United States District Court, S.D. New York
June 23, 2005.
KAI TUNG CHAN, Plaintiff,
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.
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 under the statute."
DiRaimondo Letter at 1-2.
This argument is frivolous. "[A]n attempt or conspiracy to
commit an offense described" in 8 U.S.C. § 1101 (a) (43) is an
aggravated felony. 8 U.S.C. § 1101 (a) (43) (U). Here, there is
no dispute that plaintiff was convicted of conspiracy in
violation of 18 U.S.C. § 371. See DiRaimondo Letter at 1-2.
Therefore, so long as the "substantive crime that is the
objective of a charged conspiracy fits within the aggravated
felony definition . . ., the conspiracy is also an aggravated
felony by virtue of subsection (U)." Kamagate v. Ashcroft,
385 F.3d 144, 152-53 (2d Cir. 2004). Here, Chan pleaded guilty to
count one of the indictment against him, which charged him with
conspiracy to violate 8 U.S.C. § 1324 (a) (2). See Record of
Proceedings at 171, 175. Since that provision is explicitly
enumerated as an aggravated felony, 8 U.S.C. § 1101 (a) (43) (N),
there can be no dispute that Chan's 1993 conviction was for an
aggravated felony. Plaintiff's reliance on Dickson v. Ashcroft,
346 F.3d 44 (2d Cir. 2003), is wholly misplaced and merits no
Second, plaintiff contends that he is not precluded from
establishing his good moral character because his 1993 conviction
is outside "the period for which good moral character is required
to be established," 8 U.S.C. § 1101 (f), or "five years
immediately preceding the date of filing his application," id.
§ 1427 (a); see Pl.'s Mem. at 7-10; DiRaimondo Letter at 2-3.
This argument is unavailing. Although 8 U.S.C. § 1101(f) could
have been more artfully drafted, a number of courts, including
this Court, have held that the statute, since it applies to "one
who at any time has been convicted of an aggravated
felony," 8 U.S.C. § 1101 (f) (8) (emphasis added), acts to
perpetually bar aggravated felons from establishing good moral
character. Hernandez v. Gantner, No. 04 Civ. 3449, 2005 WL
1155684, at *1 (S.D.N.Y. May 2, 2005); see Castiglia v.
Immigration & Naturalization Serv., 108 F.3d 1101, 1102-04 (9th
Cir. 1997); Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 385-86
Third, in an argument first raised at Oral Argument, see Tr.,
dated Apr. 14, 2005 ("Tr."), at 12, 15, and, inexplicably, not
discussed in his supplemental letter, see DiRaimondo Letter at
1-3, plaintiff maintains that applying section 321 of the IIRIRA
to him "has an impermissibly retroactive effect" since the
conduct to which he pleaded guilty to "was not an aggravated
felony" at the time of his conviction.*fn3 See Tr. at 15.
Plaintiff is correct that his 1993 conviction would not have
been deemed an aggravated felony at the time. Alien smuggling did
not join the list of aggravated felonies until 1994, see
Immigration and Nationality Technical Corrections Act of 1994,
Pub.L. No. 103-416, § 222(a), and plaintiff's conviction was not
covered by the statute until 1996, see IIRIRA, Pub.L. No.
104-208, § 321 (a) (8).
Despite this, it is well-settled law that Congress can enact
laws that have retroactive effect by including "a clear
indication . . . that it intended such a result." Immigration &
Naturalization Serv. v. St. Cyr, 533 U.S. 289, 316 (2001); see
also Landgraf v. USI Film Products, 511 U.S. 244, 268 (1994).
In the present case, Congress provided that the term "aggravated
felony" should apply to all enumerated offenses "regardless of whether the conviction was entered before, on, or
after [September 30, 1996]." IIRIRA, Pub.L. No. 104-208, §
321(b). The Supreme Court noted that the language of this
provision "indicate[s] unambiguously [Congress's] intention to
apply" it retroactively, St. Cyr, 533 U.S. at 318-19, and the
Second Circuit, in the context of removal proceedings and
sentencing enhancements, has applied the statute retroactively on
numerous occasions, see, e.g., Brown v. Ashcroft,
360 F.3d 346, 353-54 (2d Cir. 2004); Kuhali v. Reno, 266 F.3d 93, 110-11
(2d Cir. 2001); United States v. Luna-Reynoso, 258 F.3d 111,
114-16 (2d Cir. 2001); Bell v. Reno, 218 F.3d 86, 89 (2d Cir.
2000); see also Flores-Leon v. Immigration & Naturalization
Serv., 272 F.3d 433, 438-40 (7th Cir. 2001). Therefore,
application of this provision to Chan is not impermissibly
retroactive and thus his 1993 conviction is properly deemed an
Finally, plaintiff argues that he is not barred from
establishing his good moral character because his conviction has
been "waived for immigration purposes" by operation of the
discretionary relief from deportation that he received in 1996.
See Pl.'s Mem. at 12.
As discussed at length at Oral Argument, see Tr. at 6-9,
16-19, this argument is unpersuasive. Relief of the sort given to
plaintiff represents a grant of mercy that "gives the alien a
chance to stay in the United States despite his misdeed,"
Molina-Amezcua v. Immigration & Naturalization Serv.,
6 F.3d 646, 647 (9th Cir. 1993), but it does not result in "a pardon or
expungement of the conviction itself," Matter of Balderas, 20
I. & N. Dec. 389, 391 (Bd. of Immigration Appeals 1991). Although
the government faces some limitations as to the use of that
conviction in future removal proceedings, see
8 C.F.R. § 212.3(d); Matter of Balderas, 20 I. & N. Dec. at 391-92, there
is no authority for the proposition that it should be foreclosed
from considering that conviction in determining the completely
unrelated question of fitness for naturalization, see
8 U.S.C. § 1427(d) ("No finding by the Attorney General that the applicant is not
deportable shall be accepted as conclusive evidence of good moral
character."); Donaldson v. United States, No. Civ.A. H-04-911,
2005 WL 1248879 (S.D. Tex. Apr. 26, 2005), especially given the
immeasurable distinction between simply allowing an alien to
remain in this country versus the conferral upon him of the
awesome privilege of United States citizenship and the panoply of
rights and freedoms that come with it, see, e.g., Hamdi v.
Rumsfeld, 124 S. Ct. 2633 (2004); Demore v. Kim, 538 U.S. 510,
521-22 (2003); Berenyi, 385 U.S. at 636-37; Johnson v.
Eisentrager, 339 U.S. 763, 769-71 (1950). Therefore, plaintiff's
receipt of discretionary relief from deportation does not
preclude the use of his conviction as a bar to his establishment
of his good moral character.*fn5
In sum, because plaintiff has been convicted of an aggravated
felony, he is barred in perpetuity from establishing that he is a
person of good moral character and therefore is incapable of
satisfying the burden placed upon him on his application for
Based on the foregoing, defendants' Motion for Summary Judgment
shall be and hereby is granted. The Court directs the Clerk of
the Court to enter judgment for defendants and to close this