refusal of the INS to grant the application for naturalization ...

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