Abghari v. Gonzales

• Decision Date: 09 February 2009
• Docket Number: No. 2:05-cv-01210-FMC.,2:05-cv-01210-FMC.
• Citation: 596 F.Supp.2d 1336
• Parties: Mike ABGHARI, Jaleh Tadjdeh, Plaintiffs, v. Alberto GONZALES, Attorney General of the U.S.; et al., Defendants.
• Court: U.S. District Court — Central District of California

596 F.Supp.2d 1336

Mike ABGHARI, Jaleh Tadjdeh, Plaintiffs, v. Alberto GONZALES, Attorney General of the U.S.; et al., Defendants.

No. 2:05-cv-01210-FMC.

United States District Court, C.D. California.

February 9, 2009.

Maurice C. Inman, Jr., Inman and Associates, Sergei Shevchenko, Barshev PC, Beverly Hills, CA, for Plaintiffs.

Sara R. Robinson-Glasser, AUSA-Office of U.S. Attorney, Los Angeles, CA, for Defendants.

ORDER GRANTING SUMMARY JUDGMENT SUA SPONTE FOR THE DEFENSE

FLORENCE-MARIE COOPER, District Judge.

This matter is before the Court on Plaintiffs' Request for a De Novo Hearing after denial of their naturalization applications. The Court has read and considered the parties' trial briefs, as well as the supplemental briefing ordered by the Court. The Court deems these matters appropriate for decision without oral argument. See Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing set for February 10, 2009, is removed from the Court's calendar. For the reasons and in the manner set forth below, the Court hereby GRANTS Summary Judgment sua sponte in favor of Defendants.¹

I. REVIEW OF FACTUAL AND PROCEDURAL BACKGROUND

The case concerns the adjudication of naturalization applications by the United States Citizenship and Immigration Services ("USCIS") when the naturalization applicants are in conditional lawful permanent resident status because the petition to remove the conditions on their status has not been adjudicated.

A. Delayed Adjudication of Naturalization Applications

Plaintiffs originally came to this Court seeking review, pursuant to 8 U.S.C. § 1447(b), which provides for district court review of the Government's failure to timely adjudicate a pending naturalization application once the applicant has been interviewed. The parties agreed that Plaintiffs were conditional permanent residents and that the USCIS had failed to make a determination on Plaintiffs' applications for naturalization before the end of the 120-day period after the Plaintiffs filed the applications.

As the Court set out in its February 14, 2006 Order, 2006 WL 5838985 on the parties' cross motions for summary judgment in this case, the parties did not dispute the chronology or timing of the events at issue in this case:

On September 5, 1997, Plaintiff Jaleh Tadjdeh ("Tadjdeh") was admitted to the United States as a conditional permanent resident on the basis of her approved petition for classification in the employment-based, fifth-preference ("EB-5") immigrant visa category. On December 30, 1997, her husband Mike Abghari ("Abghari") was admitted to the United States as a conditional permanent resident on the basis of his status as the spouse of an EB-5 alien admitted in conditional permanent resident status.

On July 22, 1999, Tadjdeh timely filed a Petition by Entrepreneur to Remove Conditions (Form I-829). Neither party indicates that Tadjdeh was interviewed in connection with her I-829 petition, and the petition has not been adjudicated.

On February 21, 2003, more than five years after Plaintiffs were admitted to the United States in conditional lawful permanent resident status, they both filed applications for naturalization (Form N-400).

On September 15, 2003, Abghari attended the USCIS interview conducted in connection with his naturalization application. On December 3, 2003, Tadjdeh attended the USCIS interview conducted in connection with her naturalization application. After completing Plaintiffs' naturalization interviews, USCIS took and maintained the position that Plaintiffs' naturalization applications could not be approved because the conditions on their permanent resident status had not been removed. [At the time the motions were before the Court], neither naturalization application ha[d] been adjudicated.

On February 17, 2005, Plaintiffs filed their Petition for Hearing on Naturalization Application with this Court, asking the Court to adjudicate their pending naturalization applications (also referred to as "N-400s," referencing the number of the form used for the naturalization applications) or remand their N-400 applications to USCIS for adjudication.

Feb. 14, 2006 Order at 2-4.

With their cross motions for summary judgment, the parties sought a determination of whether Plaintiffs, as conditional permanent residents, had been lawfully admitted as permanent residents for the purposes of qualifying for naturalization. Plaintiffs maintained that the sole issue before the Court was whether Plaintiffs should be naturalized because they had resided in the United States for five years after being lawfully admitted for permanent residence. The Government asked the Court to find that Plaintiffs were not eligible for naturalization because they were conditional permanent residents. The Government argued that, although conditional permanent residents are eligible to apply for naturalization, they cannot be naturalized until the USCIS removes the conditions. The Government also informed the Court that the USCIS could not act on Plaintiffs' pending naturalization applications because regulations governing Plaintiffs' particular situation had not yet been published.

The Court explained the "conditional" nature of Plaintiffs' status as follows:

EB-5 immigrants are initially granted permanent resident status on a conditional basis. 8 U.S.C. § 1186b(a)(1). Conditional permanent residents enjoy the same "rights, privileges, responsibilities and duties" as lawful permanent residents, "except that a conditional permanent resident is also subject to the conditions and responsibilities set forth in section 216 [8 U.S.C. § 1186a, which addresses conditional resident status for spouses and children of United States citizens] or 216A [8 U.S.C. § 1186b, re: conditional resident status for EB-5 investors] of the Act, whichever is applicable." 8 C.F.R. § 216.1. Those rights, privileges, and responsibilities include "the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws ...; the duty to register with the Selective Service System, when required; and the responsibility for complying with all laws and regulations of the United States." Id.

The conditional permanent resident status of EB-5 immigrants may be terminated under certain circumstances. E.g., 8 U.S.C. §§ 1186b(b)(1)(A)-(C) (providing for termination of such status "before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence" upon a determination that the alien failed to make or sustain the required investment or otherwise failed to satisfy the requirements for EB-5 classification); 8 U.S.C. § 1186b(c)(2)(A) (termination where the alien fails to file an 1-829 petition or attend the interview scheduled on the basis of that application); 8 U.S.C. § 1186b(c)(3)(C) (termination after the 1-829 interview upon a determination that the facts and information provided by the alien in connection with the petition were not true).

Feb. 14, 2006 Order at 4-7.

The Court also explained what was required to have the conditions removed from an applicant's permanent resident status:

In order to have the conditional status removed, EB-5 immigrants must file an 1-829 petition during the 90 days prior to the two-year anniversary of their admission to the United States in conditional permanent resident status. 8 U.S.C. § 1186b(d)(2)(A). If conditional permanent residents fail[ ] to timely file the 1-829, absent a showing of good cause and extenuating circumstances for the failure to file, they automatically lose their permanent resident status as of the second anniversary of the date of their acquisition of conditional permanent resident status. 8 U.S.C. § 1186b(d)(2)(B).

Where EB-5 immigrants file timely petitions to remove conditions, as noted above, they must attend the interview scheduled in conjunction therewith, unless that interview is waived. 8 U.S.C. § 1186b(d)(3). The statute provides that the Government "shall make a determination, within 90 days of the [sic] such filing or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) of this section and alleged in the petition are true with respect to the qualifying commercial enterprise." 8 U.S.C. § 1186b(c)(3)(ii) (emphasis added).

Feb. 14, 2006 Order at 7.

The Court considered the Government's argument that conditional residents only have the right to apply for naturalization, i.e. to file N-400 applications, but that there is no corresponding right to have their N-400s adjudicated under the provisions of the statute. In light of the Government's statutory obligations to timely adjudicate timely filed applications and petitions, e.g., 8 U.S.C. § 1186b(c)(3)(A)(ii) (90 days for 1-829 petitions); 8 U.S.C. § 1447(b) (120 days after naturalization interviews), the Court granted Plaintiffs' Motion for Summary Judgment, denied the Government's Motion for Summary Judgment, and remanded the matter to the USCIS for a determination, within 120 days of the date of the Court's Order, "as to whether Plaintiffs' N-400 applications should be granted or denied, with reasons therefor." Feb. 14, 2006 Order at 11-12.

On June 22, 2006, the Government notified the Court that, on June 13, 2006, the USCIS denied Plaintiffs' N-400 applications. The denial notices advised Plaintiffs that their applications were denied because "[a] person may only be naturalized if the grant of permanent residence was lawful." June 22, 2006 Not. of Issuing Decisions, Exs. A & B (quoting Monet v. INS, 791 F.2d 752, 753 (9th Cir.1986), as follows: "[a]dmission is not lawful if it is regular only in form. The term `lawfully' denotes compliance with substantive legal requirements, not merely procedural regularity ..."). The notices also state that a review of Plaintiffs' files...