Song v. Kent et al
Filing
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ORDER granting 22 Petitioner's Motion for Summary Judgment and Denying 26 Defendant's Motion for Summary Judgment. The Clerk is instructed to enter Judgment. Signed by Judge Gloria M. Navarro on 5/31/2020. (Copies have been distributed pursuant to the NEF - DRS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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YALI SONG,
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Petitioner,
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vs.
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JEANNE KENT, Director, Las Vegas Field
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Office of United States Citizenship and
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Immigration Services, in her official capacity; )
and UNITED STATES CITIZENSHIP AND )
IMMIGRATION SERVICES,
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Respondents.
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Case No.: 2:18-cv-00919-GMN-VCF
ORDER
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Pending before the Court is Petitioner Yali Song’s (“Petitioner”) Motion for Summary
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Judgment, (ECF No. 22). A Response and Cross-Motion for Summary Judgment, (ECF Nos.
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25, 26), was filed by Respondents United States Citizenship and Immigration Services
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(“USCIS”) and Jeanne Kent, director of the Las Vegas USCIS field office (collectively, the
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“Government”). Petitioner filed a Reply and Response, (ECF Nos. 27, 28), and the
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Government filed a Reply, (ECF No. 29).
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I.
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BACKGROUND
Petitioner is a native and citizen of China, and she was born on July 29, 1986. (Pet. ¶ 6,
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ECF No. 1). On November 18, 2006, Petitioner and her mother entered the United States as K-
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1 and K-2 nonimmigrants. 1 (Id. ¶ 7). Petitioner was twenty years old at that time. (Id.).
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Petitioner’s mother married within ninety days of entering the United States. (Id. ¶ 8).
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Accordingly, on March 19, 2007, Petitioner and her mother each filed a separate Form I-485
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As the Government explains in its Motion to Dismiss, K-1 nonimmigrant status refers to an “alien” who is the
fiancé of a United States citizen and seeking to enter the United States to get married within ninety days. (Mot.
Dismiss (“MTD”) 2:22–24); 8 U.S.C. § 1101(a)(15)(K)(i). Similarly, K-2 nonimmigrant status refers to a minor
child of a K-1 nonimmigrant who is accompanying or following their parent to the United States. (Id. 2:23–26);
8 U.S.C. § 1101(a)(15)(K)(iii).
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with USCIS to adjust their immigration status and register permanent residence in the United
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States. (Id. ¶ 9). USCIS granted Petitioner’s mother’s request; but USCIS denied Petitioner’s
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application on the ground that she turned twenty-one years old before USCIS adjudicated her
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Form I-485, even though she both entered the United States and submitted her Form I-485
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beforehand. (Id. ¶ 9).
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In 2009, Petitioner filed her second Form I-485 to register permanent residence after
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marrying a United States citizen. (Id. ¶ 10). USCIS subsequently approved Petitioner’s second
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Form I-485 based on her marriage; and Petitioner received lawful permanent resident status on
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December 1, 2009. (Id.).
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Just over seven years after receiving permanent resident status, Petitioner filed an
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Application for Naturalization (“Form N-400”), and underwent an interview. (Id. ¶ 11). After
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the interview, and upon review of Petitioner’s immigration record, USCIS found that it had,
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“unfortunately,” granted Petitioner’s permanent status in 2009 by mistake. 2 (Id. ¶ 12);
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(Decision Denying Form N-400 at 37, Ex. I to Pet. Review, ECF No. 2). USCIS consequently
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denied Petitioner’s naturalization application on April 19, 2017, because Petitioner had not
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properly received lawful permanent residency in the United States. (Id. ¶ 12).
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On May 25, 2017, Petitioner filed a Request for Hearing on Decision in Naturalization
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Proceedings. (Id. ¶ 13). In that Request, Petitioner’s counsel conceded that USCIS mistakenly
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granted her 2009 application for permanent residence. (Mem. Support Request for Hearing at
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56, Ex. L to Pet. Review, ECF No. 2). Nevertheless, Petitioner explained that a 2011 decision
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by the Board of Immigration Appeals (in another matter) had essentially invalidated USCIS’s
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basis for denial of Petitioner’s 2007 application for permanent resident status. (Id. at 56–60).
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Petitioner’s K-2 status allowed an adjustment to permanent status only on the basis of her mother’s marriage to
a United States citizen, yet the 2009 adjustment erroneously occurred on the basis of Petitioner’s own marriage.
See 8 U.S.C. § 1255(a)–(d); (MTD 5:1–14, ECF No. 11); (Pet. ¶ 10).
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Specifically, Petitioner pointed out that the 2011 decision abrogated USCIS’s prior
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finding that Petitioner “aged out” of eligibility for permanent residency under her K-2
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nonimmigrant status. (Id.). Thus, USCIS could approve her 2007 application nunc pro tunc by
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retroactively applying this new authority to remedy the “procedural hiccup” that prevented her
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naturalization. (Id.). USCIS, however, denied Petitioner’s request for nunc pro tunc relief and
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retroactive application of authority in its Decision on March 7, 2018, thereby reaffirming its
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denial of naturalization. (Decision Denying Form N-336 at 64–65, Ex. M. to Pet. Review, ECF
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No. 2); (Pet. ¶ 14).
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Pursuant to 8 U.S.C. § 1421(c), Petitioner filed a Petition for Judicial Review in this
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Court on May 20, 2018, seeking a de novo review of USCIS’s denial of naturalization. (Id. at
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3). The Government soon after moved to dismiss the Petition for failure to state a claim under
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Federal Rule of Civil Procedure 12(b)(6), (Mot. Dismiss (“MTD”) 1:19–2:11, ECF No. 11),
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which the Court denied, (ECF No. 17). In the underlying Motions, Petitioner and the
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Government both move for summary judgment in their respective favors. (Mots. Summ. J.,
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ECF Nos. 22, 26).
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II.
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LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the
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pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that
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may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to
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return a verdict for the nonmoving party. Id. “Summary judgment is inappropriate if
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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict
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in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th
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Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A
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principal purpose of summary judgment is “to isolate and dispose of factually unsupported
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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
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In determining summary judgment, a court applies a burden-shifting analysis. “When
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the party moving for summary judgment would bear the burden of proof at trial, it must come
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forward with evidence which would entitle it to a directed verdict if the evidence went
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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing
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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.
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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In
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contrast, when the nonmoving party bears the burden of proving the claim or defense, the
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moving party can meet its burden in two ways: (1) by presenting evidence to negate an
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essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving
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party failed to make a showing sufficient to establish an element essential to that party’s case
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on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323–24. If
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the moving party fails to meet its initial burden, summary judgment must be denied and the
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court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S.
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144, 159–60 (1970).
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If the moving party satisfies its initial burden, the burden then shifts to the opposing
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party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,
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the opposing party need not establish a material issue of fact conclusively in its favor. It is
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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the
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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid
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summary judgment by relying solely on conclusory allegations that are unsupported by factual
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data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go
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beyond the assertions and allegations of the pleadings and set forth specific facts by producing
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competent evidence that shows a genuine issue for trial. Celotex Corp., 477 U.S. at 324.
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At summary judgment, a court’s function is not to weigh the evidence and determine the truth
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but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The
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evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in
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his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not
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significantly probative, summary judgment may be granted. Id. at 249–50.
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III.
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DISCUSSION
Petitioner requests that the Court recognize, upon new authority, that she possessed all
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qualifications to be a lawful permanent resident at the time of her 2007 application. (Pet. ¶ 15).
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Petitioner argues that she complied with that requirement, but her application was simply
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denied on a basis that has since been deemed invalid by Matter of Le, 25 I&N Dec. 541, 2011
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WL 2605043 (BIA 2011). (ECF No. 22).
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As an initial matter, the scope of a district court’s review under § 1421(c) is congruent
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with USCIS’s power to naturalize a person in the first place. See, e.g., Ajlani v. Chertoff, 545
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F.3d 229, 239–41 (2d Cir. 2008). If USCIS had the power to apply nunc pro tunc review and to
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determine if Matter of Le applies retroactively, then, as set forth in the Court’s prior Order,
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(ECF No. 17), the Court’s de novo review under § 1421(c) encompasses USCIS’s
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determinations on nunc pro tunc relief and retroactivity.
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Equitable relief in the form of a nunc pro tunc instruction “is generally reserved for
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exceptional circumstances of significant agency error.” Maniulit v. Majorkas, No. 3:12-cv-
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04501-JCS, 2012 WL 5471142, at *5 (N.D. Cal. Nov. 9, 2012) (citing Edwards v. INS, 393
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F.3d 299, 309 (2nd Cir. 2004)). Further, a court’s use of equitable relief in the context of
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judicial review for immigration cases is limited: it cannot ignore, modify, or change the “terms
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and conditions specified by Congress,” nor can it “ignore [a] defect and grant citizenship.”
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I.N.S. v. Pangilinan, 486 U.S. 875, 884 (1988) (citations omitted). In other words, as the
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United States Supreme Court in I.N.S. v. Pangilinan explained, equitable relief cannot disregard
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explicit statutory provisions or contravene the expressed intent of Congress. See id. at 884–85;
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Edwards, 393 F.3d at 310. Indeed, the statute governing Petitioner’s naturalization application,
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8 U.S.C. § 1421, declares, “[a] person may only be naturalized as a citizen of the United States
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in the manner and under the conditions prescribed in this subchapter and not otherwise.”
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8 U.S.C. § 1421(d) (emphasis added).
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The Government’s sole argument appears to be that the admissibility findings cannot be
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applied nunc pro tunc because the 2009 adjustment was obtained by mistake and void ab initio.
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(Gov’t Mot. Summ. J. (“MSJ”) at 9, ECF No. 26). The Government does not argue that
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Petitioner did not otherwise comply with the substantive requirements; rather, the Government
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merely argues that USCIS’s 2009 decision was valid and the fact that lawful permanent
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residence was obtained by mistake is of no consequence because USCIS correctly interpreted
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the law in denying Petitioner’s naturalization application. (Id. at 8–10). The Government
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argues that retroactive application of Matter of Le would only put Petitioner in a position where
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she was eligible to apply for admission, but would not overcome the statutory bar to
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naturalization that now exists—namely that Petitioner has never been lawfully admitted for
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permanent residence. (Id. at 10–11).
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The Government’s argument is circular and unavailing. In essence, the Government
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would have the Court bar Petitioner’s naturalization application solely because the granting of
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permanent residency was a mistake, which the Government subsequently recognized was a
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mistake—notwithstanding the fact that the Government’s “mistake” was in fact correct. As the
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Government concedes, the only statutory bars to Petitioner’s naturalization that now exists is
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Petitioner’s admission for permanent residence—a requirement/status that Petitioner would
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have obtained but for the 2009 adjustment decision, the grounds of which decision has since
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been invalidated by Matter of Le. Thus, a finding that Petitioner did, in fact, meet all the
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requirements to achieve permanent resident status would not violate Pangilinan because it
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neither changes nor ignores explicit statutory provisions. As such, the Court is not going
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beyond that which the Attorney General can do. Accord Wiedersperg v. I.N.S., 189 F.3d 476
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(9th Cir. 1999) (stating, in the context of leave to amend a complaint, that a petitioner “might
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have a redressable claim for equitable relief based on the denial of her application for
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adjustment of status”). In other words, contrary to the Government’s argument, the Court
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would not be allowing the Petitioner to “circumvent” immigration requirements; instead, it
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would be finding that the applicant met all requirements upon a full consideration of all
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proceedings leading up to her naturalization application.
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More specifically, nunc pro tunc relief does not bypass the interpreted requirement that
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Petitioner submit her 2007 application for adjustment and be under twenty-one years old at the
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time of her entry to the United States as a K-2 nonimmigrant. See 8 U.S.C. § 1101(a)(15)(K)
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(providing nonimmigrant classifications); 8 U.S.C. § 1255(d); 8 U.S.C. § 1101(b)(1) (defining
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a “minor child” as “an unmarried person under twenty-one years of age”); Regis v. Holder, 769
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F.3d 878, 884 (4th Cir. 2014) (discussing the holding in Regis v. Holder, 769 F.3d 878, 884
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(4th Cir. 2014) (discussing the holding in Matter of Le and its impact on the K-1 and K-2
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nonimmigrant process upon judicial review). 3 Further, Petitioner’s requested relief combines
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the Government’s decision in 2009 with her 2007 application. (See Resp. 14:5–9, ECF No. 14).
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That 2009 decision granted Petitioner permanent resident status (albeit mistakenly) created a
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reasonable inference that Petitioner met all discretionary requirements to properly achieve such
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status. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney
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General, in his discretion and under such regulations as he may prescribe . . . .”).
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8 U.S.C. § 1427(a) provides the general requirements for naturalization.
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Accordingly, the Court finds that retroactive application of Matter of Le is proper under
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the instant circumstances and that the Government’s 2009 decision should be affirmed to the
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extent that Petitioner should be considered a permanent resident consistent with Matter of Le.
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As such, the Government’s 2017 decision denying Petitioner’s Form N-400 is set aside with
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instructions to reconsider consistent with the findings herein.
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IV.
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CONCLUSION
IT IS HEREBY ORDERED that Petitioner’s Motion for Summary Judgment, (ECF
No. 22), is GRANTED.
IT IS FURTHER ORDERED that the Government’s Cross-Motion for Summary
Judgment, (ECF No. 26), is DENIED.
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The Clerk of the Court shall enter judgment accordingly.
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DATED this _____ day of May, 2020.
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___________________________________
Gloria M. Navarro, District Judge
United States District Court
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