Shyiak v. Bureau of Citizenship and Immigration Services
| Decision Date | 25 September 2008 |
| Docket Number | No. 2:04-CV-137.,2:04-CV-137. |
| Citation | 579 F.Supp.2d 900 |
| Parties | David Paul SHYIAK, Plaintiff, v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
George W. Hyde, Hyde & Swajanen PC, Marquette, MI, Richard James Puchalski, Law Offices of Richard J. Puchalski, Chicago, IL, for Plaintiff.
Michael L. Shiparski, U.S. Attorney, Grand Rapids, MI, for Defendant.
This matter is before the Court on Plaintiff David Paul Shyiak's motion for summary judgment and Defendant Bureau of Citizenship and Immigration Services's ("BCIS") cross-motion for summary judgment. (Dkt. No. 29, Pl.'s Mot.; Dkt. No. 36, Def.'s Mot.) Both motions address whether Plaintiff abandoned his lawful permanent resident ("LPR") status when, at age ten, he left the United States and returned to Canada with his parents. For the reasons that follow, Plaintiff's motion for summary judgment will be denied and Defendant's cross-motion for summary judgment will be granted.
Plaintiff was born in Canada on November 4, 1966. (Dkt. No. 28, Admin. R. 37.) On March 28, 1971, Plaintiff and his parents entered the United States as LPRs. (Admin. R. 4, 37, 42.) Plaintiff was four years old at the time of entry. (Admin. R. 4.) Plaintiff and his parents returned to Canada in September of 1977, when Plaintiff was ten years old. (Admin. R. 4, 42-43.) Plaintiff and his parents returned to Canada because Plaintiff's father had accepted employment in Canada. (Admin. R. 4, 37.) The position Plaintiff's father accepted did not have a fixed end date. (Admin. R. 4.) Plaintiff's father testified that he never intended to abandon his LPR status, but he also acknowledged that he never again resided in the United States after returning to Canada in 1977. (Admin. R. 4, 43.) When Plaintiff's father was asked if he considers himself to be a lawful permanent resident, Plaintiff's father replied: "I would have to say no. I can't see how." (Admin. R. 43.) Plaintiff testified that since his mother returned to Canada in 1977, she has not returned to the United States to reside. (Admin. R. 4.)
Between 1977 and 1987, Plaintiff made brief, but frequent, visits to the United States. (Admin. R. 4, 38.) Plaintiff's family continued to own a house in Devil's Lake, North Dakota, until 1981 or 1982. (Admin. R. 4, 43.) However, the house in Devil's Lake was a rental property, not a residence for the Shyiak family. (Admin. R. 4.) Plaintiff returned to the United States in 1987 on a student visa to attend Northern Michigan University on a hockey scholarship. (Admin. R. 38.) Plaintiff then left the United States to play professional hockey in Europe. (Admin. R. 38.) Plaintiff played professional hockey in Europe for seven months and knew the length of his engagement at the time he departed the United States. (Admin. R. 38.) Plaintiff returned to the United States on a student visa to complete his degree and work as a student assistant hockey coach at Northern Michigan University. (Admin. R. 39.) In August of 1993 Plaintiff accepted a position as a hockey coach in Kimberley, British Columbia, Canada. (Admin. R. 39.) In June of 1994 Plaintiff accepted a teaching position in Merritt, British Columbia, Canada. (Admin. R. 39.) In April of 1995 Plaintiff returned to the United States to work as a teacher and assistant hockey coach at Northern Michigan University. (Admin. R. 39.) Plaintiff entered the United States in April of 1995 on a visa issued pursuant to the NAFTA treaty. (Admin. R. 40.)
In 2001 or 2002, Plaintiff learned from his father that when the family entered the United States in 1971 they were granted LPR status. (Admin. R. 40, 43.) Plaintiff's father sent Plaintiff's LPR card to Plaintiff, who began using the LPR card to enter the United States. (Admin. R. 88.) On July 22, 2002, Plaintiff filed an application for naturalization with the Immigration and Naturalization Service, the predecessor agency to BCIS. (Admin. R. 19.) On November 4, 2002, Plaintiff was interviewed by a BCIS agent. (Admin. R. 85-89.) At the conclusion of the interview, BCIS indicated that Plaintiff's application for naturalization would be denied; however, Plaintiff did not receive a final decision from BCIS. (Admin. R. 19.) During the interview in November of 2002, Plaintiff declined to sign BCIS/INS form I-407 indicating that he had abandoned his LPR status. (Admin. R. 85, 87.) On June 24, 2004, Plaintiff filed the instant lawsuit because BCIS had not issued a determination on his application for naturalization within 120 days of the interview. On March 30, 2005, in accordance with a stipulation to remand entered by the parties, the Court remanded this matter to the District Adjudication Office of BCIS for further administrative proceedings. (Dkt. No. 16, Order of Remand 1.) The Court's order remanding the case indicated that the Court would retain jurisdiction over this action. (Order of Remand 1.)
On June 17, 2005, a hearing was held on Plaintiff's application for naturalization. (Admin. R. 2, 16.) BCIS denied Plaintiff's application for naturalization on July 22, 2005. (Admin. R. 2-5.) The July 22, 2005, decision concluded that:
It is the determination of the Service that you abandoned your status as a permanent resident when your parents abandoned their status while you were still a minor in their care and custody.
Since the abandonment of your lawful permanent resident status, you have not taken any legal action to restore the status. In fact, since you abandoned your lawful permanent resident status, you have been given at least two different non-immigrant classifications in the United States.
The applicant has the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization.
You have failed to establish to the satisfaction of the Service that you are a lawful permanent resident of the United States and as such, your application must be, and is hereby, denied.
(Admin. R. 4-5.) Plaintiff filed a request under Section 336 of the Immigration and Nationality Act ("INA") for a review of the July 22, 2005, decision. On September 29, 2006, the review of the July 22, 2005, decision concluded:
[Y]our status was abandoned when you returned to Canada, as a minor child, with your family in 1977. Since, your entries have been primarily for the purpose to visit, for pleasure or business; however, at no time since the 1977 departure have you or your family returned to resume residence, take employment, or pay taxes. In fact, as stated, you have had two non-immigrant classifications in the United States since 1977: as an F-1 student, and currently under NAFTA. In addition, you have made multiple entries into the United States since becoming aware you had been a resident, declaring your eligibility for entry into the United States with the use of the TN visa.
Because you have failed to overcome the ground enumerated in the District Director's denial decision of July 22, 2005, that decision will be affirmed. In naturalization proceedings, the applicant bears the burden of establishing his/her application merits favorable consideration.
It is ordered that the denial decision of July 22, 2005, be affirmed.
(Admin. R. 1.) The parties then reinstated the case before the Court.
The Court originally had subject-matter jurisdiction over this matter under 8 U.S.C. § 1447(b)1 because BCIS had not made a decision on Plaintiff's application for naturalization within 120 days of the interview that took place on November 2 or 4, 2002. After BCIS's September 29, 2006, decision affirming the denial of Plaintiff's application for naturalization the Court's subject-matter jurisdiction is based on Title 8, section 1421(c) of the United States Code, which provides, in relevant part:
A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of Title 5. Such review shall be de novo, and 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.
8 U.S.C. § 1421(c) (1994). As indicated, though the parties have submitted their arguments as motions for summary judgment, the Court must conduct a de novo review of Plaintiff's application. Each party has provided a summary of the relevant facts. Plaintiff does not dispute the "substantive facts" recounted by Defendant. (Dkt. No. 38, Pl.'s Reply 2.) Furthermore, the Court notes that Plaintiff does not request a hearing before the Court in this matter because, according to the Plaintiff, there are no contested issues of fact. Id.
The only basis for denial of Plaintiff's application indicated by Defendant is that Plaintiff has allegedly abandoned his LPR status. Thus, that is the issue to be considered by the Court in this appeal.
LPR status is a prerequisite to naturalization. 8 U.S.C. § 1429 (1996) (). Furthermore, the applicant for naturalization bears the burden of proof with respect to meeting the eligibility requirements for naturalization. Id. (); 8 C.F.R. § 316.2(b) (1995) ().
Plaintiff acknowledges that he bears the burden of proving the elements...
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...jurisdiction to hear the case but rather upon the merits of Plaintiff's claim. See Shyiak v. Bureau of Citizenship and Immigration Svcs., 579 F.Supp.2d 900, 904 (W.D. Mich. 2008) (finding the court had subject matter jurisdiction under § 1421(c) to review the denial of plaintiff's naturaliz......