Gulbalis v. Davidson
| Decision Date | 16 March 2015 |
| Docket Number | CASE NO.: 14-cv-22679-GOODMAN |
| Court | U.S. District Court — Southern District of Florida |
| Parties | NICOLE GULBALIS Plaintiff, v. ANDREW DAVIDSON, Director, USCIS Kendall Field Office, et al., Defendants. |
[consent case]
This matter is before the Undersigned1 on Defendants'2 Motion to Dismiss (the "Motion") Plaintiff Nicole G. Gulbalis' ("Plaintiff" or "Gulbalis") Petition for failure to state a claim. [ECF No. 7]. After reviewing the Motion, Plaintiff's response in opposition [ECF No. 12], Defendants' reply in support of the Motion [ECF No. 15], and all other portions of the record, the Undersigned grants the Motion. For the reasons outlinedbelow, the Undersigned affirms the U.S. Citizenship and Immigration Services' ("USCIS") decision, denies Gulbalis' Petition for relief [ECF No. 1], and enters final judgment in favor of the USCIS and against Gulbalis. The Clerk of the Court is directed to close this case.
In her Petition, Gulbalis seeks review of a USCIS decision denying her naturalization application.
The statute governing naturalization provides a detailed procedure for consideration of naturalization applications. In general, a lawful permanent resident alien may be naturalized as a United States citizen if the resident alien meets a five-year residency requirement, has resided continuously in the United States from the date of her application for naturalization to the time of admission as a citizen, and is of good moral character. See 8 U.S.C. § 1427(a).
The process begins when a naturalization applicant files a Form N-400 application for naturalization. Id. § 1445(a); 8 C.F.R. §§ 334.2; 316.4. USCIS then conducts a background investigation of the applicant, including a review of all pertinent immigration and police records. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Next, the applicant is interviewed by an examiner who is authorized to grant or deny the application and who "shall" make the decision whether to grant or deny the application within 120 days of the initial examination. 8 U.S.C. § 1446(d); 8 C.F.R. § 335.3.
The application is also subject to an "examination" that may include testimony of witnesses in addition to the applicant and production of relevant books, papers, and documents. 8 U.S.C. § 1446(b). USCIS makes a decision on the application once the examination and all background checks are complete. If USCIS denies the application, then the applicant may seek a hearing before an immigration officer Id. § 1447(a).
If unsuccessful at that hearing, then a naturalization applicant may file a petition for judicial review of an adverse USCIS decision in the federal judicial district in which the applicant resides. 8 U.S.C. § 1421(c). That judicial review is de novo and the Court is to "make its own findings of fact and conclusions of law." Id. Gulbalis' naturalization effort is at this stage.
In evaluating a naturalization application, Berenyi v. Distrib. Dir., Immigration & Naturalization Serv, 385 U.S. 630, 637, 656 (1967) (internal quotation marks and citation omitted). 8 C.F.R. § 316.10(a)(1).
According to her Petition, Gulbalis is a German citizen and legal permanent resident of the United States. [ECF No. 1, p. 1]. On August 30, 2012, she filed anaturalization application (Form N-400) with the Department of Homeland Security's USCIS division, pursuant to 8 U.S.C. § 1421(c). [Id.].
Part 10 of the naturalization application requires applicants to disclose information concerning prior arrests and convictions. Gulbalis disclosed a 2001 arrest and conviction, in this Court, for conspiracy to defraud the United States and its agencies and to import into the United States motor vehicles in violation of 18 U.S.C. § 371. On April 22, 2013, her naturalization application was denied -- as USCIS found that her prior conviction constituted an "aggravated felony" as defined by statute, 8 U.S.C. § 1101(a)(43). Under controlling law, conviction of an aggravated felony precludes a finding that one possesses the "good moral character" required for naturalization. 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(a)(1); (b)(1)(ii).
On May 6, 2013, Gulbalis appealed the USCIS decision by filing a request for a hearing on a decision in naturalization proceedings (Form N-336). [ECF No. 1, p. 2]. A hearing was held on June 24, 2013. [ECF No. 1, p. 2]. Gulbalis argued that the offenses leading to her April 24, 2002 conviction did not constitute an aggravated felony and that she therefore does have the good moral character required for naturalization. [ECF No. 1, p. 2]. On June 24, 2014, the USCIS reaffirmed its denial of Plaintiff's naturalization application, confirming its position that Gulbalis' prior conviction constitutes an aggravated felony.
On July 17, 2014, Plaintiff filed her Petition in this Court, requesting a de novo determination of her naturalization application, again arguing that her prior conviction does not constitute an aggravated felony.3 [ECF No. 1, p. 7]. In the alternative, Gulbalis asks this Court to remand her application to USCIS for immediate adjudication. [ECF No. 1, p. 7]. Defendants filed a Motion to Dismiss the Petition for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [ECF No. 7]. That Motion argues that Plaintiff cannot show she possesses good moral character because she was convicted of an aggravated felony and therefore the Petition should be dismissed for failure to state a claim.
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (); Navarro v. Holder, 840 F. Supp. 2d 1331, 1334 (S.D. Fla. 2012) ().
A. The underlying criminal case
On January 4, 2002, Gulbalis pleaded guilty to, and on April 24, 2001 was convicted for, conspiracy to defraud the United States and its agencies and to import into the United States motor vehicles in violation of 18 U.S.C. § 371. [ECF No. 1-3, pp. 19-24]. According to the indictment in that case, the purpose of the conspiracy was to, inter alia, obtain profits from the importation and sale of motor vehicles that could not be legally sold in the United States because they did not conform to certain safety and environmental standards.
In addition to the conspiracy charge, the indictment in the criminal case included five counts of smuggling and two counts of mail fraud. Essentially, the indictment alleged that Gulbalis was involved in a scheme whereby she falsely declared that motor vehicles were imported for her personal use, and therefore not subject to certain taxes and regulatory requirements, and then illegally sold those vehicles for personal gain. However, all of the charges except for the conspiracy charge were dismissed pursuant to Gulbalis' plea agreement. [ECF No. 15-1, United States. v. Nicole G. Schmitt, Case No. 01-0713-CR-GOLD, ECF No. 38 (S.D. Fl. Jan. 7, 2002)]. The Court entered a criminal judgment based on that plea agreement. The Court also entered a restitution order, ordering Gulbalis to pay $675,000 in restitution related to forty-five already-imported vehicles.
The term "aggravated felony" is defined by statute, and it includes a broad variety of crimes. 8 U.S.C. § 1101(a)(43). Among those crimes is an offense that "(i) involves fraud or deceit in which the loss to victim or victims exceeds $10,000.00." 8 U.S.C. § 1101(a)(43)(M). Subsection U specifies that any attempt or conspiracy to commit an aggravated felony also constitutes an aggravated felony. 8 U.S.C. § 1101(a)(43)(U). In its final, post-hearing decision, the USCIS reaffirmed its denial of Gulbalis' naturalization application on the basis that her prior conviction constituted an aggravated felony because: (1) the restitution that Gulbalis was ordered to payexceeded $10,000 and represented loss to victims of her convicted crime, and (2) the crime she was convicted of involved fraud or deceit. [ECF No. 1, p. 2].
Gulbalis does not take issue with the USCIS finding that her prior conviction involved fraud or deceit. Nor can she. It is well established that a conviction does not even need to require fraud or deceit as actual, formal elements of the crime in order to meet the statutory definition of "aggravated felony." Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012) reh'g denied, 132 S. Ct. 1961 (2012). Gulbalis' conviction, for "conspiracy to defraud the United States, . . . and to import into the United States motor vehicles contrary to law," clearly involves fraud and deceit. [ECF No. 1-3, p. 19].
The crux of the Petition is Gulbalis' argument that her conviction for conspiracy did not involve the minimum $10,000 victim loss necessary to constitute an aggravated...
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