Abdi v. U.S. Citizenship & Immigration Servs.

• Decision Date: 13 February 2013
• Docket Number: Civ. No. 12–1641 (RHK/SER).
• Parties: Faisal Hassan ABDI, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

923 F.Supp.2d 1160

Faisal Hassan ABDI, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civ. No. 12–1641 (RHK/SER).

United States District Court, D. Minnesota.

Feb. 13, 2013.

William L. Libby, St. Louis Park, Minnesota, for Plaintiff.

Jeffrey S. Robins, Durwood H. Riedel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., Gregory G. Brooker, Assistant United States Attorney, Minneapolis, Minnesota, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

Plaintiff Faisal Hassan Abdi is a native of Somalia. He moved to the United States in 2005 and, after waiting the required five-year period, filed an application for naturalization as a United States citizen. The application was denied, as was his request for administrative review. Abdi then commenced this action against Defendants United States Citizenship and Immigration Services (“CIS”) and several government officials, asserting that the decision should be reversed and his application granted. Defendants now move to dismiss or, in the alternative, for summary judgment. For the reasons that follow, their Motion will be granted.

BACKGROUND

The pertinent facts are undisputed. Abdi was born in Somalia in 1987. In 2005, when he was nearly 18 years old, he moved to Minnesota and became a lawful permanent resident of the United States.

Over the ensuing years, Abdi had several run-ins with the law. For example, police reports from May 2007, with which Abdi does not quarrel, indicate that he was part of a group that hurled rocks from a parking ramp toward a police officer effecting a traffic stop. He fled (along with the rest of the group) when officers approached. He eventually encountered an officer who ordered him to halt at gun point, but he continued running. The officer then threatened to Taser him, but he still did not stop. Ultimately, Abdi was chased through seven levels of the parking ramp before finally being apprehended in an alleyway nearby, although he continued resisting as he was being arrested. He was later charged with fleeing a police officer, a misdemeanor, and he pleaded guilty in December 2008. He was sentenced to time served (four days' incarceration) and one year of probation, with the sentence stayed during the pendency of the probation period. After Abdi successfully completed probation, the conviction was dismissed.

Abdi also was arrested in October 2007 for giving a false name to a police officer when his vehicle was pulled over. He pleaded guilty to that charge in December 2008 and was sentenced to one year of probation, with the sentence stayed during the pendency of the probation period. After he successfully completed probation, this conviction also was dismissed. The record further reflects that Abdi was arrested at least two additional times in 2008 and 2009, although the exact number of times is unclear.¹

On April 19, 2010, Abdi filed a naturalization application with CIS. One question on the application form asked whether he had ever been arrested, and he answered in the affirmative. Yet, he failed to list all of his arrests, and he mentioned that only one (not two) had resulted in a conviction. ( See Def. Ex. 8.)

On July 23, 2010, CIS interviewed Abdi and requested that he provide “certified copies of [his] police arrest record[s], including court proceedings and final disposition.” (Def. Ex. 6.) ² Although he provided some records in response to this request, they were incomplete and uncertified. ( Id.; Mem. in Opp'n at 3.) As a result, on July 11, 2011, CIS denied the application, concluding that Abdi had “failed to establish ... the good moral character requirements for naturalization” due to his “failure to comply with [CIS's] request for additional information.” (Def. Ex. 6.) ³

Abdi then requested a review hearing under 8 C.F.R. § 336.2(a). He submitted additional certified records from his arrests in advance of that hearing, but he did not provide all the documents CIS had requested. ( See Def. Ex. 7.) At the hearing, he acknowledged his arrest record but denied being part of a gang. He testified that he was “no longer hanging out with the same people” and was “connecting more with family.” (Def. Ex. 1.) He also testified that he was taking classes at Minneapolis Community & Technical College. ( Id.)

On March 6, 2012, CIS upheld the denial of Abdi's application, concluding that he had not shown good moral character because of (1) his failure to provide all requested records and (2) his “unlawful acts and aberrant behavior committed during the five-year statutory period.” ( Id.) It further concluded that the positive steps Abdi had taken in his life did not “erase” his prior criminal history. ( Id.)

Abdi then commenced the instant action against CIS and the Department of Homeland Security (of which CIS is a part), as well as several government officials.⁴ He asserts that CIS's decision should be reversed and his naturalization application granted. Defendants now move to dismiss or, in the alternative, for summary judgment.

STANDARD OF DECISION

As noted above, Defendants have moved to dismiss Abdi's Complaint for failing to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alterative, for summary judgment under Federal Rule of Civil Procedure 56.⁵ Although Abdi addressed each standard in his opposition brief (Mem. in Opp'n at 5–7), he has submitted material beyond the pleadings with his Motion papers (Doc. No. 20), and he argues inter alia that fact issues preclude dismissal at this stage of the proceedings. (Mem. in Opp'n at 19, 23.) Accordingly, the Court will treat the Motion as one for summary judgment.

Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548;Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir.2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir.2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008).

ANALYSIS

The INA provides that any “person whose application for naturalization ... is denied ... may seek review of such denial before the United States district court for the district in which such person resides.” 8 U.S.C. § 1421(c). Such review “shall be de novo.” Id.⁶

In order to obtain relief, Abdi must establish that he is eligible “in every respect” to become a United States citizen. Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); accord, e.g., Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (“No alien has the slightest right to naturalization unless all statutory requirements are complied with.”). Among other things, he must show that he was “a person of good moral character” during the five-year “look back” period immediately preceding his application. 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10(a)(1). He bears the burden of proving his good moral character by a preponderance of the evidence, Nyari v. Napolitano, 562 F.3d 916, 919 (8th Cir.2009) (quoting 8 C.F.R. § 316.2(b)), and all doubts must be resolved against him, Berenyi, 385 U.S. at 637, 87 S.Ct. 666.

The INA does not define the term “good moral character,” but it “explicitly states what [good moral character] is not.” United States v. Jean–Baptiste, 395 F.3d 1190, 1193 (11th Cir.2005) (emphasis in original). The statute lists several categories of persons who cannot establish good moral character as a matter of law, such as those convicted of gambling offenses or aggravated felonies. 8 U.S.C. § 1101(f)(1)-(9). Yet, this list is not exhaustive—the INA also includes a “catch-all” providing that “[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” Id.

Pursuant to authority granted by the INA, CIS has issued regulations further defining the types of persons who fall within the statutory catch-all. Those regulations provide that individuals convicted of certain other categories of crimes (such as those “involving moral turpitude”) lack good moral character. 8 C.F.R. § 316.10(b)(1)-(2). But the regulations also contain a “catch-all” provision, which is at the heart of this case. In pertinent part, it provides that “[u]nless the applicant establishes extenuating circumstances, [he] shall be found to lack good moral character if, during the [look-back] period, [he] [c]ommitted unlawful acts that adversely reflect upon [his] moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).” 8 C.F.R. § 316.10(b)(3).

Defendants rely upon this catch-all to argue that Abdi cannot establish good moral character here. They note that the moral-character determination is made on an individualized, case-by-case basis, taking into account “the standards of the average citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2). They further note that Abdi was arrested several times, and convicted twice, during the...