Kabura v. McNeer
| Decision Date | 24 March 2020 |
| Docket Number | Case No. 2:17-cv-881 |
| Citation | 448 F.Supp.3d 1274 |
| Parties | Evariste KABURA, Petitioner, v. Laura MCNEER, Field Director, Salt Lake City Field Office, United States Citizenship and Immigration Services, et al., Respondents. |
| Court | U.S. District Court — District of Utah |
Rayminh L. Ngo, NGO Law Practice, Salt Lake City, UT, for Petitioner.
Craig W. Kuhn, Victor M. Mercado-Santana, US Department of Justice, Washington, DC, for Respondents.
Before the court is Petitioner Evariste Kabura's Petition for Judicial Review for Naturalization (the "Petition") (ECF No. 2), which asks the court to review his application for naturalization and render a decision on the same. For the reasons stated herein, Mr. Kabura's Application for Naturalization is APPROVED AND GRANTED .
Mr. Kabura was born in a refugee camp in Rwanda. When he was fifteen, his family fled genocide in Rwanda and spent approximately fourteen years in Tanzania. In June of 2007, he and his family, including his wife and their four children, came to the United States as refugees. Mr. Kabura was granted permanent resident status at that time. In March 2010, Mr. Kabura was charged with, and convicted of, violating a temporary protective order that was imposed while he and his wife were legally separated (the "Violation"). The basis of the Violation was that he had attempted to call his wife on more than one occasion.
Mr. Kabura applied for naturalization to become a citizen of the United States on August 12, 2016. His application for naturalization included all relevant information regarding his conviction for violating the temporary protective order. He thereafter had an interview and examination with the United States Citizenship and Immigration Services ("USCIS") on December 21, 2016, and he passed all tests and requirements. After the examination, USCIS requested additional information regarding Mr. Kabura's Violation, and Mr. Kabura timely responded to the request.
On July 28, 2017, over 200 days after his examination, USCIS issued a notice to appear (the "Notice to Appear") to Mr. Kabura that notified him he was removable from the United States due to the Violation. (ECF No. 19-3). The Notice to Appear did not include the date and time of his removal hearing. Thereafter, on August 3, 2017, Mr. Kabura filed his Petition, arguing that because USCIS had exceeded the statutorily-permitted 120-day period to render a decision on his application for naturalization, the court could, and should, render a decision in its place.
The United States promptly moved to dismiss the Petition, arguing that the filing of the Notice to Appear had commenced removal proceedings against Mr. Kabura, and that pursuant to 8 U.S.C. § 1429, the court no longer had jurisdiction to hear Mr. Kabrua's request. (ECF No. 10). The court granted the motion to dismiss and closed this matter (ECF No. 27), and Mr. Kabura thereafter moved to alter or amend asking the court to reconsider the dismissal. (ECF No. 29). The court ultimately granted Mr. Kabura's motion and reopened this matter on the basis that because the Notice to Appear did not comply with the governing statute, removal proceedings had not been commenced against him, and the court was not, therefore, stripped of its jurisdiction to render a decision on his Petition. (ECF No. 32). Thereafter, on November 6, 2019, USCIS served Mr. Kabura with a notice of hearing stating that his hearing is set for March 27, 2020 (the "Notice of Hearing"). (ECF No. 56-2). The United States also moved the court to reconsider its order reopening this matter, which the court denied on March 9, 2020. (ECF No. 58).
The court held an evidentiary hearing on Mr. Kabura's Petition on March 4, 2019 (the "Evidentiary Hearing"). (ECF No. 42). Mr. Kabura offered testimony from himself and two witnesses at the hearing, and although the United States appeared and opposed Mr. Kabura's petition, it neither called witnesses nor offered evidence. Both sides have submitted post-hearing briefs and supported their positions through filing supplemental authority. (ECF Nos. 45, 50, 51, 52, 53, 54, 55, 56, 57 & 59). The matter is ripe for adjudication.
Pursuant to 8 U.S.C. § 1447(b), if USCIS fails to make a determination on an applicant's application for naturalization within 120 days after the date on which the applicant's examination is conducted, the applicant "may apply to the United States district court for the district in which the applicant resides for a hearing on the matter." That court then "has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter."
An applicant for naturalization bears the burden of establishing that he satisfies the basic qualifications for naturalization. 8 U.S.C. § 1427(e). These qualifications include showing that he:
Once it is determined that an applicant has established that he satisfies these requirements, his application can be approved and he is then able to be naturalized by taking the "oath of renunciation and allegiance" (the "Oath"). 8 U.S.C. § 1448(a). Once an applicant takes the Oath, he is entitled to receive a certificate of naturalization (the "Certificate of Naturalization") from USCIS. 8 U.S.C. § 1449.
1. Mr. Kabura was born in a refugee camp in Rwanda on May 15, 1978. (ECF No. 47 at 34:12–18). His parents were from Burundi but had fled the country due to civil war and arrived in Rwanda. (Id. at 34:23–25).
2. In April 1994 Mr. Kabura and his family fled Rwanda due to genocide war and went to Tanzania. (Id. at 35:4–8). They remained in Tanzania for fourteen years. (Id. at 35:11–12).
3. In June of 2007 Mr. Kabura came to the United States as a refugee with Divina Ndayisenga who was at that time his wife, their four children, his parents, and his brothers and sisters. (Id. at 34:20–36:24).
4. Mr. Kabura holds a permanent resident card displaying a residency date of June 27, 2007. (ECF No. 2-7).
5. Mr. Kabura never gained citizenship or nationality from Rwanda or Tanzania. (ECF No. 47 at 35:13–19).
6. At some point in or around 2010, Mr. Kabura and Ms. Ndayisenga separated, and on March 5, 2010, a temporary protective order (the "Protective Order") was filed against Mr. Kabura. (ECF No. 2-4).
7. The Protective Order was dissolved on March 24, 2010, because Ms. Ndayisenga failed to appear for court. (ECF No. 2-4).
8. Mr. Kabura was charged with violation the Protective Order on allegations that he called Ms. Ndayisenga numerous times during the month of March 2010. (ECF No. 2-6). Ms. Ndayisenga only answered one call from Mr. Kabura, and it was after the Protective Order had been dissolved. (Id. ) There were no reports or allegations of injury, property damage, threats, or harassment, and a permanent protective order was never issued against Mr. Kabura. (Id. ) Mr. Kabura represented that given his upbringing, he did not know what the Protective Order meant. (Id. )
9. Charges against Mr. Kabura were filed on May 17, 2010, for violating the Protective Order by calling Ms. Ndayisenga. (Id. ). Following a jury trial held on November 3, 2010, Mr. Kabura was found guilty of one count of Violation of a Protective Order, a Class A Misdemeanor (the "Violation"). (Id. ) Mr. Kabura was sentenced to 12 months' probation, which he successfully completed. (Id. ; ECF No. 2 at ¶ 27; ECF No. 45-6)
10. Mr. Kabura never committed any violent acts against his ex-wife and never physically harmed or threatened her. (ECF No. 47 at 41:4–12).
11. Mr. Kabura and Ms. Ndayisenga divorced by Decree of Divorce and Judgment dated August 12, 2015. (ECF No. 2-8). Pursuant to that order, Mr. Kabura is required to pay child support. (Id. ). Mr. Kabura regularly pays his child support, is up to date on all support payments. (ECF No. 47 at 39:2–41:3).
12. Mr. Kabura and Ms. Ndayisenga have a good relationship. (ECF No. 47 at 38:8–16).
13. On August 12, 2016, Mr. Kabura completed an application for naturalization to become a citizen of the United States (the "Application"). (ECF No. 2-1). USCIS received the Application on September 12, 2016. (ECF No. 2-2).
14. Mr. Kabura disclosed his conviction regarding the Violation, and the facts surrounding it, in his Application. (ECF No. 2-1).
15. Mr. Kabura had no other criminal record. (ECF No. 2-1).
16. On December 21, 2016, Mr. Kabura appeared to the USCIS for an interview and examination on his Application. (ECF No. 2-2). Mr. Kabura passed the requirements for English, U.S. History, and U.S. Government, and he met the requirements for continuous presence...
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