Saliba v. Attorney Gen. of U.S.

• Decision Date: 08 July 2016
• Docket Number: No. 15-3769,15-3769
• Citation: 828 F.3d 182
• Parties: Bassam Saliba, Appellant v. Attorney General of the United States of America; Director United States Citizenship and Immigration Services; John E. Thompson, Director for District of New Jersey ; Randi C. Borgen, Newark Field Office Director; United States Attorney.
• Court: U.S. Court of Appeals — Third Circuit

828 F.3d 182

Bassam Saliba, Appellant

v.Attorney General of the United States of America; Director United States Citizenship and Immigration Services; John E. Thompson, Director for District of New Jersey ; Randi C. Borgen, Newark Field Office Director; United States Attorney.

No. 15-3769

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit L.A.R. 34.1a June 14, 2016

Opinion Filed: July 8, 2016

Danielle M. Fackenthal, Esquire, Julie A. Goldberg, Goldberg & Associates, 5586 Broadway, 3rd Floor, Bronx, NY 10463, Attorneys for Appellant

Benjamin C. Mizer, Esquire, Principal Deputy Assistant Attorney General, William C. Peachey, Office of Immigration Litigation Director, Jeffrey S. Robins, Assistant Director, Timothy M. Belsan, Trial Attorney, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, Paul J. Fishman, Esquire, United States Attorney, District of New Jersey, Allan B.K. Urgent, Assistant United States Attorney, Office of the United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Attorneys for Appellees

BEFORE: AMBRO, JORDAN, and GREENBERG, Circuit Judges

OPINION

GREENBERG

, Circuit Judge.

I. INTRODUCTION

Petitioner-appellant Bassam Saliba (“Saliba”) obtained Temporary Protected Status (“TPS”) in 1992 in this country by providing falsified documents with his application indicating that he was a citizen of Lebanon. Saliba was, in reality, a native and citizen of Syria, a country whose citizens at that time were not eligible for TPS. Nine years later, in 2001, Saliba was able to adjust his status to that of a legal permanent resident (“LPR”). Even though Saliba's fraudulent procurement of TPS should have rendered him statutorily “inadmissible” under 8 U.S.C. § 1182(a)(6)(C)(I)

and thus not eligible for LPR status, the former Immigration and Naturalization Service (“INS”) mistakenly granted him that status. But when Saliba applied for naturalization in 2006, the United States Citizenship and Immigration Services (“USCIS”) discovered that he had obtained TPS by submitting a fraudulent application and denied his application for naturalization for that reason. In explaining the reason for its action the USCIS pointed out that Saliba's apparent fraud precluded a finding that he had been “lawfully admitted” as a permanent resident as required for naturalization under 8 U.S.C. § 1427(a). Saliba filed a second unsuccessful naturalization application following which he filed a petition for review of the denial of his application for naturalization in the District Court pursuant to 8 U.S.C. § 1421(c).

In the District Court, respondents-appellees, the Attorney General of the United States and various USCIS officials (collectively, “the Government”), moved to dismiss Saliba's petition pursuant to Federal Rule of Civil Procedure 12(b)(6)

, and, in the alternative, moved for summary judgment, on the ground that Saliba is statutorily ineligible for naturalization. The Court on September 18, 2015, granted the Government's motion to dismiss Saliba's petition. Thereafter, Saliba timely filed a notice of appeal to this Court. After our review of the case, we conclude that Saliba's fraudulent procurement of TPS in 1992 made him inadmissible for LPR status, and, because he had not been “lawfully admitted” for permanent residence, he cannot be naturalized. Accordingly, we will affirm the District Court's September 18, 2015 order dismissing Saliba's petition for review.¹

II. STATEMENT OF JURISDICTION

The District Court had jurisdiction pursuant to 8 U.S.C. § 1421(c)

, which provides that an individual whose application for naturalization is denied may “seek review of such denial before the United States district court for the district in which such person resides.” We have jurisdiction pursuant to 28 U.S.C. § 1291, because the District Court's September 18, 2015 order constituted a final order.

III. FACTUAL AND PROCEDURAL BACKGROUND²

Saliba is a native and citizen of Syria. (Petition for Review (“Pet.”) ¶ 6). He entered the United States on or about December 25, 1988, (Pet. ¶ 12), on a non-immigrant student visa, Saliba v. Att'y Gen. , No. CIV. A. 14–6174 KSH, 2015 WL 5554772, at *1 (D.N.J. Sept. 18, 2015)

. In or around January 1992, he filed for TPS³ claiming to be a citizen of Lebanon and “submitted falsified documents which stated [that] he was a citizen of Lebanon.” (Pet. ¶ 13). Saliba alleges that he decided to submit these falsified documents with his TPS application because the “state of war” that existed at that time in the Middle East made him “fear for his life.”⁴ (Pet. ¶ 14). Despite these falsified documents—or more accurately, by reason of them—the “Immigration and Naturalization Service” (“INS”) granted Saliba TPS status. Saliba , 2015 WL 5554772, at *1. Saliba's actual nation of origin, Syria, was not designated as a country whose citizens were eligible for TPS at the time that Saliba sought the benefit of that status, though it was designated as being within that program on March 29, 2012. See Designation of Syrian Arab Republic for Temporary Protected Status, 77 Fed. Reg. 19026-01 (Mar. 29, 2012)

.

Seven years later, on July 22, 1999, Saliba filed an I-485 application to register as a permanent resident or to adjust his status to that of a LPR. (Pet. ¶ 17). As part of his I-485 application, Saliba submitted documents that accurately identified him as a native and citizen of Syria and provided his date of entry into the United States. (Pet. ¶ 18). His responses on the application itself, however, were less accurate. For example, the District Court found significant that Saliba wrote “NONE” in the space on the application that requested the applicant's existing A number, i.e., his registration number, and when asked in Question 10 on Part 3 of the application whether he “by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured ... any other immigration benefit,” Saliba answered “NO.” Saliba , 2015 WL 5554772, at *1 (citing the Borgen Decl., Ex. C)

.

Saliba had an obvious motive to provide dishonest responses on his I-485 application. If his fraudulent procurement of TPS and his existing A number came to light at the time that he applied to adjust his status to a LPR, he would have been rendered statutorily “inadmissible” under 8 U.S.C. § 1182(a)(6)(C)(I)

and therefore ineligible to become a LPR. Saliba's petition does not address his inaccurate responses on his I-485 application, but, instead, alleges that the “USCIS had the information about his prior TPS application, [ ] [because] they crossed out the old A number through the Temporary Protected Status application that was on the I-485 Application and wrote in a new A number.”⁵ (Pet. ¶ 20). He asserts that the INS's apparent replacement of his old A number with a new A number constituted a waiver of his inadmissibility pursuant to 8 U.S.C. § 1182(a)(6)(c)(iii). (Pet. ¶ 22). Regardless of whether Saliba's contentions have merit, on February 14, 2001, the INS approved his application and his status was adjusted to that of a LPR. (Pet. ¶ 21).

Five years later, on February 23, 2006, Saliba applied for naturalization pursuant to 8 U.S.C. § 1427(a)

. (Pet. ¶ 24). But the USCIS denied his application on January 22, 2008, because it determined that he had not been lawfully admitted for permanent residence. (Pet. ¶ 25). In particular, the USCIS concluded that Saliba was not lawfully admitted to the United States for permanent residence because, at the time of his adjustment to that status, he was excludable/inadmissible pursuant to INA § 212(a)(6)(c)(i)⁶ based on his TPS fraud. (Pet. ¶ 25 & Ex. A, at 2).

Two months later, on March 26, 2008, the USCIS issued Saliba a notice to appear before an immigration judge (“IJ”). (Pet. ¶ 26). The notice indicated that Saliba was subject to removal based on his submission of a fraudulent Lebanese passport and birth certificate to establish TPS eligibility in 1992. (Pet. ¶ 26 & Ex. A, at 2). On July 8, 2009, however, the IJ terminated the removal proceedings because of our holding in Garcia v. Attorney General , 553 F.3d 724 (3d Cir. 2009)

, which we decided on January 14, 2009. (Pet. ¶ 27). In Garcia , we held that a five-year statute of limitations for rescission of LPR status also applies to the initiation of removal proceedings predicated on the circumstance that the alien improperly obtained LPR status. 553 F.3d at 728–29.

On March 19, 2012, Saliba filed a second application for naturalization. (Pet. ¶ 29). The USCIS denied this second application ten months later, on January 22, 2013, because of its prior conclusion that Saliba's submission of falsified Lebanese documents with his TPS application rendered him statutorily inadmissible for naturalization. (Pet. ¶ 30). Saliba filed a Form N-336, Request for Hearing on a Decision in Naturalization Proceedings on February 26, 2013, which resulted in a hearing on April 30, 2013. (Pet. ¶¶ 31, 32). But on June 5, 2014, the USCIS reaffirmed its denial of Saliba's second application for naturalization. (Pet. ¶ 33).

On October 3, 2014, Saliba filed a timely petition in the District Court for review of the USCIS's denial of his second application for naturalization. In his petition, Saliba first asserts that the misrepresentations that he made in his application for TPS were immaterial and not willful. (E.g. , Pet. ¶¶ 37, 38, 40). In addition, Saliba maintains that even if his misrepresentations were material, the INS waived his inadmissibility when it granted him LPR status, and the USCIS implicitly waived his inadmissibility through its subsequent failure to rescind his LPR status within the five-year statutory window for taking such an action. (E.g. , Pet. ¶¶ 36, 39, 43, 44, 57, 58). On December 23, 2014, the Government moved to dismiss the petition pursuant to Rule 12(b)(6)

, or, in the alternative, moved for summary judgment.

Nine months later, on September 18, 2015, the District Court granted the Government's motion to dismiss....