SINGH v. THOMPSON et al

Filing 25

OPINION. Signed by Judge Stanley R. Chesler on 10/3/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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JAGTAR SINGH,
Plaintiff,
v.
JOHN THOMPSON and UNITED
STATES CITIZENSHIP &
IMMIGRATION SERVICES,
Defendants.

Civil Action No. 15-8063 (SRC)

OPINION

CHESLER, District Judge
This matter comes before the Court upon the motion to dismiss or, in the alternative, for
summary judgment filed by Defendants, pursuant to Federal Rules of Civil Procedure 12(b)(6) and
56. Plaintiff Jagtar Singh has opposed the motion. The Court has considered the papers filed by
the parties. For the reasons that follow, the Court will grant Defendants’ motion for summary
judgment.
I.

BACKGROUND
Plaintiff challenges the denial of his naturalization application by U.S. Citizenship and

Immigration Services (“USCIS”) on the grounds that (1) Singh was never “lawfully admitted” for
permanent residence and (2) was not a person of good moral character. The following facts are
not in dispute.
Singh arrived in the United States on or around September 18, 1992, at John F. Kennedy
International Airport. Singh requested political asylum. On October 13, 1992, Singh was issued
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a Form I-122 Notice to Applicant for Admission Detained/Deferred for Hearing Before
Immigration Judge. When he failed to appear for a scheduled hearing, the Immigration Judge
issued an exclusion order in absentia. Singh filed a motion to reopen together with an Application
for Asylum (Form I-589). In the application, Singh listed his birthday as May 13, 1972, his date
of arrival as September 25, 1992, and the place of arrival as JFK, New York. The Immigration
Judge granted the motion to reopen, but entered another exclusion order in absentia when Singh
again failed to attend a hearing. This time, Plaintiff’s motion to reopen was denied.
Plaintiff subsequently moved to California. On July 3, 1996, he submitted a second Form
I-589 without disclosing his prior application. This time, Singh provided a different birthdate of
May 9, 1971; indicated that his last entry to the United States was on March 13, 1996, without
inspection in Blaine, Washington; and did not provide his assigned Alien Registration Number.
In response to a question asking whether Singh had ever filed for asylum, he checked “No.” In a
statement establishing the basis of his claim, Singh stated that he was arrested and tortured in
police custody on February 7, 1996, (when he was in fact residing in the United States). Plaintiff’s
asylum application was granted on August 12, 1996.
Approximately five years later, Singh applied to adjust his status to lawful permanent
resident (“LPR”). On his Form I-485, Plaintiff repeated the biographical information from the
second asylum application together with the falsified date and place of arrival. Singh answered
“No” to Part 3, Question 10, asking whether he had ever by fraud or willful misrepresentation of
a material fact, sought to procure, or procured any immigration benefit. USCIS approved Singh’s
LPR application on October 7, 2005, with the effective date of LPR status rolled back to November
7, 2004.

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In 2012, Singh filed for naturalization. Again he answered “No” to a question asking
whether he had ever given false or misleading information to any U.S. Government Official while
applying for any immigration benefit. Plaintiff also indicated that he had never been ordered
excluded from the United States. According to a declaration submitted by USCIS Immigration
Services Officer Robert Goldstein, who interviewed Singh on May 7, 2013, Singh reiterated, under
oath, that he had never given false or misleading information to any US Government Official while
applying for any immigration benefit.1 (Goldstein Decl. ¶¶ 3-6.)
USCIS denied Singh’s application on June 28, 2013. The decision explained that Singh
was not eligible for naturalization because he had not been lawfully admitted for permanent
residence on account of fraud committed in connection with his applications for asylum and
permanent residency. Specifically, USCIS noted that Singh lied about his entry date and failed to
disclose the denial of his first asylum application when he submitted his second filing and again
when he applied for LPR status. The Service’s lack of knowledge of these facts resulted in an
unwarranted grant of asylum and permanent residence.
Plaintiff requested a hearing to contest the decision. Singh did not deny the deficiencies
of his application, but claimed that USCIS was precluded from challenging his permanent resident
status by a five-year statute of limitations. During the review hearing, Singh admitted to several
falsifications in his applications for asylum, LPR status, and naturalization, including providing a
false date of entry, lying about being in India between 1992 and 1996 at the time of his claimed
persecution, failing to disclose his first asylum application, and failing to disclose past use of
misrepresentations to obtain immigration benefits. On July 17, 2014, USCIS affirmed the denial,

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Singh has not submitted any evidence to dispute Officer Goldstein’s account.
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expanding the reasons to additionally include Plaintiff’s failure to establish that he was a person
of good moral character.
In the operative Amended Complaint, Plaintiff seeks de novo review of the naturalization
denial, pursuant to 8 U.S.C. § 1421(c).2 Plaintiff alleges that (1) USCIS is barred from challenging
his status as an alien lawfully admitted to permanent residence by a five-year statute of limitations;
(2) the denial was erroneous because a person subject to an exclusion order may adjust status to
permanent residence; and (3) that he had never made a materially false statement or given false
testimony with the intent of obtaining an immigration benefit, and had a valid claim for asylum as
a member of the Sikh community in India. This case is before the Court upon Defendants’ motion
to dismiss, or in the alternative, for summary judgment. Because the Court considers evidence
outside the pleadings, the Court will decide the motion as a motion for summary judgment and
will grant summary judgment in favor of Defendants.
II.

DISCUSSION
A. Legal Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that a “court shall grant summary judgment

if the movant shows that there is no genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986) (construing the similarly worded Rule 56(c), predecessor to the current
summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable

“A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration
officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for
the district in which such person resides in accordance with chapter 7 of title 5. 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.” 8 U.S.C. § 1421(c).
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jury could return a verdict for the non-movant, and it is material if, under the substantive law, it
would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . .
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.”
Celotex, 477 U.S. at 325. “When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United
States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). In considering a
motion for summary judgment, a district court “must view the evidence ‘in the light most favorable
to the opposing party.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)). It may not make credibility determinations or engage in
any weighing of the evidence. Anderson, 477 U.S. at 255; see also Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004) (holding same).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish the existence of a genuine issue as to a material fact. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001), overruled on other grounds by
Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int’l Union of Operating Eng’rs and
Participating Emp’rs, 134 S.Ct. 773 (2014). However, the party opposing the motion for summary
judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a
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genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Schoch v. First
Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (holding that “unsupported allegations in
[a] memorandum and pleadings are insufficient to repel summary judgment”).
B. Singh’s Naturalization Application
The procedure for obtaining naturalization is set out in the Immigration and Nationality
Act (“INA”). “A person may only be naturalized as a citizen of the United States in the manner
and under the conditions prescribed[.]” 8 U.S.C. § 1421(d). “No alien has the slightest right to
naturalization unless all statutory requirements are complied with[.]” Fedorenko v. United States,
449 U.S. 490, 506 (1981) (quoting United States v. Ginsberg, 243 U.S. 472, 474-475 (1917)). The
applicant bears the burden of proving compliance. 8 C.F.R. § 316.2(b). As relevant here, Singh
must demonstrate that (1) he has been lawfully admitted for permanent residence and (2) “has been
and still is a person of good moral character[.]” 8 U.S.C. § 1427(a); 8 C.F.R. § 316.2(a)(2), (7).
a. Lawful Admission for Permanent Residence
“[L]awfully admitted for permanent residence” is defined as “the status of having been
lawfully accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws[.]”

8 U.S.C. § 1101(a)(20).

This requires “strict

compliance with all the congressionally imposed prerequisites to the acquisition of citizenship.”
Fedorenko, 449 U.S. at 506. Lawful admission “denotes compliance with substantive legal
requirements, not mere procedural regularity[.]” Matter of Longstaff, 716 F.2d 1439, 1441 (5th
Cir. 1983). Thus, an alien who had obtained their LPR status by fraud, or was otherwise not
entitled to it, had never been lawfully admitted. See In Re Koloamatangi, 23 I. & N. Dec. 548,
550 (BIA 2003). The LPR status is “void ab initio.” Gallimore v. Attorney Gen., 619 F.3d 216,
224 n.6 (3d Cir. 2010) (quoting Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir.2010)).
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Singh was not entitled to attain LPR status because it rested on an invalid grant of asylum.
Because Singh’s first asylum application had been denied and he was subject to exclusion
proceedings3 at the time of filing, INS did not have jurisdiction to consider his second application.
See 8 C.F.R. § 208.2(b); 8 C.F.R. 208.4 (1996); cf. Koszelnik v. Sec’y of Dep’t of Homeland Sec.,
–– F.3d ––, ––, 2016 WL 3648369, at *3 (3d Cir. 2016). For this reason, the asylum and
subsequent adjustment of status were not granted in strict compliance with the law, which in turn
means that Singh was never lawfully admitted for permanent residence.
Additionally, Singh was not entitled to LPR status because he was inadmissible at the time
of adjustment to permanent residence on account of having procured an immigration benefit by
fraud or willful misrepresentation of material fact.

8 U.S.C. § 1159(b)(5); 8 U.S.C. §

1182(a)(6)(C)(i). A misrepresentation is material if it “was predictably capable of affecting,” that
is had “a natural tendency to influence the decisions of the Immigration and Naturalization
Service.” Kungys v. United States, 485 U.S. 759, 771-72 (1988). Such influence can be found if
either (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a
line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a
proper determination that he be excluded. Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999).
Singh impeded INS’s ability to learn of his exclusion order and prior denial of asylum by providing
a false date and place of entry, using a different date of birth, and stating that he had never
previously filed for asylum.

Count Two of Singh’s Amended Complaint alleges that denial of naturalization was legally erroneous because an
alien subject to an exclusion order may adjust status to permanent residence. That is correct, undisputed, and
irrelevant. Plaintiff’s naturalization was not denied because he was subject to an exclusion order but, in part, because
USCIS was unaware of the existence of the order.
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Moreover, Plaintiff’s second claim for asylum rested on an invented incident of
persecution. During the time when Singh alleged to have been tortured in India on account of
imputed political opinion (a ground Singh provided for seeking asylum), Singh was living in the
United States. INS would not have granted Singh’s asylum application had it known the true facts.
In applying for LPR status, Singh continued to lie by denying that he had procured or sought to
procure an immigration benefit by fraud or material misrepresentation.
When Singh finally told the truth during his N-336 denial of naturalization review hearing,
Singh admitted that he offered false information in order to remain in the United States. (Borgen
Decl. Ex. N.) That is, he misrepresented material facts for the purpose of obtaining immigration
benefits. This made Singh inadmissible at the time of obtaining his LPR status,4 8 U.S.C. §
1182(a)(6)(C)(i), which in turn made him ineligible for naturalization because he was never
lawfully admitted to permanent residence.5 8 U.S.C. § 1427(a).
Singh errs in relying on the trio of Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009),
Matter of Pena, 26 I. & N. Dec. 613 (BIA 2015), and Matter of Ayala, 22 I. &N. Dec. 398 (BIA
1998), to argue that USCIS’s failure to rescind his LPR status within five years of adjustment
precludes USCIS from reexamining the validity of Singh’s permanent residency in deciding
whether he is eligible for naturalization. The five year bar limits the time to rescind an applicant’s
permanent resident status if it is later discovered that the person was not eligible for adjustment.
See 8 U.S.C. § 1256(a). “[T]he plain language of the statute does not in any way contemplate

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Singh never sought an inadmissibility waiver.
In opposition to Defendants’ motion, Singh requests discovery to determine whether, without lying, he may
nevertheless have been able to establish eligibility for asylum on the basis of his second ground for seeking asylum as
a member of the persecuted Sikh minority in India. Whether or not there existed a set of facts that may have made
him eligible for asylum is immaterial. It does not negate the fact that Singh’s LPR status, in the manner actually
obtained, was unlawful.
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extension of the limitations period to the naturalization process.” Saliba v. Attorney Gen., –– F.3d
––, ––, 2016 WL 3648469, at *10 (3d Cir. 2016) (quoting Jin Mei Lin v. Napolitano, 11-cv-6373,
2013 WL 2370588, at *5 (E.D. Pa. May 31, 2013)); Koszelnik, 2016 WL 3648369, at *4. Nor is
there any reason why it should. The statute of limitations protects noncitizens from the harsh
fallout of losing the security of their resident status and facing delayed onset deportation, which
may cost them their jobs, homes, and families. Bamidele v. I.N.S., 99 F.3d 557, 564 (3d Cir. 1996).
The denial of naturalization does not trigger such consequences. Naturalization is not a right but
a privilege conferred only on persons who are in “strict compliance with all the congressionally
imposed prerequisites to the acquisition of citizenship.” Fedorenko, 449 U.S. at 506. The running
of time does not impart legality onto a person’s otherwise unlawful admission. Saliba, 2016 WL
3648469, at *11. A person who was never lawfully admitted for permanent residence does not
have the right to keep profiting from a status procured by fraud or mistake.
b. Good Moral Character
As an independent ground for denial, USCIS specified that Singh failed to demonstrate
himself to be a person of good moral character. To naturalize, a resident must show that “during
all the periods referred to in this subsection [he] has been and still is a person of good moral
character . . . .” 8 U.S.C. § 1427(a)(3). “[Giving] false testimony for the purpose of obtaining any
benefits under this chapter” is fatal to establishing good moral character. 8 U.S.C. § 1101(f)(6).
USCIS noted that Plaintiff provided false testimony under oath during his May 7, 2013,
naturalization interview when he swore that all of his submission materials where true and correct.
(Goldstein Decl. ¶¶ 5, 6.) They were not. On his Form N-400, Plaintiff falsely stated that he has
never given false or misleading information to any U.S. Government Official while applying for

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any immigration benefit or to prevent deportation, exclusion, or removal. When the interviewing
officer orally asked the same question, Singh again responded in the negative.6 (Id.)
The preclusion in § 1101(f)(6) applies to “testimony” – that is “oral statements made under
oath,” and not “other types of misrepresentations or concealments, such as falsified documents or
statements not made under oath.” Kungys, 485 U.S. at 780. It also “applies to only those
misrepresentations made with the subjective intent of obtaining immigration benefits.” Id. There
is no requirement for the testimony to be material. Id. at 779-80. That Plaintiff had the requisite
intent is evident from his admissions during his N-336 hearing:
Q. . . . On the N-400 application you . . . were asked: “Have you
ever given false or misleading information to any U.S. Government
official while applying for any immigration benefit or to prevent
deportation, exclusion, or removal?” [Y]ou answered “No[.]” You
also were asked, “Have you ever lied to any U.S. Government
official to gain entry or admission into the U.S.?” Your response
was “No.” Why did you fail to indicate on the N-400 and during
your N-400 interview (on 5/7/2013) that you had filed multiple
asylum applications?
A. Honestly, I’ve been waiting for this for past 20 years. I honestly
just want to stay in the U.S.
(Borgen Decl. Ex. N.)
In his defense, Singh argues that “testimony” is limited to statements offered in adversarial
or trial-type proceedings and excludes statements given to USCIS officers.

The Court is

unpersuaded by this distinction, which has been consistently rejected by holdings that “statements
made by an applicant in a naturalization examination are ‘testimony’ within the meaning of 8

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Notwithstanding a conclusory pleading, which carries no weight, that Singh at no time made a materially false
statement or gave false testimony with the intent to obtain an immigration benefit, (Am. Compl. ¶ 12), Singh provided
no evidence to dispute Officer Goldstein’s account of the interview. That Singh in fact did make materially false
statements with the intent to obtain immigration benefits is clearly supported by the record. (See Borgen Decl. Ex.
N.)
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U.S.C. § 1101(f)(6).” 7 Bernal v. I.N.S., 154 F.3d 1020, 1023 (9th Cir. 1998) (emphasizing that
“[a]n INS officer is authorized ‘to take testimony concerning any matter touching or in any way
affecting the admissibility of any applicant for naturalization, [and] to administer oaths.’”)
(quoting 8 U.S.C. § 1446(b)); Medina v. Gonzales, 404 F.3d 628, 636 (2d Cir. 2005) (“we see no
reason why oral statements must, as a matter of law, be made in adversarial proceedings in order
to qualify as ‘testimony.’”); In re Haniatakis, 376 F.2d 728, 730 (3d Cir. 1967) (false statements
given orally before an officer duly authorized to administer oaths constitute false testimony); In
Re R-S-J-, 22 I. & N. Dec. 863, 866 (BIA 1999) (“false statements made under oath during an
interview regarding an application for naturalization have been consistently held to constitute false
testimony.”).
Thus, the responses that Plaintiff offered during his N-400 interview are “testimony” for
the purposes of the statute, and Plaintiff provided false testimony to Officer Goldstein during his
naturalization interview with the intent of securing an immigration benefit. He was thus separately
not entitled to naturalization for failure to establish good moral character.
Finally, Plaintiff attempts to couch the admissions made during his N-336 hearing as
voluntary retractions prior to exposure, which may remedy the provision of false testimony under
oath. See Costa v. Attorney Gen., 257 F. App’x 543, 546 (3d Cir. 2007) (“8 U.S.C. § 1101(f)(6)
does not bar a person from establishing good moral character when he has ‘voluntarily and prior
to any exposure of the attempted fraud corrected his testimony.’”) (quoting Matter of M, 9 I. & N.
Dec. 118, 119 (BIA 1960)). Admitting the truth after USCIS discovered the misstatements and

Plaintiff invokes the rule of lenity to advance an interpretation of the statute in his favor because “deportation is a
drastic measure[.]” (Pl.’s Br. at 11.) Plaintiff is not being deported.
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denied Plaintiff’s N-400 application is not a voluntary retraction prior to exposure. Such a
confession does not mitigate Singh’s earlier deception.
III.

CONCLUSION
USCIS has shown that it is entitled to judgment as a matter of law, and Singh has failed

to raise any material factual dispute. For the foregoing reasons, the Court will GRANT
Defendants’ motion for summary judgment and judgment will be entered in favor of Defendants.
An appropriate Order will be filed.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge

Dated: September 16, 2016

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