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Mitu v. Sessions

United States District Court, S.D. New York

January 17, 2018

OLEG MITU, Plaintiff,
v.
JEFFERSON B. SESSIONS III, KIRSTJEN NIELSEN, L. FRANCIS CISSNA, and THOMAS CIOPPA, Defendants.

          OPINION AND ORDER

          KATHERINE POLK FAILLA United States District Judge

         Plaintiff Oleg Mitu brings this petition under Section 310(c) of the Immigration and Nationality Act, 8 U.S.C. § 1421(c), and the Administrative Procedure Act, 5 U.S.C. § 702, against Attorney General Jefferson B. Sessions III, Secretary of Homeland Security Kirstjen Nielsen, Director of the United States Citizenship and Immigration Services (“USCIS”) L. Francis Cissna, and USCIS New York District Director Thomas Cioppa (together, “Defendants” or “the Government”), in order to seek judicial review of USCIS's denial of his application for naturalization.[1] Both parties have cross-moved for summary judgment. For the reasons that follow, Plaintiff's motion for summary judgment is denied and Defendants' motion is granted.

         BACKGROUND[2]

          A. Factual Background

          The relevant facts are largely undisputed. Plaintiff, a citizen of Moldova, entered the United States in June 2000. (Gov't 56.1 ¶¶ 1-2). Plaintiff entered the country on a visitor visa, and he later received a student visa in 2001. (Id. at ¶¶ 3-6). While in the United States on this student visa, on September 24, 2003, Plaintiff married United States citizen Sachalie Guerra-Orta. (Id. at ¶ 7; Waterman Decl., Ex. M).

         Of note, in the year leading up to her marriage to Plaintiff, Guerra-Orta had married several other men, none of whom was a U.S. citizen: On September 3, 2002, Guerra-Orta married Erkan Mineral, a native of Turkey and resident of Utica, New York; on November 18, 2002, she married Tarek Chihi, a native of Tunisia and resident of Brooklyn, New York; on January 6, 2003, she married Mahmoud Mohamed, a native of Egypt and resident of Brooklyn, New York; and on June 5, 2003, she married Borce Gelov, a native of Macedonia and resident of Wayne, New Jersey. (Waterman Decl., Ex. I-L).[3]

         Four months after their wedding, on January 29, 2004, Guerra-Orta filed a Form I-130 Petition for an Immediate Relative on Plaintiff's behalf and Plaintiff filed a Form I-485 Application to Adjust Status to Permanent Resident. (Gov't 56.1 ¶¶ 8-9). Plaintiff and Guerra-Orta were interviewed by USCIS on June 20, 2006, and their applications were approved on July 14, 2006. (Id. at ¶¶ 10-11).

         Four years later, on July 17, 2010, Plaintiff arrived at John F. Kennedy International Airport following a trip abroad and attempted to enter the country as a returning lawful permanent resident. (Waterman Decl., Ex. B). He was flagged as having a possible immigration issue but was permitted to enter the country. (Id.). Plaintiff and Guerra-Orta were granted a judgment of divorce on September 14, 2011, and Plaintiff applied for naturalization shortly thereafter on October 3, 2011. (Gov't 56.1 ¶¶ 12-13). Plaintiff was served with a Department of Homeland Security (“DHS”) Notice to Appear (“NTA”) on November 22, 2011. (Id. at ¶ 14). The NTA advised Plaintiff that he had been “admitted to the United States, but [was] removable[.]” (Waterman Decl., Ex. A). DHS alleged that Plaintiff “[had] failed or refused to fulfill [his] marital agreement with Sachalie GUERRA-ORTA, which was entered into for the purpose of procuring [his] adjustment as an immigrant[.]” (Id.). DHS ordered Plaintiff to appear for removal proceedings on December 14, 2011. (Id.).

         Plaintiff's removal proceedings before Immigration Judge Margaret McManus commenced on December 14, 2011. (Waterman Decl., Ex. C). Following a brief discussion of scheduling, the matter was put over to March 14, 2012. (Id.). At the March 14, 2012 proceedings, the parties discussed the allegations against Plaintiff regarding his marriage to Guerra-Orta. (Id., Ex. D). Plaintiff's counsel related Guerra-Orta's claim that the earlier marriages had been procured through identity theft; the parties then had a colloquy with Judge McManus about the identification documents that Plaintiff and Guerra-Orta would have submitted at the time they applied to adjust Plaintiff's immigration status to permanent residency. (Id.). Judge McManus adjourned the matter again to allow DHS time (i) to find more information on the identity of the individuals who had submitted immigration documents in Guerra-Orta's name on behalf of the other individuals she married, and (ii) to look into the basis on which Plaintiff was admitted into the United States after his trip in 2010. (Id.).

         The parties appeared before Judge McManus again on November 15, 2012; May 22, 2013; and February 5, 2014. (Waterman Decl., Ex. E-G). These sessions were not substantive and dealt with scheduling matters. (Id.). The next substantive proceedings occurred on March 10, 2014, at which time DHS did not oppose Plaintiff's motion to terminate the proceedings without prejudice. (Waterman Decl., Ex. H). DHS did not appeal the termination. (Gov't 56.1 ¶ 20).

         On June 13, 2014, Plaintiff attended a naturalization interview with USCIS. (Gov't 56.1 ¶ 22). On May 5, 2015, USCIS requested that Plaintiff provide “proof that all of Sachalie Orta Guerra's [sic] previous marriages to other individuals were terminated” and noted that Plaintiff's marriage to Guerra-Orta “was the basis for your subsequent I-130/I-485 petition/ application.” (Pl. 56.1, Ex. 16; Gov't 56.1 ¶ 24).[4] In response, Plaintiff submitted a copy of his judgment of divorce from Guerra-Orta as well as a brief submitted by his counsel. (Pl. 56.1, Ex. 10). On this record, USCIS denied Plaintiff's request for naturalization on June 16, 2015; the bases for the denial were that (i) Plaintiff did not submit proof that Guerra-Orta's prior marriages had been dissolved before her September 2003 marriage to Plaintiff and (ii) because Plaintiff obtained his “permanent resident status through [his] former spouse … the validity of that marriage is relevant as to whether [he was] lawfully admitted as a permanent resident of the United States.” (Id.; Gov't 56.1 ¶¶ 26-29).

         Following USCIS's denial, Plaintiff submitted a Form N-336 to request a hearing; he attended an interview with USCIS on March 11, 2016, but the denial was affirmed on June 6, 2016. (Gov't 56.1 ¶¶ 30-32).

         B. Procedural Background

         Plaintiff initially filed a petition for review of USCIS's decision denying his application for naturalization on July 22, 2016. (Dkt. #1). An initial pretrial conference was held on November 18, 2016, and a case management plan was filed on December 23, 2016. (Dkt. #13). After discovery concluded, Plaintiff filed the instant motion for summary judgment on June 23, 2017. (Dkt. #22). The Government filed its combined opposition to Plaintiff's motion and cross-motion for summary judgment on August 4, 2017. (Dkt. #29). Plaintiff filed his combined reply brief in support of his motion and opposition to the Government's motion on August 24, 2017 ...


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