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CHAN v. GANTNER

June 23, 2005.

KAI TUNG CHAN, Plaintiff,
v.
MARY ANN GANTNER, INTERIM DISTRICT DIRECTOR, and the UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, Defendants.



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.

  BACKGROUND

  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 ¶ 4.

  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").

  DISCUSSION

  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 (a) (43).

  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 ...


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