United States Of America v. Hernandez Merino

Filing 15

ORDER ADOPTING Magistrate Judge Lauren F. Louis's Report and Recommendations 12 , subject to two points of clarification stated in the attached document, and GRANTING the Government's Motion for Judgment on the Pleadings 10 . The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. Signed by Judge K. Michael Moore on 9/9/2021. See attached document for full details. (thn)

Case 1:20-cv-24093-KMM Document 15 Entered on FLSD Docket 09/09/2021 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:20-cv-24093-KMM
UNITED STATES OF AMERICA,
Plaintiff,
v.
PAVEL LUIS HERNANDEZ MERINO,
Defendant.
/
ORDER ON REPORT AND RECOMMENDATION
THIS CAUSE came before the Court upon Plaintiff’s (“the Government”) Motion for
Judgment on the Pleadings. (“Mot.”) (ECF No. 10). Defendant Pavel Luis Hernandez Merino
(“Defendant”) did not file a response and the time to do so has passed. The Court referred the
matter to the Honorable Lauren F. Louis, United States Magistrate Judge. (ECF No. 5). Magistrate
Judge Louis issued a Report and Recommendation recommending that the Government’s Motion
be GRANTED. (“R&R”) (ECF No. 12). The Government filed Objections to the R&R. (“Obj.”)
(ECF No. 18). Therein, the Government recommends that the Court adopt Magistrate Judge
Louis’s R&R, subject to two points of clarification. See generally id. Defendant failed to file a
response to the Government’s Objections and the time to do so has passed. The matter is now ripe
for review. As set forth below, the R&R is ADOPTED.
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The Court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore required if a party
files “a proper, specific objection” to a factual finding contained in the report. Macort v. Prem,

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Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that the objection be sufficiently
specific and not a general objection to the report” to warrant de novo review. Id.
The Government contends that the undisputed facts establish four independent grounds for
Defendant’s denaturalization as a U.S. citizen and, therefore, the Court should revoke Defendant’s
naturalization. See generally Mot. In the R&R, Magistrate Judge Louis recommends that the
Government’s Motion be GRANTED. R&R at 11. The Court agrees.
The following relevant facts are set forth in the R&R. Prior to Defendant’s naturalization,
he was a citizen of Cuba. Id. at 1. At multiple points during the process of becoming a U.S.
citizen, Defendant stated that he had never committed a crime for which he was not arrested. Id.
at 1–2. In April of 2018, Defendant was admitted as a citizen of the United States and was issued
a Certificate of Naturalization. Id. at 2. However, in May of 2018, the following month, Defendant
was charged, by Criminal Indictment, “with one count of conspiracy to commit health care fraud
and wire fraud, in violation of 18 U.S.C. § 1349, and nineteen counts of health care fraud, in
violation of 18 U.S.C. § 1347.” Id. In September of 2018, Defendant entered a plea of guilty
and proffered that, along with his co-conspirators, he submitted or caused his company,
Americare, to submit $8,550,040.00 worth of false and fraudulent claims to insurance plans—
which resulted in an ill-gotten reimbursement to Americare of $3,694,969.00. Id. Defendant
was sentenced to 57 months imprisonment. Id. at 2–3. In October of 2020, the Government
filed the “instant action seeking to revoke his naturalized [U.S.] citizenship under 8
U.S.C.§ 1451(a) based on his participation in criminal activity that he concealed throughout
the naturalization process and that disqualified him from [U.S.] citizenship.” Id. at 3 (citing
Complaint (“Compl.”) (ECF No. 1)).1
1

Magistrate Judge Louis noted in the R&R that Defendant was properly served with a copy of the
Complaint and the instant Motion, and that Defendant did not respond to either and the time to do
so has passed. R&R at 3.
2

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The Government maintains in its Motion that the undisputed facts establish the following
four independent legal grounds for denaturalization:
(a) Defendant illegally procured his [U.S.] citizenship because, during the statutory
period, he committed a crime involving moral turpitude; (b) Defendant illegally
procured his [U.S.] citizenship because, during the statutory period, he committed
unlawful acts that adversely reflected on his moral character; (c) Defendant illegally
procured his [U.S.] citizenship because, during the statutory period, he provided
false testimony to procure his naturalization; and (d) Defendant willfully concealed
and made misrepresentations of criminal conduct during the naturalization
process.
R&R at 5; see also generally Mot. Magistrate Judge Louis’s addressed each of these four grounds
in the R&R.
First, Magistrate Judge Louis found that “Defendant illegally procured his U.S. citizenship
because, during the statutory period, he committed a crime involving moral turpitude.” Id. One
of the statutory requirements to become a naturalized person is that an individual, “during all
periods referred to in this subsection[,] has been and still is a person of good moral character[.]”
Id. (citing 8 U.S.C. § 1427(a)(3)).

Magistrate Judge Louis found that because Defendant

committed healthcare fraud and wire fraud, which are crimes of moral turpitude, during the five
years prior to his naturalization, Defendant’s “criminal activity during the statutory period thus
rendered him ineligible to naturalize in April 2018 when he took the oath of citizenship.” Id. at 6.
Magistrate Judge Louis therefore recommends that the Court denaturalize Defendant on this basis.
Id. (citing Fedorenko v. United States, 449 U.S. 490, 517 (1981); United States v. Garcia, No.
14-cv-22397-KMM, 2015 WL 12533126, at *5 (S.D. Fla. Sept. 18, 2015)).
Second, Magistrate Judge Louis found that Defendant should be denaturalized because he
committed crimes involving dishonesty, false statement, or fraud which “reflected adversely on
his moral character and should have precluded him from naturalizing under 8 C.F.R. §
316.10(b)(3)(iii).” Id. at 7 (citing United States v. Dor, 729 F. App’x 793, 798 (11th Cir. 2018)).
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Magistrate Judge Louis found that no extenuating circumstances excuse Defendant’s participation
in the conspiracy to commit health care and wire fraud and that “he cannot escape the negative
impact that his criminal acts had on his moral character.” Id. (citing Garcia, 2015 WL 12533126,
at *6). Thus, Magistrate Judge Louis recommends that Defendant be denaturalized under 8 C.F.R.
§ 316.10(b)(3)(iii) based on his participation in a conspiracy to commit health care and wire fraud.
Id. (citing Garcia, 2015 WL 12533126, at *6).
Third, Magistrate Judge Louis found that at three separate points during the naturalization
process, Defendant provided false testimony for the purpose of obtaining immigration benefits.
Id. at 7–8. Specifically, Defendant provided false testimony: (1) by lying about his participation
in a conspiracy to commit healthcare and wire fraud during his naturalization interview in March
of 2018, (2) when Defendant swore under oath to the truthfulness of his N-400 application, and
(3) when Defendant confirmed during his naturalization interview that he had never committed a
crime or offense for which he was not arrested. Id. at 8. Magistrate Judge Louis noted that the
aforementioned false testimony was provided, deliberately and intentionally, in order to obtain an
immigration benefit.

Id.

Thus, Magistrate Judge Louis recommends that the Court find

Defendant’s “false testimony regarding his commitment of a crime for which he was not yet
arrested provides an additional basis upon which to denaturalize Defendant.” Id.
Fourth, Magistrate Judge Louis found that Defendant willfully concealed and made
misrepresentations of his criminal conduct during the naturalization process. Id. at 8–11. For a
court to revoke naturalization on the basis of concealment of criminal conduct, a court must find
that:
(1) the naturalized citizen must have misrepresented or concealed a fact; (2) the
misrepresentation or concealment must have been willful; (3) the fact must have been
material; and (4) the naturalized citizen must have procured citizenship as a result of the
misrepresentation or concealment.
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Id. at 9 (citing Kungys v. United States, 485 U.S. 759, 767 (1988)). Magistrate Judge Louis found
that each of these factors has been met here because: (1) Defendant “denied having committed any
crime or offence for which he was not arrested,” (2) Defendant’s “criminal conviction irrefutably
shows that his concealment of his criminal activity was willful,” (3) Defendant’s misrepresentation
was material because “had he revealed his criminal conduct during the statutory period, his
application would have been denied,” and (4) Defendant has not rebutted the presumption that
he “procured” naturalization by way of his misrepresentations because his application would have
been denied, but for the concealment of his fraudulent criminal conduct. Id. at 8–10 (citations
omitted). Thus, Magistrate Judge Louis recommends that the Court find Defendant’s “willful
concealment of his criminal activity during the naturalization process is an additional basis upon
which to denaturalize Defendant.” Id. at 11.
The Government raises two objections to certain findings within the R&R but raises no
objection as to the conclusions. Objs. at 1. First, the Government requests that the Court “modify
the analysis underlying the [R&R]’s conclusion that Defendant illegally procured his U.S.
citizenship because, during the statutory period, he provided false testimony to procure his
naturalization.” Id. at 1. Specifically, the Government requests that the Court clarify that
Defendant gave an oral, not written, oath before his interview—which would provide further
support to the conclusion that Defendant “provide[d] a false oral answer to Question 22, Part 12.”
Id. at 2.2 This is of significance because, as noted in the R&R, the false testimony charge is based

Question 22, Part 12 of Defendant’s naturalization application is the part in which he confirmed
that he had never committed a crime or offense for which he was not arrested. R&R at 8 (citing
Compl. ¶ 23)
2

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on oral testimony and it is therefore of relevance that the oath was given orally at the beginning of
the interview. R&R at 7 (citations omitted).
Second, the Government requests that the Court clarify that the presumption of
ineligibility, alone, does not establish the procurement prong of Kungys’s willful misrepresentation
test. Objs. at 3. Rather, the Government requests that the Court recognize, independently from
the materiality prong, that “the facts established in Defendant’s criminal proceedings—and
evidenced by documents attached to the Complaint—create a fair inference that Defendant could
not have established the statutorily requisite good moral character.” Id. at 3 (citing 8 U.S.C. §
1427(a)(3)).
The Court agrees with Magistrate Judge Louis’s rigorous analysis in the R&R with respect
to the four bases for Defendant’s denaturalization. The Court also agrees that the analysis would
benefit from the two points of clarification offered by the Government in its Objections.
Accordingly, the Court hereby ADOPTS the R&R. Further, the Court hereby CLARIFIES: (1)
that Defendant orally swore an oath before his naturalization interview, in which he affirmed that
his answer to Question 22, Part 12 of his naturalization application was true and correct, is a fact
which weighs in favor of finding that Defendant illegally procured his United States citizenship
because, during the statutory period, he provided false testimony to procure his naturalization; and
(2) the Court finds that Defendant’s concealment of his criminal conduct, which has been
established by Defendant’s criminal proceedings, creates a fair inference that Defendant could not
have established the statutorily requisite good moral character—thus, meeting the “procurement”
prong of the test established in Kungys for willful concealment and misrepresentations of criminal
conduct during the naturalization process.

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Accordingly, UPON CONSIDERATION of the Motion, the R&R, the pertinent portions
of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND
ADJUDGED that Magistrate Judge Louis’s R&R (ECF No. 156) is ADOPTED, subject to the
above-stated clarifications. The Government’s Motion for Judgment on the Pleadings (ECF No.
10) is GRANTED. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending
motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida this _____ day of September,
9th
2021.

K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE

c: All counsel of record

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