United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA United States District Judge
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. 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.
A. Factual Background
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.
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).
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
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.).
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.
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).
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). 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).
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).
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