Socarras v. U.S. Dept. of Homeland Sec., Case No. 09-22355-CV.

• Decision Date: 25 November 2009
• Docket Number: Case No. 09-22355-CV.
• Citation: 672 F.Supp.2d 1320
• Parties: Martha SOCARRAS, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

672 F.Supp.2d 1320

Martha SOCARRAS, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case No. 09-22355-CV.

United States District Court, S.D. Florida.

November 25, 2009.

Martha Socarras, Miami Lakes, FL, pro se.

Milton Aponte, United States Attorney's Office, Miami, FL, Regan Hildebrand, US Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendants' Motion for Summary Judgment (dkt. # 4). Plaintiff filed a Response in Opposition (dkt. # 5). Defendants also filed a Reply (dkt. # 6).

UPON CONSIDERATION of the Motion, Response, Reply, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

This case involves a petition for de novo review of an application for naturalization. Plaintiff Martha Socarras ("Socarras"), a native and citizen of Columbia, first entered the United States in 1990 and was admitted as a B-2 visitor. She returned to the United States on July 22, 1997, and was allowed to remain in the United States until July 31, 1998, so that she could adjust her status. On December 8, 1999, Socarras was convicted of conspiracy to file false claims against the United States Department of Health and Human Services ("HHS"), mail fraud, and paying kickbacks. As a result, Socarras was sentenced by Judge James Lawrence King, United States District Judge, Southern District of Florida, to two years' imprisonment and three years' supervised release. Judge King ordered $1,114,676.04 in restitution and awarded actual loss to the victims in the amount of $700,000,000. Socarras, however, was only ordered to pay $500,000 in restitution because of her inability to pay the full amount. On January 7, 2002, Socarras was placed in removal proceedings under Section 212(a)(2)(A)(i)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(2)(A)(i)(1), for having been convicted of a crime involving moral turpitude. On March 13, 2002, an Immigration Judge granted Socarras waiver pursuant to INA § 212(i),¹ 8 U.S.C. § 1182(i), and approved her application for lawful permanent residence under INA § 245, 8 U.S.C. § 1255, despite her being otherwise inadmissible due to her December 1999 conviction.

Socarras filed an application for naturalization with the Department of Homeland Security, United States Citizenship and Immigration Services ("USCIS") on March 19, 2007. Socarras attended an initial interview regarding her application on July 1, 2008. On October 2, 2008, USCIS denied Socarras' application for naturalization finding that she lacked good moral character, a requirement under INA § 316, 8 U.S.C. § 1427. USCIS determined that Socarras' December 1999 conviction was an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), as it was a fraud offense in which the loss to the victims exceeded $10,000. On November 7, 2008, Socarras requested a hearing on USCIS' decision pursuant to INA § 336(a), 8 U.S.C. § 1447(a). USCIS denied Socarras' request for a hearing on May 27, 2009, finding that Socarras' December 1999 conviction was an aggravated felony and, therefore, Socarras was precluded from naturalization. Socarras filed the instant Petition (dkt. # 1) on August 10, 2009, claiming that because she was granted a waiver and received her legal permanent resident status, she should "thus be granted her citizenship/naturalization as well." (Pl. Pet. ¶ 10(i).)

II. STANDARD OF REVIEW

The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir.1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. ANALYSIS

Defendants request summary judgment on the grounds that Socarras' December 1999 conviction bars her from showing good moral character for naturalization. Socarras has raised three arguments in her defense: (1) Socarras' December 1999 conviction does not satisfy the aggravated felony definition under INA § 101(a)(43)(M)(i) requiring a loss to the victim in excess of $10,000 because her conviction did not require the United States to prove any amount of loss; (2) the USCIS improperly considered her December 1999 conviction as a basis to deny her application for naturalization; and (3) material facts are in dispute. Although Socarras failed to timely file her Response in accordance with Local Rule 7.1(C), the Court will, nonetheless, address the merits of the Motion.

Socarras is seeking naturalization, or citizenship. "No alien has the slightest right to naturalization unless all statutory requirements are complied with." United States v. Ginsberg, 243 U.S. 472, 474-75, 37 S.Ct. 422, 61 L.Ed. 853 (1917). "There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). An individual petitioning for naturalization bears the burden of proving, by a preponderance of the evidence, that he or she has complied with the statutory requirements. Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). Any doubts are resolved in favor of the United States. Id. The requirements for naturalization are set forth in the INA. A lawful permanent resident bears the burden to prove his or her eligibility to become naturalized as a United States citizen by establishing two primary requirements: (1) residency; and (2) good moral character. See INA §§ 316(a), 316(3); 8 U.S.C. §§ 1427(a), 1427(e), 1430, 1429; 8 C.F.R. §§ 316.5, 316.10, 319. These two requirements promote identification with the principles of our Constitution. See 8 C.F.R. § 316.11. At issue here is whether Socarras has the requisite good moral character to be granted naturalization.

A. Socarras' Argument that her Conviction of Conspiracy Does Not Satisfy the Aggravated Felony Definition Under INA § 101(a)(43)(M)(i)

An applicant for naturalization who has been convicted of an aggravated felony, as defined by INA § 101(a)(43)(M)(i), is precluded from establishing good moral character. INA § 101(f)(8); 8 U.S.C. § 1101(f)(8). Section 101(a)(43)(M)(i) provides in pertinent part: "The term `aggravated felony' means ... an offense ... that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." INA § 101(a)(43)(M)(i); 8 U.S.C. § 1101(a)(43)(M)(i). Because the conspiracy statute under which Socarras was convicted, 18 U.S.C. § 371, does not contain a monetary threshold, Socarras argues that her conviction fails to satisfy the $10,000 loss threshold in § 101(a)(43)(M)(i). Her argument, however, has been foreclosed by the Supreme Court in Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). In Nijhawan, the petitioner, like Socarras, was convicted of conspiracy to commit fraud under 18 U.S.C. § 371, as well as other fraud and deceit crimes that did not include a monetary loss threshold. Id. at 2298. The Court rejected the petitioner's argument that the $10,000 loss threshold in § 101(a)(43)(M)(i) required that the petitioner be convicted of a crime that includes such a threshold as an element of the crime. Id. at 2302. The Court held, instead, that the $10,000 loss threshold "applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion." Id. In other words, as long as the commission of a fraud and deceit crime involves a loss to the victims exceeding $10,000, it is irrelevant that the actual elements of the offense for which the person was convicted do not contain such a loss threshold. Id. at 2301-02. The $10,000 loss threshold, however, must be proven by the government by clear and convincing evidence and must be tied to the conviction. Id. at 2303.

Here, Socarras' conviction for conspiracy to defraud HHS involved an actual loss to the victims of $700,000, for which Socarras was ordered to pay $500,000 as restitution. (Def. Mot. Sum. Judg. Ex. 4-3 at 4.) Socarras has conceded this fact. In light of the restitution order provided by the Defendants and Socarras' concession of the loss amount, the Defendants have proven by clear and convincing evidence that the loss to the victims of...