Pineda v. Johnson et al

Filing 30

MEMORANDUM OPINION granting 27 MOTION for Summary Judgment ,denying 26 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
September 11, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILFREDO PINEDA,
Plaintiff,
v.
ELAINE DUKE, ACTING SECRETARY
OF HOMELAND SECURITY, and MARK
SIEGL, FIELD OFFICE DIRECTOR
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES,1
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. H-15-2179

MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment (Doc. 26) and Defendants’ Motion for Summary Judgment
(Doc. 27).

The court has considered the motions, the responses,

all other relevant filings, and the applicable law.

For the

reasons set forth below, the court GRANTS Defendants’ motion for
summary

judgment

and

DENIES

Plaintiff’s

motion

for

summary

judgment.
I.

Case Background

On July 29, 2015, Plaintiff filed this action seeking judicial

1
Jeh Johnson was the Secretary of Homeland Security and Rick Hamilton
was the Houston Field Office Director for U.S. Citizenship and Immigration
Services (“USCIS”) at the time that Plaintiff filed this case but neither still
holds these positions. Elaine Duke is the acting Secretary of Homeland Security
and Mark Siegel is the Houston Field Office Director of USCIS, and, as such, are
automatically substituted as Defendants. See Fed. R. Civ. P. 25(d).
2
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 21, Ord. Dated
Mar. 17, 2016.

review of the denial of his petition for naturalization pursuant to
8 U.S.C. § 1421(c).3

The facts in this case are not in dispute.

Plaintiff is from Honduras and has had lawful permanent
residence status in the United States since November 1996.4

On

January 25, 2000, he pleaded guilty to felony cocaine possession
and

was

sentenced

to

eleven

months

imprisonment,

which

was

suspended in lieu of two years probation.5
Following

that

conviction,

in

returned to Honduras for two weeks.6
States

Customs

inadmissible

and

based

Border
on

his

November

2007,

Plaintiff

Upon his return, the United

Protection
controlled

determined
substance

him

to

be

conviction.7

Removal proceedings were initiated pursuant to 8 U.S.C. § 1229a,
and Plaintiff was paroled into the United States pending the
completion of his removal hearing.8
While in removal proceedings, Plaintiff filed an application
for naturalization and moved the immigration court to terminate the
removal proceedings pursuant to 8 C.F.R. § 1239.2(f) in order to
allow his application for naturalization to be adjudicated.9
3

See Doc. 1, Pl.’s Compl.

4

See Doc. 25, Admin. R. pp. 53, 215.

5

See id. pp. 54-58, 71.

6

See id. p. 36.

7

See id. pp. 145-46, 711-12.

8

See id.

9

See id. pp. 471-72.

2

The

immigration judge denied Plaintiff’s motion to terminate on the
basis that she could not terminate removal proceedings without
making a determination that Plaintiff was prima-facie eligible for
naturalization.10

Thereafter,

the

immigration

judge

ordered

Plaintiff’s removal from the United States.11
While that decision was on appeal to the Board of Immigration
Appeals

(“BIA”),

another

arm

of

the

Department

of

Homeland

Security, Immigration and Customs Enforcement, moved to terminate
the removal case based on its prosecutorial discretion, citing
“current enforcement priorities.”12
because

it

would

render

his

Plaintiff opposed this motion

eligibility

for

naturalization

undecided.13 The BIA granted the motion, and the removal proceeding
was deemed terminated on June 10, 2013.14
In its decision the BIA stated:
[Plaintiff] does not dispute that, as a result of this
conviction, he was properly designated as an arriving
alien seeking admission when returned from a trip abroad
in 2007. Section 101(a)(13)(C)(v) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(13)(C)(v)(providing
that a returning lawful permanent resident shall be
regarded as seeking admission if he has committed an
offense in section 212(a)(2)). He also concedes that he
is inadmissible under section 212(a)(2)(A)(i)(II) of the

10

See id. pp. 418-21.

11

See id.

12

See id. pp. 114-17.

13

See id. pp. 385-403.

14

See id. pp. 114-17.

3

Act and ineligible for relief in removal proceedings.15
The BIA concluded that the immigration judge properly relied on its
controlling precedent in In re Acosta-Hildalgo, 24 I&N Dec. 103
(BIA 2007), which held that unless there was an affirmative
communication

from

the

Department

of

Homeland

Security’s

Citizenship and Immigration Service (“USCIS”) stating that the
person was prima-facie eligible for naturalization, the removal
proceeding must be completed.16

In its decision, however, the BIA

lamented the effect of In re Acosta-Hildalgo because it precluded
the ability of the immigration judge to make an independent
determination of prima-facie eligibility if USCIS failed to do so.17
Nonetheless,

the

BIA

declined

to

revisit

Matter

of

Acosta-

Hildalgo.18
Plaintiff filed a second application for naturalization in
August 2013 and was interviewed in February 2014.19

On June 2014,

Defendants denied his application for naturalization on the grounds
that Plaintiff was not lawfully admitted to the United States after
his return from Honduras in 2007.20

15

See id. pp. 115-16.

16

See id. pp. 116-17.

17

See id.

18

See id.

19

See id. pp. 33-43.

20

See id. pp. 12-13.

4

Plaintiff appealed this

decision, which was upheld in April 2015.21 Plaintiff seeks de novo
review of USCIS’s decision denying his petition for naturalization
on the ground that he was not “admitted” upon his 2007 arrival to
the United States.22
II.
A.

Legal Standards

Summary Judgment
Summary judgment is warranted when the evidence reveals that

no genuine dispute exists on any material fact and the moving party
is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).

A material fact is a

fact that is identified by applicable substantive law as critical
to the outcome of the suit.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine,
the dispute regarding a material fact must be supported by evidence
such that a reasonable jury could resolve the issue in favor of
either party.

See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d

396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits

21

See id. pp. 28-32.

22

See Doc. 1, Pl.’s Compl.

5

that demonstrate the absence of genuine factual issues.

Celotex

Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131
(1992).

If the moving party carries its burden, the nonmovant may

not rest on the allegations or denials in his pleading but must
respond with evidence showing a genuine factual dispute. Stauffer,
741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007)).
Cross-motions for summary judgment are considered separately
under this rubric. See Shaw Constructors v. ICF Kaiser Eng’rs, 395
F.3d 533, 538-39 (5th Cir. 2004).

Each movant must establish that

no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law, and the court views the evidence in
favor of each nonmovant. See id.; Tidewater Inc. v. United States,
565 F.3d 299, 302 (5th Cir. 2009)(quoting Ford Motor Co. v. Tex.
Dep’t of Transp., 264 F.3d 493, 499 (5th Cir. 2001)).
B.

Review of Denial of Naturalization Petition
Pursuant to 8 U.S.C. § (“Section”) 1421(c), an applicant for

naturalization is entitled to seek judicial review of the denial of
his application in a United States District Court. Section 1421(c)
states that “[s]uch 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).

The court is not bound by

administrative findings and conclusions pertaining to the denied

6

petition but may make its own findings based on a de novo review.
Aparicio v. Blakeway, 302 F.3d 437, 445 (5th Cir. 2002).
III. Analysis
In their motion, Defendants argue that Plaintiff does not meet
the eligibility criteria required for naturalization. Specifically,
Defendants assert that Plaintiff was inadmissible upon return to
the United States from a trip to Honduras due to his prior felony
conviction for possession of a controlled substance in 2000 and
therefore is ineligible for naturalization.

Plaintiff contends

that he is eligible for naturalization because he was not seeking
admission when he re-entered the country, never lost his lawful
permanent resident status, and meets the residence and physical
presence requirements for naturalization. Therefore, the issues in
this case are whether Plaintiff was inadmissible upon his return to
the country, and, if so, whether this renders him ineligible for
naturalization.
Plaintiff bears the burden to show by a preponderance of the
evidence that he is entitled to naturalization.
316.2(b);

see

also

Beryenyi

v.

Dist.

Dir.,

8 C.F.R. §
Immigration

&

Naturalization Serv., 385 U.S. 630, 637 (1967). “Naturalization is
available only as provided by Acts of Congress and, even then, only
in strict compliance with the terms of such acts.”

Bustamante-

Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006)(internal
quotation marks omitted). In naturalization cases, all doubts must

7

be resolved in the United States’ favor.

Id. (citing Berenyi, 385

U.S. at 637).
Pursuant to the Immigration and Nationality Act, the terms
“admission” or “admitted” “mean, with respect to an alien, the
lawful entry of the alien into the United States after inspection
and

authorization

1101(a)(13)(A).

by
“An

an

immigration

alien

lawfully

officer.”

8

admitted

for

U.S.C.

§

permanent

residence in the United States shall not be regarded as seeking an
admission into the United States for purposes of the immigration
laws unless the alien . . . has committed an offense identified in
section 1182(a)(2) of this title.”

8 U.S.C. § 1101(a)(13)(C)(v).

Offenses under Section 1182(a)(2) include crimes of moral turpitude
and violations of laws or regulations regarding a controlled
substance.

8 U.S.C. § 1182(a)(2).

Controlled substances are

defined under 21 U.S.C. § 802(6) as Schedule I, II, III, IV, V
drugs or other substances.
drug.

Cocaine is considered a Schedule II

21 U.S.C. § 812(c), Schedule II(a)(4).
Defendants contend because Plaintiff committed an offense

involving a controlled substance, namely, possession of cocaine, he
became an alien seeking admission upon his return from Honduras,
and, therefore, is not eligible for naturalization.

Plaintiff

asserts that because he is still a lawful permanent resident, he
was lawfully admitted and may be naturalized.
The Fifth Circuit has not directly addressed this question in

8

the context of eligibility for naturalization.

However, in the

removal context, the Fifth Circuit has found that lawful permanent
residents are deemed to be seeking admission upon their return into
the United States.

For example, in Munoz v. Holder, 755 F.3d 366,

368 (5th Cir. 2014), a lawful permanent resident committed a crime
of moral turpitude prior to traveling to Mexico for two weeks.

In

interpreting Section 1101(a)(13)(C) and 1182(a)(2), the Fifth
Circuit stated that “on return from foreign travel, such an alien
is treated as a new arrival to our shores, and may be removed from
the United States.” Id. (internal quotation marks omitted)(quoting
Vartelas v. Holder, 566 U.S. 257, 265 (2012)).

In Malagon de

Fuentes v. Gonzales, 462 F.3d 498, 500-02 (5th Cir. 2006), the
plaintiff traveled out of the country to Mexico for a day, and upon
her

return,

the

Fifth

Circuit,

again

looking

to

those

same

statutes, considered her an inadmissible arriving alien because she
had committed a crime of moral turpitude.
Additionally,

the

Supreme

Court

has

stated

that

“lawful

permanent residents returning post-IIRIRA may be required to seek
an admission into the United States.” Vartelas, 566 U.S. at 262-63
(internal quotations marks omitted).

The Supreme Court stated

that, when returning from traveling abroad, a lawful permanent
resident who committed a crime of moral turpitude is treated as a
new arrival and that “[a]n alien seeking ‘admission’ to the United
States is subject to various requirements, see, e.g., § 1181(a),

9

and cannot gain entry if [he] is deemed ‘inadmissible’ on any of
the numerous grounds set out in the immigration statutes, see §
1182.”

Id. at 263.

These cases demonstrate that the Fifth Circuit and Supreme
Court have interpreted these statutes to mean that a lawful
permanent resident who travels out of the country is to be treated
as seeking admission upon their return to the United States and is
inadmissible if previously convicted of a crime falling under
Section 1182(a)(2).

The court finds no reason to interpret these

statutes differently in Plaintiff’s case. Plaintiff cites Martinez
v. Mukaskey, 519 F.3d 532, 536 (5th Cir. 2008), for the proposition
that there is a difference between entry and post-entry adjustment
of status.
left

the

However, in this case, unlike in Martinez, Plaintiff
United

States.

As

Munoz,

Malagon,

and

Vartelas

demonstrate, lawful permanent residents such as Plaintiff are
treated as aliens seeking admission upon re-entry, even for short
trips out of the country.

Due to his conviction, Plaintiff was

inadmissible upon his return under 8 U.S.C. § 1182(a)(2).
Next, the court must determine whether this inadmissibility
makes Plaintiff ineligible for naturalization.

8 U.S.C. § 1427

requires that a person be lawfully admitted for permanent residence
to be eligible for naturalization. See 8 U.S.C. § 1427. Plaintiff
contends that, because he never lost his lawful permanent resident
status,

he

was

lawfully

admitted

10

for

permanent

residence.

Defendants

argue

that

allowing

Plaintiff

to

naturalize

would

violate the statutes and regulations.
The applicable regulation, 8 C.F.R. § 316.2(b), requires that
the applicant for naturalization demonstrate that he “was lawfully
admitted

as

a

permanent

resident

to

the

United

States,

in

accordance with the immigration laws in effect at the time of the
applicant’s initial entry or any subsequent reentry.”

Plaintiff

contends that this means that a lawful permanent resident only must
obtain the status at some time in the past but does not have to
show lawful admission for permanent residence every time that he
enters the country. The court disagrees with this interpretation.
“Lawfully admitted for permanent residence” is defined in Section
1101(a)(20) to mean “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, such status not
having changed.”

8 U.S.C. § 1101(a)(2).

Plaintiff, a lawful permanent resident, sought reentry into
the United States upon his return from Honduras.
reentry,

it

was

found

that

he

was

inadmissible

And, upon
due

to

his

conviction for possession of a controlled substance, a fact that is
undisputed.

In the context of removal proceedings, the Fifth

Circuit has treated lawful permanent residents returning to the
country as arriving aliens seeking admission if they have committed
a disqualifying offense.

Therefore, Plaintiff cannot demonstrate

11

that he was lawfully admitted as a permanent resident in accordance
with the immigration laws at the time of his subsequent reentry.
At this time, Plaintiff has not met his burden to demonstrate that
he meets the strict requirements of eligibility for naturalization.
IV.

Conclusion

Based on the foregoing, the court GRANTS Defendants’ motion
for summary judgment and DENIES Plaintiff’s motion.
SIGNED in Houston, Texas, this 11th day of September, 2017.

______________________________
U.S. MAGISTRATE JUDGE

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