Dos Reis v. Sherman et al

Filing 50

Chief Judge Patti B. Saris: entered. MEMORANDUM AND ORDER entered. The plaintiff's petition for naturalization (Docket No. 1 ) is DENIED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________
CARLOS BENTO DOS REIS,
Plaintiff,
v.
MICHAEL J. MCCLEARY, Acting
Director, Boston Field Office,
United States Citizenship
and Immigration Services,
et al.,
Defendants.

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Civil Action No.
16-10011-PBS

MEMORANDUM AND ORDER
August 11, 2016
Saris, C.J.
INTRODUCTION
The plaintiff, Carlos Dos Reis, seeks de novo review of the
United States Citizenship and Immigration Service’s (USCIS)
denial of his petition for naturalization. The government argues
that this Court should deny the plaintiff’s petition because
(1) his marriage to a United States citizen was a sham, and
(2) he has not shown good moral character during the five-year
statutory period because he made false statements under oath to
USCIS, underreported his taxable income, and failed to support
his children. After a one-day bench trial, this Court finds that
the plaintiff (1) had the requisite intent to start a married
1

life with his wife at the time of their marriage, (2) made false
statements under oath to USCIS to obtain an immigration benefit,
and (3) willfully failed to make child support payments to his
dependents. The Court declines to find that he underreported his
taxable income. Therefore, the plaintiff has not proven by a
preponderance of evidence that he meets the statutory
requirement of good moral character and his petition for
naturalization (Docket No. 1) is DENIED.
FINDINGS OF FACT
I.

Background
The plaintiff arrived in the United States from Brazil on

March 10, 2002 on a tourist visa. To obtain the visa, he was
required to affirm that he did not intend to permanently remain
in the United States. The visa did not permit him to work,
expired after six months, and allowed him to leave and return to
the United States. Within one month of arriving, Dos Reis
purchased a vehicle and began to work at McDonald’s. After
working at McDonald’s for a short time, he got a job as a
painter, and, in 2003, started his own painting business where
he currently employs seven other painters. A hard worker, Dos
Reis regularly works eleven hour days, six days per week.
Shortly after arriving in the country, he decided to remain here

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because of the increased economic opportunities in this country.
He was eager to become an economic success.
II.

Marriage
Shortly after arriving, Dos Reis’s former girlfriend in

Brazil notified him that she was pregnant with his child.
Despite this pregnancy, he decided to stay in the United States.
The child was born on May 10, 2002. He visited the child five
times during return trips to Brazil.
In 2004, Dos Reis entered into a relationship with another
woman, a Brazilian citizen, in Braintree, Massachusetts. The
couple moved in together and the relationship was heading
towards marriage. However, the relationship was rocky and the
couple fought regularly. In January 2005, Dos Reis was arrested
for the assault and battery of his girlfriend, but she later
bailed him out of jail and dropped the charges. Ex. 28. His
girlfriend became pregnant with Dos Reis’s second child. He
never married her.
At around this time, the plaintiff met Sherry Mouzer at a
party in Weymouth Commons, an apartment complex in Weymouth,
Massachusetts, where they both lived. The two had separate
apartments, each with multiple roommates. Dos Reis was attracted
to Mouzer, her blond hair and green eyes, and wanted to pursue a
relationship with her. The two began dating. Mouzer and Dos Reis
saw a movie on their first date. Mouzer, age twenty at the time,
3

had just broken up with her drug trafficking boyfriend, had an
arrest record, and abused drugs. She did not disclose her drug
issues to Dos Reis. She found Dos Reis to be handsome and viewed
him as her savior from her bad situation.
About three to six months after the couple met, Dos Reis
proposed marriage and Mouzer accepted. He gave her a gold ring
and a flower. The couple was married by a justice of the peace
on July 8, 2005. No one from Mouzer’s family attended the
wedding and she did not tell her mother about the marriage until
several months afterwards. Dos Reis had two guests present, his
sister and a friend. After the wedding, he and Mouzer saw each
other almost every day, but they continued to live in their
separate apartments, because of their multiple roommates. On
October 21, 2005, Dos Reis’s second child was born.
In December 2005, Dos Reis purchased his house at 59
Michele Drive in Weymouth. Mouzer’s name is not on the deed or
the mortgage to the house. Dos Reis put down $28,000 on the
$450,000 house. Mouzer moved into the house with Dos Reis.
Though not working regularly, she participated in household
chores and helped Dos Reis in his painting business by
occasionally painting and translating for him when he interacted
with his clients. The plaintiff provided a DISH bill from
December 2005, a Comcast cable bill from January 2006, and a

4

water consumption report from December 2005 all addressed to
both Dos Reis and Mouzer at 59 Michele Drive. Exs. 13, 17-18.
III. Marriage Deterioration
Beginning in mid-2006, the marriage began to deteriorate.
Mouzer, who still struggled with drug addiction, spent more time
away from the couple’s home with her old friends from her
hometown of Marshfield, Massachusetts. She would stay with her
mother in Marshfield, at various hotels and friends’ apartments,
and at institutional rehabilitation centers. She did not tell
Dos Reis where she was staying. Although it is unclear whether
he knew before their marriage about her continuing drug
addiction, he became aware of Mouzer’s issues when she was taken
to the hospital after overdosing in 2007. He also learned that
she had turned to prostitution to finance her drug habit when he
read an article about her arrest in a prostitution sting in
2008. Ex. 51. She was arrested fourteen times after the couple
married.
The couple separated in November 2006. From mid-2006
through 2011, in Mouzer’s Registry of Motor Vehicle records,
police and court records, and Department of Transitional
Assistance (DTA) records, she only listed 59 Michele Drive as
her address twice. Exs. 35, 36, 38, 48, 51, 52, 58, 62, 63, 67.
In early 2006, Mouzer applied to change her vehicle registration
address to the marital home. Ex. 36. Mouzer received food stamps
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and health insurance separate from Dos Reis during the couple’s
marriage. Ex. 38. When Mouzer stayed in the hospital in 2007
after her drug overdose, Dos Reis did not pay any of the medical
bills. In the couple’s 2011 divorce petition, they averred that
they “last lived together at 59 Michele Dr. Weymouth, MA 02190
on November 2006.” Ex. 72. Both Mouzer and Dos Reis signed the
petition.
IV.

The One-Night Stand
In late 2006 or early 2007, Keidia Lima and her husband

Brad Gibbs moved into the basement apartment of Dos Reis’s
house. Dos Reis charged the couple $1,100 per month in rent,
which they paid largely in cash. Lima and Dos Reis had a “onenight stand” in October 2007 that resulted in Lima’s pregnancy
with Dos Reis’s third child. Mouzer was off with her drug
associates when Lima became pregnant and was upset when she
learned of the pregnancy. Lima’s husband moved out. Mouzer’s
life was spiraling out of control with drugs and prostitution.
The plaintiff’s third child was born on August 20, 2008.
While Lima and Dos Reis insist that they did not have a
long-term relationship, shortly after the baby was born, Lima,
Dos Reis, and the baby traveled to Brazil so Lima’s family could
meet the baby. Dos Reis paid for their plane tickets, and during
the trip, he spent several days meeting Lima’s family. They all
traveled back to the United States together. Neither Lima’s
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husband nor Mouzer accompanied them on this trip. Indeed, Mouzer
never met the plaintiff’s family. Lima and the baby continued to
live in Dos Reis’s basement apartment for seven months after the
child’s birth and eventually moved out in March 2009.
V.

False Testimony
On September 7, 2005, the plaintiff filed his application

for lawful permanent resident (LPR) status. Mouzer’s support
petition affirming that the couple was married accompanied this
application. After an LPR interview on January 26, 2006, USCIS
approved Dos Reis’s application on February 25, 2008.
On December 20, 2010, the plaintiff filed his first
naturalization petition, and USCIS interviewed him on April 5,
2011. In his April 2011 interview, the USCIS officer placed Dos
Reis under oath and asked him questions based on his
naturalization petition. Ex. 65. During the interview, the
plaintiff affirmed that he had been “married to and living with
the same United States citizen for the last three years . . . .”
Ex. 65. He answered no to the question: “Have you ever: Failed
to support your dependents or to pay alimony?” Ex. 65 (emphasis
in original). In response to questions about his criminal
background, Dos Reis disclosed his January 2005 arrest for
assault and battery of his ex-girlfriend. Ex. 65.
At the interview, USCIS requested more information about
Dos Reis’s marriage, and in response, Dos Reis submitted his
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healthcare proxy, will, and durable power of attorney, all
naming Sherry Mouzer as his beneficiary. Ex. 71. These documents
were executed on May 3, 2011, after the request for information.
USCIS denied Dos Reis’s first naturalization petition on April
16, 2012.
On March 4, 2013, the plaintiff filed his second
naturalization petition. USCIS placed the plaintiff under oath
and interviewed him regarding his second petition on June 13,
2013. Ex. 77. He answered no to the question: “Have you ever:
Failed to support your dependents or to pay alimony?” Ex. 77
(emphasis in original). On November 25, 2013, USCIS denied the
plaintiff’s second naturalization petition and the plaintiff
appealed. He again disclosed his January 2005 arrest for assault
and battery of his ex-girlfriend and an additional arrest for
driving without a license. Ex. 77.
On April 8, 2014, Dos Reis was placed under oath in a
videotaped interview conducted by a USCIS officer as part of his
appeal. Exs. 84, 86. In that interview, the USCIS officer asked
Dos Reis, “How long were you living with your wife?” Dos Reis
responded: “Since the day we married . . . until 2011.” Ex. 86.
Dos Reis also stated that, “when we married, we lived together,
just me and her.” Ex. 86. When asked about the couple’s wedding,
Dos Reis told the USCIS officer that Mouzer’s mother had
attended the wedding along with several other guests. Ex. 68. On
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September 9, 2015, USCIS affirmed its earlier decision and
denied the plaintiff’s second naturalization petition. The
plaintiff sought review in the district court pursuant to
8 U.S.C. § 1421(c).
VI.

Child Support
On April 14, 2006, the Norfolk Probate Court ordered Dos

Reis to pay $230 per month in child support for his second
child. Ex. 37. On May 17, 2007, the court found him guilty of
contempt “for having willfully neglected and refused to pay
child support, the arrearage of which is fixed at $2,862.” Ex.
44 at 3. The court found him guilty of contempt two more times
on April 28, 2008 and June 11, 2010. Exs. 50, 60. The arrearage
amounts were $2,400 and $9,038.45, respectively. Exs. 50, 60.
The court stated that it “did not credit the accuracy of the
defendant’s financial statement—he owns his own company, he has
boarders in the home he owns.” Ex. 60.
In November 2009, the probate court entered a child support
order requiring Dos Reis to pay $140 per week to support his
third child. Dos Reis was often behind in his child support
payments during the baby’s early years, sometimes by as much as
a few thousand dollars. There are no records of any contempt
orders with respect to child support for his third child.
However, Dos Reis made a payment of $10,817.85 to the
Massachusetts Department of Revenue on May 4, 2011 which paid
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his child support arrearage in full for both children. Ex. 8. It
is not clear what portion of this payment went to support each
child.
Dos Reis testified that he could not afford to pay the
amount of child support ordered because his business was not
making enough money and he was experiencing financial trouble.
Although Dos Reis claimed that he continued to pay smaller
amounts of money when he could afford to, he produced no
documentary evidence of these payments. Between 2007 and 2011,
Dos Reis made six trips to Brazil and one to Mexico. Exs. 69,
75. In 2009, he purchased a parcel of land in Brazil and built a
house there, but could not remember how much money he paid for
it. He admitted that his January 2010 trip to Brazil was for the
purpose of checking on this real estate investment. I find that
Dos Reis failed to pay his child support obligations,
particularly for his second child, without justification.
VII. Taxes
After purchasing his house at 59 Michele Drive, Dos Reis
began paying approximately $3,000 per month towards the
mortgage. Beginning in late 2006, he rented out his basement to
tenants, charging $1,100 per month from 2007 to 2010, and $850
per month in 2011. Exs. 41, 55, 66.
In his tax returns, Dos Reis reported an adjusted gross
income of $13,308 in 2005, married filing jointly; $12,056 in
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2006, married filing jointly; $4,896 in 2007, filing single;
$823 in 2008, filing single; $9,085 in 2009, married filing
separately; $13,000 in 2010, married filing separately; and
$9,325 in 2011, married filing separately. Exs. 1, 40, 78. He
did not file his 2009 tax return until March 31, 2011, and did
not file his 2011 tax return until April 8, 2013. Exs. 71, 78.
Although he admitted receiving rental income in 2011, his 2011
tax return lists no “income or loss from rental real estate.”
Ex. 78. Dos Reis used several different tax preparation services
to prepare and file his taxes.
DISCUSSION
I.

Standard of Review
“A person whose application for naturalization under this

subchapter is denied, after a hearing before an immigration
officer . . . may seek review of such denial before the United
States district court for the district in which such person
resides.” 8 U.S.C. § 1421(c). “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.” Id. “The court may not rely
on the INS’s findings of fact or law . . . .” United States v.
Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004); see also Chan v.
Gantner, 464 F.3d 289, 291 (2d Cir. 2006) (“[T]he district court
has the final word and does not defer to any of the INS’s
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findings or conclusions.” (quoting Hovsepian, 359 F.3d at 1162
(alterations omitted))). “Judicial review of naturalization
denials . . . is not limited to any administrative record but
rather may be on facts established in and found by the district
court de novo.” Aparicio v. Blakeway, 302 F.3d 437, 445 (5th
Cir. 2002).
“The applicant shall bear the burden of establishing by a
preponderance of the evidence that he or she meets all of the
requirements for naturalization . . . .” 8 C.F.R. § 316.2(b).
The government “has a strong and legitimate interest in ensuring
that only qualified persons are granted citizenship,” and “[f]or
these reasons, it has been universally accepted that the burden
is on the alien applicant to show his eligibility for
citizenship in every respect.” Berenyi v. Dist. Dir., INS, 385
U.S. 630, 637 (1967). The “Supreme Court has consistently held
that ‘no alien has the slightest right to naturalization unless
all statutory requirements are complied with.’” Koszelnik v.
Sec’y of Dep’t of Homeland Sec., No. 14-4816, 2016 WL 3648369,
at *2 (3d Cir. July 8, 2016) (quoting United States v. Ginsberg,
243 U.S. 472, 475 (1917) (alteration omitted)).
A. Lawful Admission as Permanent Resident
The government argues that, because the plaintiff entered
into his marriage solely for the purpose of gaining immigration
status as a lawful permanent resident, he was never lawfully
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admitted for permanent residence. The plaintiff responds that he
intended to start a life with his wife and that, only after
learning of his wife’s drug addiction, did his marriage break
down.
“[N]o person shall be naturalized unless he has been
lawfully admitted to the United States for permanent
residence . . . .” 8 U.S.C. § 1429; see also 8 U.S.C. § 1427(a)
(“No person . . . shall be naturalized unless such
applicant . . . has resided continuously, after being lawfully
admitted for permanent residence, within the United States
. . . .”). “An alien may obtain LPR status under the INA by
virtue of his marriage to a citizen of the United States.”
Gallimore v. Attorney Gen. of U.S., 619 F.3d 216, 221–22 (3d
Cir. 2010). Where the immigrant has “acquired permanent resident
status by fraud or misrepresentation . . . they have not been
lawfully admitted for permanent residence.” Mejia-Orellana v.
Gonzales, 502 F.3d 13, 16 (1st Cir. 2007). “The natural reading
of ‘lawful’ connotes more than just procedural regularity; it
suggests that the substance of an action complied with the
governing law.” Id. (quoting De La Rosa v. U.S. Dep’t of
Homeland Sec., 489 F.3d 551, 554 (2d Cir. 2007)).
When evaluating whether a marriage was bona fide, the
“substantive question is whether, at the time of the marriage,
there was an ‘intent to establish a life together.’” Rodriguez
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v. INS, 204 F.3d 25, 27 (1st Cir. 2000) (quoting Bark v. INS,
511 F.2d 1200, 1201 (9th Cir. 1975) (alterations omitted)); see
also McKenzie-Francisco v. Holder, 662 F.3d 584, 587 (1st Cir.
2011) (“To carry this burden, he must show that, at the time
that the newlyweds plighted their troth, he intended to
establish a life with his spouse.”). “While good faith is
evaluated at the time of the marriage . . . activity before and
after the moment of marriage is relevant to the inquiry.” Jing
Lin v. Holder, 759 F.3d 110, 112 (1st Cir. 2014).
When determining whether a petitioner enters into a
marriage in good faith, the First Circuit considers “documentary
evidence, such as a joint bank account or general commingling of
assets, which typically accompanies a valid marriage,” and
whether the couple “jointly enrolled in a health insurance
policy, filed tax returns, opened bank accounts, entered into
automobile financing agreements, and secured a credit card.” Cho
v. Gonzales, 404 F.3d 96, 103 (1st Cir. 2005). The court also
looks to the amount of time the couple lived together during
their marriage and whether they can recall details about their
married lives. See Jing Lin, 759 F.3d at 112; Rodriguez Del
Carmen v. Gonzales, 441 F.3d 41, 43-44 (1st Cir. 2006) (finding
that the marriage was not bona fide and noting that the
petitioner’s spouse “was unable to recall important details of
her putative married life”).
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This Court finds that, at the time Dos Reis and Mouzer
married in July 2005, Dos Reis intended to start a married life
with her. The Court relies on the testimony of four witnesses
that the couple lived together in Weymouth after the plaintiff
purchased a home there, and the relatively consistent story
about the couple’s courtship. They lived in the same apartment
complex and met at an event on the property. They went to a
movie on their first date, although they could not remember
which movie. He gave her a ring and a flower and they lived
apart for the first four months of their marriage because of
their multiple roommates. Things were going smoothly during the
first months of the marriage and Mouzer helped around the house
and with Dos Reis’s business. Before long, because of Mouzer’s
drug abuse, the marriage began to break down. Mouzer stayed at
59 Michele Drive less often and gave different addresses
whenever asked. As the couple stated in their divorce petition,
by November 2006, Mouzer was no longer living with Dos Reis and
the marriage had irretrievably broken down.1
The government relies on the lack of documentary evidence
regarding the plaintiff’s married life to argue that the
marriage was a sham. The couple did not commingle their finances

1

This timeline is consistent with Dos Reis’s tax filings which
list his filing status as either “single” or “married filing
separately” after 2006. Exs. 1, 40, 78.
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and Mouzer’s name is not on the deed or mortgage to 59 Michele
Drive. Dos Reis set up a joint bank account with Mouzer which he
later closed after she overdrew the account. Dos Reis bought her
a car. However, before and during their marriage, Mouzer had no
financial assets to commingle. Mouzer’s lack of credit provides
a plausible explanation for not adding her name to the mortgage.
The government also relies on the fact that Dos Reis had
two children with other women during his marriage to Mouzer.
However, Dos Reis’s ex-girlfriend became pregnant with his
second child before or shortly after he met Mouzer. By the time
Lima became pregnant in October 2007, Dos Reis and Mouzer were
no longer living together and the marriage had effectively
collapsed. These extramarital children do not bear on Dos Reis’s
intent to start a married life with Mouzer at the beginning of
the marriage. Therefore, the Court finds that Dos Reis entered
into his marriage in good faith and that his permanent resident
status was lawfully obtained.
B. Bad Moral Character
“No person . . . shall be naturalized unless such
applicant, . . . 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 INA further states:
In determining whether the applicant has sustained the
burden of establishing good moral character . . . the
Attorney General shall not be limited to the applicant’s
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conduct during the five years preceding the filing of
the application, but may take into consideration as a
basis for such determination the applicant’s conduct and
acts at any time prior to that period.
8 U.S.C. § 1427(e). The statutory period of good moral character
“includes the period between the examination and the
administration of the oath of allegiance.” 8 C.F.R.
§ 316.10(a)(1).
i.

False Testimony

“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 . . . one who has given false testimony for the purpose of
obtaining any benefits under this chapter.” 8 U.S.C.
§ 1101(f)(6). “The Supreme Court has held that false testimony
under 8 U.S.C. § 1101(f)(6) is limited to ‘oral statements made
under oath’ and ‘misrepresentations made with the subjective
intent of obtaining immigration benefits.’” Toribio-Chavez v.
Holder, 611 F.3d 57, 65 (1st Cir. 2010) (quoting Kungys v.
United States, 485 U.S. 759, 780 (1988)). “The United States
concedes that [§ 1101(f)(6)] does not include other types of
misrepresentations or concealments, such as falsified documents
or statements not made under oath.” Kungys, 485 U.S. at 780
(internal quotation marks omitted). “The absence of a
materiality requirement in § 1101(f)(6) can be explained by the

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fact that its primary purpose is not . . . to prevent false
pertinent data from being introduced into the naturalization
process . . . but to identify lack of good moral character.” Id.
“Whether a person has the subjective intent to deceive in order
to obtain immigration benefits is a question of fact.”
Hovsepian, 422 F.3d at 887 (citing Kungys, 485 U.S. at 782).
In his April 5, 2011 interview, the USCIS officer placed
Dos Reis under oath and asked him to affirm or correct his
answers in his N-400 application for naturalization. Dos Reis
affirmed that he had been “married to and living with the same
United States citizen for the last three years.” Ex. 65. In the
plaintiff’s videotaped interview with USCIS on April 8, 2014, he
also stated, under oath, that he had lived with Mouzer until
their divorce in 2011. In their divorce petition, however,
signed by both Dos Reis and Mouzer less than three months after
the April 2011 interview under penalty of perjury, they affirmed
that they last lived together in November 2006. Ex. 72. This
Court finds that the affirmation in the divorce petition is
consistent with other evidence on the record that the couple
last lived together in November 2006. The Court finds that Dos
Reis intentionally lied under oath in his answers to obtain an
immigration benefit.
In the April 5, 2011 and June 13, 2013 interviews with
USCIS, the plaintiff answered no to the question: “Have you
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ever: Failed to support your dependents or pay alimony?” Exs.
65, 77 (emphasis in original). At that time, the plaintiff had
been held in contempt of the child support order for his second
child three separate times by the Norfolk County Probate Court
between 2007 and 2010 with arrearages between $2,400 and $9,000.
Although never held in contempt with respect to support of his
third child, he was frequently behind in his payments by as much
several thousand dollars. At the time of the April 2011
interview, the plaintiff was still in arrears of his child
support by over $10,000, an arrearage he corrected with a lump
sum check to the Department of Revenue in May 2011. The record
is unclear about the percentage of that lump sum payment that
applied to each child.
When asked about his failure to disclose these lapses in
his child support, Dos Reis claimed that he understood the
question to ask whether he had supported his children
emotionally and done his best to financially contribute to his
children’s welfare. The Court does not credit the plaintiff’s
explanation. The three contempt orders prior to his USCIS
interviews are persuasive evidence of his failure to support his
dependents and his answers under oath constitute false testimony
in order to gain an immigration benefit.
Finally, in the plaintiff’s videotaped interview with USCIS
on April 8, 2014, while responding to questions about his
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wedding day, he stated that Mouzer’s mother had been present at
the ceremony. Ex. 86. Both Mouzer and her mother testified that
Mouzer’s mother had not been present at the wedding. Mouzer’s
mother had only learned of her daughter’s marriage months later.
The Court finds that the plaintiff gave false testimony, under
oath, with the intent to obtain an immigration benefit.
The plaintiff relies on Ajuz v. Mukasey for the proposition
that he does not lack good moral character simply because he
misunderstood USCIS’s questions and answered them incorrectly
under oath. See No. 07-MC-0185, 2009 WL 902369, at *4 (E.D. Pa.
Apr. 2, 2009) (“[F]alse testimony due to a misunderstanding, a
misinterpretation, or an innocent mistake is insufficient to
deny citizenship for lack of good moral character.” (quoting
Saad v. Barrows, No. CIV.A. 3:03-CV-1342G, 2004 WL 1359165, at
*6 (N.D. Tex. June 16, 2004))). In Ajuz, the court found that,
despite answering a question incorrectly under oath, the
petitioner had no intent to deceive and had simply misunderstood
the question. Id. at *6. Additionally, the petitioner corrected
his earlier false testimony at a subsequent immigration
interview. Id. at *2. Dos Reis claims that he misunderstood the
question about child support, but the Court finds that he
adequately understood the concept of child support from his
multiple interactions with the family and probate court.
Additionally, the plaintiff’s argument does not address his
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other false testimony about living with Mouzer after November
2006 and Mouzer’s mother attending his wedding. Finally, the
plaintiff never corrected any of this false testimony in
subsequent immigration interviews.2
The Court finds that the plaintiff did give false testimony
under oath with the intent to deceive and to obtain the
immigration benefit of naturalization. Therefore, the plaintiff
has not proven that he is a person of good moral character
sufficient to meet the qualifications for naturalization.
ii.

Failure to Support Dependents

“The fact that any person is not within any of the
foregoing classes [of § 1101(f)] shall not preclude a finding
that for other reasons such person is or was not of good moral
character.” 8 U.S.C. § 1101(f). This provision is known as the
“catchall provision.” Sumbundu v. Holder, 602 F.3d 47, 51 (2d
Cir. 2010). In this provision, “Congress delegated authority to
the former INS to set forth ‘other reasons’ affecting
determinations of good moral character.” United States v. JeanBaptiste, 395 F.3d 1190, 1194 (11th Cir. 2005) (quoting
8 U.S.C. § 1101(f)). “Pursuant to this authority, Congress

2

Although the government claims that Dos Reis gave false
testimony about his arrest record to USCIS, in both his April
2011 and June 2013 interviews, he disclosed his arrest for
assault and battery of his ex-girlfriend. Ex. 65. He also
disclosed his arrest for driving without a license in his June
2013 interview. Ex. 77.
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delegated to the Attorney General authority to issue 8 C.F.R.
§ 316.10.” Id. “Unless the applicant establishes extenuating
circumstances, the applicant shall be found to lack good moral
character if, during the statutory period, the applicant:
(i) Willfully failed or refused to support dependents . . . .”
8 C.F.R. § 316.10(b)(3)(i).
Although the case law dealing with the willful failure to
support dependents is sparse, courts agree that applicants for
naturalization should not be punished if they were not at fault
for failing to pay child support. See, e.g., Etape v.
Napolitano, 664 F. Supp. 2d 498, 517 (D. Md. 2009) (finding
that, even though the petitioner had amassed a $15,000 arrearage
in his child support, “the arrearage amount was not due to
Plaintiff’s non-payment of child support,” but rather to a
calculation error committed by the court); In re Valad, 465 F.
Supp. 120, 123 (E.D. Va. 1979) (finding no bad moral character
where the petitioner stopped making child support payments “due
to a misguided theory that . . . he was under no duty to
continue the monetary payment”).
As detailed in the discussion above, Dos Reis was found
guilty of contempt “for having willfully neglected and refused
to pay child support” two times within the statutory five-year
period with arrearages of $2,400 and $9,038.45. Exs. 50, 60.
Further, in 2010, the probate court noted that it “did not
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credit the accuracy of the defendant’s financial statement—he
owns his own company, he has boarders in the home he owns.” Ex.
60. The plaintiff was delinquent in his child support until he
made a payment of $10,817.85 to the Department of Revenue on May
4, 2011.
Although Dos Reis testified generally that his business was
not performing well and that he paid as much support as he could
during those times, he has produced no documentary evidence to
that effect. Further, the plaintiff purchased property in Brazil
in 2009, and, between 2008 and 2011, he made six trips to Brazil
and one trip to Mexico. He also received substantial cash
payments in rental income. He has not proven to this Court that
extenuating circumstances existed to explain his failure to pay
child support. Therefore, this Court finds that because Dos Reis
willfully failed to support his dependents, he has not proven
that he is a person of good moral character.
iii.

Failure to Pay Taxes

“It is undisputed that [] inaccurate tax filings do not
fall within any of the per se categories of § 1101(f).”
Sumbundu, 602 F.3d at 52. However, the Court can consider
inaccurate tax filings for the purposes of assessing good moral
character under the catchall provision of 8 U.S.C. § 1101(f).
See id. at 56 (relying on “a decade-long pattern of gross underreporting that was probably fraudulent,” and emphasizing that,
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during the period of fraudulent underreporting, the petitioners
“appeared to take improper advantage of taxpayer subsidized
housing”); see also Azize v. Bureau of Citizenship & Immigration
Servs., 594 F.3d 86, 90 (2d Cir. 2010) (finding that if the
petitioner “had not filed any required [tax] returns, he might
not have been eligible for citizenship”). “The mere existence of
errors in tax returns could not rationally be regarded as a
basis for saying that a petitioner was not of good moral
character. Failure to file, however, is quite another
matter . . . .” Gambino v. Pomeroy, 562 F. Supp. 974, 985
(D.N.J. 1982).
To show that the plaintiff lacks good moral character based
on inaccurate and late-filed tax returns, the government relies
on cases where the petitioner either admitted his failure to
properly report his income or failed to file any tax return.
See, e.g., Abuhekal v. U.S. Citizenship & Immigration Servs.,
No. CIV. 10-4687 ADM/TNL, 2011 WL 2600709, at *6 (D. Minn. June
30, 2011) (finding the petitioner “admitted he did not properly
report income or pay $89,000 in taxes due from 2000 through
2002”); Gambino, 562 F. Supp. at 985 (emphasizing the
petitioner’s admitted failure to file tax returns for four
years); Sekibo v. Chertoff, No. H-08-2219, 2010 WL 2196271, at
*4 (S.D. Tex. May 26, 2010) (finding that the plaintiff failed
“to file tax returns for five consecutive years”).
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The government asks this Court to find that the plaintiff
underreported his income from 2005 to 2011 based upon the
disparity between his reported yearly adjusted gross income and
his required mortgage payments. Although his income totals
during those years appear too low to support his mortgage, the
government fails to provide the detailed financial analysis
required for this Court to make a finding that Dos Reis was
actually underreporting his “adjusted gross income.”
The government also points to Dos Reis’s late-filed 2009
and 2011 tax returns. He did not file his 2009 tax return until
March 31, 2011, and did not file his 2011 tax return until April
8, 2013. Exs. 71, 78. Filing returns late or with errors is not
as serious as failing to file taxes altogether. These late
returns do not support a finding that Dos Reis lacked good moral
character.
Although Dos Reis admitted to receiving rental income in
2011, his 2011 tax return lists no “income or loss from rental
real estate.” Ex. 78. However, the record is unclear as to how
much money he failed to report. His failure to report his rental
income in 2011 does not rise to the level of bad moral
character. Therefore, this Court will not find that the

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plaintiff lacked good moral character based on the alleged
underreporting of his income and late filing of his tax returns.

ORDER
The plaintiff’s petition for naturalization (Docket No. 1)
is DENIED.

/s/PATTI B. SARIS_________________
Patti B. Saris
Chief United States District Judge

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