Bankole v. Holder et al
Filing
11
MEMORANDUM AND ORDER denying 6 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Eric F. Melgren on 7/29/2014. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Samuel Bankole,
Plaintiff,
vs.
Case No. 6:14-cv-01104-EFM-JPO
ERIC HOLDER, Attorney General of the
United States; JEH JOHNSON, Secretary of
the Department of Homeland Security; LORI
SCIALABBA, Acting Director, United States
Citizenship and Immigration Services;
DAVID DOUGLAS, District Director,
District 15, United States Citizenship and
Immigration Services; MICHELLE PERRY,
Kansas City Field Office Director United
States Citizenship and Immigration Services;
ANGELA FIRRUCIA, Senior Adjudications
Officer, Kansas City Office; UNITED
STATES DEPARTMENT OF JUSTICE;
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Samuel Bankole (“Plaintiff”) seeks declaratory and injunctive relief against Eric
Holder, Lori Scialabba, David Douglas, Michelle Perry, Angela Firrucia, the United States
Department of Justice, the United States Department of Homeland Security, and the United
States Citizenship and Immigration Services (“Defendants”). Plaintiff appeals the denial of his
naturalization petition pursuant to § 310(c) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1421(c), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq. This
matter is before the Court on Defendants’ Motion to Dismiss (Doc. 6). For the reasons stated
below, Defendants’ motion is denied.
I.
Factual and Procedural Background
This matter arises from Defendants’ denial of Plaintiff’s naturalization petition. Plaintiff
is a citizen of Nigeria. He resides in Wichita, Kansas and has been a lawful permanent resident
of the United States since July 18, 2006. Plaintiff obtained his residency based on his marriage to
Vanessa Renee Lopez, a U.S. Citizen.
Because of his marital status, Plaintiff first sought naturalization on September 1, 2009.
On August 16, 2010, Plaintiff’s naturalization application was denied for failing to tell the
complete truth while under oath. On December 20, 2010, the United States Citizenship and
Immigration Services (“USCIS”) issued Plaintiff a Notice to Appear for removal proceedings
that was filed with the U.S. Immigration Court in Kansas City, Missouri. Fifteen months later, on
March 22, 2012, the Department of Homeland Security (“DHS”) moved to terminate removal
proceedings. The immigration court granted DHS’ motion and dismissed the case, and USCIS
never initiated further proceedings for removal.
On July 30, 2012, Plaintiff refiled for naturalization. After passing the tests for English
and American history and government, Plaintiff was issued a Notice of Naturalization Oath
Ceremony, scheduled for January 18, 2013. One week prior to his scheduled ceremony, USCIS
sent Plaintiff a notice de-scheduling it. On September 12, 2013, USCIS denied Plaintiff’s
application, and Plaintiff filed a Request for a Hearing on a Decision in Naturalization. On
-2-
December 4, 2013, USCIS conducted a hearing on the matter. Two days later, Plaintiff’s
application was again denied.
Plaintiff filed this claim against Defendants on April 4, 2014. Plaintiff filed an Amended
Complaint on April 7, 2014, alleging violations of the INA and the APA. Plaintiff alleges that he
is statutorily eligible for citizenship and seeks an order granting him citizenship. Defendants
allege that Plaintiff, on two separate occasions, failed to disclose his citation for and conviction
of running a stop sign and driving without proof of insurance. Accordingly, Defendants allege
that Plaintiff’s false testimony under oath renders him statutorily ineligible for naturalization.
Defendants now seek to dismiss Plaintiff’s claims in their entirety.
II.
Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move for dismissal of
any claim for which the plaintiff has failed to state a claim upon which relief can be granted.1
Upon such motion, the court must decide “whether the complaint contains ‘enough facts to state
a claim to relief that is plausible on its face.’”2 A claim is facially plausible if the plaintiff pleads
facts sufficient for the court to reasonably infer that the defendant is liable for the alleged
misconduct.3 The plausibility standard reflects the requirement in Rule 8 that pleadings provide
defendants with fair notice of the nature of the claims as well as the grounds upon which each
claim rests.4 Under Rule 12(b)(6), the court must accept as true all factual allegations in the
1
FED. R. CIV. P. 12(b)(6).
2
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009).
3
Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 556).
4
See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (internal citations omitted); see also FED.
R. CIV. P. 8(a)(2) (“A pleading that states a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”).
-3-
complaint, but need not afford such a presumption to legal conclusions.5 Viewing the complaint
in this manner, the court must decide whether the plaintiff’s allegations give rise to more than
speculative possibilities.6 If the allegations in the complaint are “so general that they encompass
a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’”7
III.
Analysis
In naturalization actions, because “the Government has a strong and legitimate interest in
ensuring that only qualified persons are granted citizenship . . . it has been universally accepted
that the burden is on the alien applicant to show his eligibility for citizenship in every respect.”8
“[D]oubts ‘should be resolved in favor of the United States and against the claimant.’”9 A
plaintiff can meet his burden by demonstrating “by a preponderance of the evidence that he or
she meets all of the requirements for naturalization.”10 If USCIS denies a person’s naturalization
application, and this denial is upheld by an immigration officer, an applicant may appeal in
federal district court. “Such review shall be de novo, and the court shall make its own findings of
fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo
on the application.”11
5
Iqbal, 556 U.S. at 678-79.
6
See id. at 678. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”).
7
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).
8
Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).
9
Id. (citing United States v. Macintosh, 283 U.S. 605, 626 (1931)).
10
8 C.F.R. § 316.2(b).
11
8 U.S.C.A. § 1421(c).
-4-
To survive a motion to dismiss in a naturalization action, a plaintiff must effectively
plead that he or she:
(1) was lawfully admitted to the United States as a permanent resident; (2) has
resided continuously, and has been physically present in the United States for the
required statutory period; and (3) is a person of good moral character and has
been so for at least the five years preceding the filing of his naturalization
application.12
Defendants concede that Plaintiff was lawfully admitted to the United States as a permanent
resident and has resided continuously for the required statutory period. Defendants dispute only
the final element, that Plaintiff is a person of good moral character.
Whether an applicant possesses the requisite standard of “good moral character” is
determined “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.”13 Although the statute
requires an applicant to be of good moral character “for at least the five years preceding the
filing of his naturalization application,” the USCIS “is not limited to reviewing the applicant’s
conduct during the five years immediately preceding the filing of the application, but may take
into consideration, as a basis for its determination, the applicant’s conduct and acts at any
time.”14 Although good moral character is not specifically defined, federal regulations do specify
conduct that prohibits a finding of good moral character in naturalization proceedings: “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 . . . (6) one who
12
Bidzimou v. U.S. Citizenship and Immigration Servs., 2013 WL 4094440, at *2 (D. Kan. Aug. 13, 2013).
13
8 C.F.R. § 316.10(a)(2).
14
8 C.F.R. § 316.10(a)(2).
-5-
has given false testimony for the purpose of obtaining any benefits under this chapter.”15
Defendants contend that Plaintiff’s false testimony about his citation for and conviction of
running a stop sign and driving without proof of insurance renders him statutorily ineligible for
naturalization, and thus Plaintiff fails to state a claim upon which relief can be granted.
Plaintiff and Defendants cite the same passage of Kungys v. United States,16 holding that
8 U.S.C. § 1101(f)(6), which governs good moral character for naturalization purposes, “means
precisely what it says:”
On its face, § 1101(f)(6) does not distinguish between material and immaterial
misrepresentation. Literally read, it denominates a person to be of bad moral
character on account of having given false testimony if he has told even the most
immaterial of lies with the subjective intent of obtaining immigration or
naturalization benefits.17
Defendants focus on the first portion of the passage, emphasizing “if he has told even the most
immaterial of lies.”18
Conversely, Plaintiff highlights the second portion of the passage,
emphasizing, “with the subjective intent of obtaining immigration or naturalization benefits.”19
Defendants are correct that the statute does not include a materiality requirement; however, the
statute does include an element of subjective intent. An individual lacks good moral character if
he or she, during the statutory period, gives even the most immaterial false testimony for the
purpose of and with the subjective intent of obtaining some immigration or naturalization benefit.
15
8 U.S.C.A. § 1101(f)(6).
16
485 U.S. 759.
17
Id. at 779-80.
18
Defendants’ Reply, Doc. 8, p. 5.
19
Plaintiff’s Response, Doc. 7, p. 5.
-6-
Misrepresentations made for other reasons are not enough to conclude that a person lacks good
moral character.20
Whether Plaintiff gave false testimony with the subjective intent of obtaining
immigration or naturalization benefits is a question that must be resolved by the trier of fact.
Plaintiff alleges several reasons apart from “a subjective intent of obtaining immigration or
naturalization benefits,” for failing to disclose his violations. The most compelling rationale
involves Plaintiff’s allegation that he simply followed the USCIS website’s suggestion “that
unless a traffic incident was alcohol or drug related, you do not need to submit documentation
for traffic fines and incidents that did not involve an actual arrest if the penalty was a fine less
than $500 and/or points on your driver’s license.”21 Relying on this information, Plaintiff
allegedly assumed that he was not required to disclose his traffic violation and conviction. The
Court cannot resolve the question of subjective intent at the pleading stage.22
20
Kungys, 485 U.S. at 780.
21
Plaintiff’s Response, Doc. 7-2, p. 4.
22
Id. at 782 (citing Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982) (issues of intent are factual
matters for the trier of fact.)). Defendants’ reliance on Keaik v. Dedvukay, 557 F.2d 820 (E.D. Mich. 2008), is
misplaced because the court was deciding a similar issue at the summary judgment stage rather than the pleading
stage of litigation. The facts were also substantially different than the facts of this case: the plaintiff in Keaik had
committed numerous traffic offenses within the five-year statutory time frame. Furthermore, the Court reminds
Defendants that Keaik, as a case arising from a district court in the Sixth Circuit, has no precedential value here.
-7-
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is
hereby DENIED.
IT IS SO ORDERED.
Dated this 29th day of July, 2014.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?