Ali v. Holder

• Decision Date: 21 March 2012
• Docket Number: 11-CV-6122 CJS
• Parties: ASKAR SALEH AMER ALI, Plaintiff v. ERIC H. HOLDER, JR., Attorney General of the United States, et al., Defendants
• Court: U.S. District Court — Western District of New York

ASKAR SALEH AMER ALI, Plaintiff

v.ERIC H. HOLDER, JR., Attorney General of the United States, et al., Defendants

11-CV-6122 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: March 21, 2012

DECISION AND ORDER

APPEARANCES

For Plaintiff: Santosh K. Pawar, Esq.

For Defendants: Aaron S. Goldsmith, Esq.

U.S. Department of Justice

INTRODUCTION

This is an action under the Immigration and Naturalization Act ("INA") to review a decision of the U.S. Citizenship and Immigration Service ("CIS") denying Plaintiff's application for naturalization. Now before the Court is Defendants' motion for summary judgment (Docket No. [#8]). The application is denied.

BACKGROUND

Plaintiff is a citizen of the Republic of Yemen, who has been a Lawful Permanent Resident of the U.S. since 1993. On January 26, 2010, Plaintiff filed an application fornaturalization with CIS. Persons applying for naturalization are required to have lived in the U.S. for at least five years prior to the application, and during that time, they are required to have "been physically present therein for periods totaling at least half of that time." 8 U.S.C.A. § 1427(a) (West 2012). Significantly, absences from the U.S. of "more than six months but less than one year" "shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period." 8 U.S.C.A. § 1427(b) (West 2012).

The Department of Homeland Security has established regulations for evaluating issues relating to the aforementioned residency requirement. More specifically, 8 C.F.R. § 316.5(a) states that "an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent." That regulation further provides standards for determining whether a disruption of continuity of residency has occurred, in pertinent part, as follows:

Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws.¹ The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

(C) The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

8 C.F.R. § 316.5(c)(1)(I) (West 2012).

On July 15, 2010, CIS interviewed Plaintiff regarding his application. At the interview, Plaintiff indicated that he worked at a store in Rochester, New York, and that he lived with the owner of the store, who he paid $125.00 per month for rent. Plaintiff stated that he owned a car in the U.S., but that his employer/landlord made the car payments and paid the insurance. On this point, Plaintiff stated that the car was titled and registered in his name because his employer/landlord could not obtain financing. Plaintiff further indicated that certain utility bills for the apartment were in his name, but that his landlord/employer paid them. Plaintiff also stated that his wife and children were in Yemen in a house that he owned, and that he traveled to Yemen to visit them. During the five years prior to his application, Plaintiff traveled to Yemen on six occasions, and was there for the following periods, respectively: 112 days; 181 days; 192 days; 183 days; 180 days; and 120 days. Plaintiff indicated that he did not pay rent to his employer/landlord when he was outside of the U.S. Plaintiff further stated that he did not work when visiting Yemen.

On July 28, 2010, CIS denied Plaintiff's application. In the decision, CIS stated: "You were outside of the United States during the period for which continuous residence is required for one period of more than six months indicating a disruption inthe continuity of residence." In this regard, CIS was referring to the trip on which Plaintiff was outside the U.S. for 192 days. In addition, CIS referred to the information that Plaintiff had provided during the interview, stating:

Furthermore, your spouse and 5 biological children . . . reside in Yemen in a house that you own. Your absences from the [U.S.], lack of property ownership, and the fact that you wife and children reside in Yemen in a house that you own indicates that you did not maintain continuous ties to the United States during the required statutory period. Therefore you have failed to prove that you did not abandon your United States residence during your absence. As such, your absence exceeding six months broke the continuity of residence required by section 316(a) INA.

CIS Notice of Decision dated July 28, 2010. Accordingly, CIS found that Plaintiff had abandoned his residence.²

Plaintiff appealed, and on October 27, 2010, CIS held a hearing at which Plaintiff was given the opportunity to submit additional evidence. On February 14, 2011, CIS issued a decision denying the appeal. See, Decision On Review of Denial of Naturalization Application, dated February 14, 2011. In the decision, CIS stated:

At your hearing on October 27,2010 you submitted an affidavit addressing some of the reasons your application was denied. You admitted remaining outside the United States for nine days more than six months because you attended holiday events with your children. You also stated that you did not terminate your employment in the United States nor did you lose access to your residence when you were in Yemen. However, you also testified that the owner of the market where you are employed, Saleh M. Saleh, is a long time friend, like a brother. You confirmed this statement in your affidavit. Mr. Saleh is also the person who co-leases your residence with you.

You were outside the United States for four periods of time approachingsix months, and for one period of time exceeding six months. You own a house in Yemen. Your wife and children live in Yemen. It is noted that you have petitioned for them to come to the United States, but you did so only after you had been married for at least six years.

***

In your case, the burden of proof fell to you to establish that you maintained your residence and ties to the United States while overseas for all continuous periods of between six (6) months and one (1) year during the statutory period. However, you failed to establish that your absence(s) from the United States during the statutory period did not disrupt the continuity of your residence.

Accordingly, after careful review of your application and all relevant statutes, the decision to deny your application for naturalization must remain unchanged. You may be eligible to apply for naturalization after you have established residence in the United States, provided that you have no further absences which disrupt the continuity of residence and are able to satisfy all other requirements for naturalization.

Id.

On March 14, 2011, Plaintiff commenced this action, seeking judicial review pursuant to 8 U.S.C. § 1421(c), and requesting a de novo hearing on his application for naturalization.

On June 15, 2011, Defendants filed the subject motion for summary judgment. On March 8, 2012, counsel for the parties appeared before the undersigned for oral argument.

DISCUSSION

Rule 56

Summary judgment may not be granted unless "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 isentitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(c). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d...