Ghanim v. Jaromin et al

Filing 20

MEMORANDUM AND ORDER re: 8 MOTION to Dismiss Case OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT, filed by Defendant Janet Napolitano, Defendant Michael Jaromin motion is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 8/14/13. (MRS)

Ghanim v. Jaromin et al

Doc. 20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MAHER GHANIM,

)
)
Plaintiff,
)
)
vs.
)
)
JANET NAPOLITANO, Secretary of the
)
U.S. Department of Homeland Security, and )
DAVID DOUGLAS, District Director of the )
U.S. Citizenship and Immigration Services, )
)
Defendants.
)

Case No. 4:12CV1818SNLJ

MEMORANDUM
Plaintiff has filed this action for judicial review of the denial of his application for
naturalization by defendants Secretary of the U.S. Department of Homeland Security and District
Director David Douglas of the U.S. Citizenship and Immigration Services (USCIS). Plaintiff
seeks a hearing on the matter or, alternatively, that the Court approve his application for
naturalization. The case is before the Court on the defendants’ motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment, filed March 1, 2013.
Document [8]. On June 27, 2013, the Court elected to address the motion as a motion for
summary judgment and allowed the parties time to file supplemental briefs. Ct. Order [17]. All
responsive pleadings have now been filed and the matter is ripe for disposition.
Legal Standard
Pursuant to § 310 of the Immigration and Nationality Act (INA) and at the request of the
applicant, a reviewing court shall conduct a “hearing de novo” on the application. 8 U.S.C. §

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1421(c). The phrase “hearing de novo,” however, does not always necessitate a bench trial or
evidentiary hearing, and summary judgment is appropriate where the parties have fully briefed
the issues before the Court. See Abdi v. USCIS, Civ. No. 12-1641 (RHK/SER), 2013 WL
562885, at *3 n.6 (D. Minn. 2013); Chan v. Gantner, 464 F.3d 289, 295-96 (2d Cir. 2006).
The appropriate standard for consideration of all motions for summary judgment is as
follows:
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law. The
movant bears the initial responsibility of informing the district court of the basis
for its motion, and must identify those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact. If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for trial. On a motion for
summary judgment, facts must be viewed in the light most favorable to the
nonmoving party only if there is a genuine dispute as to those facts. Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge. The nonmovant
must do more than simply show that there is some metaphysical doubt as to the
material facts, and must come forward with specific facts showing that there is a
genuine issue for trial. Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial.

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (internal citations and
quotations omitted); see also, Jackson v. United Parcel Service, Inc., 643 F.3d 1081, 1085 (8th
Cir. 2011) (citing Torgerson, supra).
Factual Background
Plaintiff, a citizen of Palestine and permanent resident alien of the United States, filed a
petition for naturalization with USCIS in September 2007. (Gov’t Ex. B, ¶ 1). The September
2007 application was approved and plaintiff was to be naturalized in December 2010. Id.
However, plaintiff was not naturalized at that time and his application was put on hold because
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after the approval of the September 2007 application but before his oath ceremony, plaintiff was
arrested for domestic assault. Id. According to the charging documents, in December 2008,
plaintiff was involved in an incident with his now ex-wife wherein he “knowingly caused
physical contact with [his spouse] knowing that such person would regard such contact as
offensive.” (Gov’t Ex. P). In connection with the arrest, an ex parte order of protection was
issued against plaintiff for the protection of his ex-wife. (Gov’t Ex. N, p.2). That order was
renewed multiple times and converted to a full order of protection in a consent judgment entered
in November of 2009 before finally expiring in December of 2011. Id. In May 2010, plaintiff
pled guilty in the Circuit Court of St. Louis County to Domestic Assault in the Third Degree
under sec. 565.074, RSMo., a class A misdemeanor, and was placed on two (2) years probation.
(Gov’t Ex. D, E). Plaintiff was also placed on a thirty day electronic monitoring program and
ordered to complete forty hours of community service. (Gov’t Ex. E). In July 2010, plaintiff’s
September 2007 application for naturalization was ultimately denied because USCIS determined
that due to the domestic assault charge, plaintiff lacked “good moral character” as required for
naturalization by federal regulations promulgated under section 316 of the INA. (Gov’t Ex. B); 8
U.S.C. § 1427(a)(3).
Plaintiff completed probation in June 2011 and filed a second application for
naturalization in August 2011. (Gov’t Ex. I, K). USCIS denied the August 2011 application,
again finding that plaintiff lacked good moral character. (Gov’t Ex. K, p.2). USCIS based its
finding on plaintiff’s domestic assault charge as well as a 2007 charge for littering (amended
from Sale of Alcohol to a Minor), the protective order issued against the plaintiff, a failure to
substantiate court-ordered child support, and a failure to explain wage garnishment. (Gov’t Ex.
K, p.3).

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Plaintiff filed with USCIS a request for a hearing and review of the denial of the August
2011 application and was interviewed regarding the matter. (Gov’t Ex. N). USCIS informed
plaintiff in December 2012 that he had not overcome the basis for the denial of the August 2011
application. (Gov’t Ex. N, p.3). Plaintiff was informed of his right, pursuant to 8 U.S.C. §
1421(c), to challenge the December 2012 decision in federal court and he timely filed a petition
for review on January 16, 2013.
Applicable Law
Defendants assert that plaintiff’s conviction for domestic assault statutorily precludes him
from establishing the requisite good moral character either because (1) sec. 565.074, RSMo. is a
“Crime Involving Moral Turpitude” (CIMT) or, (2) plaintiff’s domestic assault constitutes an
“unlawful act” committed during the statutory period which reflects adversely on moral
character. Plaintiff contends that sec. 565.074, RSMo. is not a CIMT and further, that no other
legal bar exists which would prevent him from establishing good moral character in a full hearing
before the Court.
The INA and its corresponding Federal Regulations govern the naturalization process.
“No alien has the slightest right to naturalization” unless all statutory requirements are met.
Fedorenko v. United States, 449 U.S. 490, 506 (1981) quoting United States v. Ginsberg, 243
U.S. 472, 475 (1917). A naturalization applicant bears the burden of showing his eligibility and
compliance with all naturalization requirements. Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637
(1967); 8 C.F.R. § 316.2(b). Any doubts about eligibility should be resolved in favor of the
United States and against the applicant. Id.; see also United States v. Manzi, 276 U.S. 463, 467
(1928).

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Section 316 of the INA provides that “[n]o 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)(3). The statutory period for which an applicant
must show good moral character begins five (5) years prior to the date on which the application
for naturalization was filed and runs through the date the applicant is naturalized. 8 U.S.C. §
1427(a). Good moral character is evaluated on a case-by-case basis, taking into account the
“standards of the average citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2).
The federal regulations provide guidance as to specific conduct that will constitute a lack
of good moral character. Relevant here are two provisions of 8 C.F.R. § 316.10. First, an
applicant lacks good moral character if he has been convicted of a CIMT during the statutory
period. 8 C.F.R. § 316.10(b)(2)(i). Second, absent a showing of extenuating circumstances, an
applicant lacks good moral character if, during the statutory period, he has committed “unlawful
acts” that adversely reflect on moral character. 8 C.F.R. § 316.10(b)(3)(iii); see also United
States v. Jean-Baptiste, 395 F.3d 1190, 1193 (11th Cir. 2005) (recognizing § 316.10(b)(3)(iii) as
a “catch-all”). If the reviewing court or agency determines an applicant lacks good moral
character under either provision, he may not naturalize.
Crimes Involving Moral Turpitude
Plaintiff pled guilty to third-degree domestic assault under sec. 565.074, RSMo. which
states in relevant part:
A person commits the crime of domestic assault in the third degree if the act
involves a family or household member, including any child who is a member of
the family or household, as defined in section 455.010 and:
(1) The person attempts to cause or recklessly causes physical injury to such family
or household member; or

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(2) With criminal negligence the person causes physical injury to such family or
household member by means of a deadly weapon or dangerous instrument; or
(3) The person purposely places such family or household member in apprehension
of immediate physical injury by any means; or
(4) The person recklessly engages in conduct which creates a grave risk of death or
serious physical injury to such family or household member; or
(5) The person knowingly causes physical contact with such family or household
member knowing the other person will regard the contact as offensive; or
(6) The person knowingly attempts to cause or causes the isolation of such family
or household member by unreasonably and substantially restricting or limiting such
family or household member's access to other persons, telecommunication devices
or transportation for the purpose of isolation.

Sec. 565.074, RSMo. If the statute is a CIMT, then plaintiff, having been convicted during the
statutory period, lacks good moral character and is ineligible for naturalization. 8 C.F.R. §
3116.10(b)(2)(i). To establish whether a particular offense is a CIMT, the Eighth Circuit follows
a three-step methodology set forth by the United States Attorney General in the administrative
decision Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008); Bobadilla v. Holder, 679 F.3d
1052, 1057 (8th Cir. 2012) (deferring to the Silva-Trevino methodology as a reasonable
interpretation of the INA).
Step one involves a categorical inquiry into the statutory language alone, rather than the
applicant’s underlying conduct, and analyzes whether there is a “realistic probability, not a
theoretical possibility” that the statute could be applied to conduct that does not involve moral
turpitude. Bobadilla, 679 F.3d at 1055 (quoting Silva-Trevino at 697-98). This realistic
probability standard focuses on the criminal statute's “actual scope and application...asking
whether...any actual (as opposed to hypothetical) case exists in which the relevant criminal
statute was applied to conduct that did not involve moral turpitude.” Silva-Trevino, 24 I&N Dec.

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at 697 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2008)). If the reviewing court or
agency determines that all conduct for which there is a realistic probability of conviction under
the statute involves moral turpitude, then the inquiry ends and the statute is categorically a
CIMT. Bobadilla, 679 F.3d at 1055. If the statute is not categorically a CIMT, then step two
employs a modified categorical approach to consider whether the applicant’s record of conviction
suggests a crime that in fact involved moral turpitude. Id. at 1056. The step two analysis is
limited to specific documents in the record of conviction, such as the indictment, charging
documents, judgment of conviction, or signed guilty plea. Id. Finally, if the record of conviction
does not resolve the inquiry, courts may look to “any additional evidence...necessary or
appropriate” to resolve the moral turpitude question. Id.
Although undefined in the statute, moral turpitude consists of “act[s] of baseness,
vileness, or depravity in the private and social duties that people owe each other or society in
general.” Godinez-Arroyo v. Mukasey, 540 F.3d 848, 851 (8th Cir. 2008). The intent required
under the statute of conviction is critical to a finding of moral turpitude. Hernandez-Perez v.
Holder, 569 F.3d 345, 348 (8th Cir. 2009). The act must be “accompanied by a vicious motive or
corrupt mind,” requiring some form of scienter. Bobadilla, 679 F.3d at 1054. See also, Matter
of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992) (finding that moral turpitude may inhere
where knowing or intentional conduct is an element of the offense, but not where the mens rea
cannot be discerned from the statute).
Simple assault and battery offenses generally do not involve moral turpitude for purposes
of immigration law. See Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.6 (8th Cir. 2006)
(“simple assault does not require the offender to act with a vicious motive or corrupt mind”);
Matter of Julio Cesar Ahortalejo-Guzman, 251 I&N Dec. 465, 972 (BIA 2011); see also, Brehe

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v. Missouri Dept. Elementary & Secondary Educ., 213 S.W.3d 720, 726-27 (Mo. App. 2007).
However, the Board of Immigration Appeals (BIA) has found that an assault offense can be
classified as a CIMT when it necessarily involves “some aggravating factor that indicates the
perpetrator's moral depravity, such as the use of a deadly weapon or the infliction of serious
injury on a person whom society views as deserving of special protection, such as children,
domestic partners, or peace officers.” Ahortalejo-Guzman, 251 I&N at 465.
Here, plaintiff argues that there exists a realistic probability that sec. 565.074, RSMo. can
be applied to assaults that do not involve moral turpitude. Specifically, he claims that the statute
does not categorically require physical injury because subsection (5) -- the subsection to which he
plead guilty -- refers merely to offensive physical contact. Sec. 565.074(5), RSMo.
For purposes of the step one categorical inquiry, plaintiff was charged with and pled
guilty to sec. 565.074(5), RSMo. for knowingly causing “offensive” contact to his ex-wife.
(Gov’t Ex. P). To be sure, in the context of assault crimes, offensive contact need not involve
physical injury, and thus, in theory, sec. 565.074(5), RSMo. could be violated by minimal,
nonviolent touching. See sec. 565.070, cmt, RSMo.; Restatement (Second) of Torts § 18 cmt. c.
Plaintiff is correct, then, that such minimal nonviolent contact ordinarily would not involve moral
turpitude. In re Sanudo, 231 I&N Dec. 968, 972 (BIA 2006); Esparza-Rodriguez v. Holder, 699
F.3d 821, 825 (5th Cir. 2007). However, the impetus of the realistic probability inquiry is not
whether the statute in theory can encompass conduct not involving moral turpitude, but rather,
whether the statute, in application, applies to such conduct. Bobadilla, 679 F.3d at 1055.
Although it seems that in Missouri, prosecutions for offensive contact assaults without
bodily injury are rare, see 32 Mo. Prac., Mo. Crim. Law § 18.7, sec. 565.074(5), RSMo. appears
to be the least serious category of domestic assault possible under Missouri law. Apart from the

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presence of a domestic relationship, none of the aggravating circumstances recognized by the BIA
as sufficient for a finding of moral turpitude are present in sec. 565.074(5), RSMo. See
Ahortalejo-Guzman, 251 I&N at 465, supra. In contrast, a number of other Missouri assault
statutes do indeed encompass such aggravating circumstances. Domestic assault with a deadly
weapon is an element of sec. 565.074(2), RSMo. when committed negligently and is a class C
felony under sec. 565.073(1), RSMo. when committed knowingly. Similarly, the reckless causing
of serious bodily injury is a class C felony under sec. 565.073(2), RSMo. The intentional causing
of serious bodily injury a class A felony under sec. 565.072(1), RSMo. Notably, the causing of
serious bodily injury is not an element of any subsection of sec. 565.074, RSMo., the statute under
which plaintiff was charged. Furthermore, offensive contact of a sexual nature is addressed by
Missouri’s sexual misconduct statutes. See sec. 566.095, 566.093, RSMo.; 32 Mo. Prac., Mo.
Crim. Law 18.7. Thus, without engaging in a hypothetical analysis of conduct that could possibly
violate plaintiff’s statute of conviction, it appears that by virtue of the fact that any BIArecognized aggravating circumstances are covered by other provisions, sec. 565.074(5), RSMo. is
targeted at conduct with a degree of seriousness below the BIA’s standard for moral turpitude.
The Government argues that, notwithstanding this conclusion, the presence of a domestic
relationship in sec. 565.074(5), RSMo. is enough to qualify it categorically as a CIMT. However,
the Court concurs with the reasoning of the Ninth Circuit that, without more, the presence of a
domestic relationship alone is not sufficient to transform every assault “into a crime categorically
grave, base, or depraved.” Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1060 (9th Cir. 2006).
Therefore, the Court finds that sec. 565.074(5), RSMo. is not categorically a CIMT.
Having found sec. 565.074. RSMo. not to be categorically a CIMT, the Court continues
to step two and looks beyond the statute into the specific conduct underlying plaintiff’s conviction

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as evidenced by the record of conviction. The Government has entered several documents into
the record that may be considered at stage two including the signed guilty plea, (Gov’t Ex. D),
judgment and sentence, (Gov’t Ex. E), and the amended information (Gov’t Ex. P). These
documents indicate that plaintiff was charged with and pled guilty to domestic assault under sec.
565.074(5), RSMo. regarding a December 2008 incident with his spouse. However, the
documents are not sufficiently detailed for the Court to discern whether plaintiff’s actual conduct
involved something more than mere offensive touching so as to deem it morally turpitudinous. In
short, the stage two modified categorical approach does not resolve the inquiry.
At step three, the Court may consider any additional evidence appropriate to resolve the
moral turpitude question. The Attorney General in Silva-Trevino did not elucidate what
specifically may be considered at step three, stating only that the purpose of the inquiry is to
“ascertain the nature of a prior conviction...not an invitation to relitigate the conviction itself.”
Silva-Trevino, 24 I&N Dec. at 703. Plaintiff contends the police report, offered by the
Government, is inadmissible hearsay and inappropriate for consideration on this issue. The Court
agrees, because no foundation has been laid for the report’s admissibility or veracity and because
the circumstances of the incident are hotly contested. Therefore, based on the limited admissible
evidence offered at this stage and the administrative directive not to “relitigate the conviction
itself,” Id., the Court concludes that Plaintiff did not plead guilty to a CIMT.
Unlawful Acts
The Government’s alternative ground is that plaintiff lacks good moral character because
he has committed an unlawful act during the statutory period reflecting adversely upon moral
character. 8 C.F.R. § 316.10(b)(3)(iii).

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In that regard, the USCIS found that the plaintiff lacked good moral character because his
domestic assault conviction, regardless of whether it was a crime of moral turpitude and should be
classified as a CIMT, constituted an unlawful act within the statutory period for purposes of 8
C.F.R. § 316.10(b)(3)(iii). The regulations state that if unlawful acts that reflect adversely on
moral character are committed during the statutory period and no extenuating circumstances are
shown, an applicant “shall be found to lack good moral character.” 8 C.F.R. § 316.10(b)(3)(iii).
The word “shall” indicates the regulation is mandatory rather than permissive, that is, if an
applicant’s conduct qualifies under the provision, he is barred from establishing good moral
character unless extenuating circumstances are shown. This is so even when the unlawful act
would not constitute a CIMT under the regulations. See 8 C.F.R. § 316.10(b)(3)(iii).
“Unlawful acts” is not further defined in the regulations, but the term has been judicially
defined as “bad acts that would rise to the level of criminality, regardless of whether a criminal
prosecution was actually initiated.” Meyersiek v. USCIS, 445 F. Supp.2d 202, 205-06 (D. R.I.
2006); see also United States v. Lekarczyk, 354 F. Supp.2d 883, 887 (W.D. Wis. 2005) (defining
“unlawful” as “illegal or against moral or ethical standards,” according to ordinary, dictionary
meaning). Regardless of how it is defined, a guilty plea to third degree domestic assault is clearly
an unlawful act. See Amin v. I.N.S., No. 4:09-CV-623-A, 2010 WL 2034802 at *3-4 (N.D. TX
2010) (affirming USCIS denial of application for naturalization based on a finding that plaintiff’s
guilty plea to misdemeanor assault causing bodily injury to a family member was an unlawful act
for purposes of 8 C.F.R. § 316.10(b)(3)(iii)). Moreover, such an unlawful act surely is
inconsistent with the “standards of the average citizen in the community of residence” imposed
under 8 C.F.R. § 316.10(a)(2).

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However, despite an initial finding that plaintiff’s domestic assault incident is an
unlawful act, 8 C.F.R. § 316.10(b)(3)(iii) permits plaintiff to make a showing of extenuating
circumstances indicating why the unlawful act does not reflect adversely on moral character such
to preclude naturalization. In the context of a determination of good moral character, extenuating
circumstances “must pertain to the reasons showing lack of good character, including acts
negating good character....” United States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005).
Extenuating circumstances “render a crime less reprehensible than it otherwise would be, or tend
to palliate or lessen its guilt.” United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011) (quoting
Black’s Law Dictionary (6th ed. 1990)).
Plaintiff has had multiple opportunities throughout his application process to offer
extenuating circumstances both to USCIS and to this Court. While he has proffered
commendable letters of recommendation and other external post-incident documents attempting
to establish his good moral character, none of these purport to show why the domestic assault
incident is, in and of itself, “less reprehensible than it otherwise would be....” Suarez, 664 F.3d at
662. Plaintiff’s offerings do not qualify as extenuating circumstances under the regulations and
thus the Court must conclude that no extenuating circumstances exist. Because plaintiff has
committed an unlawful act within the statutory period and has failed to establish extenuating
circumstances, the Court finds that he lacks good moral character pursuant to 8 C.F.R. §
316.10(b)(3)(iii).
In light of the fact that plaintiff has failed to establish good moral character under the
INA and that all doubts are to be resolved in favor of the Government, Fedorenko, 449 U.S. at
506, the Court finds plaintiff has failed his burden of establishing compliance with all statutory

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requirements for naturalization and is ineligible for citizenship at this time. The Court will grant
the defendants’ motion to dismiss, or in the alternative for summary judgment.

SO ORDERED this 14th day of August, 2013.

_______________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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