v. Cheng

Filing 2

ORDER grating petition to amend naturalization certificate. (vrwlc1, COURT STAFF) (Filed on 2/20/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 4, 2008, petitioner Magdalen Cheng moved the court to amend the date of birth on her naturalization certificate. Doc #1. Cheng alleges the date of birth on the certificate, In re MAGDALEN CHENG / No C 08-80251 MISC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

September 19, 1946, is incorrect, and that her true date of birth is November 4, 1944. Id. In response, the government provided a

copy of the certified administrative record ("CAR"), which was not electronically filed because it contains information protected by the Privacy Act of 1974, 5 USC § 522a. On September 18, 2008, Cheng sought a replacement naturalization certificate with her corrected date of birth from United States Citizenship and Immigration Services ("USCIS"). 19. CAR

Under 8 CFR §§ 338.5, 334.16, USCIS may amend a date of birth

on a naturalization certificate only to correct a clerical error. Because Cheng swore her date of birth to be September 19, 1946 when she petitioned for naturalization, USCIS correctly declined to change her date of birth. CAR 1-2.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Under 8 CFR § 334.16, the district court can order the amendment of a naturalization certificate issued prior to 1990 when the alleged error is not clerical. Kouanchao v United States

Citizenship and Immigration Services, 358 F Supp 2d 840, 843 (D Minn, 2005); In re Lee, 2007 WL 926501, *2 (ND Cal March 26, 2007). Cheng bears the burden to demonstrate that November 4, 1944 is her true date of birth. Kouanchao, 358 F Supp 2d at 841. The court See In re

cannot correct a petitioner's deliberate falsehoods. Hennig, 248 F 990, 991 (ED NY 1918).

In her petition, Cheng explains why she believed her date of birth to be September 4, 1946. Cheng's mother recorded her

birth date by hand, and someone misread the sloppily-written 4 to be a 6. Doc #1. Id. Ever since, Cheng believed her date of birth to Further, Cheng asserts her birthday was not

be in 1946.

translated from the Chinese lunar calendar and should be November 4 rather than September 19. Id. In 1998, Cheng learned of the

Chinese lunar calendar discrepancy and went to China to obtain a copy of her birth certificate. Id. The official birth certificate Doc #1 Exh 1. Cheng

lists her birth year as 1944, not 1946.

states that her birth certificate matches her Chinese school records but does not provide a copy of those records. Doc #1.

Prior to 1998, Cheng consistently listed her date of birth as September 19, 1946. Her petition for adjustment of

status, CAR 52, petition for immediate relative visa, CAR 46, lawful permanent resident application, CAR 40, marriage certificate, CAR 49, and petition for naturalization, CAR 32-37, all list her date of birth as September 19, 1946. After Cheng

discovered birth year error and the lunar calendar error in 1998, 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

she attempted to change her records to reflect what she alleges is her true date of birth. Doc #1. The Social Security

Administration has changed Cheng's date of birth to November 4, 1944 in its records. Doc #1 Exh 4.

Here, the court finds Cheng's testimony regarding the error's origin to be credible and further supported by her verified Chinese birth certificate. While the government points out that

Cheng repeatedly swore her date of birth as September 19, 1946, this fact is consistent with Cheng's allegation that she was not aware of the error until 1998. The record does not indicate any Cheng will not receive

fraudulent activity on the part of Cheng.

any additional benefits resulting from the changed date of birth, because the Social Security Administration already accepted her birth year as 1944. Kouanchao, 358 F Supp 2d at 843. At most, The

Cheng will receive consistency among her vital documents.

court is satisfied that Cheng's mistake in swearing her date of birth as September 19, 1946 was honest and that her true date of birth is November 4, 1944. Accordingly, the court GRANTS Doc #1, Cheng's petition to amend her certification of naturalization. USCIS shall issue an

amended certificate of naturalization stating that petitioner Magdalen Cheng's date of birth is November 4, 1944.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge 3