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Martin v. Gantner

August 4, 2006

CLEMENS W. MARTIN, PLAINTIFF,
v.
MARY ANN GANTNER, DISTRICT DIRECTOR, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, DEFENDANT.



The opinion of the court was delivered by: Glasser, United States District Judge:

MEMORANDUM AND ORDER

INTRODUCTION

Mr. Clemens W. Martin ("Martin" or "Plaintiff") appeals an adverse determination of his naturalization application by the United States Citizenship and Immigration Services ("CIS," "Defendant" or "Government"). Defendant moves to dismiss, contending that a prior conviction under N.Y. Penal Law § 175.10 for "falsifying business records in the first degree" makes Plaintiff ineligible for naturalization.

BACKGROUND

I. Mr. Clemens W. Martin

A. Family History

The following facts are taken from the Complaint and are assumed to be true for the purpose of this motion. On February 20, 1931 Clemens W. Martin was born in Germany. He immigrated to the United States on September 18, 1952, and has been a lawful permanent resident for 54 years. (Compl. ¶ 5). On March 15, 1954, Martin married Ingeburg Mueller ("Mueller"), who is now a U.S. citizen. (Compl. ¶ 6). Between January 5, 1955 and December 11, 1956, when he was honorably discharged, Martin served in the U.S. military. (Compl. ¶ 5). Since July of 1974, Martin and his family have lived in New York. (Compl. ¶ 2). Martin and Mueller have four children and four grandchildren, all of whom are U.S. citizens and live in or around New York City. (Compl. ¶ 6).

B. Deportation Proceedings

On June 30, 2000 Martin and his wife returned from a 15-day trip to Germany. At JFK International Airport, Martin was questioned by INS agents and his arrest in February 1998 and subsequent conviction for falsifying business records in the first degree was revealed (to be discussed hereafter). Based upon that revelation he was ordered to report for a deferred inspection on August 29, 2000. (Compl. ¶ 7). Following inspection, Martin was served with a notice to appear for removal proceedings by letter dated February 1, 2001. On June 20, 2001 Martin filed an application for naturalization, and removal proceedings were stayed pending a final determination of that application. (Compl. ¶ 10).

On June 2, 2003, Martin was interviewed at the CIS offices regarding his naturalization application. In an undated decision handed down roughly four months after the interview, CIS denied his application asserting a lack of good moral character based upon his conviction, which it found constituted a violation of 8 U.S.C. § 1101(a)(43)(M)(i) (hereinafter "(M)(i)"). (Compl. ¶ 11; "IJ Decision," Attached to the Complaint). Among the offenses in section 1101(a)(43) which lists what that statute defines as "aggravated felonies" is "an offense that--(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000..." § 1101(a)(43)(M)(i). No other basis for denial of his naturalization application was asserted by the CIS.

Martin timely appealed the decision. (Compl. ¶ 12). On October 5, 2004, a hearing on Martin's appeal was conducted by CIS and on March 12, 2005 his appeal was denied. (Compl. ¶ 12; "Decision on Review of Denial of Naturalization Application," Attached to Complaint). Martin now brings this action seeking de novo review of the CIS decision. Before the Court is the Defendant's motion to dismiss his Complaint.

II. The Offense

On February 11, 1998 Plaintiff was arrested pursuant to a felony complaint signed by Detective Frances Braddock, charging him with grand larceny in the second degree*fn1 under N.Y. Penal Law § 155.40 (hereinafter "Larceny Compl.").*fn2 Detective Braddock averred that Aurther Wirsing, owner of Manhattan Floor Supplies ("MFS"), informed her that the defendant had taken property from the business without permission, estimated by Wirsing to be valued at over $50,000. (Id.).

Nearly a year and a half later and on June 16, 1999, a second felony complaint was sworn to by Aurther Wirsing (("Business Records Compl.") attached to the Complaint), charging a violation of § 175.10, falsification of business records in the first degree.*fn3 Wirsing averred that the defendant was employed by MFS and that during that time Martin's responsibilities had included ordering parts for floor sanding equipment.

He further averred that "defendant did order parts which were paid for by Manhattan Floor Supply, but were used by the defendant in his private repair business." (Id.).

On June 16, 1999, the same day that the Business Records Complaint was signed by Aurthur Wirsing, Martin waived indictment and pleaded guilty to an Information alleging one count of falsifying business records in the first degree, in violation of New York Penal Law ยง 175.10. Handwritten on the February 1998 Larceny ...


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