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Askar Saleh Amer Ali v. Eric H. Holder

March 21, 2012

ASKAR SALEH AMER ALI, PLAINTIFF
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, ET AL., DEFENDANTS



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action under the Immigration and Naturalization Act ("INA") to review a decision of the U.S. Citizenship and Immigration Service ("CIS") denying Plaintiff's application for naturalization. Now before the Court is Defendants' motion for summary judgment (Docket No. [#8]). The application is denied.

BACKGROUND

Plaintiff is a citizen of the Republic of Yemen, who has been a Lawful Permanent Resident of the U.S. since 1993. On January 26, 2010, Plaintiff filed an application for naturalization with CIS. Persons applying for naturalization are required to have lived in the U.S. for at least five years prior to the application, and during that time, they are required to have "been physically present therein for periods totaling at least half of that time." 8 U.S.C.A. § 1427(a) (West 2012). Significantly, absences from the U.S. of "more than six months but less than one year" "shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period." 8 U.S.C.A. § 1427(b) (West 2012).

The Department of Homeland Security has established regulations for evaluating issues relating to the aforementioned residency requirement. More specifically, 8 C.F.R. § 316.5(a) states that "an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent." That regulation further provides standards for determining whether a disruption of continuity of residency has occurred, in pertinent part, as follows:

Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws.*fn1 The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

(C) The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

8 C.F.R. § 316.5(c)(1)(I) (West 2012).

On July 15, 2010, CIS interviewed Plaintiff regarding his application. At the interview, Plaintiff indicated that he worked at a store in Rochester, New York, and that he lived with the owner of the store, who he paid $125.00 per month for rent. Plaintiff stated that he owned a car in the U.S., but that his employer/landlord made the car payments and paid the insurance. On this point, Plaintiff stated that the car was titled and registered in his name because his employer/landlord could not obtain financing. Plaintiff further indicated that certain utility bills for the apartment were in his name, but that his landlord/employer paid them. Plaintiff also stated that his wife and children were in Yemen in a house that he owned, and that he traveled to Yemen to visit them. During the five years prior to his application, Plaintiff traveled to Yemen on six occasions, and was there for the following periods, respectively: 112 days; 181 days; 192 days; 183 days; 180 days; and 120 days. Plaintiff indicated that he did not pay rent to his employer/landlord when he was outside of the U.S. Plaintiff further stated that he did not work when visiting Yemen.

On July 28, 2010, CIS denied Plaintiff's application. In the decision, CIS stated: "You were outside of the United States during the period for which continuous residence is required for one period of more than six months indicating a disruption in the continuity of residence." In this regard, CIS was referring to the trip on which Plaintiff was outside the U.S. for 192 days. In addition, CIS referred to the information that Plaintiff had provided during the interview, stating:

Furthermore, your spouse and 5 biological children . . . reside in Yemen in a house that you own. Your absences from the [U.S.], lack of property ownership, and the fact that you wife and children reside in Yemen in a house that you own indicates that you did not maintain continuous ties to the United States during the required statutory period. Therefore you have failed to prove that you did not abandon your United States residence during your ...


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