United States of America v. Ruiz

Filing 9

MEMORANDUM AND ORDER granting 8 Motion for Summary Judgment. The Court directs the government to submit a proposed judgment. Signed by District Judge Julie A. Robinson on 9/26/2011.Mailed to pro se party Alejandro Ruiz, 321 Union Street, Emporia KS 66801 by certified mail ; Certified Tracking Number: 70110470000157535875 (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
ALEJANDRO RUIZ, a.k.a.
)
ALEJANDRO RUIZ-FIGUEROA
)
)
Defendant.
)
____________________________________)

Case No. 11-cv-02040-JAR-DJW

MEMORANDUM AND ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
The government brings this lawsuit against Alejandro Ruiz under 8 U.S.C. § 1451(a) to
set aside the order admitting Ruiz to United States citizenship and to cancel his certificate of
naturalization. The government alleges that Ruiz illegally procured his naturalization and
willfully misrepresented and concealed material facts pertinent to his naturalization. This case is
presently before the Court on the government’s Motion for Summary Judgment (Doc. 8).1
Defendant has not filed a response, and the time to do so has expired.2 As explained more fully
below, the government’s motion is granted.
I.

Summary Judgment Standard
Under D. Kan. Rule 7.4, a “failure to file a brief or response within the time specified . . .

1
The government in the alternative seeks a default judgment. While default judgment appears to be
appropriate in this situation, the Court disposes of this matter on the Motion for Summary Judgment because the
government did not apply for a clerk’s entry of default or include an affidavit setting forth all of the requirements for
default judgment under Federal Rule of Civil Procedure 55(b).
2

See D. Kan. R. 6.1(d)(2) (requiring a parties to file a response to a dispositive motion within 21 days).
This Motion for Summary Judgment was filed on July 22, 2011. More than twenty-one days have passed without a
response from defendant.

shall constitute a waiver of the right thereafter to file such brief or response.”3 Furthermore, if a
“respondent fails to file a response within the time required . . . the motion will be considered
and decided as an uncontested motion and ordinarily will be granted without further notice.”4
Nevertheless, “[i]t is improper to grant a motion for summary judgment simply because it is
unopposed.”5 This will be the case where the movant fails to make out a prima facie case for
summary judgment.6 It is the role of the court to ascertain whether the moving party has
sufficient basis for judgment as a matter of law.7 In so doing, the court must make certain that
no undisclosed factual dispute would undermine the uncontroverted facts.8
Summary judgment is appropriate if the moving party “shows that there is no genuine
issue as to any material fact and that [it] is entitled to judgment as a matter of law.”9 A fact is
only material under this standard if a dispute over it would affect the outcome of the suit.10 An
issue is only genuine if it “is such that a reasonable jury could return a verdict for the nonmoving
party.”11 The inquiry essentially determines whether trial is needed or whether the evidence “is
3

D. Kan. R. 7.4.

4

Id.

5

Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006) (quoting E.E.O.C. v. Lady Baltimore Foods,
Inc., 643 F. Supp. 406, 407 (D. Kan. 1986) (citing Hibernia Nat’l Bank v. Administracion Ctl. Sociedad Anonima,
776 F.2d 1277, 1279 (5th Cir. 1985))). The Court notes, however, that failing to file a timely response to a motion
for summary judgment still waives the right to thereafter respond or otherwise controvert the facts alleged in the
motion. D. Kan. R. 7.4.
6

Id. (citations omitted).

7

Id. (citing Lady Baltimore Foods, 643 F. Supp. at 407).

8

Id.

9

Fed. R. Civ. P. 56(a).

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

11

Id.

2

so one-sided that one party must prevail as a matter of law.”12
The moving party bears the initial burden of providing the court with the basis for the
motion and identifying those portions of the record that show the absence of a genuine issue of
material fact.13 If this initial burden is met, the nonmovant must then “go beyond the pleadings
and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from
which a rational trier of fact could find for the nonmovant.”14 When examining the underlying
facts of the case, the court is cognizant that all inferences must be viewed in the light most
favorable to the nonmoving party and that it may not make credibility determinations or weigh
the evidence.15
II.

Uncontroverted Facts
The Court deems the material facts set forth in plaintiff’s motion admitted for the

purposes of summary judgment because the defendant failed to specifically controvert them as
required under D. Kan. Rule 56.1(a).16
Alejandro Ruiz became a lawful permanent resident of the United States on November
28, 2000. On December 11, 2006, Ruiz filed an application for naturalization with the Nebraska
Service Center of United States Citizenship and Immigration Services, using Form N-400. On

12

Id. at 251–52.

13

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

14

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003).

15

See Scott v. Harris, 550 U.S. 372, 378 (2007); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587 (1986).
16

That rule provides: “All material facts set forth in the statement of the movant shall be deemed admitted
for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.” D.
Kan. Rule 56.1(a).

3

July 10, 2007, USCIS Officer James S. Davis interviewed Ruiz under oath about his Form N-400
Application. Ruiz affirmed that to the best of his knowledge and belief the content of his
naturalization application was true and correct. Based upon Ruiz’s answers in his Form N-400
Application and those given in his interview with Officer Davis, USCIS approved Ruiz for
naturalization on August 3, 2007.
On July 22, 2007, the Lyon County, Kansas, Sheriff’s Office arrested Ruiz and charged
him with aggravated assault with a deadly weapon and rape. A Lyon County prosecutor then
filed a complaint against Ruiz on July 23, 2007, charging Ruiz with those two charges and four
additional charges—criminal threat, aggravated criminal sodomy, aggravated sexual battery, and
an additional charge of rape. On September 7, 2007, Ruiz entered a plea of nolo contendere for
the crimes of aggravated assault with a deadly weapon and aggravated sexual battery. The court
sentenced Ruiz to 32 months in jail for the aggravated sexual battery conviction and 12 months
in jail for the aggravated assault conviction, to be served concurrently.
Unaware of the criminal arrest and convictions, USCIS sent Ruiz a Form N-445, Notice
of Naturalization Oath Ceremony. Ruiz completed and signed the form on September 14, 2007,
before his naturalization ceremony. Question 4 of Form N-445 “asked whether Ruiz had been
arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any
law or ordinance” since his interview with Officer Davis on July 10, 2007. Ruiz checked both
“Yes” and “No.” Seeing the inconsistent answer, Officer Elaine Howlett asked Ruiz whether he
had been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or
violating any law or ordinance, including traffic violations, since his interview date of July 10,
2007. When Ruiz answered that he had not, Officer Howlett circled “No” on Ruiz’s Form N-

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445 and then initialed the application next to the circle. Ruiz signed the Form N-445, certifying
that his answers were correct. On the basis of the answers Ruiz supplied in his Form N-400
Application, his sworn testimony during his naturalization interview, and his responses to the
questions contained in his Form N-445, USCIS permitted Ruiz to take the Oath of Allegiance,
admitted him to United States citizenship on September 14, 2007, and issued him a Certificate of
Naturalization, number 29386831.
III.

Discussion
Plaintiff brings this action under 8 U.S.C. § 1451(a). Under § 1451(a), a court must

revoke an order admitting a plaintiff to citizenship and cancel the certificate of naturalization if
the plaintiff either (1) illegally procured the order and certificate of naturalization or (2) procured
the order and certificate by concealment of a material fact or by willful misrepresentation.17 The
Supreme Court has stated that once citizenship has been conferred, it “should not be taken away
without the clearest sort of justification and proof.”18 As a result, “[t]o prevail in a
denaturalization proceeding, the government must prove its case by clear, convincing, and
unequivocal evidence, and leave no issue in doubt.”19 But once the government has met its
burden, a court must enter a judgment of denaturalization and has no discretion to excuse the
conduct.20 Here, the government has met its burden.
A.

Illegal Procurement

17

8 U.S.C. § 1451(a).

18

Schneiderman v. United States, 320 U.S. 118, 122 (1943).

19

United States v. Koziy, 728 F.2d 1314, 1318 (11th Cir. 1984) (citing Fedorenko v. United States, 449 U.S.
490, 505 (1981); United States v. Chaunt, 364 U.S. 350, 353 (1966); Scheiderman, 320 U.S. at 125).
20

Fedorenko, 449 U.S. at 517.

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The uncontroverted facts establish that plaintiff illegally procured his naturalization. An
applicant “illegally procures” naturalization when the applicant fails to strictly comply with all
of the congressionally imposed prerequisites for citizenship.21 One prerequisite requires the
applicant to prove good moral character during the statutory period starting five years before
filing the Form N-400 Application and ending at the naturalization ceremony.22 The statutory
requirements preclude an applicant from proving good moral character if he has been convicted
of an aggravated felony within the statutory period, including the time between the initial
approval of naturalization and the naturalization ceremony.23 The statute defines an aggravated
felony to include an offense, carrying a term of imprisonment of at least one year, that has as an
element the use or threat of force against another person.24 And a conviction not only includes
conviction by trial, but also conviction by plea of guilty or nolo contendere.25
Here, Ruiz entered a plea of nolo contendere for aggravated assault with a deadly weapon
and aggravated sexual battery on September 7, 2007. Both felonies have as an element use or
threat of force against another person and carry a sentence of at least one year.26 The court
sentenced Ruiz to a term of imprisonment of at least one year for each conviction. Thus, his
convictions meet the statutory definition of aggravated felony. The conviction occurred within
the statutory period, specifically the time between the initial approval for naturalization and the

21

Id. at 506.

22

8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10(a)(1).

23

8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii).

24

8 U.S.C. § 1101(a)(43)(F) (referring to 18 U.S.C. § 16).

25

Id. § 1101(a)(48)(I).

26

See Kan. Stat. Ann. §§ 21-3410, 21-3518.

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naturalization ceremony. As a result, Ruiz could not show good moral character during the
required time period and thus failed to meet the congressionally mandated prerequisites for
naturalization. Therefore, Ruiz illegally procured the order and certification of naturalization,
and the Court must enter a judgment of denaturalization.
B.

Willful Concealment of Material Facts

Even if Ruiz did not illegally procure the order and certificate of naturalization, the Court
must also enter a judgment of denaturalization because he procured the order and certificate by
concealment of a material fact or by willful misrepresentation. For the court to revoke
naturalization under this second provision of § 1451(a), the government must prove (1) the
applicant misrepresented or concealed a fact, (2) the applicant did so wilfully, (3) the fact
misrepresented or concealed was material, and (4) the applicant procured citizenship as a result
of the misrepresentation.27
Here, Ruiz misrepresented a fact. Ruiz completed his Form N-445 on September 14,
2007. Question 4 of the form asked whether Ruiz had been “arrested, cited, charged, indicted,
convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic
offenses.” Ruiz answered “No” to this question and signed the document, certifying that the
answers he gave were true and correct. In fact, only seven days before he signed this document
certifying that he had not been convicted of any crimes, he had been convicted of aggravated
assault and aggravated sexual battery. He had also been arrested, charged, and imprisoned for
those offenses. Thus, Ruiz misrepresented or concealed a fact on his application.
Ruiz made his misrepresentation wilfully. A misrepresentation is willful if the applicant

27

Kungys v. United States, 485 U.S. 759, 767 (1988).

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knows the information is false.28 The applicant need not posses an intent to deceive but must
only make a deliberate and voluntary misrepresentation.29 It cannot be denied that Ruiz had
knowledge of his conviction that occurred only seven days before. Not only had he just been
convicted, but he had also just been released from jail on September 7, 2007, as he remained in
jail from his arrest until his conviction. Further, Ruiz initially answered both “Yes” and “No” to
Question 4 on his Form N-445. When Officer Howlett asked Ruiz which answer was correct,
Ruiz answered that he had not been convicted. That Ruiz initially checked “Yes” and “No” and
then clarified his answer shows he did not accidently answer “No” to Question 4. And so, Ruiz
made a deliberate and voluntary misrepresentation on the Form N-445.
Ruiz’s misrepresentation was also material and allowed him to procure naturalization. A
fact is material when it has the natural tendency to influence the decision to approve
naturalization.30 Ruiz’s correct answer to Question 4 would have precluded him from meeting
the good moral character prerequisite and thus would have precluded naturalization. As such,
the misrepresentation influenced the decision to approve naturalization—without a “Yes”
answer, Ruiz would not have achieved United States citizenship on September 14, 2007. Thus,
the misrepresentation was material, and he procured his naturalization as a result of his
misrepresentation.
Because the government has proved through the uncontroverted facts that Ruiz procured
citizenship by willfully misrepresenting a material fact on his Form N-445, the government has

28

Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (citing Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th
Cir. 1977)).
29

Espinoza-Espinoza, 554 F.2d at 925.

30

Kungys, 485 U.S. at 772.

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met its burden under § 1451(a). Thus, the Court must order a judgment of denaturalization based
on the second provision of § 1451(a) as well as the first.
Whether through the illegal procurement or willful misrepresentation provisions of §
1451(a), the government has demonstrated that there is no genuine issue of material facts and
that it is entitled to judgment as a matter of law. Therefore, the Court grants the government’s
Motion for Summary Judgment.
IT IS THEREFORE ORDERED BY THE COURT that government’s Motion for
Summary Judgment (Doc. 8) is GRANTED. The Court directs the government to submit a
proposed judgment.
IT IS SO ORDERED.
Dated: September 26, 2011

S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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