Giammarco v. Beers
| Decision Date | 17 March 2016 |
| Docket Number | CIVIL ACTION NO. 3:13-cv-01670 (VLB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | Arnaldo Giammarco, Plaintiff, v. Rand Beers, Alejandro Mayorkas, and James Comey, Defendants. |
Michael J. Wishnie, Jason Parkin, Jerome N. Frank Legal Services, New Haven, CT for Plaintiff.
Carolyn Aiko Ikari, U.S. Attorney's Office, Hartford, CT, for Defendants.
Plaintiff Arnaldo Giammarco (“Giammarco”) and Defendants Rand Beers, on behalf of the Department of Homeland Security (“DHS”), and Alexander Majorkas, on behalf of the U.S. Citizenship and Immigration Services (“USCIS”), have moved for summary judgment.1 For the reasons that follow, Defendants' motion is DENIED and Plaintiff's cross-motion is GRANTED.
Plaintiff entered the United States in 1960, as a lawful permanent resident. . In 1976, he enlisted in the U.S. Army, was stationed abroad, and in 1979, Plaintiff was honorably discharged. [Dkt. #50–3, A. Giammarco Decl. at ¶¶ 5–6; Dkt. #50–6, Ex. B. to Pl.'s Cross-Mot. at 1]. On February 3, 1982, Plaintiff submitted an application for naturalization to the Immigration and Naturalization Service (“INS”), which, at that time, was the agency responsible for processing, advising applicants, and filing petitions for naturalization. [ .2 Plaintiff's application disclosed a January 1981 arrest for sexual assault in the first degree, and stated that the charge was “still pending.” [Dkt. #49–3, Ex. 1 to Defs.' Mot. at 2].
On April 8, 1982, Plaintiff met with an INS agent, who reviewed his application. [ . During the meeting, Plaintiff and the agent discussed the sexual assault charge, and the INS agent told Plaintiff that he should inform the agency when the disposition of this criminal charge became available. [ . Later that day, the INS agent drafted a memo to Plaintiff's file, which stated that the charge against Plaintiff was “still pending because [Plaintiff] requested a jury trial” and as a result, the officer would “defer filing [Plaintiff's naturalization petition] until disposition of case.” [Dkt. #49–3, Ex. 2 to Defs.' Mot. at 1]. Also after this meeting, Plaintiff's naturalization application was marked “[n]onfiled.” [Dkt. #49–3, Ex. 1 to Defs.' Mot. at 4]. In the space provided for “Date, Reasons,” the reviewing officer wrote “[s]ee memo to file of 4-8-82.” [Id .]. According to a sworn declaration submitted by the Defendants, at and around the time Plaintiff submitted his naturalization application, when an INS examiner designated an applicant's file as “nonfiled” they were not obligated or expected to issue a written notification to the applicant disclosing this fact. [Dkt. #49–4, Ex. 201, Dorfman Decl. at ¶ 5]. Moreover, applications that received a “nonfiled” designation could be revived, if the applicant provided the INS with the information it requested, or otherwise contacted the INS. [Id . at ¶ 8].
On September 27, 1982, Plaintiff sent a letter to the INS informing them that the sexual assault charge had been “nolle[ ]d” and requesting “an appointment for a[c]quiring [his] U.S. [c]itizenship.” [Dkt. #49–3, Ex. 5 to Defs.' Mot. at 1].3 The letter further explained that Plaintiff “was told to make another appointment when the case had reached a decision.” [Id .]. According to a document from the Hartford Superior Court, the charge was nolled on or around August 23, 1982. See [Dkt. #50–6, Ex. K at 2]. However, Plaintiff did not present this or any other documentary evidence regarding the nolle to the INS or the Defendants in this case until January 2014, long after a final order of removal was issued against him. [Id . at 1].
The INS received Plaintiff's letter on October 4, 1982. [Dkt. #49–3, Ex. 5 to Defs.' Mot. at 1]. A handwritten note in Plaintiff's INS file indicates that on the same day the INS received his letter, “10/4/82,” it decided to “[r]eopen” his file. [Dkt. #50–6, Ex. L to Pl.'s Cross-Mot. at 1].4 On October 12, 1982, the INS sent the Hartford Police Department a records request, seeking the disposition of the January 1981 charge. [Dkt. #50–6, Ex. G to Pl.'s Cross-Mot. at 1]. On October 26, 1982, the INS received a response, in the form of a table depicting the date and nature of the offense and the case number, with no disposition provided. [Id . at 2]. The following day, October 27, 1982, the INS prepared a letter to Plaintiff which instructed him to provide the INS with a certified copy of the disposition of the charge. [Dkt. #49–3, Ex. 6 to Defs.' Mot. at 1]. Plaintiff contends that neither he nor any of his family members ever received this letter. . No further communication ever occurred between Plaintiff and the INS in connection with this application. [Id . at ¶¶ 16-17].
Nearly six years later, on September 21, 1988, the FBI prepared a report concerning the January 1981 charge against Plaintiff. [Dkt. #50–6, Ex. H to Pl.'s Cross-Mot. at 1]. The report was prepared from information provided by the Hartford Police Department, and it referenced the sexual assault charge and Plaintiff's January 1981 arrest. [Id .]. However, it did not include a disposition. [Id .]. Although this report was placed in Plaintiff's INS file, there is no indication which entity requested the report and when it did so. . Following the INS's receipt of this report, there is no indication that any action was taken, that the INS contacted Plaintiff, or that the INS closed Plaintiff's file.5
Defendants contend that where a naturalization application was submitted to the INS but contained deficiencies which prevented it from filing a petition with the court, the policy of the INS prior to the passage of IMMACT was to retain the application for a limited period of time, and, if the applicant did not provide the missing information the INS requested and it otherwise appeared that the application had been abandoned, the INS would archive it in the ordinary course of business. [Dkt. #49–4, Ex. 201, Dorfman Decl. at ¶¶ 10-11]. Nowhere do Defendants contend that the INS rendered an ultimate determination on or otherwise terminated applications that it deemed abandoned, nor do they maintain that the INS closed files containing abandoned applications within any period of time. Accordingly, there is no indication in the record if and when the INS deemed Plaintiff's application abandoned, and that, at any time after October 4, 1982, the agency closed or otherwise reached a decision on his application. [Id . at 1–2; Dkt. #49–4, Ex. 200, Keck Decl. at ¶ 5].
On January 21, 1997, and while his application was in this dormant state, Plaintiff was convicted of the offense of larceny in the fifth degree. [ . Shortly thereafter, on March 3, 1997, Plaintiff was convicted of larceny in the sixth degree. [ . On November 5, 2004, Plaintiff was arrested again, for possession of narcotics. [ . These three offenses served as the basis for the INS's decision to seek Plaintiff's removal. [Dkt. #49–3, Ex. 8 to Defs.' Mot. at 4].
On January 23, 2007, Plaintiff was convicted of larceny in the fourth degree and was sentenced to one year of imprisonment, execution suspended after 30 days. [ . The INS determined that this last offense, larceny in the fourth degree, constituted an aggravated felony. [Dkt. #49–3, Ex. 9 to Defs.' Mot. at 3]. This determination is significant because one who has committed an “aggravated felony,” as defined by the immigration statutes, is generally precluded from cancelling a removal proceeding. [Id .]. Commission of an aggravated felony also generally prevents an applicant from satisfying the statutory good moral character requirement for naturalization. See 8 U.S.C. § 1101(f)(8) ().6
On May 14, 2011, Plaintiff was arrested by officers of Immigration and Customs Enforcement (“ICE”) and placed in removal proceedings. . Sometime in 2011, Plaintiff's counsel made a FOIA request of Defendant DHS. [Dkt. #50–3, A. Giammarco Decl. at ¶ 14]. It was through the documents obtained from this request that Plaintiff claims he first learned of the October 27, 1982 letter prepared by the INS and that his application had been designated as “non-filed.” [Id .].
On May 15, 2012, an immigration judge (“IJ”) entered an order of removal and denied Plaintiff's request for a cancellation of removal. . In reaching his decision, the...
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