U.S. v. Mohalla

Decision Date24 March 2008
Docket NumberNo. CV 07-430 DSF (JCx).,CV 07-430 DSF (JCx).
PartiesUNITED STATES of America v. Aiman Nasser MOHALLA.
CourtU.S. District Court — Central District of California

Patricia M. Corrales-Talleda, U.S. Dept. of Justice, Office of Immigration Litigation, Los Angeles, CA, for United States.

Order GRANTING Plaintiffs Motion for Partial Summary Judgment Against Defendant

DALE S. FISCHER, District Judge.

This matter is before the Court on Plaintiffs Motion for Partial Summary Judgment as to Counts 1 and IV of Plaintiffs First Amended Complaint ("Motion"). Count 1 seeks revocation of Defendant's naturalization on the basis of illegal procurement of citizenship due to failure to meet the requirements of 8 U.S.C. § 1430(a). Count IV seeks revocation on the basis of procurement by willful misrepresentation or concealment of material facts.

The Court deems this matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78; Local Rule 7-15. For the reasons discussed below, the Court GRANTS the Motion for Partial Summary Judgment.

I. FACTS

On July 11, 2007. Plaintiff the United States of America filed its First Amended Complaint to Revoke Naturalization ("FAC") pursuant to 8 U.S.C. § 1451(a). In the FAC, Plaintiff seeks to revoke and set aside the order admitting Defendant Aiman Nasser Mohalla, a.k.a David Solomon, a.k.a. Aiman Mohulla, to citizenship and to cancel his certificate of naturalization. The FAC, as required, includes the affidavit of Senior Special Agent Phillips Salacup, Jr. of U.S. Immigration and Customs Enforcement ("ICE"), showing good cause for the action. In four counts, the FAC alleges that Defendant illegally procured United States citizenship and that his naturalization must be revoked:

Count I: Illegal Procurement of United States Citizenship: Defendant Failed to Meet Eligibility Requirement of 8 U.S.C. § 1430(a);

Count II: Illegal Procurement of United States Citizenship: Lack of Good Moral Character: False Testimony Barring Good Moral Character;

Count III: Procurement of United States Citizenship by Willful Misrepresentation or Concealment of Marital History;

Count IV: Procurement of United States Citizenship by Willful Misrepresentation or Concealment of Material Facts.

(FAC ¶¶ 24-66.)

Defendant became a lawful permanent resident of the United States on April 27, 1993. (PL's Separate Statement of Uncontroverted Facts and Conclusions of Law in Supp. of Mot. for Partial Summ. J. ("UF") No. 2.) On April 29, 1996, Defendant filed an "Application for Naturalization," INS Form N-400, with the former Immigration and Naturalization Service of the United States Department of Justice ("INS"). (UF No. 3.) Defendant's application was based on his eligibility as a lawful permanent resident who is married to a United States citizen and has been living in marital union with that citizen spouse for three years immediately preceding the examination on his application for naturalization. (UF No. 4.) When Defendant appeared for his naturalization interview on September 9, 1996, he was asked by the interviewing INS officer if he continued to live in marital union with his citizen spouse, Diane Mohalla (Ploszaj). (UF. No. 5.) Defendant testified, under oath, that he continued to live in marital union with his citizen spouse. (UF No. 5.) Defendant also affirmed, under penalty of perjury, that his responses to the questions on his naturalization application were true and correct. (UF No. 6.)

Defendant's application for naturalization was approved (UF No. 7) and in March 1997, the INS mailed to Defendant a Notice of Naturalization Oath Ceremony, INS Form N-445 (UF No. 8). Defendant was instructed to complete the questions on the reverse side of the form and present the form to the INS when he appeared at an oath ceremony. (UF No. 8.) Defendant completed the questions, including an answer that he had not been married, widowed, separated, or divorced since the date of his naturalization interview. (UF No. 10.) Defendant took the oath of allegiance and was admitted to United States citizenship and was issued Certificate of Naturalization number 23099796. (UF No. 11.)

Defendant's eligibility for naturalization was based on his marriage to Diane Ploszaj, a United States citizen. (UF No. 13.) In a sworn statement, Ms. Ploszaj declared that she and Defendant separated and ceased living together in marital union sometime between September 1995 and December 1995. (UF No. 14.) Ms. Ploszaj also declared that at the time Defendant filed his application for naturalization, they had ceased to live together or hold themselves out as husband and wife. (UF No. 15.) Defendant petitioned for dissolution of marriage on October 25, 1996 and in that petition claimed that he had been separated from Ms. Ploszaj since March 15, 1996. (UF No. 16.) The court's order dissolving the marriage made a specific finding that Defendant and Ms. Ploszaj had separated as early as February 1, 1996, which was two months prior to Defendant filing his application for naturalization. (UFNo. 17.)

II. LEGAL STANDARD

A. Summary Judgment

Courts may grant summary judgment in a party's favor "upon all or any part" of a party's claim. Fed.R.Civ.P. 56(a) (emphasis added). The standard and procedures for a motion for partial summary judgment are the same as for summary judgment of a claim. See Delta Sav. Bank v. United States, 265 F.3d 1017 (9th Cir.2001). Summary judgment shall be granted where "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." Fed.R.Civ.P. 56(c).

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., All U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because the moving party here has the burden of proof at trial, it must establish "beyond controversy every essential element" of its claim. So. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (citation and internal quotation marks omitted) (adopting the district court's opinion). The moving party need not disprove the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, if the moving party satisfies this burden, the party opposing the motion must set forth specific facts, through affidavits or admissible discovery materials, showing that there exists a genuine issue for trial. Id. at 323-24, 106 S.Ct. 2548: Fed.R.Civ.P. 56(e).

The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported summary judgment motion; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. An issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Id. at 250-51, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.

B. Standard For Denaturalization

Citizenship, once conferred, should not be taken away without the. clearest justification and proof. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. 122 (1943); Gorbach v. Reno, 219 F.3d 1087, 1100 (9th Cir.2000). In an action under 8 U.S.C. § 1451(a) to revoke a grant of United States citizenship previously conferred, the facts and the law should be construed as far as reasonably possible in favor of the citizen. Schneiderman, 320 U.S. at 122, 63 S.Ct. 1333. "The evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt." Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (quotations omitted). Once the Court has determined that the government has met its burden of proof, it has no discretion to excuse the conduct. Id. at 517, 101 S.Ct. 737.

Under 8 U.S.C. § 1451(a). a citizen's naturalization must be revoked and his certificate of naturalization canceled if his naturalization was either 1) illegally procured or 2) procured by concealment of a material fact or by willful misrepresentation. There must be strict compliance with all congressionally imposed prerequisites to the acquisition of citizenship. Fedorenko, 449 U.S. at 506, 101 S.Ct. 737. Failure to comply renders the certificate "illegally procured," and naturalization that is unlawfully procured can be set aside. Id.; 8 U.S.C. § 1451(a).

Although the government bears a heavy burden in denaturalization proceedings, the facts of a case may be such that a revocation of citizenship at the summary judgment stage may be appropriate. United States v. Dailide, 227 F.3d 385, 389 (6th Cir.2000). See e.g., United States v. Dang, 488 F.3d 1135 (9th Cir.2007); United States v. Koreh, 59 F.3d 431 (3rd Cir. 1995).

III. DISCUSSION

A. Summary Judgment Is Proper Because Defendant Illegally Procured His Naturalization, Given That He Was Not Living in Marital Union With His Citizen Spouse at the Time He Applied for Naturalization.

Failure to comply with any statutorily required condition renders the certificate of citizenship "illegally procured." and naturalization that is unlawfully procured can be set aside. Fedorenko, 449 U.S. at 506, 101 S.Ct. 737. An applicant seeking naturalization as the spouse of a citizen must be living in marital union with his or her citizen spouse during the three years immediately preceding the date of filing the application. See 8 U.S.C. § 1430(a). Although Congress has not defined the term "living in marital union," the INS has promulgated administrative regulations that explain that "[a]n applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current...

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