U.S. v. Rebelo

Decision Date20 August 2009
Docket NumberCivil Action No. 01-2120.
Citation646 F.Supp.2d 682
PartiesUNITED STATES of America, Plaintiff, v. Marco Paulo REBELO, Defendant.
CourtU.S. District Court — District of New Jersey

Erik Robert Quick, Esq., Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Plaintiff.

Thomas E. Moseley, Esq., The Law Office of Tom Moseley, Newark, NJ, for Defendant.

BROWN, Chief Judge:

This matter, in the nature of a denaturalization proceeding, comes before the Court on the reinstated cross-motions (Doc. Nos. 20, 21) for summary judgment filed by Plaintiff the United States of America (hereinafter "the Government") and Defendant Marco Paulo Rebelo. For the following reasons, the Court will grant the Government's motion for summary judgment. Consequently, the Court will revoke Defendant's order of naturalization and cancel his certificate of naturalization.

I. BACKGROUND

The Government brings this action to revoke Defendant's order of naturalization and to cancel his certificate of naturalization pursuant to section 340(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1451(a)(2000). The Honorable Harold A. Ackerman initially granted summary judgment in favor of the Government on March 3, 2005. United States v. Rebelo, 358 F.Supp.2d 400, 421 (D.N.J.2005). The matter returns to the Court pursuant to the May 9, 2006 consent order (Doc. No. 26) issued by the United States Court of Appeals for the Third Circuit instructing this Court to reconsider the March 3, 2005 denaturalization order in light of the Third Circuit's subsequent decision in Partyka v. Attorney General, 417 F.3d 408 (3d Cir. 2005).1 Before embarking on this task, it is incumbent upon the Court to revisit the factual and procedural history of this dispute.

A. Factual and Procedural History

As a young boy, Rebelo immigrated with his family to the United States on January 26, 1981. Though a native of Rhodesia (now Zimbabwe), Rebelo came to this country as a Portuguese citizen. Rebelo and his family settled in Elizabeth, New Jersey, where Rebelo attended public school until he dropped out in the twelfth grade. Thereafter, Rebelo began a diesel engineering program, though he eventually quit the program to work as an autobody repairman and mechanic.

The event precipitating this denaturalization proceeding occurred on the morning of May 14, 1995. At the time, Rebelo lived with his parents at 22 Summer Street in Elizabeth, New Jersey. A friend notified Rebelo that his younger brother Fernando had been arrested approximately one block from the family home, prompting Rebelo and his father to visit the scene of the arrest. Once there, they discovered that Fernando was detained in the back seat of a police car, and that portions of his clothing were ripped.

A heated argument ensued between Rebelo and his father, on one side, and the police officers. Though the parties dispute what caused the fracas (see generally Montana Decl., Ex. N (Request for Admissions), Section I, Ex. D (Police Reports); Moseley Decl., Ex. A (Dep. of Marco P. Rebelo, Oct. 7, 2003) at 32-35), it is undisputed that Officer Gramiak attempted to place Rebelo under arrest, and that Rebelo bit Officer Gramiak's bare forearm during the ensuing struggle.2 Rebelo would eventually be charged with two counts of aggravated assault on a police officer, two counts of resisting arrest, one count of obstructing the administration of law, and one count of making terroristic threats. (Pl.'s L. Civ. R. 56.1 Statement at 4-5; Police Reports at 8; Request for Admissions, Section I, Ex. G (Plea Form) ¶ 12.)

Rebelo, his father, and his brother were all detained following the May 14, 1995 incident. While the charges against Rebelo's brother and father were reduced to a reckless driving ticket and disorderly persons offense, respectively, Rebelo's case proceeded in Union County Superior Court. While out on bail with charges pending, on June 11, 1995, Rebelo signed an Application for Naturalization, INS Form N-400 ("Application") under penalty of perjury. By signing the Application, Rebelo affirmed that all statements made in response to questions on the Application were true and correct. Question 15 of Part 7 of the Application asked the following criminal history question: "Have you ever ... been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations?" (Request for Admissions, Section I, Ex. B (Application) at 3.) Rebelo responded to the question in the affirmative, necessitating the inclusion of a supplement to explain the nature of the misconduct. The following hand-written statement comprised the entirety of Rebelo's criminal history supplement: "Supplement to # 15, Elizabeth, N.J., Marco P. Rebelo, May 14, 1995, Disorderly Persons Offense, Charges Dismissed." Rebelo admits that he attached this statement to the Application (Request for Admissions, Section II ¶ 5) and that the statement represents the advice of the family attorney, but denies that he wrote the statement, does not recall reading the statement, and has no knowledge of who prepared the statement (see Dep. of Marco P. Rebelo, Oct. 7, 2003 at 90-95). As Judge Ackerman previously observed, "It is undisputed that the information provided in the supplement was neither truthful at the time Rebelo signed the Application nor at any time thereafter." Rebelo, 358 F.Supp.2d at 405.

Rebelo filed his Application with the Immigration and Naturalization Service (INS)3 on July 5, 1995, the day before the scheduled hearing for his criminal proceeding in Superior Court. As of this date, Rebelo remained on bail with six charges pending against him in Superior Court, including two counts of aggravated assault on a police officer.

The following day Rebelo appeared in Superior Court, where he entered a guilty plea pursuant to a plea agreement and was convicted of third degree aggravated assault of a police officer in violation of N.J. Stat. Ann. § 2C:12-1b(5)(a), a felony offense. Notwithstanding a statutory sentencing range of three to five years of incarceration, see N.J. Stat. Ann. § 2C:43-6a(3), the Superior Court sentenced Rebelo to two years of probation, which Rebelo served from September 8, 1995 through July 14, 1997 (Request for Admissions, Section II ¶¶ 14-17).

Relying on Rebelo's sworn statements, the INS approved Rebelo's Application on October 31, 1995, and Rebelo took the oath of allegiance on December 7, 1995, whereupon he received Certificate of Naturalization No. 21 797 328. (Parra Decl. ¶¶ 8-9; Request for Admissions, Section I, Ex. A; id. Section II ¶ 18.) It is undisputed that Rebelo was on criminal probation when he took the oath of allegiance. (Request for Admissions, Section II ¶¶ 14-18; see also Knuth Decl., Ex. L (Probation Record).) At no point prior to his naturalization did Rebelo inform the INS of the disposition of the criminal charges against him.

Nearly two years later, the INS discovered the extent of Rebelo's criminal history and issued a Notice of Intent to Revoke naturalization on November 4, 1997. Specifically citing Rebelo's response to Application Question 15—which indicated a dismissed disorderly persons charge as opposed to the aggravated assault charge for which he was ultimately convicted and sentenced to two years of probation—the INS sought to rescind Rebelo's naturalization pursuant to section 340(a) of the INA, 8 U.S.C. § 1451(a), as (i) barred by his commission of a crime involving moral turpitude, as well as his probation status at the time of naturalization, and (ii) wrongfully procured by willful misrepresentation or concealment of a material fact. (Montana Decl., Ex. U at 2.)

Thereafter, the INS initiated administrative denaturalization proceedings against Rebelo, but the proceedings were stayed during the pendency of lawsuits challenging the legality of administrative denaturalization proceedings. After the United States Court of Appeals for the Ninth Circuit confined denaturalization proceedings to civil actions in United States District Courts, see Gorbach v. Reno, 219 F.3d 1087, 1099 (9th Cir.2000) (en banc), on May 2, 2001, the Government filed the instant action against Rebelo.

This Court granted the Government's motion for summary judgment on March 3, 2005. Judge Ackerman premised summary judgment and the consequent denaturalization order upon his finding that Rebelo's conviction for third-degree aggravated assault of a police officer under N.J. Stat. Ann. § 2C:12-1b(5)(a) constituted a crime involving moral turpitude that rendered Rebelo ineligible for naturalization under federal law. Rebelo, 358 F.Supp.2d at 420. Because the New Jersey aggravated assault statute provided for three varieties of qualifying conduct and mental states,4 the Court based its analysis on the presumption that Rebelo's misconduct involved the least culpable mental state: negligence. Rebelo, 358 F.Supp.2d at 416-17 ("[T]his Court will treat paragraph a.(2) as defining the least offense possible under N.J.S.A. [§] 2C:12-1b(5)(a), and will, for purposes of this summary judgment motion, consider paragraph a.(2) to constitute the threshold for the Government's motion.") (citation omitted). On the basis of this assumption, the Court construed Rebelo's conduct to entail "[n]egligently caus[ing] bodily injury to another with a deadly weapon," pursuant to N.J. Stat. Ann. § 2C:12-1a(2). Rebelo, 358 F.Supp.2d at 416-17. Before reaching the merits of the Government's arguments, Judge Ackerman rejected the following contentions raised by Rebelo's cross-motion: (1) that the Government's denaturalization action was time-barred by 28 U.S.C. § 2462, the "federal catch-all statute of limitations"; (2) that Rebelo had properly pled his asserted equitable defenses, which included, inter alia, estoppel, laches, waiver, and unclean hands; and (3) that Rebelo qualified for the safe harbor...

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