Corona Ayala v. United States Citizenship and Immigration Services et al

Filing 32

ORDER on Defendant's 23 Motion for Summary Judgment, signed by District Judge Anthony W. Ishii on 7/14/17. CASE CLOSED. (Marrujo, C)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 13 CASE NO. 1:16-CV-0798 AWI BAM VERONICA CORONA AYALA, 14 15 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff, (Doc. No. 23) v. 16 17 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 18 19 Defendants. 20 21 22 23 This is an action for declaratory relief in which Plaintiff Veronica Corona Ayala (“Ayala”) petitions for de novo review of the denial by Defendants United States Citizenship and Immigration Services (“USCIS”) et al. (“Defendants”) of her Application for Naturalization 24 Services and Request for Hearing pursuant to 8 U.S.C. § 1421(c). Currently before the Court is 25 Defendants’ Motion for Summary Judgment (“Motion”). For the reasons that follow, Defendants’ 26 Motion will be granted. 27 28 1 LEGAL FRAMEWORK 2 Summary judgment is proper when it is demonstrated that there exists no genuine issue as 3 to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. 4 Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi- 5 Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears 6 the initial burden of informing the court of the basis for its motion and of identifying the portions 7 of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine 8 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 9 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is 10 “material” if it might affect the outcome of the suit under the governing law. See Anderson v. 11 Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 12 (9th Cir. 2009). A dispute is “genuine” as to a material fact if there is sufficient evidence for a 13 reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; 14 Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010). 15 Where the moving party will have the burden of proof on an issue at trial, the movant must 16 affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. 17 Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an 18 issue at trial, the movant may prevail by presenting evidence that negates an essential element of 19 the non-moving party’s claim or by merely pointing out that there is an absence of evidence to 20 support an essential element of the non-moving party’s claim. See James River Ins. Co. v. Herbert 21 Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party 22 fails to carry its burden of production, then “the non-moving party has no obligation to produce 23 anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan 24 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party 25 meets its initial burden, the burden then shifts to the opposing party to establish that a genuine 26 issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio 27 Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot “‘rest 28 upon the mere allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets 2 1 forth specific facts showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope 2 Records, 515 F.3d 1019, 1030 (9th Cir. 2008). The opposing party’s evidence is to be believed, and all justifiable inferences that may be 3 4 drawn from the facts placed before the court must be drawn in favor of the opposing party. See 5 Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 6 (9th Cir. 2010). While a “justifiable inference” need not be the most likely or the most persuasive 7 inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 8 899. Summary judgment may not be granted “where divergent ultimate inferences may 9 reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, 10 LLC, 771 F.3d 1119, 1125 (9th Cir. 2015). If the nonmoving party fails to produce evidence 11 sufficient to create a genuine issue of material fact, the moving party is entitled to summary 12 judgment. Nissan Fire, 210 F.3d at 1103. 13 FACTUAL BACKGROUND1 14 15 1. Undisputed Facts 16 Ayala is the holder of a green card who seeks to naturalize. JSUF 1. Ayala obtained her 17 lawful permanent resident (“LPR”) status as the result of a family petition filed by her then-LPR 18 father. JSUF 2. Specifically, Ayala’s father filed an I-130 visa petition on behalf of his spouse, 19 Margarita Corona Ayala, who in turn listed Ayala as her child, thereby making Ayala eligible for 20 derivative classification. JSUF 2. The Department of State allocated to Ayala an immigrant visa 21 number under 8 U.S.C. § 1153(a)(2) and (d), as the child or a beneficiary of a form I-130 filed by 22 an LPR. Approval of the form I-130 was essential to Ayala’s eligibility. JSUF 3. 23 After filing the petition, Ayala’s father was convicted of possession of heroin for sale and 24 placed in removal proceedings. JSUF 4. An immigration judge found Ayala’s father removable, 25 and though he appealed the decision, the appeal was dismissed for abandonment. JSUF 5. 26 Ayala’s father’s removal order became final in 2000, and his LPR status terminated at that same 27 time. JSUF 6. 28 1 “JSUF” refers to the parties’ Joint Statement of Undisputed Facts, filed by Defendants. 3 1 Two years later, in 2002, Ayala applied for and received LPR status. JSUF 7. This grant 2 of LPR status was based on an error by USCIS, because the father’s petition on behalf of the 3 mother was automatically revoked prior to Ayala’s application. JSUF 8. When her father’s LPR 4 status terminated, the form I-130 he had filed was also revoked by operation of law. JSUF 8. 5 An additional error by USCIS in granting Ayala’s LPR application was in the I-864 Affidavit of 6 Support filed by her father. JSUF 9. Because he was no longer in valid LPR status himself, he no 7 longer met the criteria for filing an affidavit of support for a family-based petition. JSUF 9. 8 9 In 2004, USCIS recognized the error in granting Ayala’s LPR application and issued a Notice of Intent to Rescind (“Notice”). JSUF 10. Ayala received USCIS’s Notice and responded. 10 JSUF 10. However, USCIS did not then refer Ayala to an immigration judge for a hearing as 11 required by 8 C.F.R. § 246.3. JSUF 10. The five-year statutory window for rescinding Ayala’s 12 LPR status has now passed. JSUF 10. Ayala remains a lawful permanent resident. JSUF 10. 13 USCIS is not challenging Ayala’s LPR status in any forum. JSUF 10. 14 In 2015, Ayala applied for naturalization. JSUF 11. USCIS denied the application that 15 same year, stating its position that the requirement of having been lawfully admitted for permanent 16 residence has not been met. JSUF 11. Ayala filed an administrative appeal, and USCIS issued a 17 written decision. JSUF 12. USCIS affirmed its decision that because Ayala was not lawfully 18 admitted for permanent residence, she is ineligible for naturalization. JSUF 12. 19 2. Procedural Background 20 On June 9, 2016, Ayala filed a petition for de novo review on the denial of her application 21 for naturalization and request for a hearing. Doc. No. 1. Thereafter, Defendants filed a motion to 22 dismiss pursuant to F.R.C.P. 12(B)(6). Doc. No. 10. On October 19, 2016, this Court denied 23 Defendants’ motion to dismiss. Doc. No. 16. On April 25, 2017, Defendants filed the pending 24 motion for summary judgment. Doc. No. 23. After full briefing, the Court allowed the parties to 25 each file a sur-reply. Doc. No. 27. 26 27 28 4 DEFENDANTS’ MOTION 1 2 3 Defendants’ Argument Defendants argue that Ayala’s petition fails as a matter of law because she was not 4 lawfully admitted for permanent residency – a statutory requirement for naturalization. While 5 Defendants concede that Ayala currently has LPR status, Defendants point out that Ayala only has 6 her LPR status due to a mistake on the government’s part. Defendants acknowledge that there was 7 no fraud on Ayala’s part in obtaining her LPR status, but argue that based on the applicable 8 statutes and available case law, Ayala cannot meet her burden of proving that she is eligible to 9 naturalize. While the government’s mistake was to Ayala’s benefit, and she retains LPR status to 10 this day, Defendants argue that she cannot rely on the government’s mistake to obtain the 11 additional and distinct benefit of naturalization. 12 Plaintiff’s Opposition 13 Ayala argues that since Defendants failed to rescind her LPR status, she is in fact “lawfully 14 admitted” having now been an LPR for more than ten years after the expiration of the statutory 15 rescission period. Ayala emphasizes that the law defines “Lawfully admitted for permanent 16 residence” as “the status of having been lawfully accorded the privilege of residing permanently in 17 the United States as an immigrant in accordance with the immigration laws,” citing 8 U.S.C. § 18 1101(a)(20). Ayala argues that Defendants failed to perform their duties in accordance with the 19 law, and this should not bar her from naturalization. Ayala stresses that she never made a material 20 misrepresentation nor did she ever commit fraud to obtain her LPR status, which she has held 21 since 2002. Ayala argues that Defendants’ actions or omissions have denied her equal treatment 22 under the law and penalized and discriminated against her. 23 24 LEGAL ANALYSIS 25 1. The Applicant Bears the Burden of Proof 26 It is the applicant’s burden to prove that he or she entered the United States lawfully and is 27 eligible to become a U.S. Citizen. “[I]t has been universally accepted that the burden is on the 28 alien applicant to show his eligibility for citizenship in every respect. This Court has often stated 5 1 that doubts ‘should be resolved in favor of the United States and against the claimant.’” Berenyi 2 v. Dist. Dir., Immigration & Naturalization Serv., 385 U.S. 630, 637 (1967) (citation omitted); see 3 also 8 U.S.C.A. § 1429 (“The burden of proof shall be upon such person to show that he entered 4 the United States lawfully, and the time, place, and manner of such entry into the United States . . . 5 .”); I.N.S. v. Pangilinan, 486 U.S. 875, 876 (1988) (“It is well settled that the burden is on the 6 alien applicant to establish his eligibility for citizenship.”) 7 2. Statutory Requirements for Naturalization 8 The requirements for naturalization are set forth in 8 U.S.C.A. § 1427, which in pertinent part 9 states: 10 11 12 13 14 15 16 17 18 No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. 8 U.S.C.A. § 1427(a) (emphasis added). This statute’s key phrase is further defined by 8 U.S.C.A. § 1101(a)(20), which states that “The term ‘lawfully admitted for permanent residence’ means the 19 status of having been lawfully accorded the privilege of residing permanently in the United States 20 as an immigrant in accordance with the immigration laws, such status not having changed.” Id. 21 22 23 3. Whether Ayala is “Lawfully Admitted for Permanent Residence” Based on the parties’ Joint Statement of Undisputed Facts, there is no issue of disputed material fact and Defendants’ motion for summary judgment is purely a question of law. It is 24 undisputed in this case that Ayala is an LPR of the United States. It is also undisputed that 25 26 Ayala’s LPR status is the result of a mistake on the part of Defendants, and that the time for Defendants to rescind Ayala’s LPR status has now passed. There is no argument in this case that 27 Ayala committed any type of fraud in gaining LPR status. Thus this Court is faced with the legal 28 6 1 question of whether Ayala, as an LPR, is not “lawfully admitted for permanent residence” such 2 that she is ineligible to naturalize. 3 a. “Lawfully Admitted for Permanent Residence” in the Removal Context 4 While there is no Ninth Circuit decision addressing whether an LPR is “lawfully admitted 5 for permanent residence” under the definition provided in 8 U.S.C.A. § 1101(a)(20) in the 6 naturalization context, the Ninth Circuit and the Board of Immigration Appeals (“Board”) have 7 addressed the same statutory definition in the removal context. The Ninth Circuit and the Board 8 have made it clear that “lawfully admitted for permanent residence” is not merely a procedural 9 requirement, but a substantive one.2 In Monet v. I.N.S., 791 F.2d 752 (9th Cir. 1986), a removal 10 case, the Ninth Circuit agreed that the term “lawfully admitted” requires compliance with 11 substantive legal requirements. “Admission is not lawful if it is regular only in form. The term 12 ‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural 13 regularity.” Id. at 753 (citing In re Longstaff, 716 F.2d 1439, 1441 (5th Cir.1983)). In In re 14 Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003)3, a removal case, the Board found that “the 15 correct interpretation of the term ‘lawfully admitted for permanent residence’ is that an alien is 16 deemed, ab initio, never to have obtained lawful permanent resident status once his original 17 ineligibility therefor is determined in proceedings.” The Board phrased its findings broadly based 18 on Circuit precedent, explaining that “the United States Courts of Appeals for the Fifth and Ninth 19 Circuits each decided that the term ‘lawfully admitted for permanent residence’ did not apply to 20 2 21 22 23 24 25 26 27 28 While Ayala cites to Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) to argue that the term “previously admitted” in Section 1182(h) referred to a procedurally regular admission and not a substantively lawful admission, this case is inapplicable here. 8 U.S.C. § 1182(h) offers the possibility of a waiver of inadmissibility to otherwise inadmissible aliens, but not to aliens who have “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and later convicted of an aggravated felony. Id. Lawful admission in such a context triggers a penalty – the alien is no longer eligible to apply for the waiver. Hing Sum, 602 F.3d at 1093. Not only is the statutory language in Hing Sum (“previously admitted”) different than the statutory language at issue in this case (“lawfully admitted for permanent residence”), but Hing Sum was decided in the context that the mere fact of previous admission was enough to trigger the immigration penalty. 3 This Court previously questioned In re Koloamatangi’s application to a case outside the context of fraud in its order denying Defendants’ motion to dismiss. Doc. No. 16. However, after further briefing and research, and in light of Ninth Circuit precedent in the removal context interpreting In re Koloamatangi, the Court finds that this case applies. See, e.g., Shin v. Holder, 607 F.3d 1213, 1216 (9th Cir. 2010) (“Although the facts of both Monet and Koloamatangi involve acts of personal fraud or misrepresentation, their holdings broadly deem all grants of LPR status that were not in substantive compliance with the immigration laws to be void ab initio.”) 7 1 aliens who had obtained their permanent resident status by fraud, or had otherwise not been 2 entitled to it.” Id. (emphasis added); see also Segura v. Holder, 605 F.3d 1063, 1067 (9th Cir. 3 2010) (emphasizing “the necessity of actually complying with the substantive elements of the 4 admission requirements”); Shin v. Holder, 607 F.3d 1213, 1216–17 (9th Cir. 2010) (citing to 5 Monet for the principle that “the term ‘lawfully’ denotes compliance with substantive legal 6 requirements” and holding that “[u]nder Monet and Koloamatangi, Lee was never ‘lawfully 7 admitted’ for permanent residence and thus the Shins' derivative visas were improperly granted.”). 8 9 Even if the plaintiff obtained her LPR status by the government’s mistake, and no fraud was involved, the plaintiff is still not “lawfully admitted for permanent residence.” In Segura, the 10 petitioner argued that the Ninth Circuit’s decision in Monet was inapplicable to him because he 11 did not obtain his LPR status through fraud. Segura, 605 F.3d at 1067. The Ninth Circuit 12 disagreed. “We do not read our opinion in Monet so narrowly. Although the facts of Monet 13 indicate that the alien there did conceal his prior conviction . . . nothing in our discussion of the 14 alien's eligibility for relief turned on the act of concealment. Rather, we emphasized the necessity 15 of actually complying with the substantive elements of the admission requirements.” Id. In 16 conclusion, the Ninth Circuit held that “[petitioner] was ineligible for permanent resident status at 17 the time he filed his application for an adjustment of status. Therefore he was never ‘lawfully 18 admitted for permanent residence’ as required by § 212(c), notwithstanding any mistake by 19 immigration officials in granting [petitioner] permanent resident status.” Id. (citation omitted); see 20 also Shin, 607 F.3d at 1216 (“Although the facts of both Monet and Koloamatangi involve acts of 21 personal fraud or misrepresentation, their holdings broadly deem all grants of LPR status that were 22 not in substantive compliance with the immigration laws to be void ab initio.”) 23 24 b. Application of Removal Cases to Naturalization Cases Since the relevant statutory definition of “lawfully admitted for permanent residence,” 25 found in 8 U.S.C.A. § 1101(a)(20), is the same in both the removal context and the naturalization 26 context, this Court will apply the Ninth Circuit’s interpretation of the statute from removal cases. 27 This is consistent with the approach taken by other district courts within the Ninth Circuit. See 28 Bertos v. Napolitano, 2013 WL 1435480, at *5 (N.D. Cal. Apr. 9, 2013) (in a case where Plaintiff, 8 1 who was granted LPR status due to error sought naturalization, the court concluded that the Ninth 2 Circuit and the Board's interpretation of “lawfully admitted for permanent residence” in the 3 context of waiver or cancellation of deportation proceedings applies equally to naturalization, and 4 granted Defendants’ motion to dismiss Plaintiff’s petition); Zuniga v. Holder, 2012 WL 4215859, 5 at *4 (N.D. Cal. Sept.14, 2012) (reaching the same conclusion in the context of naturalization on 6 the basis that “Zuniga does not explain why the Court should interpret [lawfully admitted] 7 differently for the purposes of two different sections of the same statute.”). Moreover, this 8 approach is consistent with other circuits who have examined the issue. See, e.g., Turfah v. 9 United States Citizenship & Immigration Servs., 845 F.3d 668, 672–73 (6th Cir. 2017) (In a 10 naturalization case where the plaintiff was granted LPR status by mistake, the court adopted the 11 Board’s holding “that an alien is ‘lawfully admitted’ only if the alien meets all of the substantive 12 requirements for LPR status in the immigration laws . . . Because the statute is ambiguous, we 13 must defer to the [Board’s] interpretation of the statute in Koloamatangi so long as that 14 interpretation is deemed reasonable.”); Saliba v. Attorney Gen. of United States, 828 F.3d 182, 15 196 (3d Cir. 2016) (holding that “an alien who becomes a LPR despite being ‘inadmissible’ has 16 not been ‘lawfully admitted’ for permanent residence” for the purpose of naturalization); Injeti v. 17 U.S. Citizenship & Immigration Servs., 737 F.3d 311, 318 (4th Cir. 2013) (“[W]e find that Injeti 18 failed to show that she was ‘legally entitled’ to the grant of LPR status she received, and conclude 19 that she was not lawfully admitted for permanent residence. Injeti is therefore ineligible for 20 naturalization . . . .”). 21 22 c. Agarwal is Not Persuasive Ayala heavily relies on Agarwal v. Napolitano, 663 F. Supp. 2d 528 (W.D. Tex. 2009), in 23 which the court rejected the argument that Plaintiffs’ LPR status was void ab initio because the 24 government issued the LPR status erroneously. Id. at 536-37. The court stated that “The law 25 plainly states that, once granted, LPR status sticks; if the CIS later realizes that the alien was 26 actually ineligible for that adjustment in status at the time of granting (i.e. it was granted 27 erroneously) then it must follow the formal procedure for revocation or rescission.” Id. at 539. 28 The court went on to reason that this “strongly suggests that there is only one way to set aside a 9 1 grant, even an erroneous grant, of LPR status—a formal rescission proceeding. Simply ignoring 2 LPR status after it is granted, as the CIS did in its decisions on the Agarwals' applications, and as 3 the agency urges this Court to do here, is inappropriate.” Id. The court held that Plaintiffs were 4 not rendered ineligible for citizenship despite their erroneous LPR status. Id. at 543. 5 The Court respectfully declines to follow Agarwal for the following several reasons; First, 6 the holding in Agarwal that the plaintiffs were not rendered ineligible for citizenship even though 7 their LPR status was issued in error is inconsistent with the Court’s analysis of Ninth Circuit case 8 law and Bertos, 2013 WL 1435480, as cited above. Second, Agarwal appears to be an outlier as no 9 other court has followed Agarwal for this holding. Third, two district courts have expressly 10 declined to follow Agarwal in naturalization cases. See Turfah v. United States Citizenship & 11 Immigration Servs., 2016 WL 362456, at *3 (E.D. Mich. Jan. 29, 2016), aff'd, 845 F.3d 668 (6th 12 Cir. 2017) (“[T]he Court rejects the finding [in Agarwal] that tension exists between admitting that 13 an individual was granted LPR status and challenging the lawfulness of that admission. There is 14 nothing inconsistent between the government's position that Petitioner was mistakenly granted 15 LPR status and its position that Petitioner was not lawfully admitted to the United States.”); 16 Bertos, 2013 WL 1435480, at *6 (distinguishing Agarwal in part because the Agarwals’ defective 17 LPR status was due to the government’s unlawful actions in failing to notify the Agarwals of an 18 enhanced fee requirement, which the Agarwals could have remedied, unlike Bertos, who could not 19 have remedied her defective application). 20 21 d. Ayala’s Additional Arguments Ayala makes two additional noteworthy arguments that the Court will address. Ayala 22 argues that the denial of naturalization is discriminatory and that Defendants failed to perform 23 their duties in accordance with the law. The Court construes this as an attempt to invoke the 24 Court’s equitable powers or to apply estoppel. However, the Court cannot invoke its equitable 25 powers to circumvent the requirements of the United States immigration laws or apply estoppel 26 where the statutory requirements for naturalization have not been satisfied. See INS v. Pangilinan, 27 486 U.S. 875, 883–84 (1988) (“[n]either by application of the doctrine of estoppel, nor by 28 invocation of equitable powers ... does a court have the power to confer citizenship in violation of 10 1 [the Immigration and Nationality Act’s (“INA”)] limitations”); Mustanich v. Mukasey, 518 F.3d 2 1084, 1085 (9th Cir. 2008) (“[Pangilinan] established that citizenship cannot be conferred by 3 estoppel where the statutory requirements for naturalization have not been satisfied.”) The 4 Supreme Court has held that 8 U.S.C. § 1421(d) provides that a person may not be naturalized by 5 any means other than those specified in the INA, thus federal courts do not have the power to 6 confer citizenship by equitable means. Pangilinan, 486 U.S. at 883–84. The INA and applicable 7 case law foreclose Ayala’s apparent suggestion that this Court should act in her case on principles 8 of equity or estoppel. 9 Further, it makes no difference here that Ayala has already passed the five year rescission 10 period for her LPR status. In Bertos, the applicable LPR rescission period had expired, and 11 plaintiff argued that “because her status is irrevocable, she has necessarily been ‘lawfully 12 admitted’ for the purposes of naturalization.” Bertos, 2013 WL 1435480, at *3. The district court 13 rejected this argument, explaining that “Bertos must establish substantive compliance with the 14 INA's requirements for LPR status ‘in every respect’ to naturalize, and the five year statute of 15 limitations on rescission of LPR status does not help her.” Id. at *5. The court went on to further 16 explain that “[w]hile Bertos's LPR status remains unassailable in a rescission proceeding based on 17 the statute of limitations . . . the five year statute of limitations cannot cure Bertos's unlawful LPR 18 status for the purposes of naturalization.” Id. Similarly, other circuits have reached the same 19 conclusion as Bertos. See Turfah, 845 F.3d at 675 (“[W]e are unpersuaded by Turfah's argument 20 that he must be considered lawfully admitted because his LPR status ‘vested’ when the five-year 21 statute of limitations ran, preventing the government from rescinding the same. But, the language 22 of 8 U.S.C. § 1256(a) applies to the rescission of LPR status, not to naturalization proceedings. 23 Furthermore, the running of the statute of limitations simply means that the government cannot 24 institute rescission proceedings against Turfah, not that Turfah's entry was lawful in the first 25 place.”) (citation omitted); Koszelnik v. Sec'y of Dep't of Homeland Sec., 828 F.3d 175, 181 (3d 26 Cir. 2016) (rejecting an alien's argument that he was lawfully admitted because the statute of 27 limitations for rescinding his LPR status had run). Therefore, the rescission period’s expiration 28 does not change whether Ayala is in substantive compliance with naturalization requirements. 11 1 4. Resolution4 2 It is undisputed that Ayala’s LPR status was issued in error and therefore this Court finds 3 that she does not meet the substantive requirements of being “lawfully admitted” for the purpose 4 of naturalization. Ayala obtained LPR status as the result of a family petition filed by her then- 5 LPR father. JSUF 2. After filing the petition, Ayala’s father was convicted of possession of 6 heroin for sale and his LPR status terminated. JSUF 4-6. Two years later, Ayala applied for and 7 received LPR status in error, because her father’s petition was revoked and his affidavit of support 8 was invalid. JSUF 7-9. The fact that the LPR rescission period has passed and that Ayala did not 9 engage in fraud does not change the fact that Ayala’s LPR status is not in substantive compliance 10 with the law. Monet, 791 F.2d at 754; Segura, 605 F.3d at 1067; Bertos, 2013 WL 1435480, at *5. 11 The Court concludes that Ayala is not “lawfully admitted for permanent residence” for the purpose 12 of naturalization, and will grant Defendants’ motion for summary judgment. 13 14 ORDER 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Defendants’ motion for summary judgment is GRANTED; 17 2. Ayala’s second sur-reply (Doc. No. 31) is STRICKEN; and 18 3. The Clerk shall enter judgment in favor of Defendants and CLOSE this case. 19 20 21 IT IS SO ORDERED. Dated: July 14, 2017 SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28 4 Ayala’s June 13, 2017 second sur-reply (Doc. No. 31), will be stricken pursuant to the Court’s May 31, 2017 order on additional briefing. Doc. No. 27. After permitting each party to file a sur-reply, the Court ordered that no further briefing would be permitted. Id. Ayala’s second sur-reply violates this Court’s order. Additionally, even if the Court were to consider Ayala’s June 13, 2017 second sur-reply, it would not affect the Court’s decision in this case. 12

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