Castro-Ramirez v. United States of America
Filing
20
OPINION AND ORDER re: 11 MOTION to Dismiss or in the alternative, for Summary Judgement filed by United States of America: Defendant's motion to dismiss, or alternatively for summary judgment, is converted to one for summary judgment, and is GRANTED. The Clerk of Court is directed to terminate Docket Entry 11, and to mark the case as closed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45. (Signed by Judge Katherine Polk Failla on 5/30/2014) Copies Mailed By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RAMON ANTONIO CASTRO-RAMIREZ,
:
:
Plaintiff,
:
:
v.
:
:
U.S. CITIZENSHIP AND IMMIGRATION
:
SERVICES,
:
:
Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
May 30, 2014
DATE FILED: ______________
13 Civ. 6001 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Pro se Plaintiff Ramon Antonio Castro-Ramirez, a native and citizen of
the Dominican Republic, seeks review of an April 2013 final decision of
Defendant United States Citizenship and Immigration Services (“USCIS”)1
denying his application to become a naturalized citizen of the United States.
Defendant has moved to dismiss, or alternatively for summary judgment, on
the grounds that Plaintiff is barred from becoming a naturalized citizen as a
result of his prior criminal conviction. For the reasons discussed in the
remainder of this Opinion, Defendant’s motion to dismiss is converted to one
for summary judgment, and is granted.
1
“As part of the Homeland Security Act of 2002, the [United States Immigration and
Naturalization Service] was divided into two different bureaus: the Bureau of
Immigration and Customs Enforcement and the Bureau of U.S. Citizenship and
Immigration Services. The Bureau of U.S. Citizenship and Immigration Services (CIS)
handles applications for U.S. citizenship.” Chan v. Gantner, 464 F.3d 289, 290 (2d Cir.
2006) (citing Brown v. Ashcroft, 360 F.3d 346, 348 n.1 (2d Cir. 2004)).
BACKGROUND 2
A.
Factual Background
Plaintiff is a native and citizen of the Dominican Republic, and was
admitted into the United States as a Permanent Resident on or about February
12, 1967. (Def. 56.1 ¶¶ 1-2). On April 26, 1983, Plaintiff was arrested in
Yonkers, New York, and charged with criminal sale of a controlled substance in
the third degree; the controlled substance was cocaine. (Id. at ¶¶ 3-4). Plaintiff
pleaded guilty to criminal sale of a controlled substance in the third degree on
December 22, 1983, and was scheduled to be sentenced on January 19, 1984.
(Id. at ¶¶ 4-5). When Plaintiff failed to appear for that sentencing, a bench
warrant was issued for his arrest. (Id. at ¶ 6).
Plaintiff was arrested on or about May 22, 1996, on the January 19,
1984 bench warrant. (Def. 56.1 ¶ 7). On September 5, 1996, Plaintiff was
sentenced in the Supreme Court of New York, Westchester County, to a term of
one to three years’ imprisonment. (Id. at ¶ 8). On September 5, 1996, a
2
The facts alleged herein are drawn from Plaintiff’s “Petition for a Declaratory Writ of U.S.
Citizenship” (“Pet.”) (Dkt. #1); the Declaration of Patricia Buchanan (Dkt. #13) and the
exhibits attached thereto; and Defendant’s Rule 56.1 Statement (“Def. 56.1”) (Dkt. #14).
Plaintiff has not opposed Defendant’s 56.1 Statement. Accordingly, the Court finds
these facts to be true for the purposes of this Opinion. See S.D.N.Y. Local Rule 56.1(c)
(“Each numbered paragraph in the statement of material facts set forth in the
statement required to be served by the moving party will be deemed to be admitted for
purposes of the motion unless specifically controverted by a corresponding numbered
paragraph in the statement required to be served by the opposing party.”).
For convenience, Defendant’s moving brief will be referred to as “Def. Br.,” and
Defendant’s reply as “Def. Reply.” Plaintiff submitted two opposition papers: the first,
titled “Incarceration Time,” will be referred to as “Feb. 19 Opp.”; the second, titled
“Judicial Notice Following: Federal Rule of Evidence 201(f),” as “Mar. 11 Opp.” The
Court has adopted the mode of pagination employed by the Court’s electronic filing
system in citing to Plaintiff’s submissions.
2
written judgment was entered against Plaintiff, reflecting his conviction for
criminal sale of a controlled substance in the third degree, in violation of New
York Penal Law § 220.39. (Id. at ¶ 9). Plaintiff was incarcerated from
approximately September 19, 1996, to September 5, 1997. (Feb. 19 Opp. 2-3).
As a result of his 1996 conviction, Plaintiff was found to be deportable
under Section 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1251(a)(2)(A)(iii), (B)(i). (Def. 56.1 ¶ 10). However, on or
about March 17, 2003, Plaintiff was granted a waiver of inadmissibility under
Section 212(c) of the INA, 8 U.S.C. § 1182(c), by an Immigration Judge. (Id. at
¶ 11). 3
Plaintiff filed an application for naturalization on April 3, 2012. (Def.
56.1 ¶ 12). USCIS issued a decision denying Plaintiff’s application on
December 1, 2012, on the grounds that his felony conviction precluded a
finding of good moral character, as required for naturalization. (Id. at ¶ 13;
Buchanan Decl. Ex. I). Plaintiff appealed that decision on December 19, 2012.
(Def. 56.1 ¶ 14). On April 23, 2013, USCIS reaffirmed its decision to deny
Plaintiff’s naturalization application. (Id. at ¶ 15).
3
Section 212(c) was repealed in 1996 by the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (amending 8 U.S.C.
§ 1182(c)). See I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (affirming the Second Circuit’s
finding that the repeal of Section 212(c) was not retroactive); see also United States v.
Gill, No. 12-2207-cr, — F.3d —, 2014 WL 1797463, at *6-7 (2d Cir. May 7, 2014)
(recounting history of Section 212(c) and its repeal).
3
B.
Procedural History
Plaintiff initiated the instant action on August 22, 2013, seeking
additional review of USCIS’s decision to deny his naturalization application.
(Dkt. #1). Specifically, Plaintiff claims that he is not precluded from
establishing “good moral character” because his criminal conviction does not
constitute an aggravated felony. (Pet. 1-2).
On December 11, 2013, Defendant filed a pre-motion letter, seeking leave
to move to dismiss the Complaint for failure to state a claim. (Dkt. #8).
Pursuant to the briefing schedule set forth at the January 10, 2014 pre-motion
conference (Dkt. #10), Defendant’s motion to dismiss, or in the alternative for
summary judgment, was filed on February 10, 2014 (Dkt. #11). Plaintiff’s
opposition titled “Incarceration Time” was filed on February 19, 2014 (Dkt.
#16), and Plaintiff’s opposition titled “Judicial Notice Following: Federal Rule of
Evidence 201(f)” was filed on March 11, 2014 (Dkt. #17). The motion was fully
submitted as of the filing of Defendant’s reply on April 11, 2014. (Dkt. #18).
The Court will now consider Defendant’s motion.
DISCUSSION
A.
The Standard of Review
1.
Conversion of a Rule 12(b)(6) Motion to a Rule 56 Motion
Rule 12(d) of the Federal Rules of Civil Procedure provides that “[i]f, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must be given a reasonable
4
opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. P. 12(d). Thus, a district court may convert a motion to dismiss into a
motion for summary judgment when the motion presents matters outside the
pleadings, but the court must give “sufficient notice to an opposing party and
an opportunity for that party to respond.” Groden v. Random House, Inc., 61
F.3d 1045, 1052 (2d Cir. 1995).
“Care should, of course, be taken by the district court to determine that
the party against whom summary judgment is rendered has had a full and fair
opportunity to meet the proposition that there is no genuine issue of material
fact to be tried, and that the party for whom summary judgment is rendered is
entitled thereto as a matter of law.” Ramsey v. Coughlin, 94 F.3d 71, 73-74 (2d
Cir. 1996) (quoting 6 James W. Moore, MOORE’S FEDERAL PRACTICE ¶ 56.12, at
56-165 (2d ed. 1995)). “Notice is particularly important when a party is
proceeding pro se and may be unaware of the consequences of his failure to
offer evidence bearing on triable issues.” Beacon Enterprises, Inc. v. Menzies,
715 F.2d 757, 767 (2d Cir. 1983).
Both parties have presented matters outside the pleadings in connection
with this motion. Moreover, there are no material facts in dispute; indeed,
Plaintiff has not controverted any facts put forth by Defendant. Conversion is
proper here because Defendant provided Plaintiff with notice that the Court
might treat Defendant’s motion to dismiss as a motion for summary judgment,
and informed him that if he did not respond “by filing sworn affidavits and
other papers as required by Rule 56(e),” his “COMPLAINT MAY BE
5
DISMISSED.” (Dkt. #15). See Hernandez v. Coffey, 582 F.3d 303, 308 n.2 (2d
Cir. 2009) (citing cases finding that a Local Rule 12.1 Notice provides sufficient
notice to pro se parties). Lastly, Defendant has submitted a Local Rule 56.1
Statement in connection with its motion and has titled its motion as one for
summary judgment in the alternative; in response, Plaintiff has submitted
additional matters outside of the pleadings for the Court’s review. Accordingly,
the Court exercises its discretion to convert Defendant’s motion to one for
summary judgment.
2.
Summary Judgment Generally
Under Fed. R. Civ. P. 56(a), summary judgment may be granted only if all
the submissions taken together “show[] that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating “the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is
“material” if it “might affect the outcome of the suit under the governing law,”
and is genuinely in dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
The movant may discharge this burden by showing that the nonmoving party
has “fail[ed] to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
6
burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment
appropriate where the non-moving party fails to “come forth with evidence
sufficient to permit a reasonable juror to return a verdict in his or her favor on
an essential element of a claim” (internal quotation marks omitted)).
If the moving party meets this burden, the nonmoving party must “set
out specific facts showing a genuine issue for trial” using affidavits or
otherwise, and cannot rely on the “mere allegations or denials” contained in the
pleadings. Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 32324; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party
“must do more than simply show that there is some metaphysical doubt as to
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (internal quotation marks omitted), and cannot rely on “mere
speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d
Cir. 1986) (quoting Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.
1985)). Furthermore, “[m]ere conclusory allegations or denials cannot by
themselves create a genuine issue of material fact where none would otherwise
exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal quotation marks and
citations omitted)).
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3.
Summary Judgment in Pro Se Cases
When considering a motion for summary judgment, the Court must
“construe all evidence in the light most favorable to the nonmoving party,
drawing all inferences and resolving all ambiguities in its favor.” Dickerson v.
Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat’l Ass’n v.
Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005)). In a pro se
case, the Court must go one step further and liberally construe the party’s
pleadings “to raise the strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
Nonetheless, a pro se litigant must still be held to the normal
requirements of summary judgment, and “bald assertion[s],” unsupported by
evidence, will not overcome a motion for summary judgment. See Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Stinson v. Sheriff’s Department, 499
F. Supp. 259, 262 (S.D.N.Y. 1980) (holding that the liberal standard accorded
to pro se pleadings “is not without limits, and all normal rules of pleading are
not absolutely suspended”).
B.
Defendants Are Entitled to Summary Judgment Because Plaintiff Is
Statutorily Precluded from Obtaining Naturalized Citizenship
1.
The Law on Naturalization
Applicants for naturalization may seek de novo judicial review of an
adverse USCIS decision in a United States district court. 8 U.S.C. § 1421(c).
The reviewing district court is not limited to the administrative record; the
court may also rely on facts established in the district court. Chan, 464 F.3d
8
at 291. “The applicant bears the burden of establishing that he is entitled to
naturalization,” and may do so by demonstrating that he has “met all statutory
requirements for becoming a naturalized citizen.” Rivera v. U.S. Citizenship &
Immigration Servs., No. 13 Civ. 1044 (TPG), — F. Supp. 2d —, 2014 WL
926091, at *2 (S.D.N.Y. Mar. 10, 2014) (citing Berenyi v. Dist. Dir., Immigration
& Naturalization Serv., 385 U.S. 630, 637 (1967)).
The requirements for naturalized citizenship are set forth at INA Sections
312 and 316, 8 U.S.C. §§ 1423, 1427. Those requirements include, inter alia,
that the applicant has resided continuously in the United States as a lawful
permanent resident for the five years preceding the filing of his application, and
that during that period he was, and remains, “a person of good moral
character.” INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). However, a person is
precluded from establishing “good moral character” if (i) he has been convicted
of an aggravated felony and (ii) that conviction occurred after November 29,
1990, the date on which the aggravated felony bar was added to the INA. See 8
U.S.C. § 1101(f)(8); see also Chan, 464 F.3d at 293 (quoting 8 U.S.C
§ 1101(a)(43)); Boatswain v. Gonzales, 414 F.3d 413, 418 (2d Cir. 2005); Del
Orbe v. Holder, No. 12 Civ. 1057 (PAE), 2012 WL 3655923, at *3 n.3 (S.D.N.Y.
Aug. 27, 2012) (“The aggravated felony exclusion was introduced by a 1990
amendment to the immigration laws. USCIS has, therefore, interpreted the
exclusion as applicable only to convictions entered after the statute’s November
29, 1990 effective date.” (citing 8 C.F.R. § 316.10(b)(1)(H) and Puello v. Bureau
of Citizenship & Immigration Servs., 511 F.3d 324, 328 (2d Cir. 2007))); Flores v.
9
Quarantillo, No. 07 Civ. 3983 (DC), 2008 WL 5396599, at *3 (S.D.N.Y. Dec. 29,
2008) (collecting cases).
“Under the INA, an aggravated felony includes ‘illicit trafficking in a
controlled substance ... including a drug trafficking crime (as defined in section
924(c) of Title 18).’” Flores, 2008 WL 5396599, at *3 (quoting INA
§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)); see also Lopez v. Gonzales, 549 U.S.
47, 60 (2006) (finding that state convictions for crimes that would be
punishable as felonies under the Controlled Substances Act of 1970, Pub. L.
No. 91-513, 84 Stat. 1242, and its amendments suffice to constitute
aggravated felony convictions for immigration purposes); Nolan v. Holmes, 334
F.3d 189, 192 (2d Cir. 2003) (conviction for possession with intent to distribute
cocaine under Section 841(a)(1) constitutes an aggravated felony).
2.
Application
As a preliminary matter, Plaintiff does not dispute any of the facts put
forth by Defendants in connection with this motion, but only the legal
significance of those facts. Plaintiff was convicted in 1996 of criminal sale of a
controlled substance in the third degree, in violation of New York Penal Law
§ 220.39. (Def. 56.1 ¶ 9). The Second Circuit has explicitly held that the
elements of Section 220.39 are “analogous” to those of 21 U.S.C. § 841(a)(1),
which prohibits, inter alia, “the distribution of, or possession with intent to
distribute a controlled substance, an offense punishable by a term of
imprisonment greater than one year.” Pascual v. Holder, 707 F.3d 403, 405,
adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013). Thus, “a conviction under
10
NYPL § 220.39, a Class B felony … constitutes an aggravated felony conviction”
for the purposes of a naturalization application. Id. at 404-05 (collecting cases
in this District and in other circuits reaching the same conclusion). 4 On this
basis, USCIS correctly denied Plaintiff’s application for naturalization, because
his criminal conviction precludes him from establishing good moral character.
Plaintiff raises a number of unavailing arguments before this Court.
First, Plaintiff contends that because he pleaded guilty in 1983, he is not
subject to the statutory bar to establishing good moral character, which was
added to the INA in 1990. (Pet. 1-2). However, the Second Circuit has
previously held that the operative action is the court’s formal entry of
judgment, not the court’s acceptance of a defendant’s guilty plea. Puello, 511
F.3d at 331 (holding that ‘“conviction’ refers to the date on which judgment is
entered on the docket, not the date on which a court accepts a guilty plea”).
Thus, Plaintiff’s 1996 conviction — for what the Court has already determined
4
A sale need not even take place to constitute “distribution” within the meaning of the
statute. As the Second Circuit noted in Pascual,
In deciding whether a state conviction corresponds to an
“aggravated felony,” we employ a “categorical approach” under
which “‘the singular circumstances of an individual petitioner’s
crimes should not be considered, and only the minimum criminal
conduct necessary to sustain a conviction under a given statute is
relevant.’” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 143
(2d Cir. 2008) (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d
Cir. 2001)). The question, then, is whether the elements of NYPL
§ 220.39 would be punishable as a felony under federal criminal
law. See Lopez [v. Gonzalez], 549 U.S. [47,] 57, 127 S.Ct. 625
[2006]. The federal statute analogous to NYPL § 220.39 is 21 U.S.C.
§ 841(a)(1), which prohibits, inter alia, the distribution of, or
possession with intent to distribute a controlled substance, an
offense punishable by a term of imprisonment greater than one
year.
707 F.3d at 405.
11
to be an aggravated felony — precludes him from establishing good moral
character.
Second, Plaintiff argues that because he was actually incarcerated for
less than one year, his conviction cannot constitute a felony. (Feb. 18 Opp. 12). However, the amount of time Plaintiff actually served is not relevant to the
determination of whether an offense is an aggravated felony. Instead, the
Court must examine “whether the elements of NYPL § 220.39 would be
punishable as a felony under federal criminal law.” Pascual, 707 F.3d at 405.
The Court has already determined that Section 220.39 constitutes an
aggravated felony, and on this basis, Plaintiff is precluded from establishing
good moral character, regardless of the amount of jail time he actually served.
Third, Plaintiff asserts that because he was granted a waiver of
inadmissibility pursuant to INA § 212(c), he is eligible for naturalization.
(Pet. 1-2). This argument was explicitly rejected by the Second Circuit in Chan.
That Court held that relief under former Section 212(c) “merely provides that
an alien may ... be allowed to remain in the United States despite a finding of
excludability or deportability. Thus, when section 212(c) relief is granted, the
Attorney General does not issue a pardon or expungement of the conviction
itself.” Chan, 464 F.3d at 295 (internal citation omitted); see also Flores, 2008
WL 5396599, at *3 (finding that the Section 212(c) waiver “had no effect on the
statutory bar precluding persons convicted of an aggravated felony ‘at any time’
from establishing good moral character” (internal citations omitted)).
12
Lastly, Plaintiff cites to and attaches a number of factually and legally
inapposite cases in his Petition and various opposition papers, but omits any
additional argument or discussion of why those cases are relevant, beyond his
handwritten emphases and emendations onto copies of those cases. (See
generally Pet. 4-5, 8-13; Feb. 19 Opp. 2-3, 20-36; Mar. 11 Opp. 1-22). The
Court has considered all of the cases cited by Plaintiff in order to raise the
strongest arguments his papers suggest. See, e.g., Moncrieffe v. Holder, 133 S.
Ct. 1678, 1693-94 (2013) (holding that “if a noncitizen’s conviction for a
marijuana distribution offense fails to establish that the offense involved either
remuneration or more than a small amount of marijuana, the conviction is not
for an aggravated felony under the INA”); Akinsade v. Holder, 678 F.3d 138 (2d
Cir. 2012), as amended (May 11, 2012) (finding that a noncitizen was not an
aggravated felon where the Board of Immigration Appeals (“BIA”) improperly
inferred from the noncitizen’s plea colloquy that he committed the offense of
embezzlement by a bank employee with an intent to defraud); Prus v. Holder,
660 F.3d 144, 149 (2d Cir. 2011) (finding that promoting prostitution did not
constitute an aggravated felony because “N.Y. Penal Law § 230.25(1) punishes
conduct that does not involve a ‘prostitution business’ as the term prostitution
is used in the INA” (internal citation omitted)); Duarte-Ceri v. Holder, 630 F.3d
83, 85 (2d Cir. 2010) (remanding to the district court for factual finding on the
time of day the noncitizen was born, in order to determine whether noncitizen
acquired derivative U.S. citizenship from his mother); Lawson v. U.S.
Citizenship & Immigration Servs., 795 F. Supp. 2d 283, 296 (S.D.N.Y. 2011)
13
(finding that noncitizen could establish good moral character where, among
other things, his aggravated felony conviction had occurred in 1986 and was
not subject to the aggravated felony bar); Matter of Abdelghany, 26 I. & N. Dec.
254 (BIA 2014) (discussing who may receive a Section 212(c) wavier of
ineligibility); In re Crammond, 23 I. & N. Dec. 9 (BIA 2001) (en banc), vacated on
other grounds, 23 I. & N. Dec. 179 (BIA 2001) (en banc) (for “sexual abuse of a
minor” to count as an “aggravated felony” for purposes of removal, it must be a
felony as defined in 18 U.S.C. § 3559(a)(5)). The Court concludes, however,
that the cases cited by Plaintiff are factually and/or procedurally inapposite,
and thus unhelpful in resolving the relevant legal issues. (See generally Def.
Br. 18-21, Def. Reply 4-6).
The Court has no reason to doubt Plaintiff’s assertion that he has shown
“good moral conduct” for the previous 29 years. (Pet. 1). Yet the fact remains
that under clear and controlling Second Circuit precedent, Plaintiff’s criminal
conviction bars him from proving good moral character as a matter of law.
Plaintiff has failed to raise any material, disputed facts demonstrating that
USCIS incorrectly denied his naturalization application; in fact, the record
indicates quite plainly that USCIS correctly denied Plaintiff’s application.
Accordingly, Defendant is entitled to summary judgment on Plaintiff’s claims.
14
CONCLUSION
Defendant’s motion to dismiss, or alternatively for summary judgment, is
converted to one for summary judgment, and is GRANTED. The Clerk of Court
is directed to terminate Docket Entry 11, and to mark the case as closed.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith; therefore, in forma pauperis
status is denied for purposes of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45.
SO ORDERED.
Dated: May 30, 2014
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Ramon Antonio Castro-Ramirez
530 Audubon Avenue
Apt. # 38
New York, NY 10040
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