Hamed v. Perry et al

Filing 15

OPINION, MEMORANDUM AND ORDER re: 5 ORDERED that Respondents' Motion to Dismiss for Failure to State a Claim, [Doc. No. 5 ], is GRANTED. FURTHER ORDERED that the Motion and Application for Hearing is DISMISSED.. Signed by District Judge Henry E. Autrey on 11/20/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

AYOUB HISHAM HAMED,
A055-411-579
Petitioner,

)
)
)
)
vs.
)
)
RAND BEERS, Acting Secretary of the )
U. S. Department of Homeland Security1, )
and
)
)
MICHELLE PERRY, District Director )
of the U.S. Citizenship and Immigration )
Services,
)
Respondents.
)

Case No. 4:13CV00516 HEA

OPINION, MEMORANDUM AND ORDER
This matter is now before the Court on Motion to Dismiss, [Doc. No. 5], filed
by the Secretary of the U. S. Department of Homeland Security and Michelle
Perry, District Director of U. S. Citizenship and Immigration Services (collectively
Respondents). Petitioner has filed a memorandum in opposition to the motion.
Respondents have filed a reply. For the reasons set forth below, Respondent’s
motion to dismiss is well-taken and is therefore granted.
Petitioner filed this action seeking relief through review of the decision of
Respondents in the denial of his application for naturalization and a judicial
determination that he be naturalized. (Motion and Application for Hearing, ¶ 10).

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On September 6, 2013, Rand Beers became Acting Secretary of Homeland Secretary,
replacing Janet Napolitano.

Facts and Background2
Petitioner alleges in the Motion and Application for Hearing and for
Determination of Citizenship that Petitioner is a Permanent Resident Alien of the
United States residing within the Eastern District of Missouri, and this court has
subject matter jurisdiction over this proceeding by virtue of the Immigration and
Nationality Act (INA), specifically INA 310(c); 8 U.S.C. § 1421 (c) or
alternatively INA 336; 8U.S.C. § 1447. On November 21, 2011 Petitioner
submitted his Application for Naturalization (N-400) to the Department of
Homeland Security (DHS), United States Citizenship and Immigration Services
(USCIS), which in turn was transferred to the District Office in St. Louis,
Missouri. On March 15, 2012 he was interviewed and examined by a USCIS
employee in St. Louis pursuant to INA 335(b); 8U.S.C.§ 1446(b). His application
was denied on September 24, 2012. Subsequent to this denial, Petitioner filed a
Request for Rehearing (N-336) and was interviewed relative to the rehearing on
December 28, 2012. The USCIS issued its denial upon rehearing on January 29,
2013.
The USCIS District Office in St. Louis is under the Purview of the Kansas
City District Office which is under the supervisory control of Respondent
Michelle Perry. The eligibility of Petitioner for citizenship arises under INA 319;
8 U.S.C. § 1430.
Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a motion to

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The factual background is taken from the parties’ pleadings and is set forth for the
purpose of this motion only. It in no way relieves any party of the necessary proof of said facts in
later proceedings.
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dismiss, such as filed here, for failing to state a claim upon which relief could be
granted. When ruling on a motion to dismiss for failure to state a claim, the Court
must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-56 (2007). The Court does not, however, accept as true any allegation
that is a legal conclusion. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The
complaint must have “‘a short and plain statement of the claim showing that the
[plaintiff] is entitled to relief,’ in order to ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555
(quoting Fed.R.Civ.P. 8(a)(2)) and then Conley v. Gibson, 355 U.S. 41, 47 (1957),
abrogated by Twombly, supra); see also Gregory v. Dillard’s Inc., 565 F.3d 464,
473 (8th Cir.) (en banc), cert. denied, 130 S.Ct. 628 (2009). While detailed factual
allegations are not necessary, a complaint that contains “labels and conclusions,”
and “a formulaic recitation of the elements of a cause of action” is not sufficient.
Twombly, 550 U.S. at 555; accord Iqbal, 129 S.Ct. at 1949. The complaint must
set forth “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1949; C.N. v. Willmar Pub.
Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir.2010); Zutz v.
Nelson, 601 F.3d 842, 848 (8th Cir. 2010); Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. If
the claims are only conceivable, not plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the complaint should be read as
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a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490
U.S. 319, 327 (1989).
The INA, created in 1952, and the corresponding provisions of Title 8 of the
United States Code provide the requirements for the process of naturalization. In
order to become a naturalized citizen, an applicant must meet certain statutory
requirements, including, sufficient periods of residency and physical presence as
well as a record of “good moral character” during the requisite periods. 8 U.S.C. §
1427(a). “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. Ginsburg, 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).
Section 316 of the INA requires that “[n]o person...shall be naturalized
unless such applicant...during all 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 period
for which an applicant must show good moral character begins five (5) years
before 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 determined by taking into account the “standards of the average
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citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2). Indeed, one can
be found, lacking in good moral character if one committed unlawful acts that
adversely reflect upon the applicants’s moral character, or “was convicted...of
such acts, although the acts do not fall within the purview of Sec. 316.10(b)(1) or
(2).” 8 C.F.R. § 316.10(b)(3)(iii).
Discussion
Respondents seek dismissal of the Motion and Application for Hearing on
the ground that this Court cannot review the matter as Petitioner has failed to state
a claim upon which relief may be granted. Petitioner disputes this position.
Respondents argue that as one of the requirements for naturalization is
demonstration that one possesses good moral character and that Petitioner has
been convicted of Conspiracy to Structure to Avoid Reporting requirements, a
felony for which he received a sentence of two years on probation. This conviction
precludes him from being able to show he is possessed of good moral character.
Since he cannot meet the statutory requirement his Motion and Application for
Hearing should be dismissed.
On the other hand, Petitioner argues that he is not precluded from being
naturalized because the offense for which he was convicted, and good moral
character as it may relate to that offense, is but one factor the Court may consider.
In addition, it is argued that even if there are circumstances that reflect upon the
absence of good moral character, the Petitioner may be able to present extenuating
circumstances in support of his application.
The focal point of consideration, although reviewing the pleadings and
record as a whole, appears to be the Petitioner’s allegation of having good moral
character. ¶ 10 (G) MOTION AND APPLICATION FOR HEARING AND FOR
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DETERMINATION OF CITIZENSHIP. In that regard the Respondents have
noted that the result of Petitioner’s conviction for Conspiracy to Structure in Order
to Avoid Reporting Requirements under 31 U.S.C. § 5324(c) of the superceding
information precludes naturalization as the conviction and conduct adversely
reflects upon his “good moral conduct”. The essence of the allegation in the
superseding information setting out a conspiracy to violate Title 31, United States
Code, Section 5324(c) is that Petitioner and others engaged in certain enumerated
overt acts in order to export monetary instruments without reporting the
transactions as required by Title 31, United States Code, Section 53163.
Respondents’ Ex. E. The Petitioner pleaded guilty to, and was found guilty of,
those allegations set forth in the superseding information. As a consequence the
Petitioner received a period of probation. The plea of guilty and the admission of
facts underlying the elements of the superseding information, finding of guilt by
the Court, and sentencing all fall with the five year statutory period relating to
“good moral character.” As such, this is conduct which can be, and necessarily
must be, the focus of the moral conduct determination.
There are several considerations relating to good moral character in 8 C.F.R.
§ 316.10. The “standards of the average citizen in the community of residence” is
a matter which shall be considered for naturalization. 8 C.F.R. § 316.10(a)(2).
The government-the United States-is within the community of residence of the
Petitioner. The government, via legislative enactment, has promulgated that the

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31 U.S.C. § 5316, entitled Reports on exporting and importing monetary instruments
mandates the filing of a report when one “transports, is about to transport, or has transported,
monetary instruments of more than $10,000 at one time” either out of the United States or from a
place outside the United States and into the United States.
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conduct Petitioner engaged in is illegal. Such conduct is not within the parameters
of the standards of the average citizen in the community of residence. Such
conduct on the part of the Petitioner is also a crime that impacts adversely on his
moral character.
The issue in considering a motion to dismiss for failure to state a claim is
not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled
to present evidence in support of the claim. See Neitzke v. Williams, 490 U.S. 319,
327 (1989). Here, there is no question that Petitioner committed an unlawful act
by engaging in a conspiracy to Structure to Avoid Reporting Requirements
relative certain transactions as required by law under Title 31 of the United States
Code, Section 5316. The unlawful act is memorialized in Petitioner’s plea of
guilty to the superseding information of the charge. Such an unlawful act
adversely reflects upon his moral character and raises the vigilant eye of the
standards of the average citizen in the community of residence. See, 8 C.F.R. §
316.10 (a) (2); 8 C.F.R. § 316.10 (b) (3) (iii). As such, the Court concludes he is
statutorily ineligible to be naturalized and has therefore failed to state a claim
under 8.U.S.C. § 1421(c).
Conclusion
The Court now concludes Petitioner has failed to establish the sufficiency of
his pleadings and ward off the Rule 12 (b) (6) challenge. The Motion to Dismiss
should and must be granted.
Accordingly,
IT IS HEREBY ORDERED that Respondents’ Motion to Dismiss for
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Failure to State a Claim, [Doc. No. 5 ], is GRANTED.
IT IS FURTHER ORDERED that the Motion and Application for Hearing
is DISMISSED.
Dated this 20th day of November, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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