Paul v. Napolitano

Filing 22

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to substitute Jeh Johnson, Secretary of Homeland Security, for respondent Janet Napolitano, and amend the caption accordingly. That the government's 17 Motion for Summary Judgment is GRANTED. That Paul's 1 petition is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
GURMAIL SINGH PAUL,
Petitioner,

1:12-mc-32
(GLS/RFT)

v.
JEH JOHNSON, Secretary of
Homeland Security,1
Respondent.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONER:
Office of Frederick P. Korkosz
744 Broadway
Albany, NY 12207
FOR THE RESPONDENT:
STUART F. DELERY
Acting Assistant Attorney General
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 868, Ben Franklin Station
450 Fifth Street, NW
Washington, DC 20044

FREDERICK P. KORKOSZ,
ESQ.

TROY D. LIGGETT, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
1

The Clerk is directed to substitute Jeh Johnson, Secretary of
Homeland Security, for respondent Janet Napolitano, and amend the
caption accordingly. See Fed. R. Civ. P. 25(d).

I. Introduction
On May 16, 2012, petitioner Gurmail Singh Paul filed a petition for a
de novo review, pursuant to 8 U.S.C. § 1421, of the denial by United States
Citizenship and Immigration Services (USCIS) of his application for
naturalization. (Pet., Dkt. No. 1.) Pending before the court is respondent
Jeh Johnson’s motion for summary judgment, seeking denial of Paul’s
petition or, in the alternative, an evidentiary hearing in accordance with 8
U.S.C. § 1421(c). (Dkt. No. 17.) For the reasons that follow, the
government’s motion is granted and Paul’s petition is dismissed.
II. Background2
Paul is a native and citizen of India, who is currently a lawful
permanent resident of the United States. (Resp.’s Statement of Material
Facts (SMF) ¶¶ 1, 11, Dkt. No. 17, Attach. 3.) He first entered the United
States on November 21, 1980. (Id. ¶ 2.) Paul’s initial entry in 1980 was
without inspection, and he was subsequently detained by border patrol
officers. (Id.) Paul requested, and was granted, voluntary departure by an
immigration judge. (Id. ¶¶ 2-4.) At some point, Paul did depart the United

2

Unless otherwise noted, the facts are not in dispute.
2

States, but he returned again a short time later, again entering without
inspection. (Id. ¶¶ 4-5.) Ultimately, Paul’s mother filed a Petition for Alien
Relative on his behalf, which was approved. (Id. ¶ 8.) He filed a
subsequent application for adjustment of status, and was granted status as
a lawful permanent resident, a status he has maintained since 1986. ( Id. ¶¶
10-11.) In 1999, Paul filed his first application for naturalization, which was
denied on the grounds that his prior criminal convictions demonstrated a
lack of good moral character. (Id. ¶ 15; Dkt. No. 17, Attach. 8 at 2-4.)
Paul has had a long history of legal troubles since the time he
entered the United States. In 1983, Paul was arrested and charged with
assault, petit larceny, resisting arrest, and disorderly conduct, ultimately
resulting in a conviction of disorderly conduct and payment of a $150 fine. 3

3

It is unclear whether Paul disputes this fact. In his response to the
government’s Statement of Material Facts, Paul “agrees that the facts
contained in [the paragraph regarding his 1983 arrest] are not in question,”
(Dkt. No. 20, Attach. 1 ¶ 1), but later in his response, as well as in his
motion response papers, he asserts that no such arrest ever occurred, ( id.
¶ 5; Dkt. No. 20 at 6). In support, Paul has submitted a letter indicating
that he has no record with the Colonie Police Department, (Dkt. No. 17,
Attach. 8 at 21), but other record evidence appears to demonstrate that
such an arrest did in fact occur, (Dkt. No. 17, Attach. 5 at 28-34, 36; Dkt.
No. 17, Attach. 8 at 38-39). In any event, this discrepancy is of no
moment, given the remainder of Paul’s criminal history, discussed further
below.
3

(Dkt. No. 17, Attach. 5 at 29, 33, 36.) In 1984, Paul was arrested and
charged with driving while intoxicated (DWI). (Id. at 41.) He ultimately
pleaded guilty to a reduced charge of driving while ability impaired (DWAI),
and paid a $250 fine. (Id.) In 1985, Paul was again arrested and charged
with DWI. (Dkt. No. 17, Attach. 8 at 35.) In connection with those charges,
Paul pleaded guilty to DWAI—for which he paid a $250 fine—and failure to
obey a police officer—for which he paid a $100 fine. (Id. at 35-36.) In
1986, Paul was once again charged with DWI, as well as unlicensed
operation of a vehicle and criminal impersonation. (Dkt. No. 17, Attach. 6
at 29.) He pleaded guilty to the DWI and unlicensed operation charges, in
satisfaction of all charges, and was sentenced to a total of $850 in fines
and a one-year revocation of his license. (Id.) In 1990, Paul was charged
with DWI and reckless endangerment, ultimately pleading guilty to DWI and
receiving a sentence of five years probation with a $1,000 fine. ( Id. at 31.)
In 1998, Paul was charged with attempted sodomy, sexual abuse, and
endangering the welfare of a child. (Dkt. No. 17, Attach. 8 at 30-31.) While
the attempted sodomy charge was dismissed, Paul pleaded guilty to
endangering the welfare of a child, in satisfaction of the remaining charges,
and was ordered to serve three years probation. (Id.)
4

Finally, in June 2008, Paul was arrested and charged with DWI,
resisting arrest, leaving the scene of property damage, and failing to stop at
a stop sign. (Id. at 6.) He ultimately pleaded guilty to a reduced charge of
DWAI, in satisfaction of the remaining charges, and was fined $500. (Id. at
6, 28-29.)
On November 30, 2009, Paul filed a second application for
naturalization with USCIS. (Dkt. No. 1 at 12.) USCIS again denied Paul’s
naturalization application because he had not established his good moral
character during the statutory period. (Id. at 10-15.) Paul filed an
administrative appeal and requested a hearing before USCIS, and a
hearing was conducted on November 17, 2011. (Dkt. No. 17, Attach. 9 at
9, 11-13.) On April 26, 2012, USCIS affirmed the denial of Paul’s
naturalization application, (id. at 2, 25-30; Dkt. No. 1 at 9), and Paul
subsequently filed his petition for review by the district court on May 16,
2012, (see generally Pet.).
III. Standards of Review
A.

Review Pursuant to 8 U.S.C. § 1421
Title 8 of the United States Code, Section 1421(c) provides that “[a]

person whose application for naturalization under this subchapter is denied
5

. . . may seek review of such denial before the United States district court .
. . . 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.”
B.

Summary Judgment
The standard of review pursuant to Fed. R. Civ. P. 56 is well

established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
The government asserts in its motion that Paul is ineligible for
naturalization because he has committed unlawful acts within the statutory
period, and these unlawful acts, considered with his criminal history prior to
the statutory period, mandate a finding that Paul lacks good moral
character as required by statute, and Paul has failed to establish
extenuating circumstances. 4 (Dkt. No. 17, Attach. 2 at 16-19.) Paul argues
4

The government has also proffered an argument, which is
unopposed by Paul in his response brief, that Paul is ineligible for
naturalization because he lacks attachment to the principles of the
6

that he has established his good moral character, (Dkt. No. 20 at 4-8), or,
alternatively, that summary judgment should not be granted because there
are genuine disputes of material fact, (id. at 8-10). For the following
reasons, the court agrees with the government, and finds that the
undisputed facts demonstrate that Paul lacked good moral character during
the five-year statutory period preceding his application, as required by 8
U.S.C. § 1427(a), and therefore the government’s motion is granted and
Paul’s petition is denied.
An applicant seeking naturalization must strictly comply with the
requirements for citizenship established by Congress, Fedorenko v. United
States, 449 U.S. 490, 506-07 (1981), and bears the burden of establishing
“eligibility for citizenship in every respect,” Immigration & Naturalization
Serv. v. Pangilinan, 486 U.S. 875, 886 (1988) (internal quotation marks and
citation omitted). See 8 C.F.R. § 316.2 (“The applicant shall bear the

Constitution and is unable, in good faith, to take the oath of allegiance to
become a United States citizen. (Dkt. No. 17, Attach. 2 at 20-23); see 8
U.S.C. § 1427(a) (“No person . . . shall be naturalized unless such
applicant . . . is . . . attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of the
United States.”). Because the court finds that Paul is ineligible due to his
failure to demonstrate good moral character, it is unnecessary to address
this alternative argument made by the government.
7

burden of establishing by a preponderance of the evidence that he or she
meets all of the requirements for naturalization”). “[W]hen doubts exist
concerning a grant of [citizenship], generally at least, they should be
resolved in favor of the United States and against the claimant.” United
States v. Manzi, 276 U.S. 463, 467 (1928).
No person may become a United States citizen unless he
establishes, for the “five years immediately preceding the date of filing his
application” for naturalization, that he “has been and still is a person of
good moral character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of the
United States.” 8 U.S.C. § 1427(a). Determinations of good moral
character pursuant to this statutory provision are made on a case-by-case
basis in accordance with the “generally accepted moral conventions current
at the time.” Repouille v. United States, 165 F.2d 152, 153 (2d Cir. 1947)
(internal quotation marks omitted); see 8 C.F.R. § 316.10(a)(2) (“[T]he
Service shall evaluate claims of good moral character on a case-by-case
basis taking into account . . . the standards of the average citizen in the
community of residence.”).
The statute further provides that “in determining whether the
8

applicant has sustained the burden of establishing good moral character
. . . the [inquiry] shall not be limited to the applicant’s conduct during the
five years preceding the filing of the application, but may take into
consideration as a basis for such determination the applicant’s conduct and
acts at any time prior to that period.” 8 U.S.C. § 1427(e). The
implementing regulations provide that conduct prior to the five-year
statutory period may be taken into consideration “if the conduct of the
applicant during the statutory period does not reflect that there has been
reform of character from an earlier period or if the earlier conduct and acts
appear relevant to a determination of the applicant’s present moral
character.” 8 C.F.R. § 316.10(a)(2). When there is no genuine issue of
material fact, and a statutory bar prevents a petitioner from establishing
good moral character, summary judgment is appropriate. See Chan v.
Gantner, 464 F.3d 289, 295-96 (2d Cir. 2006).
As relevant here, the regulations provide that, “[u]nless the applicant
establishes extenuating circumstances, the applicant shall be found to lack
good moral character if, during the statutory period, the applicant . . .
[c]ommitted unlawful acts that adversely reflect upon the applicant’s moral
character.” 8 C.F.R. § 316.10(b)(3)(iii). While not explicitly defined in the
9

regulations or relevant case law, any “extenuating circumstances” must
pertain to the applicant’s culpability for the unlawful acts, and not to any
consequences therefrom. See, e.g., United States v. Suarez, 664 F.3d
655, 662 (7th Cir. 2011) (“Extenuating circumstances are those which
render a[n act] less reprehensible than it otherwise would be”); United
States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005).
Here, it is undisputed that Paul committed an unlawful act during the
statutory period—specifically, his June 2008 arrest and subsequent guilty
plea in January of 2009 to DWAI. (Resp.’s SMF ¶ 16; Dkt. No. 17, Attach.
8 at 6); see N.Y. Veh. & Traf. Law § 1192(1) (McKinney 2011). Further, it
is clear that this unlawful act adversely reflects upon Paul’s moral character
because, in light of Paul’s extensive history of DWI-related offenses, he
should have known the unlawfulness of his actions, yet he continued to
violate the law, and his willful disregard of the law reflects adversely on his
moral character. See Khamooshpour v. Holder, 781 F. Supp. 2d 888, 897
(D. Ariz. 2011). Therefore, unless he is able to demonstrate extenuating
circumstances mitigating his culpability for his unlawful acts, he will be
found to lack the requisite good moral character for citizenship. See 8
C.F.R. § 316.10(3). It is the applicant’s burden to demonstrate extenuating
10

circumstances, and Paul has failed to satisfy that burden here. See United
States v. Lekarczyk, 354 F. Supp. 2d 883, 887 (W.D. Wis. 2005).
The argument offered by Paul on this point consists merely of one
sentence in his response to the government’s motion, in which he asserts
that he “had been going through an emotionally difficult period,” and “did
not believe that he drank enough to have his blood alcohol exceed the
legal limit when he was arrested.” (Dkt. No. 20 at 6-7.) Despite numerous
opportunities throughout his application process to offer extenuating
circumstances to both USCIS and the court, (see Dkt. No. 17, Attach. 8 at
47, 49-52; Dkt. No. 17, Attach. 9 at 7, 12, 15), the only record evidence
supporting this is testimony from Paul in which he explains that he was
angry and upset that day because of a disagreement with his wife. (Dkt.
No. 17, Attach. 10 at 22-23.) The court fails to see how this isolated
allegation, unsupported by any evidence of Paul’s culpability for his
underlying offense, is sufficient to establish extenuating circumstances that
mitigate the effect of his unlawful act on his moral character. See, e.g.,
Suarez, 664 F.3d at 662 (refusing to find extenuating circumstances where
the applicant asserted that the underlying offense was his first and only
criminal conviction, he played a minimal role in the offense, and he
11

received no compensation for his role); Khamooshpour, 781 F. Supp. 2d at
895; United States v. Okeke, 671 F. Supp. 2d 744, 751 (D. Md. 2009).
Further, although the remainder of Paul’s criminal history, all
occurring prior to the beginning of the five-year statutory period, cannot
alone serve as a basis for a finding that Paul presently lacks good moral
character, his history may be considered to the extent that it reflects his
current moral character, or to show that there has not been a reform in his
character since that time. See Tieri v. Immigration & Naturalization Serv. of
Dep’t of Justice, 457 F.2d 391, 393 (2d Cir. 1972). Here, as outlined
above, Paul pleaded guilty, during the statutory period, to DWAI. (Dkt. No.
17, Attach. 8 at 6, 28-29.) However, this was only the latest in a series of
alcohol-related, unlawful incidents, with the others occurring over the
course of several years prior to the statutory period. Given Paul’s unlawful
acts during the statutory period, and his history of similar offenses, he has
not made a sufficient showing of good moral character to merit the granting
of his naturalization application. See Rico v. Immigration & Naturalization
Serv., 262 F. Supp. 2d 6, 10 (E.D.N.Y. 2003) (denying applicant who had
only a single DWI offense during the statutory period because that offense,
along with his numerous DWI offenses prior to the statutory period,
12

indicated that he had not reformed and did not presently possess the good
moral character required for citizenship).
In any event, because Paul 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).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to substitute Jeh Johnson,
Secretary of Homeland Security, for respondent Janet Napolitano, and
amend the caption accordingly; and it is further
ORDERED that the government’s motion for summary judgment (Dkt.
No. 17) is GRANTED; and it is further
ORDERED that Paul’s petition (Dkt. No. 1) is DISMISSED; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.

13

June 5, 2014
Albany, New York

14