Kariuki v. Tarango

• Decision Date: 21 February 2013
• Docket Number: No. 12–10174.,12–10174.
• Citation: 709 F.3d 495
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Anthony Ngomi KARIUKI, Plaintiff–Appellant, v. Tracy TARANGO, Field Office Director, Dallas District Office, United States Citizenship & Immigration Services et al., Defendants–Appellees.

709 F.3d 495

Anthony Ngomi KARIUKI, Plaintiff–Appellant,

v.Tracy TARANGO, Field Office Director, Dallas District Office, United States Citizenship & Immigration Services et al., Defendants–Appellees.

No. 12–10174.

United States Court of Appeals,Fifth Circuit.

Feb. 21, 2013.

Roy Kevin Petty, Petty & Stewart, P.L.L.C., Dallas, TX, for Plaintiff–Appellant.

Gisela Ann Westwater, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation–DCS, Washington, DC, Tami C. Parker, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Plaintiff–Appellant, Anthony Ngomi Kariuki (“Kariuki”) appeals the district court's grant of summary judgment to Defendants–Appellees (“Appellees”). Kariuki had petitioned under 8 U.S.C. § 1421(c) for review of his denied naturalization application. However, the district court determined that he could not demonstrate good moral character as a matter of law, a prerequisite for naturalization under 8 U.S.C. § 1427(a) and 8 C.F.R. § 329.2(d). For the reasons provided below, we AFFIRM.

I. Background

In 1998, Kariuki entered the United States on a six-month visitor visa. He never left and, in the ensuing years, has misrepresented his immigration status repeatedly.

In 2000, Kariuki enlisted in the U.S. Army by means of a false passport stamp denoting permanent residency. He was discharged for “fraudulent enlistment.”

In 2001, Kariuki pleaded guilty to violating 18 U.S.C. § 911.¹ He had violated the statute by checking the box on an INS Form I–9,² which attested, under penalty of perjury, that he was a “citizen or national of the United States.” In connection with this same incident, Kariuki had erased the words “Not Valid for Work Without INS Verification” from his Social Security card, which he had presented to a prospective employer along with the INS Form I–9. In a sworn statement to U.S. Citizenship and Immigration Services (“USCIS”), Kariuki later testified that he was aware the falsification of these documents constituted “fraud.”

Despite his visa overstay, his Army discharge for fraudulent enlistment, and his guilty plea for falsely representing himself as a citizen, Kariuki remained in the United States. In 2003, 2004, and 2008, he applied for apartment rentals, providing the names and phone numbers of purported employers. Kariuki, in fact, was unemployed and had enlisted friends to verify his false claims of employment.

Kariuki applied for naturalization in 2004 pursuant to 8 U.S.C. § 1440, which waives the residency requirement for qualifying military veterans. During his naturalization interview, Kariuki claimed under oath that he never had falsely represented himself as a U.S. citizen.

USCIS denied Kariuki's application on September 29, 2009, finding that he was not “a person of good moral character,” as required by 8 U.S.C. § 1427(a) and 8 C.F.R. § 329.2(d). Kariuki administratively appealed, and his administrative appeal was denied on May 25, 2010.

Kariuki filed the instant suit on August 9, 2010, petitioning for review of his denied application pursuant to 8 U.S.C. § 1421(c). In July of 2011, during a deposition for the instant proceedings, Kariuki again claimed under oath that he never had falsely represented himself as a U.S. citizen.

Appellees moved for summary judgment pursuant to Federal Rule of Civil Procedure (“FRCP”) 56, asserting that Kariuki could not demonstrate good moral character as a matter of law. Kariuki requested an evidentiary hearing as to his moral character.

The district court granted Appellees' motion for summary judgment without conducting an evidentiary hearing. In doing so, it cited, inter alia, to Kariuki's visa overstay, his prior conviction for a crime of dishonesty, his discharge from the Army for fraudulent enlistment, his recurring efforts to misrepresent his employment status on rental applications, and his sworn answers in the naturalization interview and court deposition, which were at odds with the central premise underlying his prior conviction. On January 17, 2012, the district court entered final judgment for Appellees.

II. DISCUSSION

On appeal, Kariuki argues that the district court erred by using the summary judgment procedure in his 8 U.S.C. § 1421(c) naturalization proceedings because he had requested an evidentiary hearing.³ Kariuki also contends that the district court erred by considering conduct that preceded the filing of his application by more than one year, despite the one-year “good moral character” time limit for military naturalizations articulated in 8 C.F.R. § 329.2(d). Moreover, Kariuki submits that, regardless of his prior conduct, affidavit evidence of his present conduct creates a genuine issue of material fact as to his moral character. Finally, Kariuki maintains that the district court erred by applying collateral estoppel in his naturalization proceedings.⁴

A. A “Hearing De Novo” Within the Meaning of 8 U.S.C. § 1421(c) Encompasses an FRCP 56 Review on Summary Judgment.

Kariuki argues that the district court erred by using the summary judgment procedure even though he had requested an evidentiary hearing. Section 1421(c), entitled “Judicial review,” states:

A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under [8 U.S.C. § 1447(a) ], may seek review of such denial before the [appropriate] United States district court.... Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c) (emphasis added).

At issue is whether the “hearing de novo” language impels an evidentiary hearing or whether an FRCP 56 review suffices. This is an issue of first impression in this Circuit. To date, the Second Circuit has provided the only published appellate opinion on the issue. See Chan v. Gantner, 464 F.3d 289, 295–96 (2d Cir.2006) (per curiam). However, both the Third and the Eleventh Circuits have expressed their agreements with Chan in recent unpublished opinions. See Abulkhair v. Bush, 413 Fed.Appx. 502, 507–08 n. 4 (3d Cir.2011) (per curiam) (unpublished); Cernuda v. Neufeld, 307 Fed.Appx. 427, 431 n. 2 (11th Cir.2009) (per curiam) (unpublished). Upon consideration, we agree with our sister circuits that a “hearing de novo” within the meaning of Section 1421(c) encompasses an FRCP 56 review on summary judgment.

1. Standard of Review

“We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.” Pierce v. Dep't of the Air Force, 512 F.3d 184, 186 (5th Cir.2007) (citation omitted). “Questions of law are reviewed de novo.” Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir.2009) (citation omitted).

“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no genuine dispute if the record, taken as a whole, could not lead a rational trier-of-fact to find for the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 597–98, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

2. Analysis

FRCP 81(a)(3) states that the Federal Rules of Civil Procedure, including Rule 56, “apply to proceedings for admission to citizenship to the extent that the practice in those proceedings” (i) “is not specified in federal statutes”; and (ii) “has previously conformed to the practice in civil actions.” Fed.R.Civ.P. 81(a)(3). We structure our analysis around this test.

a. Section 1421(c) Does Not Specify an Alternative to the Federal Rules of Civil Procedure for Naturalization Hearings.

Concerning the first prong of the FRCP 81(a)(3) test, Kariuki relies on a structural analysis to argue that, by specifying a “hearing de novo,” Congress intended only for a full evidentiary hearing in naturalization proceedings. We briefly recount this argument.

The last sentence of Section 1421(c) states: (i) “Such review shall be de novo, and” (ii) “the court shall make its own findings of fact and conclusions of law and” (iii) “shall, at the request of the petitioner, conduct a hearing de novo on the application.” 8 U.S.C. § 1421(c). Kariuki notes that the first clause of Section 1421(c)'s last sentence states that “such review shall be de novo.” Thus, he argues that the “hearing de novo” language in the third clause could not merely set the standard of review for a Section 1421(c) hearing, or else the first clause would be superfluous. Rather, Kariuki contends that “hearing de novo” describes the specific type of Section 1421(c) “hearing” envisioned by the statute.

Next, Kariuki notes that the second clause of Section 1421(c)'s last sentence states that “the court shall make its own findings of fact and conclusions of law.” He maintains that the third clause, “conduct a hearing de novo on the application,” expands the review necessary to make the second clause's findings to “testimonial evidence,” as opposed to just “deposition transcripts, affidavits, and other [paper] evidence.” We are not...