Kai Tung Chan v. Gantner

• Citation: 374 F.Supp.2d 363
• Decision Date: 24 June 2005
• Docket Number: No. 04 Civ. 1165(JES).,04 Civ. 1165(JES).
• Parties: KAI TUNG CHAN, Plaintiff, v. Mary Ann GANTNER, Interim District Director, and the United States Citizenship and Immigration Service, Defendants.
• Court: U.S. District Court — Southern District of New York

374 F.Supp.2d 363

KAI TUNG CHAN, Plaintiff, v. Mary Ann GANTNER, Interim District Director, and the United States Citizenship and Immigration Service, Defendants.

No. 04 Civ. 1165(JES).

United States District Court, S.D. New York.

June 24, 2005.

DiRaimondo & Masi, LLP (Michael P. DiRaimondo, Mary Elizabeth Delli-Pizzi, of Counsel), Melville, NY, for Plaintiff Kai Tung Chan, of counsel.

David N. Kelley, United States Attorney, Southern District of New York, (F. James LoPrest, Jr., Special Assistant United States Attorney, of Counsel), New York City, for Defendants Mary Ann Gantner and the United States Citizenship and Immigration Services, of counsel.

MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge.

Plaintiff, Kai Tung Chan, brings this action, pursuant to 8 U.S.C. § 1421(c), seeking a de novo hearing of his application for naturalization following a denial of that application by the United States Citizenship and Immigration Service ("CIS" or "defendant"). Defendants, CIS and Mary Ann Gantner, bring this motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants defendants' motion.

BACKGROUND

Kai Tung Chan, a native and citizen of the People's Republic of China, entered the United States on December 20, 1975. See Pl.'s Statement of Undisputed Facts ("Pl.'s Statement") ¶ 1-2; Defs.' Statement Pursuant to Local Civil Rule 56.1(a) ("Defs.' Statement") ¶ 1-2. Following his marriage to an United States citizen, Laraine Ann Pisciotta, Chan was granted the status of permanent resident on October 30, 1985. See Pl.'s Statement ¶ 3; Decl. of F. James LoPrest, Jr., dated Dec. 7, 2004, Ex. A ("Record of Proceedings"), at 206-19.

In December 1992, Chan was indicted for smuggling illegal aliens in violation of 8 U.S.C. § 1324(a)(2) and for conspiracy to do the same in violation of 18 U.S.C. § 371. See Record of Proceedings at 175-78. Chan pleaded guilty to count one of the indictment, which was "Conspiracy to Smuggle Illegal Aliens,"¹ and judgment was entered against him on October 8, 1993. Id. at 171; Defs.' Statement ¶ 4.

As a result of plaintiff's plea, CIS's precursor, the Immigration and Naturalization Service, initiated deportation proceedings against him. See Record of Proceedings at 153-58; Pl.'s Statement ¶ 10. Chan sought discretionary relief from deportation pursuant to section 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(c),² and, by written opinion dated May 6, 1996, an immigration judge granted that request and terminated plaintiff's deportation proceedings. See Record of Proceedings at 56-64; Pl.'s Statement ¶ 12.

On March 20, 2002, plaintiff submitted an application to the Immigration and Naturalization Service to become a naturalized citizen of the United States. See Defs.' Statement ¶ 6. Defendants denied that application on May 2, 2003, reasoning that plaintiff's conviction rendered him "unable to establish Good Moral Character" for the statutorily-required period. See Record of Proceedings at 12-13; Pl.'s Statement ¶ 7. Chan administratively appealed that decision. See Defs.' Statement ¶ 8. Upon reconsideration, defendants upheld the earlier decision and denied plaintiff's application, finding that plaintiff was "convicted of an aggravated felony ... on or after 11-29-1990" and therefore was precluded from establishing good moral character. Record of Proceedings at 1 (citing 8 C.F.R. § 316.10(b)(ii)); Defs.' Statement ¶ 9.

Plaintiff filed a complaint dated February 9, 2004 in this Court seeking a de novo review of his application for naturalization. Compl. ¶ 9. The Court held Oral Argument on defendants' Motion for Summary Judgment on April 14, 2005. Because plaintiff raised arguments that were not addressed in his Response to defendants' Motion, this Court ordered the parties to submit supplemental letter briefs solely directed at the constitutionality of retroactively applying section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208 (expanding "aggravated felony" to include plaintiff's conduct here and applying the term to the enumerated offenses "regardless of whether the conviction was entered before, on, or after [September 30, 1996]"). See Order, dated Apr. 14, 2005. Defendants submitted a letter dated April 29, 2005, Letter of F. James LoPrest, Jr., and plaintiff responded by letter dated May 23, 2005, Letter of Michael P. DiRaimondo ("DiRaimondo Letter").

DISCUSSION

A court may only grant summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). All ambiguities and factual inferences must be drawn in favor of the party opposing the motion. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999).

Among other requirements, an applicant for naturalization bears the burden of showing that during the five years preceding the filing of his application he "has been and still is a person of good moral character." 8 U.S.C. § 1427(a)(3), (e); see also Berenyi v. District Director, Immigration & Naturalization Serv., 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); 8 C.F.R. § 316.10(a)(1).

Although determination of good moral character is normally a matter of discretion, see 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10(a)(2), Congress has provided a list of traits which, if possessed by the applicant, bar his ability to show good moral character, 8 U.S.C. § 1101(f). Section 1101(f) provides, in relevant part, that "[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was ... one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))." Id. § 1101(f)(8). Among the felonies enumerated as aggravated felonies in 8 U.S.C. § 1101(a)(43) are "an offense described in paragraph (1)(A) or (2) of [8 U.S.C. § 1324(a)] (relating to alien smuggling)," id. § 1101(a)(43)(N), and "an attempt or conspiracy to commit an offense described in this paragraph," id. § 1101(a)(43)(U). All enumerated offenses are deemed aggravated felonies "regardless of whether the conviction was entered before, on, or after September 30, 1996." Id. § 1101(a)(43).

Plaintiff has advanced four arguments as to why his 1993 conviction for conspiracy to smuggle illegal aliens should not preclude him from establishing his good moral character.

First, plaintiff argues that he "has not been convicted of an aggravated felony" because "[a] violation of 18 U.S.C. § 371 is not an aggravated felony as defined under the statute." DiRaimondo Letter at 1-2.

This argument is frivolous. "[A]n attempt or conspiracy to commit an offense described" in 8 U.S.C. § 1101(a)(43) is an aggravated felony. 8 U.S.C. § 1101(a)(43)(U). Here, there is no dispute that plaintiff was convicted of conspiracy in violation of 18 U.S.C. § 371. See DiRaimondo Letter at 1-2. Therefore, so long as the "substantive crime that is the objective of a charged conspiracy fits within the aggravated felony definition ..., the conspiracy is also an aggravated felony by virtue of subsection (U)." Kamagate v. Ashcroft, 385 F.3d 144, 152-53 (2d Cir.2004). Here, Chan pleaded guilty to count one of the indictment against him, which charged him with conspiracy to violate 8 U.S.C. § 1324(a)(2). See Record of Proceedings at 171, 175. Since that provision is explicitly enumerated as an aggravated felony, 8 U.S.C. § 1101(a)(43)(N), there can be no dispute that Chan's 1993 conviction was for an aggravated felony. Plaintiff's reliance on Dickson v. Ashcroft, 346 F.3d 44 (2d Cir.2003), is wholly misplaced and merits no discussion.

Second, plaintiff contends that he is not precluded from establishing his good moral character because his 1993 conviction is outside "the period for which good moral character is required to be established," 8 U.S.C. § 1101(f), or "five years immediately preceding the date of filing his application," id. § 1427(a); see Pl.'s Mem. at 7-10; DiRaimondo Letter at 2-3.

This argument is unavailing. Although 8 U.S.C. § 1101(f) could have been more artfully drafted, a number of courts, including this Court, have held that the statute, since it applies to "one who at any time has been convicted of an aggravated felony," 8 U.S.C. § 1101(f)(8) (emphasis added), acts to perpetually bar aggravated felons from establishing good moral character. Hernandez v. Gantner, No. 04 Civ. 3449, 2005 WL 1155684, at *1 (S.D.N.Y. May 2, 2005); see Castiglia v. Immigration & Naturalization Serv., 108 F.3d 1101, 1102-04 (9th Cir.1997); Boatswain v. Ashcroft, 267 F.Supp.2d 377, 385-86 (E.D.N.Y.2003).

Third, in an argument first raised at Oral Argument, see Tr., dated Apr. 14, 2005 ("Tr."), at 12, 15, and, inexplicably, not discussed in his supplemental letter, see DiRaimondo Letter at 1-3, plaintiff maintains that applying section 321 of the IIRIRA to him "has an impermissibly retroactive effect" since the conduct to which he pleaded guilty to "was not an aggravated felony" at the time of his conviction.³ See Tr. at 15.

Plaintiff is correct that his 1993 conviction would not have been deemed an aggravated felony at the time. Alien smuggling did not join the list of aggravated felonies until 1994, see Immigration and Nationality Technical Corrections Act of 1994, Pub.L. No. 103-416, § 222(a), and plaintiff's conviction was not covered by the statute until 1996, see IIRIRA, Pub.L. No. 104-208, § 321(a)(8).

Despite this, it is well-settled law that Congress can enact laws that have retroactive effect by including "a clear indication... that it intended such a result." Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see also Landgraf v. USI Film Products, 511 U.S. 244, 268, 114...