United States District Court, S.D. New York
RONNISH D. GUPTA, Petitioner,
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent.
FRANK MASS, Magistrate Judge.
Plaintiff Ronnish Gupta ("Ronnish" or "Gupta") was born in India on May 20, 1980. He originally filed this proceeding pursuant to 8 U.S.C. § 1252(b)(5)(B) in the United States Court of Appeals for the Third Circuit. Gupta seeks to set aside an order issued by the Board of Immigration Appeals ("BIA"). That order affirmed the decision of an Immigration Judge ("IJ") requiring Gupta's removal from the United States. Gupta asserts that the order should be set aside because he attained derivative citizenship from his father at the time of his birth pursuant to the former Section 30 I(g) of the Immigration and Naturalization Act ("INA") ("Section 30 I (g)"), 8 U.S.c. § 1401(g) (Supp. III 1980) (current version at 8 U.S.C. § 1401(g) (2012)).
To establish his right to citizenship under Section 301(g), Gupta must prove that his father was a United States citizen and was physically present in the United States for a total often years prior to Gupta's birth. Because this issue is disputed, the parties jointly agreed that the Court of Appeals should remand this proceeding to this District, where Gupta resides, for an evidentiary hearing. (See ECF No. 2-24 (Resp't's Unopposed Mot. for Transfer)). Gupta's father lawfully entered the United States on a visitor's visa on November 18, 1971, and was naturalized in 1979. (Resp't's Ex. A at 2, 14). The parties therefore have further agreed that Gupta's father was present in the United States for 434 weeks prior to Gupta's birth. (See ECF No. 25 (Resp't's Pretrial Mem.) at 9; ECF No. 26 (Pet'r's Pretrial Mem.) at 5).
Accordingly, the sole question to be determined is whether Gupta has established that his father was present in the United States for an additional 86 weeks (602 days) prior to November 18, 1971. Because I find that Gupta has not met his burden in this regard, his application must be denied. The Court nevertheless urges the Attorney General to exercise his discretion not to remove Gupta from the United States.
I. Procedural History
The Department of Homeland Security initiated removal proceedings against Gupta on June 22, 2009, after he finished serving a short prison sentence imposed following his plea of guilty to the aggravated felony of conspiracy to commit access device fraud. (See ECF No. 2 (Certified Copy of Docket Entries from Third Circuit) at 585-87); 08 Cr. 79 (KMK), ECF No. 65 (sentencing Gupta to a term of twelve months and one day, plus three years of probation). Appearing before the IJ, Gupta contended that he had acquired derivative citizenship through his father, in accordance with Section 301(g), before his conviction. (ECF No. 2-12 (Certified Administrative Record) at 365, 534-42 (citing the provision as previously numbered, Section 301(a)(7))). On May 10, 2010, after holding an evidentiary hearing, the IJ ruled that Gupta had failed to prove his father's physical presence within the United States for the ten years required under the statute. (Id. at 84-86). Accordingly, the IJ ordered Gupta removed to India. (Id. at 86).
On appeal, the BIA reversed the IJ's decision and remanded the case. (See id. at 76, 269-71). On remand, the IJ again rejected Gupta's claim of derivative citizenship, and on March 29, 2011, ordered him removed. (Id. at 76-80). After the BIA affirmed this decision on September 20, 2011, Gupta appealed to the Court of Appeals for the Third Circuit. (See id. at 3-4; ECF No. 2-19 (Br. for Pet'r)). Finding that a "genuine issue of material fact exist[ed] concerning whether [Gupta] acquired derivative citizenship through his United States citizen father, " the Third Circuit granted the Attorney General's unopposed motion to transfer the case to this Court for a hearing pursuant to INA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B). (ECF Nos. 1, 2-24). Although the case initially was assigned to Judge Pauley, on August 12, 2013, the parties consented to my exercise of jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 22). On September 11, 2013, after the parties submitted motions in limine and pretrial briefs, I held the hearing. Thereafter, the parties filed extensive post-hearing memoranda. (ECF Nos. 30, 38, 41).
II. Summary of Evidence
At the hearing, the parties introduced the following testimony and exhibits, the admissibility and significance of which I will subsequently address.
A. Margaret Fried
Margaret Fried ("Fried"), a seventy-five year old Holocaust survivor, testified that she met Gupta's father, Ranjit Gupta ("Ranjit"), in 1968 or 1969, while living at 125 West Tremont Avenue in the Bronx. (Tr. 4-7). At the time, Fried lived in an apartment on the first floor of the building with her husband, who now suffers from early dementia. (Id. at 4, 6). She met Ranjit in the common areas of the building, where the two would greet each other using their limited English. (See id. at 7). Fried and Ranjit then became friendly in 1969, and he would sometimes help her with household tasks in her apartment. (Id. at 8). Ranjit lived with five other men in an apartment approximately three doors away. (Id. at 7-8). One of those men was named "De La Rosa." (Id. at 8). Because the men did not have a television set, Ranjit visited the Frieds' apartment at times to watch television. (Id.). In particular, Fried remembered watching the moon landing and the Mets' World Series victory with Ranjit in 1969. (Id. at 8-9).
Fried moved from the West Tremont Avenue building in April 1970, and recalled Ranjit moving "just before, " in or around March 1970. (Id. at 10-11). When Ranjit left, he told Fried that he was "going to a farm... in New York - out of New York... [s]omeplace near Lake Champ[lain], " because an employer there had promised to help him secure a "green card." (Id. at 11). Fried next heard from Ranjit in September 1970, when he called her "from the farm, and he said [he was] still working there... in hopes [of getting] the green card." (Id. at 11-12). Following this call, Fried and Ranjit did not speak until 1977 or 1978, when they ran into one another in a New York department store. (Id. at 12). After this chance meeting, the two rekindled their friendship, and Fried became friendly with Ranjit's new wife, Anandita Gupta ("Mrs. Gupta"), who later became Gupta's mother. (Id. at 13). The families remained in contact up to the date of the hearing, and at some point Fried found a job for Mrs. Gupta at Loehmann's Department Store, where Fried also worked part time. (Id. at 5, 13).
B. Mrs. Gupta
Mrs. Gupta testified that Ranjit died in 2002. (Id. at 20). She and Ranjit married in 1976, while he was living in New York and she was in India. (Id. at 20-21). Ranjit came to India for the wedding, and Mrs. Gupta joined him in New York the following year, in 1977. (Id. at 21). The couple had three sons: Dennis, Ronnish, and Tony. (Id.). Dennis and Tony were born in the United States, but Ronnish was born in Calcutta, India. (Id. at 21-22). Two months after Ronnish's birth, Mrs. Gupta brought him to New York, where he received a green card at the airport. (Id. at 23). The only time Ronnish returned to India was at the age of four, when the family attended Mrs. Gupta's brother's wedding. (Id. at 23-24).
Ranjit explained to Mrs. Gupta that he had come from Canada to the United States illegally in 1968. (Id. at 24). While here, he lived in the Bronx with five other men. (Id. at 24-25). Mrs. Gupta later met and became friendly with one of these men, De La Rosa, but he then purchased a house in the Dominican Republic and moved there. (Id. at 25). Ranjit also told Mrs. Gupta that he had moved to a farm upstate in 1969 or 1970, and had returned to Germany in 1971 so that his employer on the farm could sponsor his legal return to the United States. (Id. at 25). He also told her that he had a girlfriend in Germany whom he wanted to marry, but that his father had given him an "ultimatum" - he could either marry the German woman or have a relationship with his family. (Id. at 25-27).
Mrs. Gupta also testified that she had found two passports belonging to her husband, which she provided to her immigration attorney. According to her, one of the passports had been "ripped" by her children, who also used it to "sketch and everything." (Id. at 27).
C. Rathin Gupta
Rathin Gupta ("Rathin") is Ranjit's brother and Gupta's uncle. He was born in Calcutta, India, and moved to the United States at the age of 29 under Ranjit's sponsorship. (Id. at 32, 39). Their father had been a police officer in India, but was receiving a pension during Rathin's childhood, placing a strain on the family's financial situation. (Id. at 33). In 1963, Ranjit moved to Germany for a job opportunity. (Id. at 34). While Ranjit was in Germany, he communicated with the family through letters, sent money, and called on Rathin's birthday. (Id. at 34-35).
According to Rathin, Ranjit returned home from Germany in October 1968 for about one month to spend the religious holiday of Durga Puja with his family. (Id. at 35-36). When he left India, Ranjit told his father, who then told the rest of the family, that Ranjit was going to America. (Id. at 36). Ranjit then wrote to the family "from time to time, " informing them that he was working in the United States and, occasionally, sending money. (Id. at 37). The first letter arrived in December 1968. (Id. at 40). There was a period in or around April or May of 1970 when his letters stopped arriving for a month or two. After that hiatus, Ranjit wrote stating that he was working on a farm in upstate New York. (Id. at 38-39). Rathin never personally read one of Ranjit's letters, but he knew they existed because he would retrieve them from the mailbox and hand them to his father. (Id. at 37). Although he lacked first-hand knowledge regarding the origin of the letters, Rathin testified that he would "have noticed a difference between a German, Canadian or U.S. postmark." (Id. at 40).
D. Hari Dutta Gupta
Hari Dutta Gupta ("Hari") is Ranjit's other brother. He was born in Calcutta, India, and moved to the United States at the age of 39 or 40 under Ranjit's sponsorship. (Id. at 42-43). Like Rathin, Hari recalled Ranjit living in Germany and returning to India for Durga Puja in October 1968. (See id. at 44-46). After Durga Puja, Ranjit had a conversation with Hari, during which he "mentioned that he was going to the U.S." (Id. at 46). Hari considered the news exciting because "America is the richest country, everybody wants to come to the U.S., " and no one in the family had ever lived there before. (Id. at 46-47).
According to Hari, the family lost touch with Ranjit for approximately one and one-half months starting in March 1970. (Id. at 47-48). When they next heard from him, in or around May 1970, he reported that he had taken a job on a farm in upstate New York. (Id. at 48). Although Hari never read any of Ranjit's letters, he saw them ...