Aswad v. Johnson
| Decision Date | 24 May 2017 |
| Docket Number | No. CV 16-505 KG/GJF,CV 16-505 KG/GJF |
| Parties | MOHAMED BASEL ASWAD, Petitioner, v. JEH JOHNSON, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
This matter is before the Court upon the Defendants' Objections to Proposed Findings and Recommended Disposition ("Objections"), (Doc. 28), filed on December 16, 2016. Petitioner filed a response to the Objections on December 30, 2016. (Doc. 29). Having considered the Objections and the response brief, the Court sustains the Objections and Grants Defendants' Motion to Dismiss, (Doc. 20), filed September 30, 2016.
On May 31, 2016, Petitioner Mohamed Basel Aswad filed his Petition for Hearing on Naturalization ( "Original Petition"), alleging that Defendant United States Citizenship and Immigration Services ("USCIS") wrongly denied his Application for Naturalization. (Doc. 1). Petitioner filed an Amended Petition for Hearing on Naturalization ("Amended Petition") on September 16, 2016. (Doc. 18). Thereafter, Defendants filed a Motion to Dismiss, arguing that Petitioner's Amended Petition fails to state a claim upon which relief can be granted, as Petitioner is ineligible for the relief he seeks. (Doc. 20) at 1.
The Court referred Defendants' Motion to Dismiss to a United States Magistrate Judge to perform legal analysis and recommend an ultimate disposition. (Doc. 26). On December 2, 2016, the Magistrate Judge concluded that, taking all of Petitioner's allegations as true, Petitioner has pled sufficient facts to show that he could be eligible to naturalize. (Doc. 27) at 12. Accordingly, the Magistrate Judge ultimately recommended in the Proposed Findings and Recommended Disposition ("PFRD") that Defendants' Motion to Dismiss be denied. Id.
Defendants object to the Magistrate Judge's ultimate finding in the PFRD. Specifically Defendants object to the PFRD because it (1) makes factual findings that are inconsistent with the allegations of the Complaint and the documents attached to the Complaint; (2) considers a broader range of factors than the regulation contemplates in assessing whether Petitioner's crime adversely reflects on his moral character; and (3) expands the definition of "extenuating circumstances" to encompass factors that do not relate directly to Petitioner's culpability for his crime. (Doc. 28 at 1).
A party may serve and file specific written objections to a magistrate judge's proposed findings and recommendations. FED. R. CIV. P. 72(b)(2). An objection must be both timely and "sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute." United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). However, "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (internal citations omitted).
When resolving objections to a magistrate judge's recommendation, the Court must make a de novo determination regarding any part of the recommendation to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). In doing so, the Court "may accept, reject, or modify therecommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b)(3).
In order to survive a motion to dismiss, a Petitioner in a naturalization action must plead that he: "(1) was lawfully admitted to the United States as a permanent resident, (2) has resided continuously, and has been physically present in the United States for the required statutory period; and (3) is a person of good moral character and has been so for at least the five years preceding the filing of his naturalization application." Bidzimou v. USCIS, 2013 WL 4094440, at *2 (D. Kan.) (unpublished) (citing 8 U.S.C. §§ 1427, 1429). Here, the parties dispute whether there are sufficient facts for Petitioner to prove the requisite good moral character.
Both a statute and a regulation govern the determination of good moral character. See 8 U.S.C. § 1101(f), 8 C.F.R. § 316.10. The statute does not define good moral character, but lists specific characteristics that would preclude a finding of good moral character. 8 U.S.C. § 1101(f). A person that (1) is a "habitual drunkard;" (2) is a certain class of inadmissible alien as defined by 8 U.S.C. § 1182(a); (3) derives income primarily from illegal gambling activities; (4) is convicted of two or more gambling offenses; (5) has given false testimony in order to obtain an immigration benefit; (6) has been imprisoned for one hundred and eighty days or more; (7) has been convicted of an aggravated felony; or (8) engaged in "Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing" in violation of 8 U.S.C. § 1182(a)(3)(E) or committed "particularly severe violations of religious freedom" in violation of § 1182(a)(2)(G) is barred from making a showing of good moral character. Id. at § 1101(f)(1)-(9). Petitioner's crime of Receipt in Interstate Commerce of any Drug that is Misbranded, and the Delivery Thereof for Pay does not fall into any of these specific categories, but it does fall withinthe "catch-all" provision, which states: "[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.
In this "catch-all provision," Congress intentionally left "a statutory gap for the administrative agency to fill." United States v. Dang, 488 F.3d 1135, 1140 (9th Cir. 2007). Therefore, if an individual falls into the "catch-all" provision in the statute, the regulation "offer[s] 'guidance to officials making moral character determinations.'" Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir. 2016) (quoting Dang, 488 F.3d at 1139). The regulation states that claims of good moral character should be evaluated "on a case-by-case basis taking into account the elements enumerated in [the regulation] and the standards of the average citizen in the community of residence." 8 C.F.R. § 316.10(a)(2). The regulation reiterates the enumerated categories in the statute, as well and further states:
[u]nless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant ... [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts.
Defendants first object to the Magistrate Judge's moral character analysis. Defendants argue that the proper analysis in determining whether unlawful conduct adversely reflects on moral character is to consider the "nature and magnitude of the unlawful conduct and whether it violates the standards of an average citizen." (Doc. 28 at 5) (citing 8 C.F.R. § 316.10(a)(2); United States v. Hsu, 2016 WL 4179887, at *3 (D. Utah) (unpublished), appeal docketed No. 16-4171 (10th Cir. Sept. 23, 2016); United States v. Jammal, 90 F. Supp. 3d 618, 625 (S.D. W. Va. 2015)).
In weighing whether Petitioner's crime adversely reflects on his moral character, the Magistrate Judge considered the evidence of Petitioner's unlawful act, as well as the other "evidence relevant to [Petitioner's] character" to determine that Petitioner's unlawful act does not adversely reflect upon Petitioner's moral character. The Court disagrees with the Magistrate Judge's ultimate conclusion that Petitioner's illegal act does not adversely reflect upon his moral character and will, therefore, sustain Defendants' Objections.
As for his unlawful act or crime, Petitioner admitted that he placed an order for chemotherapy drugs with a "Canadian on-line company named NonRx" by calling a 1-866 number. (Doc. 1-8) at 4. Petitioner purchased the drugs and used them in his practice from approximately July 2010, to February 2012. (Doc. 1-23) at 7, ¶ 5. The medicine Petitioner received did not have adequate instructions for use. (Doc. 1-8) at 4. The package inserts were in Turkish and the medicine did not have the symbol "Rx only," as required by law. Id. Further, these drugs were not approved by the Food and Drug Administration ("FDA") for sale in the United States. Id. In the Amended Final Report and Recommendations of Hearing Officer, the Hearing Officer for the New Mexico Medical Board ("NMMB") found that "[i]f none of [Petitioner's] patients suffered setbacks in their health or well-being after being infused with the medications obtained from Non-RX and Others, the lack of harm can only be attributable to good fortune." Id. at 25. This Court finds that as the only oncologist in the area and one treating a vulnerable population of patients, cancer patients, Petitioner had a duty to insure he was providing his patients with appropriate, FDA approved medication. (Doc. 1-23) at 6, ¶ 2. Petitioner violated this duty and committed a serious crime in so doing.
In making his findings, the NMMB Hearing Officer found that Petitioner made $211,875.03 from selling the drugs from Non-RX to patients. Id. at 11, ¶ 38. Although theNMMB Hearing Officer stated that "there is no basis on which one can draw a conclusion that [Petitioner] knew that he had been over-reimbursed for the medications[,]" Petitioner clearly profited from selling these medications to patients. (Doc. 1-23) at 24. Risking the health of patients for profit violates the standards of the average citizen, even if Petitioner's actions were merely negligent and not purposeful. Based on the serious circumstances of his crime, the Court finds that Petitioner was convicted of an unlawful act that adversely reflected on his moral character.
Petitioner argues,...
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