U.S. v. Nunez-Garcia

• Decision Date: 20 May 2003
• Docket Number: No. CV 01-4159-JWJ.,CV 01-4159-JWJ.
• Citation: 262 F.Supp.2d 1073
• Parties: UNITED STATES of America, Plaintiff, v. Adelmo NUNEZ-GARCIA, Defendant.
• Court: U.S. District Court — Central District of California

262 F.Supp.2d 1073

UNITED STATES of America, Plaintiff, v. Adelmo NUNEZ-GARCIA, Defendant.

No. CV 01-4159-JWJ.

United States District Court, CD. California, Western Division.

May 20, 2003.

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Debra W. Yang, United States Attorney, Robert D. McCalkim, Jr., Assistant Attorney General, Civil Division Mark C. Walters, Assistant Director, Theresa M. Healy, Attorney, State Bar No. 171566, Office of Immigration Litigation, United States Department. of Justice, Civil Division, C/O Immigration and Naturalization Service, Office of the District Counsel, Los Angeles, CA, for Plaintiff.

Sandra Cannon, State Bar No. 187876, Law Offices of Sandra Cannon, Los Angeles, CA, for Defendant,

ORDER RE MOTION FOR SUMMARY JUDGMENT ON THE GOVERNMENT'S COMPLAINT TO REVOKE NATURALIZATION

JOHNSON, United States Magistrate Judge.

The parties have consented, pursuant to 28 U.S.C. § 636(c), to proceed before United States Magistrate Judge Jeffrey W. Johnson in the instant action and to have the Magistrate Judge conduct any and all further proceedings in this case and order the entry of final judgment.

For the reasons set forth below, the Court grants partial summary judgment on counts two, three, and five of the Complaint to Revoke Naturalization.

I. SUMMARY OF PROCEEDINGS

On May 7, 2001, plaintiff, the United States of America, filed a Complaint to Revoke Naturalization (hereinafter "Complaint") pursuant to 8 U.S.C. § 1451(a).¹ The Complaint seeks to revoke and set aside the order admitting defendant Adelmo Nunez-Garcia to citizenship and to cancel his certificate of naturalization. The Complaint includes as an exhibit, the affidavit of John Miles, Associate General Counsel of the Immigration & Naturalization Service (hereinafter "INS"), showing good cause for the action. (Complaint, Exh. A.)

In five counts, the Complaint alleges that defendant illegally procured United States citizenship and that his naturalization must be revoked:

Count One: "Illegal Procurement of United States Citizenship: Defendant was Never Lawfully Admitted as a Permanent Resident";

Count Two: "Illegal Procurement of United States Citizenship: Lack of Good Moral Character—Convictions Barring Good Moral Character";

Count Three: "Illegal Procurement of United States Citizenship: Lack of Good Moral Character: Conviction Barring Good Moral Character";

Count Four: "Illegal Procurement of United States Citizenship: Lack of Good Moral Character—Defendant's False Testimony Barring Finding of Good Moral Character";

Count Five: "Procurement of United States Citizenship by Willful Misrepresentation or Concealment of a Material Fact."

On November 18, 2002, the United States moved for partial summary judgment on counts two through five of the Complaint (hereinafter "Motion for Summary Judgment" or "MSJ"). On December 6, 2002, defendant filed a Statement of Genuine Issues of Material Facts in opposition to the summary judgment motion. On January 16, 2003, defendant filed a Supplemental Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment ("Supp.MPA"). The United States filed its Reply on January 23, 2003 ("Reply").

On January 27, 2003, the Court heard argument on the government's Motion for Summary Judgment. At the conclusion of the hearing, the Court ordered further briefing. On March 7, 2003, defendant filed a Second Supplemental Brief ("Second Supp. Br."), and the United States filed a Sur-Reply on March 18, 2003. On March 25, 2003, defendant filed a response to plaintiffs sur-reply. The Court again heard argument on April 15, 2003. Accordingly, this case is under submission and ready for decision.

II. STATEMENT OF FACTS

On the basis of the pleadings and the evidence submitted in support thereof, the Court has compiled the following factual statement. Unless otherwise noted, for the purpose of consideration of the government's Motion for Summary Judgment, the recited facts are uncontroverted and apparently not in dispute:

On September 26, 1978, in the Los Angeles County Superior Court, defendant was convicted, pursuant to a guilty plea, of second-degree murder; he was sentenced to six years in state prison. (Appendix to MSJ, Exh. 5.)

On June 21, 1988, the INS granted defendant status as a lawful permanent resident of the United States under 8 U.S.C. § 1255(a). (Appendix to MSJ, Exh. 1D, p. 1.)

On April 10, 1990, in the Municipal Court of Los Angeles County, defendant pleaded guilty to a charge of lewd conduct in public, in violation of California Penal Code § 647(a); the court sentenced defendant to 24 months probation and a fine of $300. (Appendix to MSJ, Exh. 8.) The offense conduct occurred on March 10, 1990. (id.)

On January 19, 1995, defendant failed an Application for Naturalization ..("Form N-400) with the INS based on his having been a lawful permanent resident for at least five years. See 8 U.S.C. § 145 Question 15(b) of the form application asked: "Have you ever been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations?" (Appendix to MSJ, Exh. ID.) Defendant answered the question "no." (Id.) Defendant's Application for Naturalization was prepared by Jose Arce, a notary public. (Supp.MPA, p. 15.) After completing the application, Mr. Arce had defendant sign it; Mr. Arce thereafter mailed it to the Los Angeles INS office. (Joint Status Report, p. 3.) Defendant signed the Application for Naturalization under penalty of perjury. (Appendix to MSJ, Exh. ID.) He included his fingerprints with his application. (Reply, Exh. B.)

On December 14, 1995, an INS officer interviewed defendant under oath about his Application for Naturalization. It is disputed whether the INS officer specifically asked defendant about his answer to question 15(b). The United States contends that the interviewing INS officer asked defendant whether he had a criminal record and defendant replied that he did not have one. (Reply, p. 7; see also Appendix to MSJ, Exh. 2, p. 2.) Defendant, on the other hand, asserts that he "didn't hear any question" about his criminal history (Appendix to MSJ, Exh. 9, p. 50.) Based on defendants application and interview, the INS approved defendant's Application for Naturalization. (Appendix to MSJ, Exh. 1E.) February 22, 1996, defendant took an oath of allegiance to the United States and was issued a Certificate of Naturalization. (Appendix to MSJ, Exh. 1A.)

III. STANDARD OF REVIEW

A. Denaturalization

As a cherished right, citizenship once conferred should not be taken away without the clearest justificaton and proof. Gorbach v. Reno, 219 F.3d 1087, 1100 (9th Cir.2000) (en banc). To that end, the government must prove its case for denaturalization by "clear, unequivocal, and convincing evidence, which does not leave `the issue in doubt'" that the defendant i guilty of fraud or illegal procurement in his naturalization process. Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). In an action under 8 U.S.C. § 1451(a) to revoke a grant of citizenship previously conferred, the facts and the law should be construed as far as is reasonably possible in favor of the citizen. Schneiderman v. United States, 320 U.S. at 122, 63 S.Ct. 1333.

At the same time, "there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions 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. Once a court has determined the government has met its burden of proving that a naturalized citizen obtained his citizenship illegally, or by concealment of a material fact or willful misrepresentation, it has no discretion to excuse the conduct and must enter a judgment of denaturalization. Fedorenko, 449 U.S. at 517, 101 S.Ct. 737 (emphasis added).

B. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Anderson v. Liberty Lobby, ill U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party has the initial burden of "identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. See Poller v. CBS, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1050 (9th Cir.1995).

If the moving party meets its burden, the responding party may not defeat a motion for summary judgment "in the absence of any significant probative evidence tending to support his legal theory." Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). Summary judgment cannot be avoided solely on conclusory allegations; the responding party must bear his burden to produce factual evidence in support of his claim. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Thus, the responding par...