Ding v. Gulick
| Decision Date | 31 January 2012 |
| Docket Number | CIVIL NO. 11-00070 SOM-BMK |
| Parties | LI DANG DING, Plaintiff, v. DAVID G. GULICK, District Director of United States Citizenship and Immigration Services, Honolulu District Office; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendants. |
| Court | U.S. District Court — District of Hawaii |
ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
This is an appeal from a decision by the United States Citizen and Immigration Service ("USCIS") denying Plaintiff Li Dang Ding's application for naturalization. Ding sought naturalization as the spouse of a citizen. Defendants David Gulick, the District Director of USCIS for the Honolulu District Office, and the USCIS seek summary judgment on the ground that Ding cannot establish that she satisfies the requirements that she have lived in marital union with her citizen spouse, George Shioura, for the three years before she applied for naturalization, and that she has good moral character. Because the record establishes that Ding and her husband did not live inmarital union for the period in issue, the court grants
Defendants' motion.
The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., grants the Attorney General of the United States the authority to naturalize persons as citizens of the United States. 8 U.S.C. § 1421. A person seeking naturalization must file an N-400 application and undergo an examination by the USCIS. See id. §§ 1445, 1446. The USCIS then makes a determination based on the application and the examination. If the USCIS denies the application for naturalization, the applicant may request an N-336 hearing before an immigration officer. Id. § 1447(a). If, after conducting a hearing, the USCIS continues to deny the application for naturalization, the applicant may seek review in the United States District Court. Id. § 1421(c). Ding, a lawful permanent resident of the United States, has petitioned this court for review of the denial of her naturalization application.
Under the INA, to be eligible for naturalization, an applicant must satisfy a residence requirement. Id. § 1427(a). An applicant seeking naturalization as the spouse of a citizen must have been "living in marital union" with his or her citizen spouse throughout the three years immediately preceding the day the applicant applies for naturalization. Id. § 1430(a). TheINA also requires that the applicant have been of "good moral character" for that three-year period. Id. § 1427(a).
The parties agree on certain facts. Ding, a citizen of the People's Republic of China, was admitted into the United States on August 12, 1999. Defs.' Separate Concise Stmt. Facts ( ) ¶ 1, ECF No. 27; Pl.'s Concise Stat. Facts ("Pl.s' Facts") ¶ 1, ECF No. 33.
On February 4, 2002, Ding married George Shioura, a United States citizen. Defs.' Fact ¶ 2. Their marriage certificate lists Anaheim, California, as the place they lived. Defs.' Facts Ex. 1, at 126. Based on her marriage to Shioura, Ding became a lawful permanent resident of the United States on September 19, 2005. Defs.' Facts ¶ 4.
In August 2004, Shioura moved to Hawaii to assume a different position with his employer. Id. ¶ 3; Defs.' Facts Ex. 3 ("Ding Deposition") at 32:20 - 33:1-14, ECF No. 27-1. At some point, Ding moved to Hawaii with Shioura, but she returned to California in October or November 2005. Defs.' Facts ¶ 5.
On July 7, 2008, Ding filed an N-400 naturalization application, id. ¶ 10, and, on January 19, 2010, the USCIS conducted a preliminary interview regarding her application. Id. ¶ 12; Defs.' Facts Ex. 1, at 324. On March 3, 2010, the USCIS denied Ding's application on two grounds: (1) she was ineligiblefor naturalization because she did not meet the residence requirement under the INA, and (2) she failed to establish the requisite good moral character given the false testimony she allegedly provided in connection with seeking benefits under the INA. Id. ¶ 20; Defs.' Facts Ex. 1, at 324-35.
On March 13, 2010, Ding appealed the USCIS decision and requested an N-336 hearing. See 8 U.S.C. § 1447(a). The hearing was held on May 26, 2010. Defs.' Facts ¶ 22. On October 6, 2012, Ding's appeal was denied on the grounds cited earlier by the USCIS. Defs.' Facts Ex. 1 at 1696.
Ding seeks review of the denial, claiming that Defendants are misinterpreting 8 C.F.R. § 319.1(b)(1), as well as Ding's responses at her interview and N-336 hearing. Pet. for Review of Denial of Appl. for Naturalization Pursuant to 8 U.S.C. § 1421(c) and Request for De Novo Hearing, Jan. 1, 2011, ECF No. 1 ("Petition for Review"). Defendants now seek summary judgment on the ground that, as matter of law, Ding does not meet the statutory requirements necessary for naturalization on the basis of marriage to a citizen.
A district court reviews a USCIS decision de novo. 8 U.S.C. § 1421(c). The court makes its own findings of fact and conclusions of law and, if requested by the applicant, conducts ade novo hearing. Id. "[T]he district court has the final word and does not defer to any of the INS's findings or conclusions." United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004) (emphasis in original).
The applicant bears the burden of showing eligibility for citizenship. Immigration and Naturalization Serv. v. Punsalan, 486 U.S. 875, 886 (1988) ("[I]t has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." (quoting Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)).
Summary judgment shall be granted when "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). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn MillerProds., Inc., 454 F.3d 975, 987 (9th Cir. 2006). "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987. When the moving party bears the burden of proof at trial, that party must satisfy its burden with respect to the motion for summary judgment by coming forward with affirmative evidence that would entitle it to a directed verdict if the evidence were uncontroverted at trial. Id. (quoting C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the nonmoving party bears the burden of proof on one or more issues at trial, the party moving for summary judgment may satisfy its burden with respect to those issues by pointing out to the court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a summary judgment motion, "[t]he burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in thatparty's favor." Miller, 454 F.3d at 988 (brackets omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
Summary judgment may also be appropriate when a mixed question of fact and law involves undisputed underlying facts. See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
Defendants argue that Ding does not meet the statutory residence requirement for citizenship. Generally, to be eligible for naturalization, an applicant must lawfully and continuously live in the United States for the five years prior to the filing of his or her application for naturalization. 8 U.S.C. § 1427(a). Section 1430 allows for expedited naturalization when the applicant is married to a United States citizen. Id. § 1430(a). The applicant must have lived continuously and lawfully in the United States for the three years prior to the filing of his or her application for naturalization, and during that time the applicant must have been "living in marital union" with his or her citizen spouse. Id.; 8 C.F.R. § 319.1(a)(3).
As Ding applied for naturalization on July 7, 2008, she had to have lived in marital union with Shioura from July 7, 2005, until July 7, 2008, to be eligible for expeditednaturalization. Defendants argue that, because Ding and Shioura did not reside together during those three years, they did not live in marital union. The court agrees with Defendants, rejecting Ding's argument that the "living in marital union" requirement in § 1430 may be satisfied by an applicant who does not reside under the same roof as his or her citizen spouse.
Although Congress has not defined "living in marital union," an INS regulation states that an "applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse."1 8 C.F.R. § 319.1(b)(1). As recognized by other jurisdictions, the INS's definition is based on a permissible...
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