Abuhekal v. United States Citizenship & Immigration Serv.
| Decision Date | 30 June 2011 |
| Docket Number | Civil No. 10-4687 ADM/TNL |
| Parties | Yousef Ishaq Abuhekal, Plaintiff, v. United States Citizenship and Immigration Services; Alejandro Mayorkas, Director, United States Citizenship and Immigration Services; Sharon v. Dooley, Director, St. Paul Field Office, United States Citizenship and Immigration Services; Department of Homeland Security; Janet Napolitano, Secretary, Department of Homeland Security, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Michael H. Davis, Esq., Davis & Goldfarb PLLC, Minneapolis, MN on behalf of Plaintiff.
Katherine E. M. Goettel, Esq., Office of Immigration Litigation, U.S. Department of Justice,
Washington, DC, and Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN
on behalf of Defendants.
Plaintiff Yousef Ishaq Abuhekal is a legal permanent resident who seeks to become a citizen of the United States. Plaintiff has filed an action for de novo review of the decision of Defendant United States Citizenship and Immigration Services ("USCIS") denying his petition. On May 3, 2011, the undersigned United States District Judge heard oral argument on Defendants' motion to dismiss or in the alternative for summary judgment [Docket No. 15]. For the following reasons, the motion for summary judgment is granted.
Plaintiff became a lawful permanent resident of the United States on May 14, 1997. Abuhekal Aff. [Docket No. 22] ¶ 3. About two months later, on July 15, 1997, he was convicted of assault under Minnesota Statutes § 609.224. He was sentenced to probation and a fine of $190.00. Defs.' Ex. A [Docket No. 17-1]. He was discharged from probation on June 24, 1998. Compl. [Docket No. 1] Ex. E. Since this offense he has had no history of violence. Abuhekal Aff. ¶ 23.
Sometime in 1999, Plaintiff started a business in Austin, Minnesota. The business was not profitable and Plaintiff began to incur debts. Abuhekal Aff. ¶¶ 6-7.
On October 9, 2000, Plaintiff possessed a false Social Security card. Plaintiff states that he and his brother Id. ¶ 10. Plaintiff pleaded guilty to the charge of possession a false Social Security card, in violation of 18 U.S.C. § 1028(a)(6) and (c)(1), and assisted law enforcement with further investigation. Id. ¶ 11. On March 15, 2004, Plaintiff was sentenced to three years' probation and community service. Compl. Ex. E. He served his sentence without incident and was discharged from federal probation on September 27, 2005. Id.
On February 26, 2002, Plaintiff filed his first naturalization petition. Defs.' Ex. B[Docket No. 17-2]. In connection with that petition, Plaintiff was interviewed under oath on February 11, 2003. In the interview Plaintiff falsely claimed he had never used an alias. In part because of this false statement, his application was denied. Defs.' Ex. C [Docket No. 17-3]. Plaintiff explains the false statement was motivated by his fear that his brother would be deported, a situation he does not anticipate will recur in the future. Abuhekal Aff. ¶ 21.
Also in 2002, Plaintiff was audited by the State of Minnesota. The audit revealed Plaintiff had not paid income and sales taxes from 2000-2002 in the amount of $89,000. Id. ¶ 9. Plaintiff continued to file tax returns every year, and any refunds were applied to his tax obligation. Id. ¶ 16. He began negotiating with the State in November 2007; he attributes the intervening delay to (1) a mistaken belief that his accountant would assist him in negotiating a resolution, (2) the criminal prosecutions of himself and his brother related to the false Social Security cards, and (3) a lack of funds to pay any settlement. Id. ¶¶ 12-17. In October 2009, he and the State agreed to settle his tax liability for $15,000, an obligation he appears to have satisfied no later than December 2009, when the State released its tax lien. Id. ¶¶ 17-18; see also Compl. Ex. D.
Meanwhile, Plaintiff incurred credit card debt related to his unsuccessful business ventures. Id. ¶¶ 14-15. Between 2004 and 2007, four civil judgments totaling $59,000 were entered against Plaintiff in connection with this debt. Plaintiff's tax returns for this period reflect an adjusted gross income of $4,800 in 2004, $6,600 in 2005, $9,350 in 2006, $12,008 in 2007, and $12,000 in 2008.2 Compl. Ex. E. Plaintiff rents his home. Id. He currently earns about$900 per month working as a cashier, and has no bank account or credit cards. Abuhekal Aff. ¶ 19. He recognizes he "still owe[s] credit card debt" and states, "If I had the money, I would pay." He has received financial counseling and, as of the date of his affidavit, was contemplating filing for bankruptcy protection. Id. ¶ 20.
On June 5, 2008, Plaintiff filed his second naturalization petition, the one at issue in this case. USCIS interviewed him on September 18, 2009, and denied his petition on January 22, 2010 on the grounds that he had not shown good moral character for the preceding five years. Compl. Ex. C. Plaintiff timely requested de novo administrative review of that decision. Compl. Ex. B. A hearing was held on February 22, 2010, and on August 18, 2010, USCIS issued a final decision denying Plaintiff's petition on the grounds that he had failed to establish good moral character during the required period. Compl. Ex. A.
On November 22, 2010, Plaintiff filed the instant action, seeking de novo judicial review of the final decision of USCIS. Defendants now move to dismiss, or in the alternative, for summary judgment. Because both sides have submitted documents, and because Plaintiff has indicated he has no further evidence to be presented, the motion will be considered as one for summary judgment.
The Federal Rules of Civil Procedure apply to citizenship proceedings. Fed. R. Civ. P. 81(a)(3). Federal Rule of Civil Procedure 56(a) provides that summary judgment shall issue "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Matsushita Elec. Indus.Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56(c));3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)(same); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(same). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party and draws all justifiable inferences in its favor. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (internal quotation omitted).
An applicant for United States citizenship must comply with all statutory requirements. United States v. Ginsberg, 243 U.S. 472, 475 (1917). This includes the requirement that the applicant demonstrate good moral character for the "statutory period," which is the five years immediately preceding the filing of the naturalization petition. See 8 U.S.C. § 1427(a)(3); 8 C. F.R. § 316.10(a)(1). Earlier conduct may also be considered if it is relevant or if the conduct within the statutory period reflects the applicant has not reformed his character. 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10(a)(2). Good moral character is assessed on a case-by-case basis. 8 C.F.R. § 316.10(a)(2). Doubts are resolved against the applicant. United States v. Macintosh, 283 U.S. 605, 626 (1931), overruled in part on other grounds by Girouard v. United States, 328 U.S. 61, 69 (1946).
The Immigration and Naturalization Act does not define good moral character, but "quite explicitly states what it is not.''" United States v. Jean-Baptiste, 395 F.3d 1190, 1193 (11th Cir. 2005). The statute lists eight categories of persons who cannot establish good character as a matter of law, see 8 U.S.C. § 1101(f)(1)-(8), plus a catch-all category stating, "The 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." 8 U.S.C. § 1101(f)(9). Pursuant to the authority granted by the statute, the USCIS has issued regulations setting forth additional categories of persons who cannot establish good moral character. See 8 C.F.R. § 316.10(b)(1)-(3). The regulations include another catch-all provision, providing:
USCIS determined Plaintiff did not possess good moral character under this regulatory catch-all provision. The stated reasons are (1) Plaintiff's 2004 conviction for possessing a false Social Security card; (2) his failure to disclose his alias in his 2003 sworn interview with the USCIS; (3) the civil judgments and tax debts accrued against him; and (4) his 1997 conviction for assault.
Plaintiff concedes he was convicted within the statutory period for an unlawful act -possession of a false Social Security card - which adversely reflects upon his moral character. He does not suggest there were any extenuating circumstances. Instead, he argues that Section316.10(b)(3)(iii) be read to require that both the conviction for and the commission of...
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