USA v. Gayle
Filing
11
ORDER granting the Government's 9 Motion for Summary Judgment. See the attached memorandum of decision. The Clerk is directed to enter judgment in favor of the Plaintiff as detailed in the memorandum of decision and close the case. Signed by Judge Vanessa L. Bryant on 1/29/2014. (Burkart, B.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
Plaintiff,
v.
RORY DECORDOVA GAYLE,
Defendant.
:
:
:
:
:
:
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CIVIL ACTION NO.
3:12-CV-1516 (VLB)
January 29, 2014
MEMORANDUM OF DECISION GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT [Dkt. 9]
I.
Introduction
The United States brings this denaturalization action against Defendant Rory
Decordova Gayle, a naturalized U.S. citizen, pursuant to 8 U.S.C. § 1751(a), on two
independent grounds: (1) the Defendant lacked good moral character during the
statutory period, and, therefore, was ineligible to naturalize and did so unlawfully;
and (2) the Defendant willfully misrepresented and concealed material facts about
his criminal conduct during the naturalization process with Immigration and
Naturalization Services (“INS”). For the following reasons, the Plaintiff’s motion
for summary judgment is GRANTED.
II.
Background
Mr. Gayle was born in Jamaica in 1969 and entered the United States on
August 17, 1979 as a lawful permanent resident. [Dkt. 9-1, Memorandum of Law
in Support of Plaintiff’s Motion for Summary Judgment, p. 3; Dkt. 9-1, Immigration
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Visa and Alien Registration, p. 1]. On January 8, 1999, Gayle, still then a lawful
permanent resident of the United States, filed a Form N-400 Application for
Naturalization (“N-400”) with the INS. [Dkt. 9-11, Local Rule 56(a)1 Statement, ¶ 2;
Dkt. 9-2, N-400 Application for Naturalization, p. 4]. Question 15a of Form N-400
asks: “Have you ever . . . knowingly committed any crime for which you have not
been arrested?” Gayle answered “No” to that question. [Dkt. 9-11, ¶ 3; Dkt. 9-2,
p. 3]. By signature dated January 4, 1999, Gayle signed his N-400 under penalty
of perjury, thereby swearing or affirming that the contents of the application,
including his response to Question 15a, were true and correct. [Dkt. 9-11, ¶ 4;
Dkt. 9-2, p. 4]. On June 21, 1999, Gayle was interviewed under oath by INS
District Adjudications Officer (“DAO”) Peggy Keck. [Dkt. 9-11, ¶ 5; Dkt. 9-2, p. 4;
Dkt. 9-3, Declaration of Peggy Keck, ¶ 5]. As a matter of practice, DAOs routinely
ask the same questions of naturalization applicants, including orally reviewing
questions and answers contained in the applicant’s N-400. [Dkt. 9-11, ¶ 6; Dkt. 93, ¶ 7]. After asking Mr. Gayle selected questions from his N-400, DAO Keck
recorded three corrections and advised him, as she did all applicants for
naturalization, that if he swore that all of the information provided on the
application was true and correct, including the corrections, that he should sign
his full and complete name, attesting to the accuracy of the responses and
information provided on the application. [Dkt. 9-11, ¶ 7; Dkt. 9-3, ¶ 9]. Gayle
affirmed his understanding and signed the N-400 swearing for the second time
that the content of the application, including his response to question 15a, was
true and correct. [Dkt. 9-11, ¶ 7; Dkt. 9-2, p. 4; Dkt. 9-3. ¶ 9].
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On June 30, 1999, Gayle’s N-400 was approved, based on his sworn responses
to the questions on the form, supporting documentation he provided, and his
testimony at the interview. [Dkt. 9-11, ¶ 8; Dkt. 9-2, p. 1; Dkt. 9-3, ¶¶ 9-10]. On
August 6, 1999, Gayle appeared at the federal courthouse in Hartford,
Connecticut, for his naturalization oath ceremony. [Dkt. 9-11, ¶ 9; Dkt. 9-4, Form
N-445 Notice of Naturalization Oath Ceremony]. Gayle presented INS authorities
with his completed N-445 Form, including an answer to Question 3 which asked
Gayle whether, since the date of his initial naturalization interview, “[h]ave you
knowingly committed any crime or offense, [sic] for which you have not been
arrested; or you have been arrested, cited, charged, indicted, convicted, fined, or
imprisoned for breaking or violating any la or ordinance, including traffic
violations?” [Dkt. 9-11, ¶ 10; Dkt. 9-4, p. 2]. Gayle answered “[n]o” to this
question. [Dkt. 9-11, ¶ 10; Dkt. 9-4, p. 2]. Because Gayle certified that there was
no new information that would render him ineligible to naturalize, he was
administered the oath of allegiance and was naturalized. [Dkt. 9-11, ¶ 12; Dkt. 9-3,
¶ 11; Dkt. 9-5, Certificate of Naturalization No. 24401225].
On April 27, 2000, Gayle made a three page sworn statement to the Windsor
Police Department in Connecticut, confessing to sexually abusing his minor
niece on multiple occasions beginning two to three years prior. [Dkt. 9-11, at ¶
13; Dkt. 9-8, Police Confession, p. 1-3]. On October 30, 2000, Gayle appeared in
Connecticut Superior Court and pleaded guilty to two counts of Sexual Assault in
the First Degree against a minor, in violation of Conn. Gen. Stat. § 53a-70(a)(2), for
crimes committed between November of 1996 and September 1999. [Dkt. 9-11, ¶
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14; Dkt. 9-6, Superior Court Information and Disposition, p. 1; Dkt. 9-7, Plea
Colloquy Transcript, p. 2-3, 7-10]. After a thorough canvass, the court accepted
Gayle’s plea as knowing, intelligent, and voluntary. [Dkt. 9-11, ¶ 15; Dkt. 9-7, 222]. Gayle was sentenced to twenty years’ incarceration with fifteen years to
serve and the remainder suspended, a ten-year period of probation, and lifetime
registration as a sex offender. [Dkt. 9-1, p. 5; Dkt. 9-6, p. 1, 3-4]. Gayle is
currently incarcerated at the Osborne Correctional Institution located in Somers,
Connecticut with a maximum release date of July 14, 2014. [Dkt. 9-1, p. 6; Dkt. 99, Department of Correction Inmate Information, p. 1].
The INS claims that had the Defendant represented on his Form N-400, at his
interview, or on his Form N-445 that he had committed this crime within the fiveyear statutory period in which good moral character must be established even
though he had not been arrested, he would not have been permitted to naturalize.
[Dkt. 9-11, ¶ 16]. Accordingly, the United States filed this civil action to revoke
Gayle’s naturalization pursuant to 8 U.S.C. § 1451(a) on October 24, 2012. In
response, Gayle’s family members in Connecticut have communicated with
government counsel, but the Defendant has failed to appear in this matter and
has not filed any response to the government’s petition.
III.
Legal Standard
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
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106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citations omitted).
“A party opposing summary judgment cannot defeat the motion by relying on
the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, [the non-movant is] required to present
admissible evidence in support of [its] allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp.,
No.3:03cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation
marks and citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341
(VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no
evidence upon which a jury could properly proceed to find a verdict for the party
producing it and upon whom the onus of proof is imposed, such as where the
evidence offered consists of conclusory assertions without further support in the
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record, summary judgment may lie. Fincher v. Depository Trust and Clearance
Co., 604 F.3d 712 (2d Cir. 2010).
The government bears a tremendous burden in revoking citizenship because
United States citizenship has been described as the “highest hope of civilized
men,” and “once [it][ has been conferred, it should not be taken away without the
clearest sort of justification and proof.” Schneiderman v. United States, 320 U.S.
118, 112 (1943). Generally, for the government to succeed in revoking an
individual’s citizenship, it “must prove its case by clear, unequivocal, and
convincing evidence which does not leave the issue in doubt.” United States v.
Sprogis, 763 F.2d 115, 121 (2d Cir. 1985) (citing Fedorenko v. United States, 449
U.S. 490, 505 (1981)). However, “[e]ven in denaturalization cases, the facts of a
case may be such that revocation of citizenship at the summary judgment stage
is appropriate.” United States v. Wasylyk, 162 F. Supp. 2d 86, 89 (N.D.N.Y. 2001).
Furthermore, a default judgment is valid and permissible in denaturalization
actions. See United States v. Karahalias, 205 F.2d 331, 332 (2d Cir. 1953) (“The
Supreme Court definitely decided in Klapprot v. United States, 335 U.S. 601, 69 S.
Ct. 384, 93 L. Ed. 226, that a judgment by default was valid in a denaturalization
action . . . .”). Therefore, it would be permissible for this Court to enter default
judgment against the Defendant for his failure to contest the government’s
petition. However, given the tremendous impact that a ruling on this motion
would have on the Defendant and upon review of more authorities questioning
the propriety of default judgments in denaturalization hearings, the Court agrees
with the government that a careful review of the evidence presented is warranted
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in order to best serve the interests of justice. See Kungys v. United States, 485
U.S. 759, 791-92) (Stevens, J., concurring in the judgment) (noting that since the
effects of denaturalization proceedings may be graver than consequences that
flow from some criminal convictions, “default judgments in denaturalization
proceedings are intolerable.”) (citations omitted).
IV.
Discussion
In order to be eligible for naturalization, a person must satisfy three criteria:
(1) have been lawfully admitted to the United States for permanent residence; (2)
be a person of good moral character for at least five years before filing a
naturalization application; and (3) have resided continuously and have been
physically present in the United States for the required statutory period. See 8
U.S.C. §§ 1427, 1429. No alien has the right to naturalize “unless all statutory
requirements are complied with.” United States v. Ginsberg, 243 U.S. 472, 475
(1917). “[T]here must be strict compliance with all the congressionally imposed
prerequisites to the acquisition of citizenship. Failure to comply with any of
these conditions renders the certificate of citizenship illegally procured, and
naturalization that is unlawfully procured can be set aside.” Fedorenko, 449 U.S.
at 506 (internal quotation marks and citations omitted); see also United States v.
Lemos, No. 08-civ-11144(KMW), 2010 WL 1192095, at *5 (S.D.N.Y. March 26, 2010)
(“Naturalization is illegally procured when the individual was statutorily ineligible
for naturalization before it was granted.”) (internal quotation marks and citations
omitted)).
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Within this context, the Immigration and Naturalization Act (“INA”) permits the
United States to
institute proceedings in any district court of the United
States in the judicial district in which the naturalized
citizen may reside at the time of bringing suit, for the
purpose of revoking and setting 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 illegally
procured or were procured by concealment of a material
fact or by willful misrepresentation . . . .
8 U.S.C. § 1451(a). The government argues that the Defendant procured his
naturalization certificate both illegally and through concealment of material facts
and willful misrepresentations. Both of these arguments will be analyzed in turn.
A. Illegal Procurement
First, the government argues that the Defendant illegally procured his
citizenship certificate because he lacked the good moral character required to
naturalize. The statute provides that no person shall be eligible for naturalization
unless the person “during all the periods referred to in this subsection has been
and still is a person of good moral character . . . .” 8 U.S.C. § 1427(a). The
statutory period for good moral character begins five years prior to the filing of
the N-400 through the date the applicant takes the oath of allegiance and
becomes a citizen. 8 U.S.C. § 1427(a). Here, the Defendant was required to have
good moral character from January 8, 1994 through August 6, 1999. The
government alleges, however, that during this time, the Defendant committed at
least two acts that demonstrated his lack of good moral character: crimes of
moral turpitude and/or acts that adversely reflected on his moral character.
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i. Crimes of Moral Turpitude
In general, “any alien convicted of . . . a crime involving moral turpitude (other
than a purely political offense)” is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i); see
also 8 C.F.R. § 316.10(b)(2)(i) (when naturalizing, an applicant will be found to lack
good moral character as required by the statute if he “[c]omitted one or more
crimes involving moral turpitude, other than a purely political offense, for which
the applicant was convicted . . . .”).
The Second Circuit has held that “‘[m]oral turpitude’ is a term used to refer to
offenses that are ‘inherently base, vile, or depraved.’” Gill v. I.N.S., 420 F.3d 82,
89 (2d Cir. 2005) (quoting Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996)).
“These acts are considered malum in se: that is, the acts are criminal because
their nature is morally reprehensible and are not criminal simply by reason of
statutory prohibition.” Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007). Crimes
involving moral turpitude “shock the public conscience” and are “contrary to the
accepted rules of morality and the duties owed between persons or to society in
general.” Rodriquez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006).
Generally, in determining whether “a crime is a crime involving moral
turpitude, [the Second Circuit] appl[ies] either a ‘categorical’ or a ‘modified
categorical’ approach.” Mendez v. Mukasey, 547 F.3d 345, 348 (2d Cir. 2008).
Under the categorical approach, the Court will only look ‘to the minimum criminal
conduct necessary to satisfy the essential elements of the crime, not the
particular circumstances of the defendant’s conduct.” Id. (citations omitted).
“When the criminal statute at issue encompasses some classes of criminal acts
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that fall within the federal definition of aggravated felony and some classes that
do not fall within the definition, the statute is considered divisible.” Ambimbola
v. Ashcroft, 378 F.3d 173, 177 (2d Cir. 2004) (citations omitted). “If a statute is
divisible a court, proceeding under the modified categorical approach, may refer
to the record of conviction to determine whether a petitioner’s conviction was
under the branch of the statute that proscribes removable offenses.” Mendez,
547 F.3d at 348. “The record of conviction includes, inter alia, the charging
document, a plea agreement, a verdict or judgment of conviction, a record of the
sentence, or a plea colloquy transcript.” Id. (citations omitted).
The government argues that the Defendant’s conviction categorically
amounted to a crime involving moral turpitude. However, the Court need not
decide whether to apply the categorical or modified categorical approach to the
conviction in question because it is clear from the record of conviction that the
Defendant pled guilty to Sexual Assault in the First Degree against a minor in
violation of Conn. Gen. Stat. § 53-a-70(a)(2) for assaults committed between
November 1996 and September 1999 against his minor niece. This is sufficient to
find that the Defendant has committed a crime of moral turpitude.
The Connecticut statute to which the Defendant pled guilty defines sexual
assault against a minor as:
(a) A Person is guilty of sexual assault in the first degree when such person . .
.
(2) engages in sexual intercourse with another person and such other
person is under thirteen years of age and the actor is more than two years
older than such person . . .
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Conn Gen. Stat. § 53a-70(a)(2). The record confirms that the Defendant was
convicted under this provision. In his plea colloquy, he admitted to sexually
assaulting his minor niece between November 1996 and September 1999. [Dkt. 97, p.2-3, 7-10]. Similarly, his sworn written confession to the Windsor Police
Department contains detailed admissions about the sexual abuse against his
niece. [Dkt. 9-8, p. 1-3]. Finally, the Superior Court disposition indicates that the
Defendant appeared before the court on October 30, 2000, and pled guilty to two
counts of Sexual Assault in the First Degree in violation of Conn. Gen. Stat. § 53a70(a)(2). [Dkt. 9-6, p. 1]. Accordingly, the record makes clear that the Defendant’s
conviction was for acts constituting sexual assault on his minor niece.
Sexual abuse against a minor constitutes a crime of moral turpitude because
of its inherently vile and depraved nature. For example, the Board of Immigration
Appeals (“BIA”) routinely holds that sexual assault or abuse of a minor is a crime
involving moral turpitude. See, e.g., Matter of Dingena, 11 I. & N. Dec. 723 (BIA
1966) (“as long as sexual intercourse with a child constitutes a crime under the
law of the state, we conclude on the basis of precedent administrative and
judicial decisions, that moral turpitude is involved”); In re: Romeo Arnulfo Larin
Palacios A.K.A. Romeo Arnulfo Larin, File: A90 491 130, 2004 WL 1059729 (BIA
2004) (unpublished opinion) (citing several BIA opinions where sexual assault on
a minor has been found to constitute a crime of moral turpitude).
The Supreme Court has also stated that “sexual abuse of a child is a most
serious crime and an act repugnant to the moral instincts of a decent people.”
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); see also Judulang v.
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Holder, 132 S. Ct. 476, 482, 181 L. Ed. 2d 449 (2011) (noting that “first-degree
sexual abuse of a child . . . is a ‘crime involving moral turpitude . . . .’” (citing 8
U.S.C. § 1182(a)(2)(A)(i)(I))). While it does not appear that the Second Circuit has
specifically addressed the issue in this case, it has found generally that sexually
abusing a minor constitutes a crime involving moral turpitude. See Marinelli v.
Ryan, 285 F.2d 474, 475-76 (2d Cir. 1961) (“The charge against a man of mature
years of touching a boy under sixteen with sexual intent was a charge of crime
involving ‘moral turpitude’ as the term is generally understood.”); cf. Ganzhi v.
Holder, 624 F.3d 23, 30 (2d Cir. 2010) (“Ganzhi’s conviction for sexual misconduct
was categorically one for sexual abuse of a minor, and Ganzhi is removable as an
alien having been convicted of the latter aggravated felony.”). Moreover, several
other circuits have made similar findings. See Mehboob v. Attorney General, 549
F.3d 272, 277 (3d Cir. 2008) (“Strict liability morality offenses, like indecent
assault under § 3126(a)(8), are crimes involving moral turpitude because of the
community consensus that such offenses, which are enacted for the protection of
the child, are inherently antisocial and depraved.”); Gonzalez-Alvarado v. INS, 39
F.3d 245, 246 (9th Cir. 1994) (incest is a crime involving moral turpitude); Castle v.
INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (“Maryland statutory offense of carnal
knowledge of a female between the ages of fourteen and sixteen years manifestly
involves moral turpitude.” (internal citations omitted)).
Given the current societal perspective on sexual abuse of minors, the
Defendant’s conviction under Conn. Gen. Stat. § 53a-70(a)(2) constitutes a crime
involving moral turpitude.
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The fact that the Defendant committed the alleged acts that constituted the
basis for his conviction before his naturalization, but was not convicted of his
crime until after obtaining citizenship, does not preclude his denaturalization. In
United States v. Suarez, the court held that an alien could be denaturalized for
drug-related crimes as long as the offense was committed during the statutory
period and a conviction resulted, regardless of when the conviction actually
occurred. United States v. Suarez, 664 F.3d 655, 658-60 (7th Cir. 2011). The court
relied on the plain language of 8 U.S.C. § 1101(f)(3). Id.; see also United States v.
Ekpin, 214 F. Supp. 2d 707, 714 (S.D. Tex. 2002) (concluding that 8 U.S.C. §
1101(f)(3) and 8 C.F.R. § 318.10(b)(2)(i) only require the commission of a crime of
moral turpitude, not the conviction for it, to take place during the statutory
period). But see United States v. Mwalumba, 688 F. Supp. 2d 565, 570 (N.D. Tex.
2010) (“The statutory and regulatory provisions that are specific to crimes of
moral turpitude require that both the commission of and the conviction for a
crime of moral turpitude take place before naturalization occurs and citizenship is
granted.”).
This Court agrees, in what appears to be an issue of first impression in this
Circuit, with the Seventh Circuit’s reading of the plain and unambiguous
language of the statute. Nothing in the statutory language requires the
conviction of the offense to occur before the naturalization. Section 1101(f)(3)
provides that
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 . . .
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(3) a member of one or more of the classes of persons,
whether inadmissible or not, described in . . .
subparagraphs (A) and (B) of section 1182(a)(2) of this
title and subparagraph (C) thereof of such section
(except as such paragraph relates to a single offense of
simple possession of 30 grams or less of marihuana), if
the offense described therein, for which such person
was convicted or of which he admits the commission,
was committed during such period;
8 U.S.C. § 1101(f)(3) (emphasis added). Section 1182(a)(2)(A)(i) lists the classes
of aliens ineligible for admission:
In general
Except as provided in clause (ii), 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 . . . .
8 U.S.C. § 1182(a)(2)(A)(i) (emphasis added). The Defendant is a member of the
class described in section 1182(a)(2)(A) because he is an individual who both
admitted and who was convicted of a crime of moral turpitude. Furthermore, he
falls into the purview of section 1101(f)(3) as a person who is statutorily barred
from possessing the requisite good moral character because “the offense
described therein” was “committed during such period” when his good character
must have been established. There is no limitation in the statute that requires the
conviction to occur during the good-moral-character statutory period. Instead,
section 1101(f)(3) only requires that the “offense” be committed during that time.
The introductory paragraph in section 1182(a)(2)(A)(i) merely lists the proof that is
necessary to fall into the category, namely that the person must be convicted or
14
admit committing the crime or admit committing the elements necessary to
constitute the crime. The level of proof is not explicitly required to occur within
the statutory period as that is wholly separate from the commission of the
offense. Remembering that the Supreme Court requires that the proof for
denaturalization be clear, unequivocal, and convincing, the proof clause merely
assures that bar is not reduced. See Fedorenko, 449 U.S. at 505. Therefore the
proper reading of these statutes is that if the offense was committed during the
statutory period and it resulted, at some future point, in a criminal conviction or a
type of admission described in the statute, the applicant is statutorily barred from
possessing the requisite moral character. We agree with the Seventh Circuit that
reading this statute any other way would “lead to the absurd result that . . . an
applicant who evaded prosecution or refused during the statutory period to admit
committing a crime would have an advantage over an applicant who was
convicted or who was truthful during that time period.” Suarez, 664 F.3d at 660.
Here, the Defendant filed his N-400 on January 8, 1999, and naturalized on
August 6, 1999. The requisite statutory period for the demonstration of good
moral character ran from January 8, 1994 to August 6, 1999. His conviction
occurred on October 30, 2000, after he naturalized, but the actions that led to the
conviction, as admitted by the Defendant, occurred between November 1996 and
September 1999. The fact that the offense occurred within the statutory period is
sufficient to permit his denaturalization under section 1101(f)(3).
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ii. Acts Adversely Reflecting on Moral Character
Even though section 1101(f)(3) provides sufficient grounds to warrant
denaturalization, the catch-all provision found in section 1101(f) states that “[t]he
fact that any person is not within any of the foregoing classes shall not preclude
a finding that for other reasons such person is or was not of good moral
character.” Federal regulations, which have been deemed by courts to receive
Chevron deference, set forth guidance for interpreting this section. See United
States v. Jean-Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005) (“This regulation is
entitled to deference.”); Suarez, 664 F.3d at 660 (“Suarez does not dispute the
district court’s finding or the government’s argument on appeal that section
316.10(b) is entitled to Chevron deference”). In accordance with section 1101(f)
the INS “shall evaluate claims of good moral character on a case-by-case basis
taking into account the elements enumerated in this section and the standards of
the average citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2).
“Unless the applicant establishes extenuating circumstances, the applicant shall
be found to lack good moral character if, during the statutory period, the
applicant . . . [c]ommitted unlawful acts that adversely reflect upon the applicant’s
moral character, or was convicted or imprisoned for such acts . . . .” 8 C.F.R. §
316.10(b)(3). The term “unlawful acts” within the regulation encompasses bad
acts that led to a post-naturalization conviction. See United States v. JeanBaptiste, 395 F.3d at 1194 (“we affirm the district court’s well-reasoned
determination that, because he committed a drug offense as established by his
later conviction, Jean-Baptiste was precluded under 8 U.S.C. § 1101(f)(8), as
16
elaborated in 8 C.F.R. § 316.10(b)(iii), from establishing good moral character, and
was therefore barred from acquiring citizenship). As discussed above, sexual
assault on a minor has been unanimously held to shock the conscious due to its
inherent vileness and depravity. The Defendant’s conduct ultimately resulted in
his post-naturalization conviction for sexual assault in the first degree on a
minor, thus proving the unlawful nature of his acts. So, even if the Defendant’s
post-naturalization conviction precludes revocation of his citizenship under
section 1101(f)(3), it certainly warrants a revocation under the catch-all provision
found in 1101(f). See United States v. Salama, 891 F. Supp. 2d. 1132, 1141 (E.D.
Cal. 2012) (applying catch-all provision to post-naturalization insurance fraud
conviction based on pre-naturalization conduct); Mwalumba, 688 F. Supp. 2d at
570 (“If a person commits a crime of moral turpitude during the statutory goodmoral-character period but is not convicted of that crime until after gaining
citizenship, he or she is subject to denaturalization under the ‘catch-all’
provisions of 8 U.S.C. § 1101(f) and 8 C.F.R. § 316.10(b)(3)(iii).”).
B. Concealment and Willful Misrepresentation
The government argues that a second and independent ground for the
revocation of the Defendant’s citizenship is based on his concealment of material
facts and willful misrepresentations during the naturalization process.
A court may revoke a person’s naturalization if the naturalization was
“procured by concealment of a material fact or by willful misrepresentation.” 8
U.S.C. § 1541(a). The Supreme Court has noted that this provision “plainly
contains four independent requirements: the naturalized citizen must have
17
misrepresented or concealed some fact, the misrepresentation or concealment
must have been willful, the fact must have been material, and the naturalized
citizen must have procured citizenship as a result of the misrepresentation or
concealment.” Kungys v. United States, 485 U.S. 759, 767 (1988); see also Monter
v. Gonzales, 430 F.3d 546, 554 (2d Cir. 2005) (stating the same).
First, the government must prove that the Defendant misrepresented or
concealed some fact during the naturalization process. The evidence shows that
between November 1996 and September 1999, the Defendant admitted to
repeatedly sexually assaulting his minor niece. Even though he was not
convicted of first degree sexual assault on a minor until after his naturalization,
some of the acts which comprised the offense occurred before January 4, 1999,
the date on which he submitted his N-400. [Dkt. 9-2, p. 4]. Accordingly, his
negative response to Part 7, Question 15a of his N-400, which asked “have you
ever knowingly committed any crime for which you have not been arrested,” was
a perjurious misrepresentation and concealment of the criminal acts then
occurring. The Defendant made similar misrepresentations at the conclusion of
his naturalization interview on June 21, 1999 when he was interviewed by Officer
Keck about the contents of his application. Officer Keck affirmed under oath that
it was her standard practice to discuss all of the questions on the N-400 during an
interview, and she did in fact discuss this particular question with the Defendant.
[Dkt. 9-3, ¶ 8]. At the conclusion of this interview, the Defendant acknowledged
that he affirmed all of his answers on his application. [Id. at ¶ 9].
18
Finally, the Defendant misrepresented this fact again on his N-445 application
which was executed on the date of his naturalization. [Dkt. 9-4, p. 2]. Question 3
on the N-445 asked the Defendant whether, since the date of his initial
naturalization interview, he had “knowingly committed any crime or offense,[sic]
for which you have not been arrested; or you have been arrested, cited, charged,
indicted, convicted, fined, or imprisoned for breaking or violating any law or
ordinance, including traffic violations.” [Id.]. Just as he had done before, the
Defendant affirmed under penalty of perjury that he had not. [Id.].
The Second Circuit has held in nearly identical cases that this evidence is
sufficient for the government to prove misrepresentation or concealment. In
United States v. Oddo, the court affirmed the revocation of naturalization due to
the defendant’s misrepresentation and concealment of his prior arrest record
during the naturalization process. United States v. Oddo, 314 F.2d 115, 117 (2d
Cir. 1963). The court held there that the government’s evidence that the
defendant checked “no” on several forms to questions asking whether he had
prior arrests during the statutory period and the testimony that it was standard
procedure during the naturalization interview to require the applicants to affirm
the accuracy of those answers constituted sufficient evidence of
misrepresentation and concealment. Id.; see also United States v. Rossi, 319
F.2d 701, 702 (2d Cir. 1963) (holding the same); In re Yao Quinn Lee, 480 F.2d 673,
676-77 (2d Cir. 1973) (affirming the denial of a naturalization petition when the
defendant verbally lied during the examination interview).
19
The questions asked of the Defendant during the application process,
including the written applications and the verbal affirmations, constitute
sufficient evidence to show that the Defendant misrepresented and concealed the
sexual abuse of his minor niece.
Next, the government must prove that the Defendant’s misrepresentations or
concealments were willful. “[An] act is done willfully if [it is] done intentionally
and deliberately and if it is not the result of innocent mistake, negligence, or
inadvertence.” Emokah v. Mukasey, 523 F.3d 110, 116-17 (2d Cir. 2008) (citations
omitted). In Emokah v. Mukasey, the court found that the defendant’s admission
that using the incorrect name on her visa application was a deliberate act
constituted a willful misrepresentation. Id. It is clear from the jurisprudence in
this Circuit that applicants are assumed to understand the questions being asked
of them on naturalization forms and reply accordingly. See Rossi, 319 F.2d at
702-03 (finding unavailing defendant’s claim that the government failed to meet
its burden because he did not possess sufficient knowledge of English to
understand the naturalization questions when the government offered evidence
showing he was directly asked the question in issue and never claimed he did not
understand). Here, the questions were perfectly clear, and there is no evidence to
show that the Defendant did not understand the questions on the forms or those
asked during the interview. Indeed, given that the Defendant’s native language
can be presumed to be English due to his Jamaican heritage, the presumption
that he understood is even stronger. Whether a misstatement is innocent or
willful may depend on the significance of the underlying circumstance, that is
20
whether it is a minor detail or an important fact. Certainly the sexual assault of a
relative’s minor child is not a minor detail, but rather a momentous event and an
important fact which one would be unlikely to forget or believe was proper, if not
illegal. Finally, there is no evidence on the record that the Defendant did not
know that sexually assaulting a minor child was a crime. Based on the record in
this case, this Court finds that the Defendant’s misrepresentations were willful.
Third, the government must prove that the misrepresentations and
concealments were material. The general rule is that a concealment or
misrepresentation is material if it “has a tendency to influence or was capable of
influencing, the decision of the decision making body to which it was addressed.”
Kungys, 485 U.S. 759 at 770. This means that “a fact concealed by an alien
during the immigration and naturalization process is material if its admission
would have occasioned either (1) the denial of naturalization or (2) an
investigation potentially leading to the discovery of other facts warranting denial
of citizenship.” United States v. Sokolov, 814 F.2d 864, 873 (2d Cir. 1987).
Officer Keck has affirmed that “[h]ad Mr. Gayle represented on his Form N-400
application while under oath during his Form N-400 application interview, or on
his Form N-445, Notice of Oath Ceremony, that he had committed sexual assault
against a minor within the five-year statutory period where good moral character
must be established, his Form N-400 application would definitely have been
denied.” [Dkt. 9-3, ¶ 11]. Accordingly, his misrepresentation and concealment
about his criminal activities had more than just a “natural tendency to produce
the conclusion” that he was qualified to naturalize when he was not, they actually
21
caused his application to be approved. Kungys, 485 U.S. at 771-72. There is no
doubt that the Defendant’s misrepresentations and concealments were material.
Finally, the government must prove that the Defendant procured his
citizenship as a result of his misrepresentations or concealments. “In order to
satisfy this fourth prong of the test, the government need not establish that ‘but
for’ the misrepresentation, the petitioner would not have achieved naturalization. .
. . Instead, the Kungys Court concluded that the government’s showing of
‘materiality’ creates a presumption that the petitioner was disqualified from
naturalization.” Monter, 430 F.3d at 554 (citations omitted). “Thus, for the fourth
Kungys requirement, once the government establishes ‘materiality,’ a
presumption arises against—and the burden of persuasion shifts to—the subject
of the denaturalization proceeding regarding whether he or she is statutorily
‘disqualified.’ . . . That person may refute the presumption by establishing that he
or she did in fact meet the statutory qualification that the misrepresentation had a
tendency to influence.” Id. at 554-55 (citations omitted). Here, the statutory
qualification is good moral character. The Defendant has not responded to the
government’s motion, and, therefore, he has not carried his burden of persuasion
that he did in fact have the good moral character despite having committed
crimes of moral turpitude and that he would have been granted citizenship if he
had answered the questions honestly. Accordingly, the revocation of his
citizenship is also warranted on the grounds that it was procured through the
Defendant’s concealment of a material fact or willful misrepresentations.
22
V.
Conclusion
For the foregoing reasons, the government’s [Dkt. 9] Motion for Summary
Judgment is GRANTED. The Court orders that the Defendant’s citizenship be
revoked. The Defendant is further enjoined from claiming any rights, privileges
or advantages under any document evidencing United States citizenship obtained
as a result of his naturalization. Finally, the Court cancels the Defendant’s
Certificate of Naturalization numbered 24401225, and he is ordered to surrender
and deliver his Certificate and other indicia of his United States citizenship,
including his United States passport, to the Secretary of Homeland Security or
her designated representative within ten days of this order.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: January 29, 2014
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