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ASAMOAH v. U.S. IMMIGRATION AND NATURALIZATION SERVICE

United States District Court, S.D. New York


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 was arbitrary, capricious and an abuse of discretion" and (b) "The INS applied an incorrect legal standard regarding Petitioner's good moral character, and his eligibility for naturalization." On May 22, 2002, petitioner filed a motion for summary judgment. On May 31, 2002, defendants filed a cross-motion for summary judgment.

 II. DISCUSSION

 1. Relevant Standards

 A. Summary Judgment Standard

  Summary judgment is proper where "[t]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no Page 4 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact is present if the fact "might affect the outcome of the suit under governing law" and the supporting evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In evaluating a summary judgment motion, "[t]he judged function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. "In making its determination, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Sorlucco. v. New York City Police Department, 888 F.2d 4, 5 (2d Cir. 1989). That is to say, the deposition testimony, affidavits, and documentary evidence must be viewed in the light most favorable to the plaintiff. Roge v. NYP Holdings, Inc., 257 F.3d 164, 165 (2d Cir. 2001). The burden is on the movant to demonstrate that no genuine issue exists respecting any material fact. See Gallo v. Prudential Residential Servs., Lt'd P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[I]n moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Where the initial showing is not made, "summary judgment will be denied, even though the party opposing the motion has submitted no probative evidence to support its position or to establish that there is a genuine issue for trial." U.S. v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976). Where the initial showing is made, the nonmoving party must then meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. Where the nonmoving party bears the ultimate burden of proof at trial, the motion may not be rebutted by restating allegations in the pleadings or statements in the party's own affidavit. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is appropriate when the party opposing the motion relies exclusively on "conclusory allegations or denials." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).

 B. Naturalization Standard

  An applicant seeking naturalization must strictly comply with the requirements for citizenship established by Congress, Fedorenko v. U.S., 449 U.S. 490, 506-07, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), and bears the burden of establishing "eligibility for citizenship in every respect." INS v. Pangilinam, 486 U.S. 875, 884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988). See 8 C.F.R. § 316.2 ("The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization . . ."). "[W]hen doubts exist concerning a grant of [citizenship], generally at least, they should be resolved in favor of the United States and against the claimant." United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct. 328, 329(1928).

  Section 1427(a) of Title 8 provides that "no person . . . shall be naturalized unless such Page 5 applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." Only the "good moral character" requirement is currently before us. Determinations of good moral character pursuant to this statutory provision are made on a case by case basis in accordance with the "generally accepted moral conventions current at the time." Repouille v. U.S., 165 F.2d 152, 153 (2d Cir. 1947). See 8 C.F.R. § 316.10(a)(2) ("the Service shall evaluate claims of good moral character on a case-by-case basis taking into account . . . the standards of the average citizen in the community of residence."). "We do not require perfection in our new citizens." Klig v. U.S., 296 F.2d 343 (2d Cir. 1961). A person "may have a `good moral character' though he has been delinquent upon occasion in the past; it is enough if he shows that he does not transgress the accepted canons more often than is usual." Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961). The statute "is not penal; it does not mean to punish for past conduct, but to admit as citizens those who are likely to prove law-abiding and useful." Id. at 535-35. Circumstances "may change us all." Id. at 535.

  The statutory period during which good moral character is to be assessed is "five years immediately preceding the date of filing his application . . . up to the time of admission to citizenship." 8 U.S.C. § 1427(a)(1) and (2). Section 1427(e) further provides that "in determining whether the applicant has sustained the burden of establishing good moral character . . . the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period." The implementing regulations provide that conduct prior to the five year statutory period may be taken into consideration "if the conduct of the applicant during the statutory period does not reflect that there has ben reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character." 8 C.F.R. § 316.10(a)(2).

  The implementing regulations state that an applicant who was on probation, parole or suspended sentence for all or part of the statutory period "is not thereby precluded from establishing good moral character." 8 C.F.R. § 316.10(c). However, "such probation, parole, or suspended sentence may be considered by the Service in determining good moral character." Id.

  Title 8 of the United States Code, Section 1421(c) provides that "a person whose application for naturalization under this title is denied . . . may seek review of such denial before the United States district court . . . Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application." Page 6

 2. Application

 A. Petitioner's motion for summary judgment

  Petitioner has failed to sustain his burden of demonstrating that no genuine issue exists respecting any material fact. Petitioner is not entitled to naturalization unless he can bear the burden of establishing that he is, and was through the statutory period, a person of good moral character. While we are not unsympathetic to petitioner's criticisms of the manner in which petitioner's administrative application was handled, even a clear error in the administrative handling of petitioner's application would not guarantee success in the judicial sphere, since petitioner bears the burden of establishing "eligibility for citizenship in every respect." INS v. Pangilinam, 486 U.S. 875, 884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988). Petitioner claims that he "is currently and was a person of good moral character during the statutory five-year period," See. e.g., Pl.'s Further Resp. in Opp'n to Defs.' Cross-mot, at 3. In support of that claim he states that he "is gainfully employed; he is married and living with his wife and children; he has paid his taxes; and has had no problems with the law during the statutory five-year period." Pl.'s Resp. to Defs.' Cross-mot, at 4. Defendants have raised a genuine issue of material fact by indicating apparent discrepancies among documents in the administrative record. Defendants note, for example, that the start and end dates of petitioner's marriages contained in various documents submitted to the INS are inconsistent, and that the record appears to indicate that petitioner was at one time married to two women simultaneously. They also note discrepancies regarding the number and birth dates of petitioner's children recorded in documents submitted to the INS. It is true that these discrepancies, depending as they do on alleged behavior of petitioner outside the statutory period, may be considered in relation to petitioner's application only "if [petitioner's conduct] during the statutory period does not reflect that there has ben reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character." 8 C.F.R. § 316.10(a)(2). However, drawing all reasonable inferences in favor of the nonmoving party, as we must, Sorlucco. v. New York City Police Department, 888 F.2d 4, 5 (2d Cir. 1989), we find that resolution of the uncertainty regarding the administrative record "might affect the outcome of the suit under governing law" and the supporting evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, petitioner's motion for summary judgment must be denied.

 B. Defendants' motion for summary judgment

  Defendants have failed to sustain their burden of demonstrating that no genuine issue exists respecting any material fact. The central issue regarding petitioner's naturalization application concerns his possession vel non of good moral character within the statutory period, and defendants fail to show an absence of genuine issue as to that. The fact that the continuation of a period of probation into the start of the statutory period is not a bar to the establishment of good moral character is clearly stated in 8 C.F.R. § 316.10(c). While it is true that probation acts as a restriction upon one's liberty, see, e.g., United States v. Knights, 534 U.S. 112, 119, 151 L.Ed.2d 497, 591 (2001), it does not "undermine [petitioner's] claim to good moral character," Defs.' Mem. in Opp'n to Pl.'s Summ. J. Mot. at 18, but merely constitutes one factor to be considered. See Page 7 8 C.F.R. § 316.10(c)(1). We disagree with defendants' suggestion that completing probation is "far from demonstrating reform." Probation is designed to bring about, and provides an opportunity to demonstrate, rehabilitation See, e.g., Roberts v. United States, 320 U.S. 264, 272 (1943); United States v. Mele, 117 F.3d 73, 75 (2d Cir. 1997). petitioner was adjudged to have taken that opportunity is suggested by his early discharge, and the probation officials' accompanying comments.

  Other than the period of probation, defendants' motion relies upon actions by petitioner that occurred outside the statutory period. The burden on petitioner is to show good moral character only within the statutory period Thus, occurrences outside the statutory period cannot be the basis for a finding of no good moral character. They may be taken into consideration only "if the conduct of the applicant during the statutory period does not reflect that there has ben reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character." 8 C.F.R. § 316.10(a)(2). Defendants appear to argue that elements of petitioner's conduct prior to the statutory period show that petitioner has failed to demonstrate that he has reformed. Defs.' Reply Mem. at 3. This invocation of conduct outside the statutory period to show why conduct outside the statutory period should be considered is ambitious at best, and certainly falls short of a demonstration that there is no material issue of fact as to whether petitioner is and has been of good moral character during the relevant period.

 III. CONCLUSION

  For the foregoing reasons, both petitioner's motion and defendants' motion for summary judgment are denied without prejudice to refiling upon completion of discovery. Defendants' request that discovery be permitted prior to the de novo hearing is granted. The schedule for discovery and the de novo hearing will be set at the conference currently scheduled for April 27, 2004. The parties are to confer prior to that date, and submit a proposed schedule for the court's review on or before April 23, 2004.

  SO ORDERED.


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