Paiva v. Curda

Decision Date09 February 2016
Docket NumberCase No. CV 15-05018 DDP (ASx)
Citation162 F.Supp.3d 1056
Parties Valter Silva Paiva, Plaintiff, v. Susan Curda, in her capacity as District Director of the Los Angeles District of the U.S.C.I.S. and Leon Rodriguez, in his capacity as Director of the U.S.C.I.S., Defendants.
CourtU.S. District Court — Central District of California

John Charles Nelson, John C. Nelson Law Offices, Newport Beach, CA, for Plaintiff.

Hans Chen, U.S. Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation, Washington, DC, for Defendants.



, United States District Judge

Presently before the Court is Defendants' Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure 12(b)(6)

. (Dkt. No. 13.) After considering the parties' submissions and hearing oral argument, the Court adopts the following Order.


This immigration case involves a petition by Plaintiff Valter Silva Paiva for the district court to review the United States Citizenship and Immigration Services's (“USCIS”) denial of Plaintiff's naturalization application. (Compl., dkt. no. 1.)

Plaintiff is a citizen of Brazil and a lawful permanent resident (“LPR”) of the United States. (Id. at Ex. 1.) Plaintiff received his LPR status on September 25, 2008, based on Plaintiff's marriage to a natural-born U.S. citizen, Rachael Paiva, in January 2008. (Id. ) Initially, Plaintiff's LPR status was conditional, which means it was subject to review after two years. (Id. at Ex. 5.) Plaintiff's LPR conditions were lifted on September 20, 2010. (Id. )

After three years of marriage to the same U.S. citizen and three years of LPR status, Plaintiff applied for U.S. citizenship naturalization by filing his N-400, which the USCIS received July 6, 2011. (See id. at Exs. 1 (N-400), 5 (USCIS decision).) On October 25, 2011, Plaintiff was interviewed by USCIS. (Id. at Ex. 2.) Plaintiff passed the English and U.S. history and government tests, but he was required to provide more information to USCIS. (Id. at Exs. 2, 3.) Plaintiff inquired about the status of his application and updated his address on November 22, 2011, and February 2, 2012. (Id. at Ex. 4.)

On April 18, 2013, USCIS sent Plaintiff its naturalization decision. (Id. at Ex. 5.) USCIS determined Plaintiff was not eligible for naturalization. (Id. ) USCIS found that Plaintiff and his wife had not been living in marital union for the requisite time period based on Immigration Services Officers conducting site visits and investigations. (Id. ) The officers determined that Plaintiff had been living with the mother of his two children from May 9, 2010, to February 21, 2012, at a different residence than where his wife resided. (Id. ) Then, Plaintiff appeared to move to a different address. (Id. ) Neither of these two addresses were listed on Plaintiff's N-400 form. (Id. ; Ex. 1.) USCIS found these facts inconsistent with Plaintiff's N-400 and his interview. (Id. ) USCIS also raised other issues relating to Plaintiff not listing his children on prior immigration forms as well as providing false testimony to obtain an immigration benefit based on Plaintiff's residency issues, thus barring Plaintiff from naturalization. (Id. )

Plaintiff filed an administrative appeal of this denial. (Id. at Ex. 6 (N-336 form).) Plaintiff requested a hearing to explain his N-400 form and his marital circumstances. (Id. ) Plaintiff explained that his marriage to Rachael is “legitimate” and that “the reason we currently live a[t] separate household[s] has to do with her change in personal preference.” (Id. ) Plaintiff said that he moved out of the Cherry Avenue address that he shared with his wife and mother-in-law in May 2010 “because my wife told me she prefer to have relationship [with] girls.’ (Id. ) Plaintiff said he had “no place to go while I'm still trying to resolve the issue with my wife,” so he rented an apartment with the biological mother of his children at a Garford Avenue address. (Id. ) Plaintiff says he still sees his wife “regularly at work” and that they are “still trying to resolve [their] marital differences.” (Id. ) The two bought a condo together at Redondo Avenue in May 2011, but Plaintiff's wife issued a quitclaim deed of the property to Plaintiff for credit reasons. (Id. )

Plaintiff wanted his children to live with him in the condo, but he claims the biological mother of the children rejected the change in custody without her moving to the condo as well. (Id. ) Plaintiff got his wife's permission to allow his children and their mother to live in the condo while Plaintiff found a different place to live at a Seaside Way address, then at an El Prado Avenue address. (Id. ) Plaintiff says he stays in contact with the biological mother of his children because of his fatherly obligations and “to provide support.” (Id. ) Plaintiff was granted an appeal hearing on March 5, 2014, for his naturalization denial. (Id. at Ex. 7.)

On April 14, 2015, USCIS issued its decision reaffirming its denial of Plaintiff's naturalization application. (Id. at 8.) In this decision, USCIS stated that Plaintiff failed to qualify for naturalization because he must first have LPR status. (Id. ) USCIS found that when Plaintiff filed to remove the conditions from his LPR status, he was not living in marital union; thus, Plaintiff provided false information to get an immigration benefit. (Id. ) USCIS therefore found that Plaintiff had not lawfully been admitted as a permanent resident prior to applying for naturalization. (Id. )

After the second denial, Plaintiff filed this petition for review. (Compl., dkt. no. 1.) Now, the Government has filed a motion to dismiss the complaint for failure to state a claim. (Mot. Dismiss, Dkt. No. 13.) The Government argues that Plaintiff is not eligible for naturalization because he was not in marital union with his wife for the three years prior to applying for naturalization. (Id. at 2.) Plaintiff argues that he did not live in the same house as his wife, but they were legitimately married—any informal separation requires the Court to make a de novo review after a full hearing. (Opp'n at 2.)


A 12(b)(6) motion to dismiss requires a court to determine the sufficiency of the plaintiff's complaint and whether it contains a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2)

. Under Rule 12(b)(6), a court must (1) construe the complaint in the light most favorable to the plaintiff, and (2) accept all well-pled factual allegations as true, as well as all reasonable inferences to be drawn from them. See Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir.2001), amended on denial of reh'g , 275 F.3d 1187 (9th Cir.2001) ; Pareto v. F.D.I.C. , 139 F.3d 696, 699 (9th Cir.1998).

In order to survive a 12(b)(6) motion to dismiss, the 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, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). However, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678, 129 S.Ct. 1937. Dismissal is proper if the complaint “lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir.2008) ; see also Twombly , 550 U.S. at 561–63, 127 S.Ct. 1955


A complaint does not suffice “if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ Iqbal , 556 U.S. at 678, 129 S.Ct. 1937

(quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). “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. The Court need not accept as true “legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir.2003).

Federal district courts review de novo agency denials of naturalization applications for U.S. citizenship. 8 U.S.C. § 1421(c)

. The court “shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.” Id. [T]he district court has the final word and does not defer to any of the [agency's] findings or conclusions.” United States v. Hovsepian , 359 F.3d 1144, 1162 (9th Cir.2004) (emphasis omitted).


The Government Defendants seek for this Court to dismiss Plaintiff's petition because they argue the facts presented by Plaintiff do not satisfy the legal prerequisites for naturalization. (Mot. Dismiss at 2.) Specifically, the Government contends that in the forms Plaintiff attached to his complaint, Plaintiff admitted he did not live in the same residence as his wife when he filed his application for naturalization. (Id. ) This admission, the Government argues, prevents Plaintiff from naturalizing because the statute requires Plaintiff to actually live in the same residence—under the same roof—as his spouse in order to fulfill the statutory requirement of three years of marital union. (Id. at 8–9.)

Plaintiff argues that he was living in marital union as the statute requires when he applied for naturalization. (Opp'n at 4-5.) Plaintiff relies on In re Olan , 257 F.Supp. 884 (S.D.Cal.1966)

, to argue that the statute's “marital union” requirement can be satisfied by spouses who are still legitimately married although not physically living together. (Opp'n at 5.) Thus, while Plaintiff and his wife did not live physically together, they continued to live in marital union because they were still legitimately married; they “continued to work...

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