Valerio v. U.S. I.N.S.

• Decision Date: 20 December 1999
• Docket Number: No. Civ. 99-00215SPK.,Civ. 99-00215SPK.
• Citation: 86 F.Supp.2d 1009
• Parties: Shirly Dacanay VALERIO, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — District of Hawaii

86 F.Supp.2d 1009

Shirly Dacanay VALERIO, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. Civ. 99-00215SPK.

United States District Court, D. Hawaii.

December 20, 1999.

William F. Thompson, III, Maile M. Hirota, Lynch Ichida Thompson & Kim, Honolulu, HI, for petitioner.

Mary Reiko Osaka, Special Assistant U.S. Attorney, Thomas A Helper, Assistant U.S. Attorney, Steven S. Alm, United States Attorney, Honolulu, HI, David W. Ogden, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for respondent.

ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND GRANTING PETITIONER'S MOTION FOR SUMMARY JUDGMENT

SAMUEL P. KING, District Judge.

Petitioner Shirly Dacanay Valerio ("Valerio") appeals the decision of Respondent United States Immigration & Naturalization Service ("INS") denying her application for naturalization. The INS based the denial on its conclusion that Valerio was not "lawfully admitted for permanent residence" as required by 8 U.S.C. § 1427(a). Valerio seeks judicial review of that decision pursuant to 8 U.S.C. § 1421(c). The Court VACATES the decision of the INS and REMANDS for further proceedings.

I. BACKGROUND

Valerio was admitted to the United States as a permanent resident on September 25, 1988, at age fourteen. She has resided in the United States for the past eleven years, living in Hawai`i and attending high school there. She is presently twenty-five years old.

On July 24, 1997, Valerio applied for naturalization. After she was interviewed by an immigration examiner on June 24, 1998, Valerio received notice that she had passed the English, history, and government tests. In addition, she was told that she had to submit a notarized explanation regarding previous claims of being a United States citizen. She complied with this requirement on July 16, 1998.

Shortly thereafter, on August 8, 1998, the INS District Director denied Valerio's application for naturalization. Valerio requested a re-hearing pursuant to 8 U.S.C. § 1447, and on November 23, 1998, the District Director issued a decision re-affirming its prior decision. The District Director determined that Valerio was not "lawfully admitted for permanent residence" in the United States pursuant to 8 U.S.C. § 1427(a), and thus, ineligible for naturalization.

This determination was the product of a series of inferences based on the immigration history of Valerio and her parents. Valerio was admitted for permanent residence as the child of a United States citizen based on a visa petition filed on her behalf by her mother, Francisca D. Valerio ("Mrs.Valerio"). Mrs. Valerio immigrated to the United States on March 14, 1982, as the spouse of a lawful permanent resident, namely Valerio's father, Antonio R. Valerio ("Mr.Valerio"), and became naturalized on December 9, 1987. Going one step further in the chain of events, Mr. Valerio entered the United States as the unmarried son of a lawful permanent resident on November 18, 1977, and was naturalized on March 14, 1982. However, the INS later discovered that his claim of being an "unmarried" son was false since, at the time of his entry into the United States, he was in fact married to Mrs. Valerio. Mr. Valerio was convicted of unlawful procurement of naturalization on February 19, 1991, and the INS subsequently revoked his citizenship. However, Mrs. Valerio remains a United States citizen to date.

From this set of facts, the INS surmises that "[since] Valerio's father was not lawfully admitted to the United States, Valerio's mother's admission was also tainted, and ... [t]herefore, [she] could not lawfully petition for Valerio herself to immigrate to the United States." Mem.Supp.Mot. Dismiss at 7-8. Valerio argues that the INS's logic does not sustain its denial of her application for naturalization.

Valerio petitioned for judicial review on March 23, 1999. The INS filed a Motion to Dismiss and Valerio filed a Motion for Summary Judgment.¹ Both motions are now before the Court.

II. STANDARD OF REVIEW

The Court reviews de novo the decision of the INS denying an application for naturalization. 8 U.S.C. § 1421(c). De novo review is appropriate where the matter before the Court is a question of law, as here. See Monet v. I.N.S., 791 F.2d 752, 753 (9th Cir.1986); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III. DISCUSSION

At issue is whether Valerio was "lawfully admitted" under a visa petition filed on her behalf by her mother, whose own citizenship is in potential jeopardy. The INS maintains she was not. The Court disagrees.

The INS does not dispute that Valerio entered the United States in a procedurally regular fashion. Rather, the INS argues that "what is essential is lawful status, not regular procedure." In re Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983). This principle, according to the INS, compels the conclusion that Valerio was not "lawfully admitted for permanent residence."

The INS's position flows from the fact that Mr. Valerio entered the United States under a false claim. The illicit manner by which Valerio's father procured his citizenship taints Mrs. Valerio's immigration status, which in turn renders Valerio herself an unlawfully admitted alien. This was a family effort, the INS suggests, representing a "well-executed scheme of unlawful immigration." Resp't's Memo. Opp.Summ.J. at 6.

Intuitively appealing as it may seem to elevate substance over form, the INS's argument assumes too much. In its vigorous pursuit of substantive truth, the INS has neglected to observe procedure. The Immigration and Nationality Act (the "Act"), 8 U.S.C. §§ 1101 et seq., governs the process of immigration and naturalization. We now turn to the relevant provisions of the Act.

Section 316 of the Act requires that an applicant for naturalization be "lawfully admitted for permanent residence".² Whether Valerio was lawfully admitted hinges on the validity of the visa she obtained through the petition her mother filed on her behalf.

Section 204(a)(1)(A)(i) of the Act provides that "any citizen of the United States claiming that an alien is entitled to ... an immediate relative status under § 1151(b)(2)(A)(i) of this title may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154(a)(1)(A)(i). An "immediate relative" includes "children ... of a citizen of the United States." 8 U.S.C. § 1151(b)(2)(A)(i). Once an alien is conferred "immediate relative" status, an immigrant visa will issue pursuant to section 221 of the Act, 8 U.S.C. § 1201(a). The record is clear that Mrs. Valerio observed these procedures in obtaining a visa for Valerio: as a citizen of the United States, Mrs. Valerio was entitled to petition for a visa for her daughter, an immediate relative. The controversy lies instead in Mrs. Valerio's status as a United States citizen.

The INS assumes that the revocation of Mr. Valerio's citizenship also rendered Mrs. Valerio's citizenship void. Stripped of her citizenship, Mrs. Valerio was not entitled to petition for a visa on Valerio's behalf. The logical end to this proof is that Valerio did not enter the United States on the basis of a valid visa, and thus, was not "lawfully admitted."

The INS has gotten ahead of itself — at best, its argument is premature. Mrs. Valerio's citizenship has not been revoked. The Act sets forth specific procedures for denaturalization which the INS has yet to invoke.³ Section 340(a) of the Act requires a United States attorney to submit an affidavit showing good cause to institute revocation proceedings.⁴ See 8 U.S.C. § 1451(a). The proceeding must be brought in a district court. See id. The party alleged to have procured naturalization unlawfully is entitled to sixty days' personal notice of the proceeding. See 8 U.S.C. § 1451(b). Strict compliance with the personal notice requirement is required, or else a judgment of denaturalization is void. See United States v. Kiriaze, 172 F.2d 1000, 1002 (5th Cir.1949).

Once a denaturalization proceeding is initiated, the United States carries a heavy burden to prove that a naturalized citizen should be stripped of citizenship. See Costello v. U.S., 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). The United States must prove the alleged illegal procurement by clear and convincing evidence. See Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); Friend v. Reno, 172 F.3d 638, 646 (9th Cir.1999). This heightened standard of proof is especially necessary "when the attack [on one's citizenship] is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness." Schneiderman, 320 U.S. at 122-23, 63 S.Ct. 1333.

It is eminently obvious that divestment of citizenship in disregard of these procedures would violate due process. Yet, that is in effect what the INS urges the Court to do. No denaturalization proceedings against Mrs. Valerio have commenced, much less produced a judicial determination that she is not entitled to citizenship. Not deterred, the INS would have the Court conclude that she is not a citizen, and thus, was ineligible to petition for a visa on her daughter's behalf. This is not the law. Whether Mrs. Valerio should be stripped of her citizenship twelve years after she was naturalized is an issue properly resolved in a denaturalization proceeding governed by the Act's procedures. In the absence of such due process, the INS cannot assume that Mrs. Valerio is not a citizen. While it is true that "[t]he term `lawfully' denotes compliance with substantive legal requirements, not mere procedural regularity," Monet v. I.N.S., 791 F.2d 752, 753 (9th Cir.1986), substantive correctness does not justify the derogation of procedure. See Bennett v. Spear, 520 U.S. 154, 172, 117 S.Ct. 1154,...