U.S. v. Reve, CIVIL ACTION NO. 01-1483 (MLC).
| Decision Date | 31 January 2003 |
| Docket Number | CIVIL ACTION NO. 01-1483 (MLC). |
| Citation | 241 F.Supp.2d 470 |
| Parties | UNITED STATES of America, Plaintiff, v. Hiram Cristobal REVE, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Christopher J. Christie, United States Attorney (Neil R. Gallagher and Janice Montana, Office of District Counsel of United States Immigration & Naturalization Service, of counsel), Newark, NJ, for plaintiff.
Regis Fernandez, Newark, NJ, for defendant.
AMENDED MEMORANDUM OPINION
This is an action to revoke and set aside the April 1996 order granting the 1995 application by the defendant, Hiram Cristobal Reve, for naturalized citizenship on the ground that it was procured by concealment of a material fact or by willful misrepresentation. 8 U.S.C. § 1451(a). The plaintiff ("the government") moves for summary judgment on the complaint, or alternatively to strike Reve's six affirmative defenses and preclude discovery as to those defenses. The defendant cross-moves for further discovery and leave to assert the additional defenses of laches and a due process violation. For the following reasons, the branch of the motion that is for summary judgment will be granted, the branch of the motion that is to strike the affirmative defenses and to preclude discovery will be denied as moot, and the cross motion will be denied as moot.
An application for naturalized citizenship should be denied unless the applicant "has been and still is a person of good moral character" during the period encompassing the five years preceding the application through the oath of allegiance. 8 U.S.C. § 1427(a)(3); see 8 C.F.R. § 316.10(a)(1). In addition:
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—
. . . . .
(3) a member of [a] class[ ] of persons, whether inadmissable or not, described in ... subparagraph ](A) ... of section 1182(a)(2) of this title ... if the offense described therein, for which such person was convicted or of which he [sic] admits the commission, was committed during such period;
. . . . .
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section).
(8) U.S.C.§§ 1101(f)(3) & (8). First, § 1182(a)(2)(A) states in relevant part:
(A) Conviction of certain crimes
(i) In general
... [Any] alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime ... is inadmissible.1
Second, according to the version of § 1101(a)(43) in effect in 1995 and 1996, an "aggravated felony" included a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of imprisonment) is at least 5 years.
8 U.S.C. former § 1101(a)(43)(F).2 A "crime of violence" is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The government is authorized to institute a proceeding against a naturalized citizen to:
revok[e] and set[ ] aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization ... were procured by concealment of a material fact or by willful misrepresentation.
Sexual assault is a crime of the second degree punishable by a term of imprisonment of five to ten years. N.J.S.A. §§ 2C:14-2(c), 2C:43-6(a)(2). An actor is guilty of sexual assault if the actor commits an act of sexual penetration with another person through physical force or coercion. N.J.S.A. § 2C:14-2(c)(1). An actor is also guilty of sexual assault if the actor commits an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim. N.J.S.A. former § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(e)(4) (Supp. 2002).
Criminal sexual contact is a crime of the fourth degree punishable by a term of imprisonment not to exceed eighteen months. N.J.S.A. §§ 2C:14-3, 2C:43-6(a)(4). An actor is guilty of criminal sexual contact if the actor has sexual contact with the victim under any circumstances set forth in the aforementioned section 2C:14-2(c). N.J.S.A.§ 2C:14-3(b).
Endangering the welfare of a child in the third degree is punishable by a term of imprisonment of three to five years. N.J.S.A. §§ 2C:24-4, 2C:43-6(a)(3). A person who engages in certain conduct or causes certain harm to a child under the age of sixteen (e.g., sexual conduct impairing or debauching the child's morals) is guilty of this crime. N.J.S.A. § 2C:24-4(a).
Reve became a lawful permanent resident alien of the United States in 1974. (Compl. at 2.) On July 7, 1995, a warrant for Reve's arrest was issued because he was suspected of sexually assaulting a fourteen-year-old child in May 1995. (Montana Supp. Decl, Ex. F, 7-7-95 Warrant ("Warrant").) On July 12, 1995, he was arrested pursuant to the warrant. (Id., Ex. C, 7-26-96 Judgment of Conviction ("J.Conv.").)
Reve's signed naturalization application was dated July 27, 1995, and filed July 31, 1995.3 (Compl. at 2.) The application contained these two queries: (1) "Have you ever knowingly committed any crime for which you have not been arrested" and (2) "Have you ever been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations." ( Further, in the case of an affirmative answer, the application directed the applicant to provide information on the nature of the offense and the outcome of any criminal action on a separate piece of paper. (Applic.) In response to both queries, Reve checked the boxes demarcated "No." (Id.)
Reve was indicted in New Jersey Superior Court, Union County, in November 1995 for sexual assault and criminal sexual contact. (Montana Supp. Decl, Ex. G, Indictment ("Ind.").) Sometime thereafter but before April 8, 1996, Reve was tried on the charges; the result was a hung jury. .)
Reve's naturalization application was approved on March 11, 1996, and he was naturalized on April 8, 1996. (Montana Supp. Decl Ex. L, Certif.) Reve does not contest that he failed to advise the government of his arrest and indictment on or before April 8, 1996. (Gov't Br. at 13-14.)
Reve, apparently facing a re-trial as to the charges, entered a plea of guilt to endangering the welfare of a child in the third degree and criminal sexual contact on May 8, 1996. (J. Conv.; Deft. Br. at 2.) Reve admitted at the plea hearing:
A: Basically I fondled myself for my self-gratification—
Q. We have to be a little more explicit. When you say you fondled yourself?
A. I—
Q. Penis?
A. Yes.
Q. Okay. And you did so for your own gratification, sexual gratification?
A. Yes.
Q. Now, did you do this in the presence of—?
A. [The victim.] Yes.
(Montana Supp. Decl, Ex. J, Plea Tr. ("Plea Tr.").) He was sentenced to three years probation on July 26, 1996. (J. Conv.)
The government, on becoming aware of Reve's criminal record, commenced an administrative denaturalization proceeding against him in 1998. (Montana Supp. Decl, Ex. R, Not. of Intent to Revoke.) This process was delayed when the propriety of such administrative proceedings became the subject of litigation for approximately two years. (Gov't Reply Br. at 20-21 n. 1; 7-26-02 Oral Arg. Tr. at 14-15.)
The government then commenced this action in March 2001 to revoke and set aside the order granting Reve's application for naturalized citizenship on the ground that it was procured by concealment of a material fact or by willful misrepresentation. (Compl.) Annexed to the complaint was an affidavit from an INS employee. (1-4-00 Martinez Aff.)4 The affidavit asserted that Reve's "criminal record was material to determining his eligibility for naturalization because it would have had the natural tendency to influence the INS decision whether to approve his application." (Id, at 2.) It also asserted that had Reve:
revealed that he had been arrested for these crimes, his application for naturalization would not have been approved until he could have demonstrated that his criminal history did not affect his ability to establish good moral character. Because Mr. Reve was ultimately convicted of two crimes involving moral turpitude, he could not have established that he was a person of good moral character.
(Id. at 4.) Reve answered and asserted six affirmative defenses: (1) lack of subject matter jurisdiction; (2) failure to state a claim; (3) failure to set forth evidence showing good cause for cancellation of citizenship; (4) waiver; (5) res judicata; and (6) equitable estoppel. (Answer.)
The government moved for summary judgment on the complaint, or alternatively to strike Reve's six defenses and preclude discovery as to the defenses. (6-20-02 Not. of Mot.) In support of summary judgment, the...
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