KUBLITSKI v. THOMPSON
Filing
26
OPINION. Signed by Judge Noel L. Hillman on 3/28/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALEH KUBLITSKI,
Plaintiff,
1:17-cv-298 (NLH/KMW)
OPINION
v.
JOHN THOMPSON and UNITED
STATES CITIZENSHIP &
IMMIGRATION SERVICES,
Defendants.
APPEARANCES:
THOMAS E. MOSELEY
LAW OFFICE OF TOM MOSELEY
ONE GATEWAY CENTER
SUITE 2600
NEWARK, NJ 07102-5397
On behalf of Plaintiff
ALLAN B.K. URGENT
OFFICE OF THE UNITED STATES ATTORNEY
970 BROAD STREET
SUITE 700
NEWARK, NJ 07102
On behalf of Defendants
HILLMAN, District Judge
This matter arises from the denial of Plaintiff Aleh
Kublitski’s naturalization application.
Defendants’ Motion for Summary Judgment.
Before the Court is
For the reasons that
follow, the Court will grant summary judgment in favor of
Defendants.
I. Background
Given that Plaintiff responded to Defendants’ Motion for
Summary Judgment with a brief letter and a Federal Rule of Civil
Procedure 56(d) request for discovery and deferred briefing, the
Court has not been provided with a complete set of Statements of
Material Facts Not in Dispute.
However, in his letter to the
Court, Plaintiff included the “procedural history of the case,”
which largely overlaps with Defendants’ Statement of Material
Facts Not in Dispute.
The Court uses these two documents to
address the underlying facts of this case.
Plaintiff was born in Russia in 1970.
On April 30, 1999,
Plaintiff was admitted to the United States as a visitor.
He
remained in the United States beyond his authorized stay.
On May 17, 2000, Plaintiff married Barbara Roach, a United
States citizen.
In September 2000, Plaintiff and Roach filed a
Form I-130 (Petition for Alien Relative), a Form I-485
(Application to Register Permanent Resident or Adjust Status),
and a Form I-765 (Work Authorization) with the U.S. Immigration
and Naturalization Service (INS).
On October 17, 2000, the INS
sent a rejection notice to Plaintiff and Roach.
On November 8,
2000, Plaintiff and Roach re-filed the forms.
The parties differ as to what happened on or around August
7, 2001.
According to Plaintiff, “[o]n August 7, 2001, INS
issued an internal Form I-181 Memorandum Creation of Record of
2
Lawful Permanent Residence stating that Aleh Kublitski had been
granted Lawful Permanent Resident Status pursuant to INA Section
245” and that “the INS Cherry Hill Office mailed an I-485
Approval Notice to Aleh Kublitski that stated: ‘Your application
for Permanent Residency has been approved’ and that he would
receive his ‘Alien Registration Receipt Card in 270 days.’”
According to Defendants, however:
There is a letter in the administrative record addressed
to Kublitski dated August 7, 2001.
The document has
letterhead
indicating
that
it
was
prepared
by
“Examinations,
U.S.
Immigration
&
Naturalization
Services, 1886 Greentree Road, Cherry Hill, New Jersey
08003.”
There are entries near the top right of the
document for the A File Number and “Adj. Class.” There
is a blank space next to the words “Approval Date.”
Underneath the salutation, “Dear Applicant,” the letter
states, “Your Application for Permanent Residency Has
Been Approved.” The letter is unsigned.
(citations omitted).
On August 8, 2001, the INS issued a Fingerprint Referral
Notice for Plaintiff.
On August 22, 2001, the INS sent
Plaintiff an Adjustment of Status interview notice for a
September 27, 2001 interview.
The parties continued to
correspond over the coming years.
The following facts, while not explicitly agreed to between
the parties, are taken from the Court’s review of the documents
provided in the administrative record.
On September 10, 2004,
Plaintiff and Roach were given a Final Judgment of Divorce.
Defendants proffer that, sometime in 2004, the Form I-130
3
Petition for Alien Relative was approved.
The Court is able to
discern a stamp and a signature on the Petition, but the Court
is unable to discern any approval date on the document.
(A368A).
However, as Plaintiff was eventually granted permanent
resident status, at some point prior to March 19, 2005, this
petition was necessarily approved.
On March 19, 2005, the I-495
Application to Adjust Status was stamped “approved,” as was a
Memorandum of Creation of Record of Lawful Permanent Residence.
Plaintiff was issued a Permanent Resident Card, stating that
Plaintiff was a resident since March 19, 2005.
An N-400 Application for Naturalization appears to have
been signed by Plaintiff on September 23, 2014 and signed by the
individual who prepared the form on October 17, 2014.
On the N-
400 form, Plaintiff stated he became a permanent resident on
March 19, 2005.
Plaintiff filed his Complaint with the Court on January 16,
2017.
Plaintiff asks for the following relief:
(a)
Granting him a hearing de novo before this Court on
his naturalization application and declaring that
he is entitled to be naturalized, and/or
(b)
Ordering the prompt adjudication of his request for
reconsideration, and
(c)
Granting him costs and attorneys’ fees and such
other and further relief that this Court may deem
proper.
On June 23, 2017, Defendants moved for summary judgment.
4
Plaintiff responded with a nine-page letter and a Federal Rule
of Civil Procedure 56(d) Declaration.
II. Jurisdiction
This Court has jurisdiction over this matter pursuant to
8 U.S.C. § 1421(c), which provides:
A person whose application for naturalization under this
title is denied, after a hearing before an immigration
officer under section 336(a), may seek review of such
denial before the United States district court or the
district in which such person resides in accordance with
chapter 7 of title 5, United States Code. 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. 1
1
The Second Circuit decided in Chan v. Gantner, 464 F.3d 289
(2d Cir. 2006) that “[t]he term ‘hearing’ has a ‘host of
meanings’ that encompass a wide variety of procedures” and that,
“[a]bsent some otherwise expressed [c]ongressional intent, the
mere use of the word ‘hearing’ in a statute does not mandate an
evidentiary hearing be held.” Id. at 295-96 (first quoting
United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 239
(1973); and then citing J.D. ex. rel. J.D. v. Pawlet Sch. Dist.,
224 F.3d 60, 68 (2d Cir. 2000)). Thus, where there are no
disputed issues of material fact, the Court is not required to
hold an evidentiary hearing. See id. at 296. The Third Circuit
has endorsed this decision from the Second Circuit. Assem
Abulkhair v. Bush, 413 F. App’x 502, 507 n.4 (3d Cir. 2011)
(“The Second Circuit has noted that application of the Federal
Rules of Civil Procedure is ‘the norm under the current
naturalization provision . . . and was the norm under the prior
law.’ It then determined that the Rule 56 process
provides . . . ‘the hearing required by section 1421(c).’ We
agree. Under the circumstances of this case, the district court
did not err by failing to hold oral argument before deciding the
summary judgment motion.” (first alteration in original)
(citations omitted) (quoting Chan, 464 F.3d at 295-96)).
5
III. Standard of Review
By statute, this Court’s review of the denial of
Plaintiff’s application for naturalization is “de novo.”
8 U.S.C. § 1421.
The Court is required to “make its own
findings of fact and conclusions of law.”
Id.
The Federal
Rules of Civil Procedure “apply to proceedings for admission to
citizenship to the extent that the practice in those proceedings
is not specified in federal statutes and has previously
conformed to the practice in civil actions.”
81(a)(3).
Fed. R. Civ. P.
Accordingly, the Court turns to its typical summary
judgment standard.
See, e.g., Moore v. Thompson, No. 09-1747,
2010 WL 398633, at *3 (D.N.J. Jan. 27, 2010).
Summary judgment is appropriate where the Court is
satisfied that “’the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
6
outcome of the suit.
Id.
“In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.”); see Singletary v. Pa.
Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” – that is, pointing
out to the district court – that there is an absence of evidence
to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
at 325)).
7
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.
Celotex, 477
A “party opposing summary judgment ‘may not rest
upon the mere allegations or denials of the . . . pleading[s].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
For
“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”
Cooper v. Sniezek, 418
F. App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at
322).
Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 257.
IV. Rule 56(d) Declaration
Federal Rule of Civil Procedure 56(d) provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1)
defer considering the motion or deny it;
(2)
allow time to obtain affidavits or
declarations or to take discovery; or
(3)
Issue any other appropriate order.
“A Rule 56(d) motion is ‘the proper recourse of a party
8
faced with a motion for summary judgment who believes that
additional discovery is necessary before he can adequately
respond to that motion.’”
Superior Offshore Int’l, Inc. v.
Bristow Grp., 490 F. App’x 492, 501 (3d Cir. 2012) (quoting
Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 309 (3d Cir.
2011)).
“A properly filed motion must be accompanied by ‘a
supporting affidavit detailing “what particular information is
sought; how, if uncovered, it would preclude summary judgment;
and why it has not previously been obtained.”’”
Id. (quoting
Doe v. Abington Friends Sch., 480 F.3d 252, 257 n.3 (3d Cir.
2007)).
This list of factors “is not exhaustive” but serves as “a
guide for the district court to follow in exercising its
discretion under Rule 56[d].”
Id. (alteration in original)
(quoting Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450,
458 (3d Cir. 2003)).
However, the Third Circuit has said that
“where the facts are in possession of the moving party a
continuance of a motion for summary judgment for purposes of
discovery should be granted almost as a matter of course.”
Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984) (quoting Costlow
v. United States, 552 F.2d 560, 564 (3d Cir. 1977)).
Plaintiff requests the production of his “A” file to
determine whether there is evidence of the mailing of an
approval notice on or around August 7, 2001.
9
Plaintiff also
requests production of the “A” file “to permit review of the
errors in the handling of the plaintiff’s adjustment application
including the confusion of his case with that of another
applicant and the reason for this confusion that delayed action
on the plaintiff’s application for permanent residence until
after his divorce.”
Plaintiff also seeks discovery on the “A”
file of Said Dahbi, with whom USCIS confused Plaintiff.
Plaintiff further seeks the deposition of USCIS officer
Mary Senft and “interrogatories to ascertain the names and
current location of those USCIS and/or INS employees who worked
on the plaintiff’s adjustment application so that their
depositions can be taken to ascertain the reasons errors
occurred in adjudicating the plaintiff’s adjustment application
and whether these were undertaken for impermissible reasons.”
Plaintiff’s Declaration sufficiently articulates the
particular information sought.
Plaintiff’s Declaration does not
explain why the information identified has not been previously
obtained.
Regardless, the Court finds that uncovering this
information would not preclude summary judgment, as detailed
below.
V. Summary Judgment Analysis
“An applicant for naturalization has the burden of
establishing ‘by a preponderance of the evidence that he or she
meets all of the requirements for naturalization.’”
10
Assem
Abulkhair v. Bush, 413 F. App’x 502, 508 (3d Cir. 2011).
“[T]here must be strict compliance with all the congressionally
imposed prerequisites to the acquisition of citizenship.”
Id.
(alteration in original) (quoting Fedorenko v. United States,
449 U.S. 490, 506 (1981)).
8 U.S.C. § 1427(a) provides, in pertinent part: “No person
. . . shall be naturalized unless such applicant, . . .
immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for
at least five years . . . .” (emphasis added).
Accordingly,
being lawfully admitted as a permanent resident is a
prerequisite for naturalization.
As Defendants frame it, the primary issue before this Court
is whether Plaintiff’s status was adjusted prior to his 2004
divorce from Roach, as Plaintiff contends, or after his 2004
divorce from Roach, as Defendants contend.
The Court finds
there is not a genuine issue of material fact regarding at what
point Plaintiff was adjusted and that further discovery would
not change that result.
Plaintiff focuses on a letter dated August 7, 2001, which
states “YOUR APPLICATION FOR PERMANENT RESIDENCY HAS BEEN
APPROVED.”
(A0566).
The letter, however, is not signed, nor is
the approval date filled in.
The Court is further provided with
11
a “Form I-181 Memorandum of Creation of Record of Lawful
Permanent Residence,” which addresses Plaintiff but is not
signed or stamped.
The Court was also provided with a March 19, 2005 stamped
“Form I-485 Application to Register Permanent Resident or Adjust
Status.”
(A0125).
The Court was further provided with a
stamped “approval” as of March 19, 2005 of a “Form I-181
Memorandum of Creation of Record of Lawful Permanent Residence.”
Plaintiff’s Rule 56(d) Declaration proffers that discovery
could reveal that Plaintiff was “mailed an approval notice”
around August 7, 2001.
The Court finds that, even if the August
7, 2011 letter was mailed to Plaintiff, the March 19, 2005
documents establish that this was the date in which Plaintiff
was approved as a lawful permanent resident.
There is no
indication that the August 7, 2001 documents were legally
operative, even if mailed.
The Court finds ample evidence that
the March 19, 2005 document was operative such that there is not
a genuine issue of material fact. 2
2
The existence of the August 7, 2001 documents is explained
in the Declaration of Mary Senft, which describes the process of
adjusting an applicant’s status to lawful permanent resident.
It states, in pertinent part:
For an applicant to adjust status to lawful permanent
resident, part of INS’s process included printing out a
Form I-181, Creation of Record of Lawful Permanent
Residence, in triplicate. . . . Along with the three
copies of the Form I-181, three copies of an approval
12
Aside from the formal execution of the March 19, 2005
documents and the unfinished nature of the August 7, 2011
documents, the parties agree that the process toward Plaintiff
obtaining lawful resident status continued after August 7, 2011.
More specifically, Plaintiff’s fingerprinting and interview took
place after that date.
These procedural steps are prerequisites
for approval as a lawful permanent resident and therefore would
have occurred before, and not after, such approval. 3
Accordingly, the Court finds no genuine issue of material fact
that Plaintiff was not adjusted on August 7, 2011 but was in
fact adjusted on March 19, 2005, after his divorce from Roach.
8 C.F.R. 205.1(a) governs the automatic revocation of
“[t]he approval of a petition . . . made under section 204 of
the Act.”
It states, in pertinent part:
notice were also generated and placed in the applicant’s
file. . . .
The approval notices were placed in the
file to accommodate the adjudications officers in the
event that they approved a case at the interview. The
officers could complete the information and disseminate
the approval notice at the completion of the interview.
According to Senft, “[t]he letter contained in the administrative
file for Aleh Kublitski at page 903 is an approval notice that INS
generated before the interview to be completed by the adjudications
officer at the interview if the case was approved.”
3
The “Fingerprint Referral Notice” for Plaintiff stated that
the fingerprinting was “required in order to continue with the
processing of your application for Adjustment of Status.”
(A0876). Further, the August 22, 2001 interview notice stated
the “reason for appointment” was “application for adjustment of
status.” (A0877).
13
(3)
If any of the following circumstances occur before
the beneficiary’s or self-petitioner’s journey to
the United States commences or, if the beneficiary
or self-petitioner is an applicant for adjustment
of status to that of a permanent resident, before
the decision on his or her adjustment application
becomes final:
(i)
Immediate relative and family-sponsored
petitions,
other
than
Amerasian
petitions.
(D)
Upon the legal termination of
the marriage when a citizen or
lawful permanent resident of
the
United
States
has
petitioned to accord his or her
spouse immediate relative or
family-sponsored
immigrant
classification under section
201(b) or section 203(a)(2) of
the Act.
Accordingly, as of the date of Plaintiff and Roach’s
divorce, Roach’s petition was automatically revoked and thus
Plaintiff was not eligible to become a lawful resident.
“[A]n
alien whose status has been adjusted to lawful permanent
resident but who is subsequently determined in an immigration
proceeding to have originally been ineligible for that status
has not been ‘lawfully admitted for permanent residence.’”
Gallimore v. Attorney Gen. of the U.S., 619 F.3d 216, 224-25 (3d
Cir. 2010) (quoting De La Rosa v. DHS, 489 F.3d 551, 554 (2d
Cir. 2007)).
As Plaintiff was not eligible to become a lawful
resident at the time he was approved, this was sufficient
grounds to deny his application for naturalization.
14
Finally, the Court addresses Plaintiff’s arguments
regarding the delay in processing his application and the
alleged errors made in the processing of his application.
Regardless of the merits of these assertions, the relief
Plaintiff seeks from this Court is for the Court to “declar[e]
that he is entitled to be naturalized.”
Even if the Court were
to find issue with the way Plaintiff’s application was processed
and handled, this would not impact the Court’s finding above
that Plaintiff was correctly denied naturalization. 4
4
While the Court does not see a claim for equitable estoppel
in Plaintiff’s Complaint, the Court notes that this claim is
also appropriately dismissed on summary judgment. To prevail on
an equitable estoppel claim, a plaintiff must establish: “(1) a
misrepresentation; (2) upon which he reasonably relied; (3) to
his detriment; and (4) affirmative misconduct.” Mudric v.
Attorney Gen. of the U.S., 469 F.3d 94, 99 (3d Cir. 2006).
Notably, “mere delay does not constitute ‘affirmative
misconduct’ on the part of the Government.” Id. Regardless,
the Third Circuit has held that “where an alien does not meet
the statutory requirements for citizenship, a court does not
have authority to confer citizenship through equitable means.”
Abreu-Mejia v. Attorney Gen. of the U.S., 393 F. App’x 918, 921
(3d Cir. 2010); citing INS v. Pangilinan, 486 U.S. 875, 885
(1988)); see also Pangilinan, 486 U.S. at 885 (“Neither by
application of the doctrine of estoppel, nor by invocation of
equitable powers, nor by any other means does a court have the
power to confer citizenship in violation of these
limitations.”).
This case is similar to Bozilovic v. Holder, No. 15-91,
2016 U.S. Dist. LEXIS 14792 (E.D. Pa. Feb. 5, 2016), and this
Court concurs in, and adopts, its reasoning. There, Plaintiff
adjusted his status to that of a lawful permanent resident
through his marriage to a U.S. citizen. Id. at *1. The
adjustment occurred on May 7, 2007. Id. at *3. However, on
February 7, 2007, Plaintiff and his wife divorced. Id. at *2-3.
His naturalization application was denied because he “was
ineligible for permanent residence at the time such status was
15
VI. Conclusion
After a de novo review of the administrative record and the
submissions of the parties, this Court concludes that the
Petition for Alien Relative was revoked by force of statute as a
result of his divorce prior to the approval of his adjustment
application.
The Court further finds that no disputed issue of
material fact bars that conclusion on summary judgment nor is it
reasonable to conclude that any discovery would alter that
result.
The Defendant’s motion for summary judgment will be
granted and an appropriate Order entered.
Date: March 28, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
granted.” Id. at *3. The Court considered a similar argument
as here with regard to delays in the process:
Plaintiff makes another equity-based argument as to why
he is eligible for naturalization. Plaintiff contends
that, had there not been a substantial delay on the part
of USCIS in adjudicating his adjustment application, he
would have received his conditional permanent resident
status while he was still married to Ms. Levine, and he
would subsequently have received lawful permanent
resident status after having informed USCIS that his
marriage had dissolved.
While I acknowledge that
Plaintiff may be eligible for naturalization had this
chain of events occurred as described, this argument is,
as Government counsel stated at the hearing, a “red
herring.” See INS v. Pangilinan, 486 U.S. 875, 883-85
(1988) (explaining that courts cannot use equitable
doctrines to excuse an alien’s failure to meet all of
the statutory requirements for naturalization).
Id. at *13 n.8.
16
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