Ding v. Gulick et al
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/31/12. (" Because Ding and her husband did not live in marital union from July 2005 to July 2008, the USCIS correctly denied Ding's naturalization application. The USCIS's summary judgment motion is granted, and its ruling is affirmed.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DAVID G. GULICK, District
Director of United States
Citizenship and Immigration
Services, Honolulu District
Office; UNITED STATES
CITIZENSHIP & IMMIGRATION
LI DANG DING,
CIVIL NO. 11-00070 SOM-BMK
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This is an appeal from a decision by the United States
Citizen and Immigration Service (“USCIS”) denying Plaintiff Li
Dang Ding’s application for naturalization.
naturalization as the spouse of a citizen.
Gulick, the District Director of USCIS for the Honolulu District
Office, and the USCIS seek summary judgment on the ground that
Ding cannot establish that she satisfies the requirements that
she have lived in marital union with her citizen spouse, George
Shioura, for the three years before she applied for
naturalization, and that she has good moral character.
the record establishes that Ding and her husband did not live in
marital union for the period in issue, the court grants
The Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq., grants the Attorney General of the United States
the authority to naturalize persons as citizens of the United
8 U.S.C. § 1421.
A person seeking naturalization must
file an N-400 application and undergo an examination by the
See id. §§ 1445, 1446.
The USCIS then makes a
determination based on the application and the examination.
the USCIS denies the application for naturalization, the
applicant may request an N-336 hearing before an immigration
Id. § 1447(a).
If, after conducting a hearing, the
USCIS continues to deny the application for naturalization, the
applicant may seek review in the United States District Court.
Id. § 1421(c).
Ding, a lawful permanent resident of the United
States, has petitioned this court for review of the denial of her
Under the INA, to be eligible for naturalization, an
applicant must satisfy a residence requirement.
Id. § 1427(a).
An applicant seeking naturalization as the spouse of a citizen
must have been “living in marital union” with his or her citizen
spouse throughout the three years immediately preceding the day
the applicant applies for naturalization.
Id. § 1430(a).
INA also requires that the applicant have been of “good moral
character” for that three-year period.
Id. § 1427(a).
The parties agree on certain facts.
Ding, a citizen of
the People’s Republic of China, was admitted into the United
States on August 12, 1999.
Defs.’ Separate Concise Stmt. Facts
(“Defs.’ Facts”) ¶ 1, ECF No. 27; Pl.’s Concise Stat. Facts
(“Pl.s’ Facts”) ¶ 1, ECF No. 33.
On February 4, 2002, Ding married George Shioura, a
United States citizen.
Defs.’ Fact ¶ 2.
certificate lists Anaheim, California, as the place they lived.
Defs.’ Facts Ex. 1, at 126.
Based on her marriage to Shioura,
Ding became a lawful permanent resident of the United States on
September 19, 2005.
Defs.’ Facts ¶ 4.
In August 2004, Shioura moved to Hawaii to assume a
different position with his employer.
Id. ¶ 3; Defs.’ Facts
Ex. 3 (“Ding Deposition”) at 32:20 - 33:1-14, ECF No. 27-1.
some point, Ding moved to Hawaii with Shioura, but she returned
to California in October or November 2005.
Defs.’ Facts ¶ 5.
On July 7, 2008, Ding filed an N-400 naturalization
application, id. ¶ 10, and, on January 19, 2010, the USCIS
conducted a preliminary interview regarding her application.
¶ 12; Defs.’ Facts Ex. 1, at 324.
On March 3, 2010, the USCIS
denied Ding’s application on two grounds: (1) she was ineligible
for naturalization because she did not meet the residence
requirement under the INA, and (2) she failed to establish the
requisite good moral character given the false testimony she
allegedly provided in connection with seeking benefits under the
Id. ¶ 20; Defs.’ Facts Ex. 1, at 324-35.
On March 13, 2010, Ding appealed the USCIS decision and
requested an N-336 hearing.
was held on May 26, 2010.
See 8 U.S.C. § 1447(a).
Defs.’ Facts ¶ 22.
On October 6,
2012, Ding’s appeal was denied on the grounds cited earlier by
Defs.’ Facts Ex. 1 at 1696.
Ding seeks review of the denial, claiming that
Defendants are misinterpreting 8 C.F.R. § 319.1(b)(1), as well as
Ding’s responses at her interview and N-336 hearing.
Review of Denial of Appl. for Naturalization Pursuant to 8 U.S.C.
§ 1421(c) and Request for De Novo Hearing, Jan. 1, 2011,
ECF No. 1 (“Petition for Review”).
Defendants now seek summary
judgment on the ground that, as matter of law, Ding does not meet
the statutory requirements necessary for naturalization on the
basis of marriage to a citizen.
Standard of Review.
A district court reviews a USCIS decision de novo.
8 U.S.C. § 1421(c).
The court makes its own findings of fact and
conclusions of law and, if requested by the applicant, conducts a
de novo hearing.
“[T]he district court has the final word
and does not defer to any of the INS's findings or conclusions.”
United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004)
(emphasis in original).
The applicant bears the burden of showing eligibility
Immigration and Naturalization Serv. v.
Punsalan, 486 U.S. 875, 886 (1988) (“[I]t has been universally
accepted that the burden is on the alien applicant to show his
eligibility for citizenship in every respect.” (quoting Berenyi
v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)).
Summary Judgment Standard.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a).
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
When the nonmoving party bears the burden of proof on
one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”
The court must not weigh the
evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.
See Balint v. Carson
City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
On a summary
judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
Miller, 454 F.3d at 988 (brackets omitted)
(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
Summary judgment may also be appropriate when a mixed
question of fact and law involves undisputed underlying facts.
See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio
v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
Ding Does Not Establish That She Lived in Marital
Union With Her Citizen Spouse Throughout The Three
Years Preceding Her Naturalization Application.
Defendants argue that Ding does not meet the statutory
residence requirement for citizenship.
Generally, to be eligible
for naturalization, an applicant must lawfully and continuously
live in the United States for the five years prior to the filing
of his or her application for naturalization.
Section 1430 allows for expedited naturalization when
the applicant is married to a United States citizen.
The applicant must have lived continuously and
lawfully in the United States for the three years prior to the
filing of his or her application for naturalization, and during
that time the applicant must have been “living in marital union”
with his or her citizen spouse.
Id.; 8 C.F.R. § 319.1(a)(3).
As Ding applied for naturalization on July 7, 2008,
she had to have lived in marital union with Shioura from July 7,
2005, until July 7, 2008, to be eligible for expedited
Defendants argue that, because Ding and Shioura
did not reside together during those three years, they did not
live in marital union.
The court agrees with Defendants,
rejecting Ding’s argument that the “living in marital union”
requirement in § 1430 may be satisfied by an applicant who does
not reside under the same roof as his or her citizen spouse.
Although Congress has not defined “living in marital
union,” an INS regulation states that an “applicant lives in
marital union with a citizen spouse if the applicant actually
resides with his or her current spouse.”1
As recognized by other jurisdictions, the INS’s
definition is based on a permissible construction of § 1430 and
is entitled to great deference under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See United States v. Moses, 94 F.3d 182, 185 (5th Cir. 1996)
(“Given that the INS's interpretation of ‘living in marital
union’ is based on a permissible construction of the statute, it
is entitled to great deference by this Court.” (citing Chevron,
467 U.S. at 844-45 (noting that “considerable weight should be
accorded to an executive department's construction of a statutory
Under 8 C.F.R. § 319.1(b)(2)(ii)(C), there is an
exception to the actual residence requirement when the applicant
and spouse live apart because of circumstances beyond their
control. Ding states that Shioura moved to Hawaii for employment
reasons, and that Ding moved back to California to undergo
fertility treatment, not that this exception applies here.
scheme it is entrusted to administer”))); United States v.
Mohalla, 545 F. Supp. 2d 1035, 1041 (C.D. Cal. 2008) (same); Lang
v. Chertoff, 2008 WL 4542410, at *2 (W.D. Wash. Oct. 9, 2008)
(“Because Congress has not defined the phrase ‘liv[ing] in
marital union,’ deference to the agency interpretation is
required in this case pursuant to Chevron . . . ([stating] ‘a
court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the
administrator of an agency.’)”).
See also United States v.
Onabanjo, 351 F.3d 1064, 1067 (11th Cir. 2003) (stating that
8 C.F.R. § 319.1(b)(1) sets forth the “general rule” that an
“applicant lives in marital union with a citizen spouse if the
applicant actually resides with his or her current spouse”).
Although the Ninth Circuit has yet to interpret the
words “living in marital union,” other courts have read those
words as requiring an applicant to have physically resided with
his or her citizen spouse.
In United States v. Maduno, 40 F.3d
1212, 1216 (11th Cir. 1994), the Eleventh Circuit affirmed a
district court’s instruction to the jury that “living in marital
union” means that “the applicant actually resided with his
current spouse for three years prior to the filing of the
The Eleventh Circuit based its decision on 8 C.F.R.
§ 319.1(b)(1), as well as its determination that § 1430 does not
include an intent requirement; that a reasonable conclusion could
be drawn that a couple resides together if they are living in
marital union; and that, although short separations are normal
for married couples, the applicant and his wife had lived apart
Id. at 1216-17.
The Eleventh Circuit also cited the
United States District Court for the Southern District of New
York’s ruling that the words “living in marital union” describe
someone who actually resides with one’s spouse.
Id. (citing In
re Petition of Bashan, 530 F. Supp. 115 (S.D.N.Y. 1982)).
The Fifth Circuit has also construed “living in martial
union” as requiring that an applicant actually reside with a
Moses, 94 F.3d at 185.
In Moses, the evidence
had established that the applicant and his spouse had not lived
together for many years and that he was living with another women
with whom he had a child.
Basing its holding on 8 C.F.R.
§ 319.1(b)(1) and the Eleventh Circuit’s reasoning in Maduno, the
Fifth Circuit stated, “The statute requires a marital union, not
a marital state.
It is clear that ‘living in marital union’
indicates that the couple live together in a marital state.”
Citing both Moses and Maduno, the Central District of
California also applied the INS’s definition of “living in
marital union” and held that an applicant must actually reside
with his or her citizen spouse.
Mohalla, 545 F. Supp. 2d
Ding relies on a single case, In re Olan,
257 F. Supp. 884 (S.D. Cal. 1966), in support of her position
that she need not have lived in the same home as Shioura to
establish that they lived in marital union.
In Olan, the court
held that “living in marital union” means “simply living in the
status of a valid marriage” and does not require continuous
Id. at 890.
Olan, however, was decided before
the issuance of 8 C.F.R. § 319.1(b)(1).
Naturalization, 56 Fed. Reg. 50475 (Oct. 7, 1991), 1991 WL 198206
(amending 8 C.F.R. § 319.1 to include subsection (b)(1)); see
also Lang, 2008 WL 4542410 at *2, n. 2.
Ding relies on no case
that has interpreted “living in marital union” in light of
8 C.F.R. § 319.1(b)(1) or that applies the Olan court’s
interpretation of those words.
Moreover, the applicant in Olan
had lived apart from her husband for only two and a half months,
and the court determined that, despite the husband’s departure,
the home the applicant lived in continued to be the husband’s
Olan, 257 F. Supp. at 888.
In light of 8 C.F.R. § 319.1(b)(1) and the cases
discussed above, this court applies the INS’s interpretation of
“living in marital union” and requires that Ding have actually
resided with Shioura during the three years preceding her
Ding did not live with Shioura throughout the three
years from July 2005 to July 2008.
Ding’s own opposition states
that Ding and Shioura “were residing in different states.”
Opp. to Defs.’ Mot. for Summary Judgment at 6, Dec. 22, 2011, ECF
The record establishes that Shioura moved from
California to Hawaii in August 2004, Defs.’ Facts ¶ 4, and that
Ding did not live in Hawaii with Shioura from July 2005 to July
Although it is not clear when Ding moved to Hawaii, there
is no dispute that she moved back to California in 2005.
deposition, Shioura stated that, although he and Ding planned to
live in Hawaii together, Ding went back to California and “got
Defs.’ Facts Ex. 2, ECF No. 27-1 (“Shioura
Deposition”), at 35:1-6.
Ding testified that, from July 2005 to
July 2008, when she was not in Hawaii or on vacation with her
family, she stayed in California.
Ding Deposition at 30:16-21;
Although Ding went to Hawaii for months at a
time, those trips appear to have been visits, as her residence
was in California.
Ding bought a home in California with her mother in
Ding Deposition at 35:21-24.
considers that residence a “second home,” Shioura Deposition at
67:16-25, there is no evidence that he actually resided there
Shioura testified that he went to California only two
to three times a year, and that his stays ranged from a week to a
few weeks, depending on his work.
Id. at 50:20-25.
satisfy the burden that Defendants, as the movants, have of
demonstrating the absence of any genuine issue of material fact
as to whether Ding is eligible for naturalization.
The court is not persuaded by Ding’s argument that
proof that she and Shioura lived in marital union is established
by Ding’s continuous marriage to Shioura, Ding and Shioura’s
ownership of property together, the appearance of their names
together on accounts and other documents, and their child.
circumstances do not show that Ding and Shioura actually resided
Ding does not present evidence showing that she lived
in marital union with Shioura, which Ding, as the applicant, has
the burden of establishing.
Failing to establish the existence
of a genuine issue of material fact on this point, Ding cannot
defeat the present motion.
The Court Does Not Address Ding’s Moral Character.
Defendants also argue that summary judgment is
warranted because Ding cannot establish that she has the good
moral character required for naturalization.
Under 8 U.S.C.
§ 1427(a), an applicant must be “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.”
The applicant must have been a person of
good moral character throughout the time the applicant is
required to have been a resident of the United States.
Thus, in addition to living in marital union with Shioura for
three years, Ding must show that she was a person of good moral
character during those three years.
The court need not address whether Ding shows that she
has good moral character.
Because there is no evidence that Ding
lived in marital union, Ding is ineligible for naturalization,
regardless of whether her moral character is good or bad.
would be futile for the court to address this issue.
At the hearing on this motion, Ding asked this court to
nevertheless address the issue of whether the USCIS had grounds
for finding Ding not to be of good moral character.
acknowledging that the court’s determination on that issue would
not change her eligibility, Ding requested a favorable ruling in
aid of shortening the time she must wait to reapply for
At issue is the USCIS’s determination that Ding gave
false testimony at her preliminary interview on January 19, 2010,
for the purpose of obtaining immigration benefits.
Ex. 1, at 325.
Under the INA, “an applicant cannot be regarded
as a person of good moral character if ‘during the period for
which good moral character is required to be established,’ the
applicant gave ‘false testimony for the purpose of obtaining
benefits under this chapter.’”
Bernal v. Immigration and
Naturalization Serv., 154 F.3d 1020, 1022 (9th Cir. 1998)
(quoting 8 U.S.C. § 1101(f)(6)).
Because the USCIS determined
that Ding gave false testimony on January 19, 2010, the period
during which Ding must show that she was of good moral character
cannot start until after January 19, 2010.
The record indicates that the USCIS made a credibility
determination at Ding’s hearing.
Based on the present record,
this court can say neither that the USCIS determination was
totally lacking in support, nor that Ding met her burden of
establishing her good moral character.
To make such a
determination, the court would need to hold an evidentiary
hearing with respect to that issue.
But regardless of the
outcome of that hearing, the court’s ultimate ruling would be the
Ding’s N-400 application was properly denied because she
is ineligible for naturalization.
Under 8 U.S.C. § 1421, Ding
may request that this court conduct a de novo hearing on her
naturalization application, not on issues that will not affect
the grant or denial of her application.
As the outcome of an
evidentiary hearing in this court on the character issue will not
affect the denial of her application, this court is not required
to conduct such a hearing and declines to do so.
The date on
which Ding may reapply is collateral to the denial of her
application and not relevant to the propriety of the denial
Because Ding and her husband did not live in marital
union from July 2005 to July 2008, the USCIS correctly denied
Ding’s naturalization application.
The USCIS’s summary judgment
motion is granted, and its ruling is affirmed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 31, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Ding v. Gulick; Civil No. 11-00070 SOM/BMK; ORDER GRANTING DEFENDANTS’ MOTION FOR
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