Leiva v. Sec'y of Dep't of Homeland Sec., Civil Action No. 11–629

• Decision Date: 20 January 2017
• Docket Number: Civil Action No. 11–629
• Citation: 230 F.Supp.3d 406
• Parties: Victor Hugo LEIVA, Petitioner, v. SECRETARY OF DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

230 F.Supp.3d 406

Victor Hugo LEIVA, Petitioner,

v.SECRETARY OF DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

Civil Action No. 11–629

United States District Court, D. New Jersey.

Signed January 20, 2017

John Kuhn Bleimaier, Law Offices of John Kuhn Bleimaier, Princeton, NJ, for Petitioner.

Aaron R. Petty, U.S. Department of Justice Office of Immigration Litigation, Chicago, IL, Christopher Wayne Hollis, U.S. Department of Justice, Washington, DC, Colette R. Buchanan, Office of the US Attorney, Newark, NJ, for Respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Hon. Madeline Cox Arleo, United States District Judge

I. INTRODUCTION

Petitioner Victor Hugo Leiva ("Mr. Leiva") filed this Petition for Review of the Administrative Denial of Application for Naturalization pursuant to 8 U.S.C. § 1421(c). Mr. Leiva is a 58–year–old man who has been a Lawful Permanent Resident of the United States since June 3, 1996. On June 29, 2009, Mr. Leiva filed an Application for Naturalization, which was denied on April 19, 2010. Thereafter, Mr. Leiva filed this appeal.

From August 9, 2016 to August 10, 2016, I presided over a non-jury trial in which the parties were afforded a full opportunity to be heard, examine and cross-examine witnesses, present evidence bearing on the issues, and argue the law and the evidence.

Below, I make the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a) based on the competent evidence presented at trial:

II. FINDINGS OF FACT ¹

A. Immigration to the United States

1. Victor Leiva was born in Guatemala on March 8, 1958. Final Pretrial Order ("FPTO") at 6, Dkt. No. 58. He has a sixth grade education. Trial Transcript ("Tr.") 159:2–3.

2. In Guatemala, Mr. Leiva was in a ten-year relationship with a woman named Rosaura Torres, with whom he had two children. Tr. 156:23–157:20. Mr. Leiva's two adult children from that relationship now reside in the United States. Tr. 158:02–18.

3. On October 10, 1992, Mr. Leiva entered the United States without inspection. FPTO at 2; Tr. 153:20–22. He traveled through Tijuana, Los Angeles, and San Diego, ultimately ending up in New Jersey. Tr. 153:15–19.

4. Once in the United States, Mr. Leiva was initially self-employed as a roofer. Tr. 188:16–17.

5. In 1997, Mr. Leiva began working as a welder and aluminum cutter at Christiansen Manufacturing, a small family-owned welding and farming business in Pennington, New Jersey. Tr. 18:14–16, 35:12–36:1, 153:8–14. He has been continuously employed there for almost 20 years. Tr. 153:8–14. His duties have expanded over the years to include overseeing the family farm. Tr. 19:9–20.

6. He pays taxes on income received from Christiansen Manufacturing. Tr. 26:5–10.

B. Marriage to Jacqueline Davis and Permanent Residence Status

7. After his arrival in the United States, Mr. Leiva began a relationship with Jacqueline Davis, a United States citizen. Tr. 185:09–186:07.

8. Mr. Leiva married Ms. Davis on May 23, 1995. Tr. 186:09–11; FPTO at 6.

9. The couple has two children together: a son Alan and a daughter Gloria. Tr. 186:12–21.

10. On June 28, 1995, Ms. Davis submitted to Immigration Naturalization Services ("INS") a Form I–130 Petition for Alien Relative, which a U.S. citizen may submit on behalf of a spouse who wishes to become a citizen. FPTO at 6; Gov't Ex. 7, Form I–130. The form indicated that Mr. Leiva was not previously married. FPTO at 6; Gov't Ex. 7.

11. On January 9, 1996, Mr. Leiva submitted a Form I–485, Application to Register Permanent Residence or Adjust Status, in which he claimed eligibility to become a lawful permanent resident based on his marriage to Ms. Davis. FPTO at 6; Gov't Ex. 6, Form I–485.

12. Mr. Leiva and Ms. Davis eventually divorced, with Mr. Leiva gaining sole custody of their children. Tr. 187:03–11.

13. On May 13, 1999, the INS granted Mr. Leiva's adjustment application, providing Mr. Leiva the status of lawful permanent resident. FPTO at 7; Gov't Ex. 8, Form I–181.

C. Arrest and Plea

14. On July 5, 2000, Mr. Leiva was arrested based on a complaint that neighborhood children viewed a pornographic video in his house the day before. See Tr. 95:13–17, 128:22–129:3; Ct. Ex. 3, Police Report at 4–5.

15. A subsequent search of his house only uncovered one adult video and magazine. Tr. 132:6–19.

16. On July 11, 2001, the Mercer County Prosecutor indicted Mr. Leiva in the Superior Court of Mercer County, New Jersey, on a multiple count indictment. Gov't Ex. 10, Indictment.²

17. Because Mr. Leiva lost his housing after he was arrested, the Christiansen family invited him to live with them, which he did for over a year. Tr. 21:17–25. Mrs. Christiansen, who had four young children at the time, expressed no concern over having Mr. Leiva live with her during the pendency of the charges. Tr. 22:21–23:24.

18. On October 17, 2003, more than three years after the incident occurred, he pled guilty to one count of Endangering the Welfare of a Child, N.J.S.A. § 2C:24–4, before the Superior Court of New Jersey. Gov't Ex. 11, Transcript of Plea Hearing dated October 17, 2013 ("Plea Tr.").

19. During the plea colloquy, the state court judge questioned Mr. Leiva about the factual circumstances that gave rise to the charge. See Plea Tr. 15:11–22:11.

20. Mr. Leiva testified that he was alone in his house watching an adult movie when a group of children entered without permission. Plea. Tr. 15:22–12:6, 20:18–23.

21. The state court judge noted that such accidental viewing would not constitute an offense, but accepted Mr. Leiva's plea based on his testimony that the incident lasted "for about five minutes." Plea Tr. 15:25–16:2, 22:1–11.

22. The judge sentenced Mr. Leiva to probation for a term of three years in light of several mitigating factors including that he had no other criminal record; completed an evaluation report, which indicated that he was not a repetitive or compulsive offender; appeared emotional during the hearing; maintained a job; and was current on all child support payments (he lost custody of his children after the arrest). Gov't Ex. 13, Transcript of Sentencing dated March 26, 2004 ("Sent. Tr.") 7:14–9:15.

23. The court also required Mr. Leiva to comply with Megan's Law. Sent. Tr. 9:19–10–4.

24. On April 5, 2004, the judge signed Mr. Leiva's Judgment of Conviction detailing the conditions of his probation. This Judgment of Conviction, and a second one that issued later that month, included a Megan's Law requirement of community supervision for life. See Gov't Ex. 14, Judgments of Conviction at 1–4.³ Mr. Leiva testified that, as part of his Megan's Law compliance, he provided his address to the probation officer and underwent DNA testing. Tr. 200:22–201:1, 240:12–21.

25. In May 2005, a third Judgment of Conviction was entered, which omitted Megan's Law and did not check the box for lifetime community supervision. See Judgments of Conviction at 5.

26. Mr. Leiva completed his parole without incident in 2007. See Tr. 201:11–13.

D. Naturalization Proceedings: Application and Denial

27. In June 2009, Mr. Leiva began his naturalization process by submitting an N–400 Application for Naturalization. FPTO at 7.

28. In his application, he indicated that he has been a lawful permanent resident for at least five years, that he has been married one time, and that he has never "given false or misleading information to any U.S. Government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal."Id.

29. He also disclosed the arrest, conviction, and parole sentence. Gov't Ex. 16 ("N–400 Application") at 8.

30. On September 15, 2009, United States Citizenship and Immigration Services ("USCIS") interviewed Mr. Leiva as part of its processing of his naturalization application. FPTO at 7.

31. On that date, a USCIS Adjudication Officer ("Officer One") administered a civics and history exam, English reading test, and English writing test. Tr. 65:19–21, 66:6–67:6.

32. Mr. Leiva passed both the civics and history test and the English reading test. Tr. 66:6–8, 75:18–13.

33. The English writing test consisted of three sentences that were read aloud in English to Mr. Leiva. Gov't Ex. 17, English Writing Test. After each one, Mr. Leiva was required to write the sentence down in English. Id. The applicant must get one of the three correct in order to pass the examination. Id.

34. Officer One marked Plaintiff's first two answers as incorrect. Id.

35. The third sentence required Mr. Leiva to write "Flag Day is in June." Mr. Leiva wrote "flag Day is in Junio." Id. Officer One also marked this answer as incorrect. Id.

36. Officer One found that Mr. Leiva failed the English writing test. Tr. 59:11, 65:11–13.

37. Mr. Leiva was not given a second opportunity to take the English writing exam. Tr. 59:12–24, 104:25–105:2.

38. On September 16, 2009, USCIS issued a Request for Evidence to Mr. Leiva's attorney, which requested the police report of his July 5, 2000 arrest, a copy of the indictment resulting from the arrest, a copy of the pre-sentencing report, and a copy of the October 17, 2003 plea agreement. FPTO at 7; Tr. 80:18–23.

39. Mr. Leiva's attorney submitted the police report and sentencing transcript but not the plea transcript. FPTO at 7; Tr. 80:18–23.

40. As such, on April 19, 2010, USCIS denied Mr. Leiva's application for failure to prosecute because his attorney did not submit all requested documents. FPTO at 8; Tr. 80:18–23.

41. In May 2010, Mr. Leiva filed a Form N–336 Request for Hearing on a Decision in Naturalization Proceedings. FPTO at 8.

42. In November 2010, after another USCIS officer ("Officer Two") interviewed Mr. Leiva, USCIS affirmed its denial of his application, citing lack of remorse and lessons learned. Id.

43. In February 2011, Mr. Leiva appealed the denial to this Court.

E. De Novo Court Hearing

44. At Mr. Leiva's de novo hearing before the Court, the Government asserted three new reasons why Mr. Leiva could not satisfy his naturalization burden, abandoning their prior bases. Fi

...