The opinion of the court was delivered by: JOHN SPRIZZO, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Kai Tung Chan, brings this action, pursuant to
8 U.S.C. § 1421(c), seeking a de novo hearing of his application
for naturalization following a denial of that application by the
United States Citizenship and Immigration Service ("CIS" or
"defendant"). Defendants, CIS and Mary Ann Gantner, bring this
motion for summary judgment pursuant to Rule 56(c) of the Federal
Rules of Civil Procedure. For the reasons set forth below, the
Court grants defendants' motion.
Kai Tung Chan, a native and citizen of the People's Republic of
China, entered the United States on December 20, 1975. See
Pl.'s Statement of Undisputed Facts ("Pl.'s Statement") ¶ 1-2;
Defs.' Statement Pursuant to Local Civil Rule 56.1(a) ("Defs.'
Statement") ¶ 1-2. Following his marriage to an United States
citizen, Laraine Ann Pisciotta, Chan was granted the status of
permanent resident on October 30, 1985. See Pl.'s Statement ¶
3; Decl. of F. James LoPrest, Jr., dated Dec. 7, 2004, Ex. A
("Record of Proceedings"), at 206-19.
In December 1992, Chan was indicted for smuggling illegal
aliens in violation of 8 U.S.C. § 1324(a) (2) and for conspiracy
to do the same in violation of 18 U.S.C. § 371. See Record of
Proceedings at 175-78. Chan pleaded guilty to count one of the
indictment, which was "Conspiracy to Smuggle Illegal
Aliens,"*fn1 and judgment was entered against him on October 8, 1993. Id. at 171; Defs.' Statement ¶
As a result of plaintiff's plea, CIS's precursor, the
Immigration and Naturalization Service, initiated deportation
proceedings against him. See Record of Proceedings at 153-58;
Pl.'s Statement ¶ 10. Chan sought discretionary relief from
deportation pursuant to section 212(c) of the Immigration and
Nationality Act of 1952, 8 U.S.C. § 1182(c),*fn2 and, by
written opinion dated May 6, 1996, an immigration judge granted
that request and terminated plaintiff's deportation proceedings.
See Record of Proceedings at 56-64; Pl.'s Statement ¶ 12.
On March 20, 2002, plaintiff submitted an application to the
Immigration and Naturalization Service to become a naturalized
citizen of the United States. See Defs.' Statement ¶ 6.
Defendants denied that application on May 2, 2003, reasoning that
plaintiff's conviction rendered him "unable to establish Good
Moral Character" for the statutorily-required period. See
Record of Proceedings at 12-13; Pl.'s Statement ¶ 7. Chan
administratively appealed that decision. See Defs.' Statement ¶
8. Upon reconsideration, defendants upheld the earlier decision
and denied plaintiff's application, finding that plaintiff was
"convicted of an aggravated felony . . . on or after 11-29-1990"
and therefore was precluded from establishing good moral
character. Record of Proceedings at 1 (citing
8 C.F.R. § 316.10(b)(ii)); Defs.' Statement ¶ 9.
Plaintiff filed a complaint dated February 9, 2004 in this
Court seeking a de novo review of his application for
naturalization. Compl. ¶ 9. The Court held Oral Argument on
defendants' Motion for Summary Judgment on April 14, 2005.
Because plaintiff raised arguments that were not addressed in his
Response to defendants' Motion, this Court ordered the parties to submit supplemental letter briefs solely
directed at the constitutionality of retroactively applying
section 321 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208
(expanding "aggravated felony" to include plaintiff's conduct
here and applying the term to the enumerated offenses "regardless
of whether the conviction was entered before, on, or after
[September 30, 1996]"). See Order, dated Apr. 14, 2005.
Defendants submitted a letter dated April 29, 2005, Letter of F.
James LoPrest, Jr., and plaintiff responded by letter dated May
23, 2005, Letter of Michael P. DiRaimondo ("DiRaimondo Letter").
A court may only grant summary judgment when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56
(c). All ambiguities and factual inferences must be drawn in
favor of the party opposing the motion. See Mitchell v.
Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999).
Among other requirements, an applicant for naturalization bears
the burden of showing that during the five years preceding the
filing of his application he "has been and still is a person of
good moral character." 8 U.S.C. § 1427 (a) (3), (e); see also
Berenyi v. District Director, Immigration & Naturalization
Serv., 385 U.S. 630, 637 (1967); 8 C.F.R. § 316.10(a)(1).
Although determination of good moral character is normally a
matter of discretion, see 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10
(a) (2), Congress has provided a list of traits which, if
possessed by the applicant, bar his ability to show good moral
character, 8 U.S.C. § 1101 (f). Section 1101 (f) provides, in
relevant part, that "[n]o person shall be regarded as, or found
to be, a person of good moral character who, during the period
for which good moral character is required to be established, is,
or was . . . one who at any time has been convicted of an
aggravated felony (as defined in subsection (a) (43))." Id. §
1101 (f) (8). Among the felonies enumerated as aggravated
felonies in 8 U.S.C. § 1101 (a) (43) are "an offense described in paragraph (1) (A) or (2) of [8 U.S.C. § 1324 (a)] (relating to
alien smuggling)," id. § 1101 (a) (43) (N), and "an attempt or
conspiracy to commit an offense described in this paragraph,"
id. § 1101 (a) (43) (U). All enumerated offenses are deemed
aggravated felonies "regardless of whether the conviction was
entered before, on, or after September 30, 1996." Id. § 1101
Plaintiff has advanced four arguments as to why his 1993
conviction for conspiracy to smuggle illegal aliens should not
preclude him from establishing his good moral character.
First, plaintiff argues that he "has not been convicted of an
aggravated felony" because "[a] violation of 18 U.S.C. § 371 is
not an aggravated felony as defined ...