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Naim Saati v. Eric H. Holder

July 21, 2011

NAIM SAATI, PLAINTIFF,
v.
ERIC H. HOLDER, ATTORNEY GENERAL; DEPARTMENT OF HOMELAND SECURITY; JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; MICHAEL AYTES, ACTING DEPUTY DIRECTOR, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; KEVIN E. GALLAGHER, FIELD DIRECTOR, ALBANY FIELD OFFICE; PERRY RHEW, CHIEF ADMINISTRATIVE APPEALS OFFICE; DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff Naim Saati, brings this action for declaratory and injunctive relief pursuant to the Immigration & Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq. and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. The parties have moved for summary judgment pursuant to Fed. R. Civ. P. 56.*fn1 (Dkt. Nos. 16 and 21).

BACKGROUND*fn2

On November 17, 2003, plaintiff, an Israeli citizen, entered the United States on a B-2 visitor's visa for pleasure. Pursuant to the visa, plaintiff was authorized to remain in the United States for a period of six months. On January 12, 2005, plaintiff married Valerie Rhodes, a United States citizen. In August 2005, Ms. Saati filed a Form I-130, Petition for Alien Relative and plaintiff filed a Form I-485, Application to Register Permanent Residence or Adjust Status.

On September 27, 2005, plaintiff and his wife appeared for an interview with the United States Citizenship & Immigration Services ("USCIS") and responded to inquiries about plaintiff's criminal history. Plaintiff admitted that he was previously arrested in Israel. The first arrest was when plaintiff was a juvenile. The second arrest occurred on April 22, 2002. Plaintiff, twenty years old at the time, was charged with possession of a dangerous drug, which plaintiff explained was marijuana. The interview was concluded in order to obtain information regarding plaintiff's prior conviction.

According to court documents, on April 22, 2002, plaintiff was driving a vehicle in which hashish and marijuana were found. The Statement of Indictment from the State of Israel provided:

1. On April 22, 2002, at around 22:00, on Rashbag St. in Jerusalem, Defendant 1*fn3 unlawfully held in his jacket pocket a dangerous narcotic type hashish, with the net weight of 1.61 grams, and further unlawfully held in his pants pocket 1 gram of a dangerous narcotic, cannabis type, with a net weight of 1.44 grams. Defendant 1 further unlawfully held a dangerous narcotic, hashish type, with a net weight of 0.59 grams, which he threw out of the vehicle in which he was traveling.

2. In the same circumstances, Defendant 1 unlawfully supplied Defendant 2 with a dangerous narcotic, hashish type, with a net weight of 5.72 grams. The narcotic was held by Defendant 2 under the chair by the driver in the vehicle of Defendant 1.

The Verdict - Regarding Defendant 1 provided:

On the foundation of the defendant's response to the statement of the indictment, which includes an admission of the facts in the statement of the indictment, I convict him of an offense in accordance with Article 7(A) the latter part of (C) of the dangerous Narcotics Ordinance (New Version) 5733-2003.

Due to plaintiff's failure to inform authorities of his prior arrests in the course of applying for a visitor's visa, plaintiff was found inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)*fn4 as an alien who sought to procure a visa by fraud or willfully misrepresenting a material fact. Plaintiff was also deemed inadmissible on the basis of plaintiff's controlled substance conviction pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II).*fn5 On March 20, 2007, plaintiff filed a Form I-601 waiver application in an effort to overcome his inadmissibility pursuant to 8 U.S.C. §§ 1182(a)(6)(C) and 1182(a)(2)(A)(i)(II). Under 8 U.S.C. § 1182(h)*fn6 and (i)*fn7 , the USCIS has the discretion to issue a waiver so long as the alien shows that denial of admission would result in extreme hardship to the alien's spouse.

On June 19, 2007, USCIS again interviewed plaintiff and his wife regarding the pending I-130 petition and the pending adjustment and inadmissibility waiver applications. USCIS approved Ms. Saati's I-130 petition for plaintiff as her alien relative husband. However, at the conclusion of the interview, USCIS did not issue a decision on plaintiff's adjustment or waiver applications and provided plaintiff twelve weeks to submit evidence supporting the claims in his waiver petition. Specifically, plaintiff was provided with time to prove that his wife would suffer extreme hardship if USCIS did not waive plaintiff's inadmissibility and if plaintiff was removed from the United States.

On August 29, 2007, plaintiff provided USCIS with documents in support of his waiver application. According to plaintiff's amended complaint, these documents included letters from Christine Sawtelle (plaintiff's employee), Rabbi Paul B. Silton, Colleen Murphy (plaintiff's mother-in-law), Andrea Saati, Valerie Saati and Jeffrey H. Fox, Ph.D (a mental services provider who treated plaintiff's wife). In addition, plaintiff claims that he supplied a letter from Albany Law School confirming that his wife was enrolled.

On September 27, 2007, USCIS issued a decision denying plaintiff's Application for Waiver of Grounds of Excludability (Form I-601). The USCIS found:

Upon review of the documentation submitted in support of the waiver of inadmissibility it does not appear that the factors in this case rise to the level of extreme hardship. Therefore, the evidence does not establish that the applicant is able to show extreme hardship over and above the normal economic and social disruptions involved in the deportation of a family member.

On the same date, the USCIS issued a decision denying plaintiff's Application for Status as Permanent Resident. The agency concluded, " [t]he instant application is denied on the grounds that the applicant is inadmissible under Section 212(a)(2)(A)(i)(II) and Section 212(a)(6)(c)(i) of the Act. Any permission to remain in the United States or any employment authorization, previously granted to the applicant, is hereby revoked as of this date."*fn8

On October 16, 2007, plaintiff filed a motion to reopen the denial of his I-601 waiver application. On October 22, 2007, plaintiff's motion to reopen was denied. On October 26, 2007, plaintiff filed an appeal of the motion to reopen with the Administrative Appeals Office ("AAO"). On July 13, 2010, the AAO dismissed plaintiff's appeal finding: . . . the applicant had, prior to supplying hashish to Nissim Tzuna, possession of 7.47 grams of hashish. The drug equivalency of 1 gram of marihuana/cannabis (granulated or powdered) is 1 gram of marihuana, and 1 gram of hashish is equivalent to 5 grams of marihuana. See United States Sentencing Commission Supplement to the 2000 Guidelines Manual, dated May 1 2001, Drug Equivalency Table. In order to be eligible for consideration for a waiver under section 212(h) of the Act, the applicant must establish that his conviction was for the drug equivalency of 30 grams or less of marijuana. The applicant has not demonstrated that his conviction for possession of cannabis and hashish meets the requirement of being a single offense of simple possession of 30 grams or less of marijuana.

The Drug Equivalency Table is a source for drug quantity calculation and conversion rates to be used when the drug at issue is not listed in the federal criminal statutes among common drugs and their penalties. The AAO found that at the time of his 2002 arrest, plaintiff possessed the equivalent of 49.79 grams of marijuana.*fn9 The decision informed plaintiff that he had an opportunity to file a motion to reconsider or a motion to reopen if plaintiff had "additional information".

On August 13, 2010, plaintiff filed a motion to reopen with the AAO using form I-290B Notice of Appeal or Motion. Plaintiff argued:

1. The decision erred by concluding that the applicant engaged in trafficking a controlled substance and possessed more than 30 grams of marijuana. The only evidence referred to in the decision was the police report and charging document. The decision also concluded that the applicant admitted to all the facts in the charge document. Those conclusions are not correct. An affidavit from the applicant confirming this is attached.*fn10

2. The decision raised a ground of inadmissibility which was never raised when the applicant first sought a waiver of inadmissibility. The AAO should not have raised this issue for the first time without allowing applicant to respond to it.

On December 23, 2010, the AAO granted the motion to reopen and affirmed its prior decision. In the decision, the AAO noted, "we determined that, in accordance with the drug equivalency tables found in the U.S. sentencing guidelines, the applicant possessed marijuana or its equivalent in a total amount of 49.79 grams. We acknowledge ...


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