Ali v. Dist. Dir.

• Decision Date: 14 September 2016
• Docket Number: Case No. 15-cv-61820-BLOOM/Valle
• Citation: 209 F.Supp.3d 1268
• Parties: Ghiass Mouhamed ALI, Petitioner, v. DISTRICT DIRECTOR, Miami District, U.S. Citizenship and Immigration Services, et al., Respondents.
• Court: U.S. District Court — Southern District of Florida

209 F.Supp.3d 1268

Ghiass Mouhamed ALI, Petitioner,

v.DISTRICT DIRECTOR, Miami District, U.S. Citizenship and Immigration Services, et al., Respondents.

Case No. 15-cv-61820-BLOOM/Valle

United States District Court, S.D. Florida.

Signed September 14, 2016

Anis Nouhad Saleh, Saleh & Associates, P.A., Coral Gables, FL, for Petitioner.

Sarah L. Vuong, United States Department of Justice, Washington, DC, for Respondents.

ORDER ON MOTION FOR SUMMARY JUDGMENT

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Respondents' (the "Government") Motion for Summary Judgment, ECF No. [37] (the "Motion"). The Court has carefully reviewed the Motion, the record, all supporting and opposing filings, the exhibits attached thereto, and is otherwise fully advised in the premises. For the reasons that follow, the Motion is denied.

I. BACKGROUND

Petitioner Ghiass Mouhamed Ali ("Petitioner") is a citizen and national of Syria and lawful permanent resident ("LPR") of the United States pursuant to the grant of LPR status by the United States Citizenship and Immigration Services ("USCIS") on February 27, 2007. See ECF Nos. [37–1] ¶ 15 (Government's Statement of Undisputed Facts); [39-1] ¶ 15 (Petitioner's Statement of Undisputed Facts) (collectively, "Undisputed Facts"). He first entered the United States on a student visa in 1979, and began working at the Embassy of the Syrian Arab Republic ("Syrian Embassy") as an Arabic secretary on April 1, 1981. See id. ¶¶ 1-2. Petitioner held an A-2 Visa while employed as a secretary, a position he held until November 6, 1984. See id. ¶¶ 3, 5. On November 16, 1984, Petitioner departed the United States for Syria. See id. ¶ 9.

Petitioner married his wife Hazar Ali in 1983, and on December __, 1984, Ms. Ali gave birth to Sablaa Ali ("Sablaa") in Fairfax County, Virginia. See id. ¶¶ 4, 10. The Government does not dispute Petitioner's claim that he returned to the United States from Syria in December of 1984, following Sablaa's birth. Petitioner claims that he became an Attaché with the Syrian Embassy only upon his return from Syria, on December 23, 1984. See id. ¶ 6. Records from the United States Department of State, however, reflect that the Syrian Government promoted Petitioner to the position of Attaché on November 6, 1984. See id. Petitioner enjoyed full diplomatic immunity throughout his tenure as Attaché, a position he held until November 25, 1986. See id. ¶¶ 7-8.

The record indicates that in 1985, Petitioner applied for a U.S. passport on Sablaa's behalf, which the Department of State denied based on a finding that Sablaa lacked United States citizenship. See id. ¶¶ 11-12; ECF No. [37-6]. Nearly 21 years later, Sablaa filed a Form I-130 (Petition for Alien Relative) on Petitioner's behalf, which the USCIS approved on May 29, 2006 after determining that Sablaa is a United States citizen. See Undisputed Facts ¶¶ 13-14; ECF No. [37-8]. Approved Form I-130 in hand, Petitioner applied for LPR status on August 9, 2006, which the USCIS approved on February 27, 2007. Undisputed Facts ¶ 15; ECF No. [37-9]. After waiting the requisite five years , Petitioner filed an N-400 (Application for Naturalization). Undisputed Facts ¶ 16; ECF No. [37-5]. This time, the USCIS denied Petitioner's application, finding that Sablaa had not obtained United States citizenship at birth due to Petitioner's position as Attaché at that time. See Undisputed Facts ¶¶ 16-17; ECF No. [37-10]. As such, the USCIS determined that Petitioner has never actually been lawfully admitted to the United States, LPR card notwithstanding. See Undisputed Facts ¶¶ 16-17. Petitioner appealed the N-400 denial within the USCIS, and on July 10, 2015, the agency issued its final decision denying Petitioner's application to naturalize. See id. ¶ 18; ECF No. [37-11]. On August 30, 2015, Petitioner filed a petition for review of the USCIS's decision with this Court, and the Government now moves for summary judgment. See ECF Nos. [1], [37]. Petitioner's Response, and the Government's Reply, timely followed. See ECF Nos. [39], [41].

II. LEGAL STANDARD

A court may grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record, including, inter alia , depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States , 516 F.3d 1235, 1243 (11th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 ). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. See Davis v. Williams , 451 F.3d 759, 763 (11th Cir.2006). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir.2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co. , 802 F.2d 1352, 1356 (11th Cir.1986) ).

The moving party shoulders the initial burden to demonstrate the absence of a genuine issue of material fact. See Shiver v. Chertoff , 549 F.3d 1342, 1343 (11th Cir.2008). If a movant satisfies this burden, "the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ " Ray v. Equifax Info. Servs., LLC , 327 Fed.Appx. 819, 825 (11th Cir.2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Instead, "the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.’ " Id. (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver , 549 F.3d at 1343. But even where an opposing party neglects to submit any alleged material facts in controversy, the court cannot grant summary judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted material facts that the movant has proposed. See Reese v. Herbert , 527 F.3d 1253, 1268–69, 1272 (11th Cir.2008) ; United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla. , 363 F.3d 1099, 1103 n. 6 (11th Cir.2004).

III. DISCUSSION

The Court reviews de novo the USCIS's denial of Petitioner's N-400. See 8 U.S.C. § 1421(c). In order to succeed on his petition, Petitioner must establish "strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v. United States , 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ; see Berenyi v. Dist. Dir., Immigration & Naturalization Serv. , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967) ("the burden is on the alien applicant to show his eligibility for citizenship in every respect"). On summary judgment, however, the Government shoulders the burden to establish the absence of a genuine issue of material fact. See Shiver , 549 F.3d at 1343. As explained below, whether Petitioner enjoyed diplomatic immunity at the time of Sablaa's birth—the central issue in this case—remains in dispute. Thus, the Government has failed to meet its burden.

Relevant for purposes of the instant Motion, an applicant for naturalization must have resided within the United States continuously for at least five years "after being lawfully admitted for permanent residence." 8 U.S.C. § 1427(a). Accordingly, an individual is eligible to apply for naturalization if he has been an LPR for five years. In order to become an LPR, an individual must submit and have approved a Form I-485 by the USCIS. The USCIS will only approve a Form I-485 if the applicant shows that he is (1) eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (2) an immigrant visa is immediately available to him at the time his application is filed. See 8 U.S.C. § 1255(a). United States immigrant visas are not "immediately available" to the vast number of individuals who wish to adjust status or enter the United States. They are, however, immediately available to parents of United States citizen ("USC") children, once that child turns 21 years old. See 8 U.S.C. § 1151(b)(2)(A)(i). In order to establish that an immigrant visa is immediately available to a parent of a USC child pursuant to § 1151(b)(2)(A)(i), the USC child must file a Form I-130 on the parent's behalf, which the USCIS must then approve.

Petitioner complied with all of the above-outlined procedural steps. Sablaa filed a Form I-130 petition on Petitioner's behalf in February of 2006, which the USCIS reviewed and approved, determining that Petitioner is the father of a USC (Sablaa) over the age of 21 years old. See Undisputed Facts ¶¶ 13-14. Petitioner then filed a Form I-485, which the USCIS reviewed and approved on February 27, 2007. Id. ¶ 14. By approving Petitioner's Form I-485 and allowing him to adjust his status to that of an LPR, the USCIS necessarily determined that (1) Petitioner is admissible to the United States for permanent residence and (2) an immigrant visa was...