U.S. v. Rebelo

Decision Date02 March 2005
Docket NumberCiv. No. 01-2120 (HAA).
Citation358 F.Supp.2d 400
PartiesUNITED STATES of America, Plaintiff, v. Marco Paulo REBELO, Defendant.
CourtU.S. District Court — District of New Jersey

Janice Montana, Esq., Office of Immigration Litigation, U.S. Department of Justice, Civil Litigation, Newark, NJ, for Plaintiff.

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


ACKERMAN, Senior District Judge.

This matter comes before the Court on Plaintiff United States of America's (the "Government") motion for summary judgment and, in the alternative, to strike Defendant's remaining affirmative defenses. This matter is also before the Court on Defendant Marco Paulo Rebelo's ("Rebelo") cross-motion for summary judgment. For the following reasons, the Government's motion for summary judgment is GRANTED on the ground of illegal procurement of naturalization because Rebelo was convicted of a crime involving moral turpitude during the statutory period. Rebelo's cross-motion for summary judgment is DENIED.


The Government brings this action to revoke and set aside an order of naturalization of Rebelo, as well as to cancel his certificate of naturalization, pursuant to Section 340(a) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1451(a) (2000). In its motion for summary judgment, the Government contends that Rebelo was ineligible for naturalization because he had been convicted of a crime involving moral turpitude ("CIMT") during the statutory period in which good moral character is required. The Government further alleges that Rebelo procured his naturalization by willfully concealing the fact that he was on probation for having committed a CIMT at the time his application for naturalization was approved and he took the oath of allegiance. Rebelo contends, in contrast, that the Government waited more than five years after learning of his conviction before bringing this action, and therefore should be barred under the applicable statute of limitations from seeking revocation of Rebelo's citizenship. Rebelo further argues that the underlying crime for which he was convicted was not a CIMT, and maintains that the regulation barring naturalization for applicants who are on probation was not promulgated in accordance with the Administrative Procedures Act, 5 U.S.C. § 553 (2000). Finally, Rebelo insists that the alleged willful misrepresentation is insufficient, as a matter of law, to bar naturalization, and that in any event his actions did not constitute willful misrepresentation.

Before proceeding further, some background information is necessary.1 Rebelo was born on June 27, 1973 in Rhodesia (now Zimbabwe). The record reflects, however, that Rebelo was of Portugese citizenship at the time his family immigrated to the United States on January 26, 1981. Rebelo and his family settled in Elizabeth, New Jersey, where Rebelo attended public school. After dropping out of the twelfth grade, Rebelo matriculated in a program at Lincoln Tech for diesel engineering, but never completed the program. He subsequently found work as an autobody repairman and mechanic.

Rebelo was residing with his parents at 22 Summer Street in Elizabeth, New Jersey when, on the morning of May 14, 1995, he received a phone call from a friend informing him that his younger brother, Fernando, had been arrested approximately one block from home. Rebelo woke his father, Alberto Rebelo, who immediately proceeded to the scene. A short time later, Rebelo followed his father to the scene. Upon arriving, Rebelo found his brother in the back seat of a police car, his shirt ripped.2

The police report differs markedly from Rebelo's version of what occurred next. Officers Merten and Gramiak reported that they were seated in their squad car, filling out a tow form for Fernando's car, when they observed Rebelo and his father approaching them. Upon learning that Fernando had been arrested, Rebelo's father became "very irrational" and began to shout at the officers. (Decl. of Counsel, Ex. N.) The police report also reflects that Rebelo told the officers, "Now is when your real fuckin problems begin." (Id.) According to the police report, the officers instructed Rebelo and his father to step onto the sidewalk, at which point Rebelo allegedly threw his hat and keys on the hood of the squad car "and took an aggressive stance." (Id.) At this point, Rebelo allegedly stated, "The only fuckin way I'm going is if you arrest me too." (Id.) After the officers advised him that he would be arrested if he did not immediately leave, Rebelo purportedly shouted, "Let's fucking go!" (Id.) It was at this point, according to the police report, that the officers attempted to place Rebelo under arrest.

Rebelo, by contrast, contends that upon seeing Fernando in the back of the squad car with his shirt ripped, Rebelo asked the officers which officer had beaten up his brother. In response to this query, Officer Gramiak purportedly emerged from the police car and asked Rebelo, in a confrontational manner, "Do you want to fight me?" Without further provocation, the officer then allegedly grabbed Rebelo, threw him against the police car, and began to choke him.3 (Def.'s Statement Pursuant to L. Civ. R. 56.1, ¶¶ 6-7.)

Despite apparent disagreement over the exact precipitating events, the parties to the incident agree that Officer Gramiak and Rebelo became engaged in a physical struggle as the officer attempted to place Rebelo under arrest. It is undisputed that Rebelo bit Officer Gramiak's bare forearm during the struggle, and that the officers then punched Rebelo several times and maced him. Subdued, Rebelo was treated at a hospital for his injuries and later 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. The police report reflects that Officer Gramiak required hospital treatment and HIV testing for the bite wound to his arm, which was "bleeding heavily," and that the officer "had to leave work due to his injuries." (Decl. of Counsel, Ex. N.)

Rebelo, his father Alberto, and his brother Fernando were all placed under arrest following the May 14, 1995 incident. Although the Government disputes the assertion, Rebelo contends that his father and brother retained Nelson Monteiro to represent them in the subsequent proceedings.4 John Ammiano, an attorney who purportedly worked with Mr. Monteiro, represented Rebelo.5 Ultimately, the charges against Rebelo's brother were reduced to a reckless driving ticket, while those against Rebelo's father were dropped down to a disorderly persons offense. Rebelo's case, however, proceeded in the Union County Superior Court.

On June 11, 1995, while out on bail with charges pending, Rebelo signed an Application for Naturalization, INS Form N-400 ("Application"), under penalty of perjury. Rebelo's signature on this document constituted a swearing or affirmation that the contents of the Application were true and correct. Of importance to the instant proceedings, Question 15 of Part 7 of the 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?" (Decl. of Alfred Parra, Ex. A at 3.) Rebelo checked the box indicating "Yes," and, as required, attached a supplement to the Application in which he ostensibly explained the circumstances of his arrest. The supplement consisted entirely of the following hand-written statement: "Supplement to # 15, Elizabeth, N.J., Marco P. Rebelo, May 14, 1995, Disorderly Persons Offense, Charges Dismissed." 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 does contend, however, that he was simply following the advice of his father's attorney, Mr. Monteiro, when he answered Question 15 as he did. Without denying that the supplement contained his response to Question 15, or that he read the supplement before signing the completed Application, Rebelo further notes that the supplement was not in his handwriting.

On July 5, 1995, the day before Rebelo's case was slated for disposition in the Union County Superior Court, Rebelo filed his Application with the Immigration and Naturalization Service ("INS"). It is undisputed that on this date, Rebelo remained on bail with six charges pending against him in the Superior Court, including two counts of aggravated assault on a police officer.

On July 6, 1995, Rebelo appeared in the Union County Superior Court and signed a written Plea Agreement. Rebelo entered a guilty plea and was convicted of aggravated assault in the third degree pursuant to N.J.S.A. 2C:12-1b.(5)(a), a felony offense. A conviction for a crime of the third degree is punishable by incarceration for a period of three to five years, pursuant to N.J.S.A. 2C:43-6a.(3). The Superior Court judge nevertheless sentenced Rebelo to two years of probation, commencing on September 8, 1995 and ending on July 14, 1997. Rebelo does not dispute the fact of his conviction of aggravated assault in the third degree.

Based upon the information Rebelo provided, the INS approved Rebelo's Application on October 31, 1995. Rebelo took the oath of allegiance on December 7, 1995 and received Certificate of Naturalization No. 21 797 328 on the same day. It is undisputed that at the time Rebelo's Application was approved and at the time he was administered the oath of allegiance, Rebelo had not informed the INS of the disposition of the criminal charges against him.

On November 4, 1997, the INS, having learned of Rebelo's criminal history, issued a Notice of Intent to Revoke ("NOIR"). The NOIR alleged that Rebelo's response to Question 15 of his Application...

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