Rivera v. United States Citizenship and Immigration Services

Filing 21

OPINION. USCIS did not err in denying Rivera's application for naturalization because he is unable to prove his good moral character, as required by the immigration statute. He is thus ineligible for naturalization as a matter of law. The Govern ment's motion for summary judgment is granted. This opinion resolves the motion listed as document number 12 in case 13 Civ. 1044. re: 12 MOTION for Summary Judgment filed by United States Citizenship and Immigration Services. (Signed by Judge Thomas P. Griesa on 3/10/2014) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

OMAR RIVERA,
Plaintiff,
13 Civ. 1044

v.

OPINION

U.S. CITIZENSHIP & IMMIGRATION
SERVICES,
Defendant.

Omar Rivera petitions the court for review of the denial of his application
for naturalization and a de novo hearing on his application. His complaint
alleges that he is legally entitled to naturalization.
The Government moves for summary judgment, contending that Rivera
is statutorily barred from naturalization because he cannot prove good moral
character. The motion is granted.
The Facts
Rivera, a native and citizen of Panama, was admitted to the United States
as a permanent resident in March 1991. In his application for permanentresident status, he indicated that he had never been arrested.
On December 14, 1995, Rivera filed an application for naturalization. On
the application for citizenship, Rivera again indicated he had never been
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arrested. During his naturalization interview, Rivera affirmed under oath that
he had not been arrested. At the conclusion of the interview, the examiner
granted conditional approval of Rivera’s application, pending fingerprinting and
a criminal history investigation.
On November 12, 1996, immigration investigators discovered that Rivera
had been arrested by U.S. federal agents in Panama in 1988. The arrest was
part of an undercover operation that resulted in the seizure of five kilograms of
cocaine. As a result of this discovery, immigration officials voided Rivera’s
conditional approval for naturalization. But neither the results of the
investigation nor the revocation were disclosed to Rivera, despite his inquiries.
His application for naturalization remained pending.
On April 30, 1998, Rivera was indicted in federal court in Alabama for
conspiracy to distribute ten kilograms of cocaine. In June 1999, Rivera
pleaded guilty to the offense of misprision of a felony, admitting that he
received money from members of a cocaine conspiracy and concealed the
conspiracy. He was sentenced to two years of imprisonment. Upon his release
on October 16, 2000, he was taken into custody by immigration authorities for
removal proceedings based on the 1999 conviction. These proceedings were
terminated on October 31, 2000, and no order of removal was entered.
Rivera was arrested again on May 28, 2004, and charged with conspiracy
to distribute cocaine in violation of federal law. He pleaded guilty on October

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21, 2005, and in January 2006, he was sentenced to 120 months of
imprisonment. Rivera is currently serving this sentence.
In February 2011, Rivera filed suit to compel the United States
Citizenship and Immigration Services (“USCIS”) to issue a decision on his stillpending naturalization application. The court, Judge Scheindlin, presiding,
ordered the agency to issue a decision. On November 8, 2011, USCIS denied
Rivera’s application. The agency determined that Rivera failed to establish the
statutorily required good character because of his 2006 conviction for drug
trafficking. The agency also based the denial on Rivera’s prison sentences for
the 1999 and 2006 convictions, each of which exceeded 180 days, thereby
making him ineligible for citizenship.
Rivera appealed this denial within the agency, claiming that USCIS was
negligent in processing his application. He argued that if the application had
been expeditiously approved, his later convictions would not be relevant to his
good moral character for purposes of naturalization. On January 3, 2013, the
agency affirmed its denial of his application.
Rivera then filed this suit in this court, seeking de novo review of the
agency’s decision. He claims that the agency’s denial was arbitrary and
capricious and that his 1999 and 2006 criminal convictions are only relevant
because of the agency’s delay in processing his application. He also alleges
that the two convictions are not relevant to his good moral character because

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his naturalization application had already received conditional approval before
he was convicted.
Discussion
Summary judgment is appropriate when there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as a matter of
law. Fed. R. Civ. P. 56(c). It is the moving party’s burden to show that no
genuine factual dispute exists. Gallo v. Prudential Residential Servs., L.P., 22
F.3d 1219, 1223 (2d Cir. 1994). In dealing with a summary judgment motion,
the court must resolve all ambiguities and draw all reasonable inferences in the
non-moving party’s favor. See Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d
Cir. 2003). Where the non-moving party fails to respond to a summary
judgment motion, the district court must nonetheless examine the moving
party’s submissions and evidence to determine if it has met its burden.
Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d
Cir. 2004).
Congress vested the Attorney General with “sole authority to naturalize
persons as citizens of the United States,” 8 U.S.C. § 1421(a), and the Attorney
General in turn delegated that authority to USCIS. If USCIS denies an
application for naturalization, an applicant may seek judicial review in a United
States district court. 8 U.S.C. § 1421(c). Because an applicant is entitled to de
novo review, the district court is not limited to the administrative record; the

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court may also rely on facts established in the district court. Chan v. Gantner,
464 F.3d 289, 291 (2d Cir. 2006).
The applicant bears the burden of establishing that he is entitled to
naturalization. Berenyi v. Dist. Dir., Immigration & Naturalization Serv., 385
U.S. 630, 637 (1967). He must affirmatively show that he has met all statutory
requirements for becoming a naturalized citizen. Id. When an applicant fails
to do so, summary judgment for the Government may be appropriate. Chan,
464 F.3d at 295–96.
No person may become a naturalized citizen unless he was lawfully
admitted for permanent residence, satisfies certain residency requirements,
and proves that he “has been and still is a person of good moral character.”
8 U.S.C. § 1427(a). The immigration statute sets out a nonexclusive list of
factors that preclude an applicant from showing good moral character.
8 U.S.C. § 1101(f). The applicant must prove his good character for the fiveyear period preceding his naturalization application. But proof of good
character is also a continuing obligation, “up to the time of admission to
citizenship.” 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10(a)(1).
Here, Rivera was required to prove his good character from December 14,
1990—five years prior to his December 14, 1995, application—through the time
he would be admitted.
But an applicant is precluded from establishing good moral character if
he has been convicted of an aggravated felony, regardless of when the
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conviction occurred. 8 U.S.C. § 1101(f)(8); see also Boatswain v. Gonzales, 414
F.3d 413, 418 (2d Cir. 2005). The term “aggravated felony” as used in
§ 1101(f)(8) includes drug-trafficking offenses. 8 U.S.C. § 1101(a)(43)(B).
Attempt and conspiracy offenses also constitute aggravated felonies if the
underlying offense is within the statute. Chan, 464 F.3d at 293 (citing 8 U.S.C.
§ 1101(a)(43)(U)). Here, there is no dispute that Rivera’s 2006 conviction for
conspiracy to distribute cocaine is an aggravated felony that precludes him
from proving good moral character.
Additionally, any person convicted of a controlled-substance offense,
subject to certain exceptions not relevant here, is inadmissible under 8 U.S.C.
§ 1182(a)(2)(A), and thus not eligible for naturalization if the offense occurred in
the relevant time period, which starts five years before the naturalization
application. 8 U.S.C. § 1101(f)(3). Again, Rivera’s 2006 conviction for
conspiracy to possess cocaine renders him ineligible for naturalization because
he cannot prove good character. The conviction occurred during the relevant
period because Rivera’s application for admission was still pending in 2006.
An applicant is also precluded from establishing good moral character if,
during the relevant statutory period, he has been incarcerated for 180 days or
more as a result of a criminal conviction. 8 U.S.C. § 1101(f)(7). As the agency
correctly found, Rivera cannot prove good moral character because he served
more than 180 days in prison as a result of each of his two prior criminal

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convictions. Rivera was sentenced to two years of prison for his 1999
conviction and 10 years of prison for his 2006 conviction.
Finally, an applicant is not eligible for citizenship if he procured his
permanent resident status by fraud. See 8 U.S.C. § 1427(a); Fedorenko v.
United States, 449 U.S. 490, 515–16 (1981). Additionally, a person who has
given false testimony for the purpose of obtaining an immigration benefit is
barred from establishing good moral character. See 8 U.S.C. § 1101(f)(6).
Rivera is ineligible because he did not disclose his 1988 arrest to
immigration officials in his applications for permanent-resident status and
naturalization. Moreover, while testifying under oath at his naturalization
interview, he told the immigration officer that he had never been arrested.
These material misrepresentations render him ineligible for naturalization.
Conclusion
USCIS did not err in denying Rivera’s application for naturalization
because he is unable to prove his good moral character, as required by the
immigration statute. He is thus ineligible for naturalization as a matter of law.
The Government’s motion for summary judgment is granted. This
opinion resolves the motion listed as document number 12 in case 13 Civ.
1044.

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So ordered.
Dated: New York, New York
March 10, 2014
Thomas P. Griesa
United States District Judge

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Mailed from Chambers to:
Omar Rivera
59096-004
FCI -Otisville
P.O. Box 1000
Otisville, NY 10963-1000

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