Nesari v. Taylor et al
Filing
71
MEMORANDUM OPINION: For all these reasons, petitioner cannot meet his burden onhis "Petition for Review of Denial of Application for Naturalization Pursuant to 8 U.S.C. § 1421(c) and Request for De Novo Hearing." Accordingly, defendant s' Motion for Summary Judgment [Dkt. No. 41] will be granted, Nesari's Cross-]Motion for Summary Judgment [Dkt. No. 59] and his Motion for Voluntary Dismissal [Dkt. No. 66] will be denied, and judgment will be entered in favor of the defendants by an Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 08/11/11. (yguy)
L
\r.\
IN THE UNITED STATES DISTRICT COURT FOR T
EASTERN DISTRICT OF VIRGINIA
AUG 1 I2011
Alexandria Division
CLERK U.S. DISTRICT COURT I
ai PVANDRIA. VIRGINIA
BAHMAN NESARI,
Petitioner,
l:llcvl9
(LMB/IDD)
SARAH TAYLOR, District Director
of USCIS, et al..
Defendants.
MEMORANDUM OPINION
Before the Court are the parties' Cross-Motions for Summary
Judgment [Dkt. Nos. 41 and 59], along with the petitioner's Motion
for Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a)(2) [Dkt.
No. 66].
For the reasons stated below, petitioner's motions [Dkt.
Nos. 59 and 66] will be denied, defendants' motion [Dkt. No. 41]
will be granted, and judgment will be entered in favor of the
defendants.
I.
Background
Petitioner Bahman Nesari ("Nesari"), a native and citizen of
Iran, brings this civil action seeking de novo judicial review of
the denial of his application for naturalization, pursuant to 8
U.S.C. § 1421(c).
Specifically, Nesari is suing Sarah Taylor,
District Director of the Washington District Office of the United
States Citizenship and Immigration Services ("USCIS"); Alejandro
Mayorkas, Director of USCIS; Michael Aytes, Acting Deputy Director
of USCIS; Janet Napolitano, Secretary of the United States
j
Department of Homeland Security ("DHS"); and Eric J. Holder,
Attorney General of the United States Department of Justice
(collectively "defendants"), contending that the decision by the
USCIS denying his application for naturalization was incorrect.
See PL's Compl. H
53-62.
He further contends that he meets all
of the statutory requirements for naturalization under 8 U.S.C.
§ 1427, and that he is therefore entitled to become a naturalized
United States citizen.
See id. ^1 54.
Defendants, however, argue that Nesari is statutorily
ineligible for naturalization as a United States citizen as a
matter of law for two reasons: first, because he was not lawfully
admitted into the United States, and second, because he cannot
establish good moral character under the Immigration and
Nationality Act ("INA").
See Mem. of Law in Supp. of Defs.' Mot.
for Summ. J. ("Defs.' Mot. for Summ. J.") at 2.
In particular,
defendants allege that Nesari entered the United States on a K-l
fianc§ visa issued to him in error, and that he was never lawfully
admitted into the United States because he never met his fiancee
in person before entering the country, as is required by 8 U.S.C.
§^T184(d)(1), nor did he ever obtain a valid waiver of that
meeting requirement.
Id^ at 23-27.
Defendants also allege that
Nesari provided false testimony under oath in his naturalization
proceedings in an attempt to obtain immigration benefits, and that
he therefore cannot establish that he is a person of good moral
character.
Id.
at 27-30.
Defendants have accordingly filed the instant Motion for
Summary Judgment [Dkt. No. 41], asking the Court to grant summary
judgment in their favor as a matter of law under Fed. R. Civ. P.
56.
Nesari also filed his own Cross-Motion for Summary Judgment
[Dkt. No. 59] on July 12, 2011, and then filed a Motion for
Voluntary Dismissal [Dkt. No. 66] on July 21, 2011.
This
Memorandum Opinion will conclusively resolve all pending motions.
A.
K-l Fiance Visa
On or about March 1, 1996,x United States citizen Jessica
Eastin ("Eastin"),2 filed a Form I-129F Petition for Alien Fiance
on behalf of Nesari.
See PL's Compl. U 17; see also Admin.
Record ("A.R.") at 300.
In response to question 19 on the I-129F
Petition, which asks whether "[y]our fianc6(e) has met and seen
you," Eastin disclosed that she had never met Nesari, explaining
that they had communicated via letter correspondence, but that she
had never met him in person because it was "very dangerous for me
to travel to Iran," and because "since 1989 my fianc§ [Nesari] has
been prohibited from traveling outside of Iran because of strict
Iranian military regulations."
Id. at 301, 313.
She further
represented that "He [Nesari] . . . will end his mandatory
[military] service on or soon after February 7, 1996," id. at 313,
1 Although the I-129F Petition appears to have been signed
by Eastin on January 29, 1996, it was not filed until on or about
March 1,
1996.
2 Eastin also apparently goes by the name "Marijane Star."
See Dkt.
No.
65.
but she provided no additional information regarding why the two
had not planned to meet in person at the conclusion of Nesari's
military obligations.
Eastin also provided no details regarding
how she and Nesari were introduced, or how their relationship had
developed in light of the fact that the two had never met in
person.
See id.
On or about March 8, 1996, the former Immigration and
Naturalization Service ("INS")3issued Eastin a Notice of Action
requesting additional information regarding the nature of her
relationship with Nesari, and seeking proof that they had met in
person in the preceding two years, as is required under 8 U.S.C.
§ 1184(d)(1) and 8 C.F.R. § 214.2(k)(2).
See id^ at 2681.
The
INS's Notice specifically queried why Eastin and Nesari had not
met at some point after February 7, 1996, the date that Eastin
alleged that Nesari's military service had concluded.
2682.
Moreover,
Id. at
in response to Eastin's assertion that it was
dangerous for her to travel to Iran, the INS asked why the two had
not met in a neutral third country, as do many United States
citizens who are engaged to Iranians.
Id.
The agency further
inquired, among other things, how Eastin and Nesari became
acquainted, and how the two became acquainted with one another
3 As of March 1, 2003, the former INS ceased to exist as an
independent agency within the Department of Justice, and its
adjudicatory functions were transferred to the newly formed
USCIS.
See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 441,
451, 471,
116 Stat. 2135 (Nov. 25, 2002).
well enough to want to be married, despite never having met in
person.
Id.
In conclusion,
the INS advised Eastin:
"You have
submitted no evidence of any relationship at all, much less one
strong enough to result in marriage.
your relationship."
Please submit evidence of
Id.
By a letter dated May 31, 1996, Eastin responded to the INS's
Notice.
See A.R. at 1927.
In that letter, Eastin did not request
an exemption from the in-person meeting requirement, but instead
stated that:
[] It has NOT been possible for us [Eastin and Nesari]
to meet in a third country due to passport and other
related arrangements that my fiance had to make in Iran
before being allowed to depart Iran. Those arrangements
have only now been completed and [Nesari]
depart Iran.
is now able to
[] July is the earliest possible time for us to meet in
a third country. Enclosed please find a copy of my
ticket for departing the U.S. to travel to Turkey in
July 1996 in order to meet my fiance.
[] Upon my return [from Turkey] requested documents will
be submitted to your office.
Id.
As proof of her purported intention to meet Nesari, Eastin
enclosed copies of United Airlines airplane tickets issued in her
name for round trip travel departing from Washington, Dulles
International airport to Istanbul, Turkey on July 1, 1996.
at 1928-32.
Id.
However, petitioner concedes that Eastin never
actually used those tickets, and that she never traveled to
Turkey, or any other location, to meet Nesari in person before
Nesari came to the United States.
See PL's Compl. U 20; see also
A.R. at 1874 (statement from Eastin admitting that she never
traveled to meet Nesari).
Instead, on June 5, 1996, before Eastin was purportedly
scheduled to travel to Turkey to meet Nesari, the INS, in an
apparent administrative error, approved Eastin's I-129F Petition
for Alien Fiance visa on behalf of Nesari.
See A.R. at 300, 1988.
Nesari was accordingly issued a K-l fiance1 visa4 by the United
States Consulate in Ankara, Turkey, and he entered the United
States on that visa on August 8, 1996.
See A.R. at 54.
Nesari,
however, did not meet Eastin until several months later, in late
October 1996, when Eastin came from New Mexico (where she lived)
to Lansing, Michigan (where Nesari was living with his brother,
Yousof "Joe" Nesari) to meet Nesari in person.
Id.
A week or two
later, on November 2, 1996, Eastin and Nesari were married.
See
PL's Compl. U 22; see also A.R. at 1114, 1989 (Marriage License).
B.
Permanent Resident Application and Petition to Remove
Conditions
On or about December 20, 1996, Nesari then filed a Form 1-485
Application to Register Permanent Residence or Adjust Status based
4 The K-l visa, which is issued to an alien upon approval of
an I-129F Petition, allows the alien fiance/fianc€e who lives
outside the United States to travel to the United States to marry
the citizen fiance/fiancee. See 8 C.F.R. § 214.2(k). The K-l
visa is granted based on the premise that the holder will come to
the United States on a temporary basis to complete a specific
purpose: in this case, to marry the sponsoring United States
citizen. Id. If the K-l visa holder marries the U.S. citizen
within 90 days, the K-l holder may apply for an adjustment of
status and become a permanent resident upon approval of the
adjustment of status. See 8 U.S.C. § 1255(d).
upon his status as the spouse of a United States citizen.
A.R. at 194.
See
Nesari and Eastin were interviewed regarding that
application in June 1997, and on April 8, 1998, the INS granted
Nesari permanent resident status on a conditional basis, pursuant
to 8 U.S.C.
§ 1186a and INA § 216.5
See id^. at 1006.
Less than
two years later, on March 30, 2000, Nesari and Eastin officially
divorced.
See id.
at 565.
On April 24, 2000, Nesari, by and through counsel, filed a
Form 1-175 Petition to Remove Conditions on Residence.
524.
Id.
at
To remove the conditions established under 8 U.S.C.
§ 1186a, the alien spouse and the petitioning spouse (if not
deceased) must submit to the Attorney General a joint petition
requesting the removal of such conditions.
§ 1186a(c).
See 8 U.S.C.
In his 1-175 Petition, Nesari requested, inter alia,
that he be granted a waiver of the requirement that the petition
be filed jointly with his United States citizen spouse.
As
grounds for that requested waiver, Nesari contended that he and
Eastin had "entered into the marriage in good faith, but the
marriage was terminated through divorce."
A.R. at 532.
5 The Immigration and Naturalization Act provides, in
pertinent part, that "an alien spouse . . . shall be considered,
at the time of obtaining the status of an alien lawfully admitted
for permanent residence, to have obtained such status on a
conditional basis subject to the provisions of this section."
U.S.C. § 1186a; see also INA § 216.
In other words,
8
if an alien
is the spouse of a United States citizen or a permanent resident
and the marriage occurred less than two years before the alien
spouse is admitted as a permanent resident, then the permanent
residence status is conditional.
On July 3, 2002,
the INS issued Nesari a Notice of Intent to
Deny his Form 1-751 Petition.
See id. at 1062.
The Notice
advised Nesari that based on a careful review of the record,
including testimony and evidence submitted in connection with his
petition, the INS had concluded that Nesari's marriage to Eastin the marriage through which Nesari had obtained conditional
resident status - was entered into for the purposes of evading the
immigration laws of the United States.
Specifically,
Id. at 1063.
the INS explained that, based on a sworn statement
from Eastin, along with the corroborating sworn statements of four
of Nesari's former colleagues, the agency had concluded that
Nesari's marriage to Eastin was not entered into in good faith,
but for the purpose of securing resident status in the United
States.
Id.
Nesari was granted sixty days to submit evidence to
rebut the INS's intended denial of his Form 1-751 Petition.
at
Id^.
1065.
On August 27, 2002 and September 3, 2002, in response to the
INS's Notice of Intent to Deny, Nesari, through counsel, submitted
rebuttal and supplemental information, purporting to establish a
bona fide marriage between himself and Eastin.
466-68.
See, e.g.. id. at
For example, Nesari submitted a typewritten statement,
written and signed by Eastin on September 10, 1999, stating that
Eastin and Nesari met when "Joe [Nesari] proposed to [her] that
[she] take his younger brother, Bahman as a new pin [sic] pal."
Id- at 477.
That statement further contends that "[t]hrough those
8
letters we [Eastin and Nesari]
trust," and that "[i]n 1996,
found love, honesty and built
[Eastin]
decided to file a Fiance
Petition for Bahman to allow him [to] come to the U.S.
[Eastin and Nesari] could get married."
Id.
so that we
Nesari also
submitted a one-sentence handwritten statement, signed and dated
by Eastin on May 9, 2002, which simply stated the following: "The
statement[] written Sept. 9th [sic] detailing the events of my
marriage to Bahman was written by myself, and at my own free will,
and to this day rings true."
C.
Id. at 481.
Removal Proceedings Before the Immigration Judge
On October 21,
2002,
the INS denied Nesari's 1-751 Petition
after finding that Nesari had failed to establish that he and
Eastin had entered into and maintained a bona fide marriage.
id. at 1069.
See
On October 25, 2002, the agency accordingly issued a
Notice to Appear to Nesari, and commenced removal proceedings
against him in the United States Immigration Court.
Nesari was
charged with removability under: (1) 8 U.S.C. § 1227(a)(1)(D)(i),
as an alien whose conditional permanent resident status has been
terminated;
(2) 8 U.S.C. § 1227(a)(1)(G)(i), as an alien who
obtained admission through a marriage which was terminated within
2 years of admission, and who is therefore presumptively
considered to have procured admission through fraud; and (3) 8
U.S.C. § 1227(a)(1)(G)(ii), as an alien who engaged in a
fraudulent marriage for the purpose of procuring admission as an
immigrant.
Id. at 1024-26; see also INA § 237.
On June 15, 2006, at the conclusion of the removal proceedings,
the immigration judge ("IJ") assigned to the case, Robert Newberry,
found Nesari removable under 8 U.S.C.
§ 1227(a)(1)(D)(i),
of the denial of his 1-751 Petition.
in view
The IJ dismissed the
marriage fraud-related charges of removability under 8 U.S.C.
§1227(a)(1)(G)(i) and (G)(ii), however, after finding that Nesari
had apparently married Eastin in good faith, even though their
marriage was eventually terminated through divorce.
Compl. at Ex.
1 (June 15, 2006 IJ decision).
See PL's
In reaching those
conclusions, the IJ considered over 15 hours of witness testimony
from 8 witnesses, along with extensive documentary evidence, and
ultimately issued a 36-page decision finding that the government
had "failed miserably" in its marriage fraud allegations and that
Nesari had demonstrated "without a doubt that his marriage was in
good faith and was not done for the purposes of securing his green
card."
Id. at 31.
Finally, the IJ granted Nesari's application
for adjustment of status to that of a lawful permanent resident
and therefore terminated all removal proceedings against him.
id.
at 36.
D.
Appeal to the Board of Immigration Appeals
On June 29, 2006, the DHS noticed its appeal of the IJ's
decision to the Board of Immigration Appeals ("BIA"), advancing
various arguments in support of its claim that the BIA should
10
See
overturn the IJ's decision.
See A.R. at 3106.
First,
the DHS
asserted that the IJ had erred in granting Nesari a "good faith
marriage" waiver under 8 U.S.C. § 1186a, when two government
investigations had demonstrated that Nesari's marriage to his
United States citizen spouse was arranged by his brother for
purely immigration-related purposes.
Id. at 3107.
Second, the
DHS argued that Nesari was never lawfully admitted as a K-l fiance
because he was inadmissible at the time of his K-l entry pursuant
to 8 U.S.C. § 1182(a)(7) and (a)(6), and thus was not properly
admitted as a permanent resident in accordance with the
immigration laws when he filed for adjustment of his status on a
conditional basis.
Id.
Specifically, the DHS explained that
Nesari had admitted that he and Eastin had never met in person
during the two years before he filed his K-l petition for a fiance
visa on or about March 1, 1996, as is required by 8 U.S.C.
§ 1182(a), and that Nesari was never formally granted an exemption
from the meeting requirement under 8 C.F.R. § 214.2(k)
"extreme hardship."
for
Id.
On December 18, 2007, after full briefing on the DHS's
appeal, the BIA dismissed the appeal, concluding that the DHS had
"not established that [Nesari] was not given a waiver" of the in-
person meeting requirement.
See PL's Compl. 1 36, see also id.
at Ex. 2 (Dec. 18, 2007 BIA decision).
The BIA further found that
Nesari had presented sufficient evidence to demonstrate by a
11
preponderance of the evidence that his marriage was entered in
good faith, and that the same evidence demonstrated that Nesari
was not removable under 8 U.S.C.
(a) (1) (G) (ii) .
E.
§ 1227(a)(1)(G)(i)
and
IcL
Naturalization Application and Prior Proceedings Before
this Court
On or about February 6, 2008, Nesari,
through counsel,
filed
an Application for Naturalization ("N-400 Application") with the
USCIS.
See A.R. at 86.
On September 26, 2008, Nesari was
interviewed on his N-400 Application at the USCIS Washington
District Office.
Id. at 4311.
As part of its investigation, the
USCIS also contacted Eastin, and on or about September 8, 2008, she
provided an additional statement regarding her relationship with
Nesari.
See id. at 390-91.
In reaffirming the statement she had
provided on September 1, 1999, Eastin once again told the
immigration authorities that her marriage to Nesari was not
legitimate and that "Joe" Nesari, Bahman Nesari's brother, had
raised the idea for her to marry Nesari so that Nesari could obtain
a green card.
Id.
Eastin further stated that "she was heavily
involved in drugs at the time, and figured there would be some way
to benefit" from the sham marriage arrangement.
Id. at 390.
On May 20, 2009, Nesari filed a Complaint for Mandamus and
Injunctive Relief in this Court, requesting that the Court order
the USCIS to issue a decision on his naturalization application.
See Bahman v. Napolitano. et al.. Civ. Action No. I:09cv566 (E.D.
12
Va. May 20, 2009) (Brinkema, J.).
On July 8, 2009, while that
initial Complaint was pending, Nesari was interviewed again on his
N-400 Application, with his immigration attorney present to assist
him.
See A.R. at 6.
During that interview, Nesari was
specifically questioned regarding the nature of his relationship
with Eastin, including whether he had met Eastin before his
arrival in the United States, and the circumstances surrounding
his first meeting with Eastin.
See id.. see also id. at 22-26,
42-43.
Before his interview, Nesari also completed a written, sworn
statement in response to questions posed by the USCIS in
connection with his N-400 Application.
See id. at 392-396.
Nesari signed that sworn statement under penalty of perjury,
certifying that his responses were "true and correct," and that he
had "read and fully underst[ood] the questions and answers in
[his] sworn statement."
Id. at 396.
One of the supplemental
questions asked Nesari to: "Describe the first time [he] met
Jessica Eastin in person. Who else was there? Where did you go?
How long were you together for the first meeting?"
Id. at 394.
Nesari first responded with the following: "The first time I met
Jessica [Eastin] it was at the airport in Detroit.
Jessica and my
brother[,] they came to pick me up for a week [in] Agest [August]
1996."
Id.
In a corrected attachment, Nesari then clarified that
"she [Eastin] came to Detroit airport and me and my brother went
13
to pick her up."
Id. at 397.
Nesari's answers about a meeting
with Eastin in August 1996 were in direct contradiction to his
previous testimony before the BIA that he and Eastin had first met
about two months after he arrived in the United States, in October
1996.
See id^. at 3693-94 (220:22 - 221:4) .
During his July 8, 2009 naturalization interview, Nesari also
stated under oath that Eastin had made two different trips to
Michigan to meet him, the first in August 1996, and the second in
November 1996, when they were married.
See id. at 25, 54.
Later
in the interview, however, when the interviewing officer pointed
out the discrepancies in the dates in Nesari's testimony, he
admitted that Eastin had actually made only one trip to Michigan
around either the last week of October 1996 or the first week of
November 1996,
to meet him for the first time about a week or so
before their marriage on November 2, 1996.
Id.
On July 16, 2009, Nesari and the government filed a Joint
Consent Order to Dismiss and Remand Nesari's pending federal
action, because his N-400 Application would be adjudicated within
30 days of the date of that July 16, 2009 Joint Consent Order.
Nesari's initial Complaint was therefore dismissed without
prejudice, and the matter was remanded to the USCIS for
adjudication.
See Nesari v. Napolitano. et al.. Civ. Action No.
I:09cv566, at Dkt. No.
8 (July 16, 2009 Consent Order to Dismiss
and Remand).
14
On August 7, 2009, the USCIS issued a decision denying
Nesari's N-400 Naturalization Application because he had failed to
establish that he had been lawfully admitted for permanent
residence, and because he additionally had not established his
good moral character.
See A.R. at 51-55.
USCIS explained to Nesari,
In its decision,
the
inter alia:
First, you have not been lawfully admitted for
permanent residence as required by the Immigration and
Nationality Act. You misrepresented material facts
about yourself in pursuit of an immigration benefit,
lawful permanent residence, and you were statutorily
ineligible to receive the fiance visa you used to enter
the United States. Second, you provided false
statements about yourself during your naturalization
interview while in pursuit of an immigration benefit.
You failed to meet the requirements of a K-l visa
beneficiary in that you and Jessica Eastin had not met
each other within the two-year period before the fiance
petition was filed. Your fiancS petition was approved
in violation of Section 214 of the INA by error of the
Service.
A.R.
at 22-24,
51-53.
The USCIS also informed Nesari that the
"Service is not bound in naturalization proceedings by decisions
issued by the immigration judge in removal proceedings either
terminating removal proceedings or granting cancellation of
removal."
Id^ at 25, 54 (citing INA § 318 ("[T]he findings of the
Attorney General in terminating removal proceedings or in
cancelling the removal of an alien pursuant to the provisions of
this Act, shall not be deemed binding in any way upon the Attorney
General with respect to the question of whether such person has
established his eligibility for naturalization.").
15
F.
Request for Reconsideration
On September 3, 2009, Nesari,
through his counsel,
filed an
N-336 Request for Hearing on the decision to deny his N-4 00
Application, seeking reconsideration of that decision pursuant to
8 U.S.C.
§ 1447(a)
and INA § 336(a).
See A.R.
at 17-21.
In
Nesari's five-page appeal, he argued that contrary to the USCIS's
findings: (1) he had been lawfully admitted for permanent
residence, as demonstrated by the IJ's and the BIA's findings that
Nesari had married Eastin in good faith, and the subsequent grant
of a waiver of the joint filing requirement for removal of the
conditions on residence;
(2) he had demonstrated good moral
character; and (3) the USCIS was indeed bound by the findings of
the IJ and the BIA.
Id.
On December 17, 2009, a review hearing was conducted on
Nesari's N-336 Request for Hearing and for Reconsideration.
While
the decision on Nesari's N-336 Request was pending, Nesari filed
another Complaint for Mandamus and Injunctive Relief before this
Court, asserting that the USCIS's failure to adjudicate his N-336
Request within 120 days of his review hearing violated, among
other relevant provisions,
Act, and the Constitution.
the INA,
the Administrative Procedure
See Nesari v. Taylor, et al.. Civ.
Action No. I:10cvl015 (E.D. Va. Sept. 9, 2010) (Brinkema, J.).
November 3,
2010,
however,
Nesari's N-336 Request,
N-400 Application.
On
the USCIS issued its decision on
affirming its August 7, 2009 denial of his
See A.R. at 1-7.
16
On November 8, 2010, counsel
for defendants therefore moved to dismiss Nesari's September 9,
2010 Complaint for mootness and lack of jurisdiction.
See Nesari
v. Tavlor. et al.. Civ. Action No. I:10cv01015, at Dkt. No. 6.
On December 31, 2010, Nesari,
through counsel, filed a Motion
for Leave to Supplement Pleadings pursuant to Fed. R. Civ. P.
15(d), seeking to amend his September 9, 2010 Complaint to include
a Petition for Review of Denial of Application for Naturalization
pursuant to 8 U.S.C. § 1421(c) and a Request for De Novo Hearing.
Id. at Dkt. No. 16.
On January 7, 2011, after a hearing on
Nesari's Rule 15(d) motion, the Court denied that motion, granted
the government's Motion to Dismiss, and ordered that Nesari's
second Complaint for Mandamus and Injunctive Relief be dismissed
as moot.
G.
See id.
at Dkt.
Nos.
19 and 20.
The Instant Civil Action
On January 7, 2011, Nesari filed the instant "Petition for
Review of Denial of Application for Naturalization Pursuant to 8
U.S.C. § 1421(c) and Request for De Novo Hearing."
See Nesari v.
Tavlor et al.. Civ. Action No. I:llcvl9 (E.D. Va. Jan. 7, 2011)
(Brinkema, J.), at Dkt. No. 1.
In that Petition, Nesari seeks
de novo judicial review of the denial of his naturalization
application, pursuant to 8 U.S.C. § 1421(c), which provides that:
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 ....
Such review shall be de novo,
and the court shall make its own findings of fact and
17
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).
Throughout the course of this litigation, however, Nesari has
failed to diligently prosecute his 8 U.S.C. § 1421(c) petition or
to comply with his discovery obligations.
Specifically, on March
9, 2011, the Court issued an Initial Scheduling Order, which
commenced the discovery period in this civil action and provided,
among other things, that the parties should confer to develop a
joint discovery plan.
See Dkt. No. 8.
On March 23, 2011,
pursuant to that Initial Scheduling Order, the parties filed a
Joint Proposed Discovery Plan setting out the deadlines for
discovery in this case.
See Dkt. No. 9.
That document stated
that discovery was to close on July 15, 2011, and that the parties
would exchange all initial disclosures required by Fed. R. Civ. P.
26(a)(1) by April 6, 2011.
Id.
This Court adopted the parties'
proposed discovery plan, including all deadlines, by a Rule 16(b)
Scheduling Order dated May 30, 2011.
See Dkt. No. 11.
Defendants served their Rule 26(a)(1) disclosures on Nesari
on April 6, 2011, and then filed supplemental disclosures on April
21, 2011.
See Dkt. No. 35 (Mem. of Law in Supp. of Defs.' Mot. to
Compel) at 1-2.
Petitioner, however, did not provide his initial
disclosures to the government by the required deadline.
18
At the
time, Nesari was proceeding pro se.6 and for over a month after
the April 6, 2011 deadline, he simply failed to respond to the
government's repeated requests for those documents.
Id. at 2-3.
On May 21, 2011, Nesari finally responded via e-mail, stating that
he did not understand his discovery obligations, that he was out
of the country in Iran, and that he was looking to hire legal
counsel to represent him in this matter.
Id. at Ex. 3.
Nesari
asked for a brief extension of time to serve his disclosures, and
defendants agreed to allow him to file his disclosures by noon on
May 27, 2011.
Id. at 3-4.
By the afternoon of May 27, however,
Nesari had still not complied with his initial discovery
obligations, and defendants therefore filed a Motion to Compel.
See Dkt.
No.
34.
After a hearing on June 3, 2011, at which Nesari failed to
appear, the Honorable Ivan D. Davis, United States Magistrate
Judge,
granted the defendants' motion and issued an Order
requiring Nesari to contact counsel for the defendants by no later
than June 10, 2011, and to produce his initial disclosures to
6 Nesari was pro se for a period of several months,
beginning on April 5, 2011, when this Court granted his original
counsel's Motion to Withdraw as Attorney on the grounds that
Nesari was failing to comply with his payment obligations. See
Dkt. No. 12 (First Mot. to Withdraw as Attorney); Dkt. No. 14
(April 5, 2011 Order granting Motion to Withdraw).
For a brief
period of time, Nesari's brother, Yousof Whetzel Nesari, entered
an appearance on his behalf,
see Dkt. No.
24,
but the Court
terminated that representation by an Order dated April 29, 2011,
for obvious conflict of interest reasons, see Dkt. No. 28.
On
June 21, 2011, an experienced local attorney by the name of
Robert Lee Jenkins, Jr. entered an appearance on Nesari's behalf.
See Dkt.
No.
45.
19
defense counsel by no later than 5 p.m. on June 14, 2011.
No.
40
(June 3, 2011 Order).
Dkt.
The Order further warned that "[i]f
Plaintiff [Nesari] fails to produce discovery or contact defense
counsel by the above stated deadlines,
then this Court will order
the Plaintiff to show cause why this Court should not recommend to
the District Judge that Plaintiff's case be dismissed . . . for
Plaintiff's failure to prosecute."
Id.
By June 16, 2011, petitioner still had not complied with his
outstanding discovery obligations, nor had he returned to the
United States to be deposed.
Defendants therefore filed a Motion
for Summary Judgment based on the evidence in the underlying
administrative record.
See Dkt.
No.
41.
On June 21,
2011,
however, Nesari's current counsel entered a Notice of Appearance
on his behalf,
see Dkt. No.
45,
and on June 28,
2011, Nesari filed
a Consent Motion for Extension of Time to Complete Discovery;
seeking an extension of all discovery deadlines until August 1,
2011, see Dkt. No. 46.
On July 8, 2011,
defendants then filed a
second Motion to Compel, once again seeking an order compelling
Nesari to serve full and complete responses to their discovery
requests.
See Dkt. No.
55.
By an Order dated July 15, 2011, this Court granted both
parties' motions in part and ordered that Nesari provide written
responses to all outstanding discovery requests by no later than
July 22, 2011, and that he make himself available for a deposition
no later than July 28, 2011.
See Dkt. No. 64 (July 15, 2011
20
Order).
The Court then held defendants' Motion for Summary
Judgment in abeyance, awaiting the completion of that additional
discovery.
Id.
In the interim, Nesari had also filed his own
Motion for Summary Judgment, see Dkt. No. 59, and the Court
therefore further ordered that Nesari appear before the Court for
a de novo evidentiary hearing at 1:00 p.m. on Thursday, August 4,
2011, to determine his eligibility for naturalization and to
resolve the parties' pending cross-motions for summary judgment.
Id.
Once again, however, Nesari did not comply with the discovery
and deposition deadlines set forth in this Court's July 15, 2011
Order, nor did he arrange to return to the United States to be
available for the August 4, 2011 hearing.
Instead, on July 21,
2011, Nesari filed a Motion for Voluntary Dismissal pursuant to
Fed. R. Civ. P. 41(a)(2).
See Dkt. No. 66.
In that motion, and
in prior briefing in advance of the July 15, 2011 hearing,
Nesari's counsel offered various excuses for Nesari's failure to
properly prosecute this civil action, ranging from medical issues
to financial difficulties.
See, e.g.. Dkt. No. 62 (Opp. to
[Defs.'] Mot. to Compel Discovery) at 2 (claiming that Nesari has
experienced numbness and paralysis in his hands, fingers, and
wrists, which has prevented him from returning to the United
States)7; see also Dkt. No. 66 (Mot. for Voluntary Dismissal) H 2
7 During the hearing on July 15, 2011, Nesari's counsel
clarified that Nesari has been diagnosed with carpal tunnel
syndrome. However, counsel failed to adequately explain why that
21
("The Petitioner is unable to sustain the cost associated with
prosecuting this matter.").
Defendants have opposed Nesari's Motion for Voluntary
Dismissal, arguing that dismissal without prejudice under Fed. R.
Civ. P. 41(a)(2) is improper at this late stage of the litigation,
particularly in light of Nesari's complete and utter failure to
comply with his discovery responsibilities.
See Dkt. No. 67.
In
an Order dated July 26, 2011, the Court therefore ordered Nesari
to appear on Friday, August 5, 2011 to show cause as to why his
petition should not be dismissed with prejudice.
(July 26, 2011 Order).
See Dkt. No. 68
Nesari's counsel appeared at that show
cause hearing, but Nesari himself did not.
In fact, to the
Court's knowledge, Nesari is still out of the country, with no
immediate plans to return to the United States.
Moreover, to this
date, Nesari has still not complied with any of the government's
outstanding discovery requests.
In light of Nesari's continued absence from this
jurisdiction, the Court cannot hold a de novo evidentiary hearing
on petitioner's eligibility for naturalization.
Instead, the
Court will proceed to rule on the pending Cross-Motions for
Summary Judgment
[Dkt. Nos. 41 and 59] on the basis of the
extensive administrative record submitted to the Court, which
provides sufficient information to resolve the instant motions.
medical condition would prevent Nesari from traveling from Iran
to the United States to pursue this 8 U.S.C. § 1421(c) petition.
22
II.
Standards of Review
Summary judgment is appropriate where the record demonstrates
"that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P 56(c).
A genuine issue of material fact exists "if
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party."
U.S.
242,
247-48
(1986).
Anderson v. Liberty Lobby. Inc. 477
The Court must view the record in the
light most favorable to the nonmoving party, and must draw all
inferences in favor of that party.
Inc..
288 F.3d 124,
132 (4th Cir.
See Bryant v. Bell Atl. Md..
2002).
However,
"the mere
existence of a scintilla of evidence in support of the
[nonmovant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[nonmovant]."
Anderson. 477 U.S. at 252; see also Othentec Ltd.
v. Phelan. 526 F.3d 135, 140 (4th Cir. 2008).
Accordingly, to
survive a motion for summary judgment, "[t]he disputed facts must
be material to an issue necessary for the proper resolution of the
case, and the quality and quantity of the evidence offered to
create a question of fact must be adequate to support a jury
verdict."
Thompson Everett.
Inc. v. Nat'l Cable Adver., LP. 57
F.3d 1317, 1323 (4th Cir. 1995); Poole v. Pass. 351 F. Supp. 2d
473,
478
(E.D.
Va.
2005).
In civil actions under 8 U.S.C. § 1421(c), which provides a
mechanism for appealing the USCIS's denial of an application for
23
naturalization, a district court is empowered to conduct a de novo
review of the record, to hold evidentiary hearings, and to make
additional factual findings.
See Laryea v. United States. 300 F.
Supp. 2d 404, 405 (E.D. Va. 2004) (Ellis, J.).
Specifically, 8
U.S.C. § 1421(c) provides that the court's review of a
naturalization decision "shall be de novo, and the court shall
make its own findings of fact and conclusions of law."
id.
In
fact, "[j]udicial review of naturalization denials is always
available and is de novo, and is not limited to any administrative
record, but rather may be on facts established in and found by the
district court."
Chan v. Gantner. 464 F.3d 289, 291 (2d Cir.
2006); see also United States v. Hovsepian. 359 F.3d 1144, 1162
(9th Cir. 2004) (stating that "even if the INS is allowed to make
the initial decision on a naturalization application, the district
court has the final word and does not defer to any of the INS's
findings or conclusions").
III.
Discussion
For the following reasons, the Court will deny Nesari's
Motion for Voluntary Dismissal under Fed. R. Civ. P. 41(a)(2)
[Dkt. No. 66], along with his Cross-Motion for Summary Judgment
[Dkt. No. 59], and will grant defendants' Motion for Summary
Judgment [Dkt. No. 41] and enter final judgment in favor of the
defendants by an Order to be issued with this Memorandum Opinion.
24
A.
Motion for Voluntary Dismissal [Dkt. No. 66]
As an initial matter, the Court will deny petitioner's Motion
for Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a)(2) [Dkt.
No. 66].
That rule provides that a district court may dismiss an
action at the plaintiff's request "only by court order, on terms
that the court considers proper."
Moreover,
Fed. R. Civ. P. 41(a)(2).
"[u]nless the order states otherwise, a dismissal under
this paragraph [Fed. R. Civ. P. 41(a)(2)] is without prejudice."
Id.
In this case,
however, dismissal of Nesari's 8 U.S.C.
§ 1421(c) petition without prejudice would be entirely
inappropriate.
"The basic purpose of Rule 41(a)(2) is to freely
permit the plaintiff, with court approval, to voluntarily dismiss
an action so long as no other party will be prejudiced."
LeCompte
v. Mr. Chip. Inc.. 528 F.2d 601, 604 (5th Cir. 1976) (emphasis
added).
As such, in deciding how to rule on a motion to
voluntarily dismiss,
"a district court should consider factors
such as the opposing party's effort and expense in preparing for
trial, excessive delay and lack of diligence on the part of the
movant, and insufficient explanation of the need for a voluntary
dismissal, as well as the present stage of litigation."
Miller v.
Terramite Corp.. 114 Fed. Appx. 536, 539 (4th Cir. 2004) (internal
citations and quotations omitted).
The Fourth Circuit has
specifically held that a motion to voluntarily dismiss under Rule
41(a)(2) should be denied when a plaintiff seeks to circumvent an
25
expected adverse result, and that "denial of voluntary dismissal
is appropriate where summary judgment is imminent."
Skinner v.
First Am. Bank of Va.. No. 93-2493, 1995 WL 507264, at *2 (4th
Cir. Aug. 28, 1995); see also Davis v. USX Corp.. 819 F.2d 1270,
1274
(4th Cir.
1987) .
Here, Nesari moved to voluntarily dismiss his petition just
two weeks before the Court was scheduled to hold a de novo
evidentiary hearing to evaluate his claims, and after the
government and this Court had already expended significant
resources in connection with this civil action.
More specifically,
in response to Nesari's 8 U.S.C. § 1421(c) petition, defendants
produced over 7,000 pages of documents from the underlying
administrative record, and then filed a comprehensive Motion for
Summary Judgment on the basis of that record.
See Dkt.
Nos.
18 and
29 (Notices of Filing of Administrative Record); see also Dkt. No.
41 (Defs.' Mot. for Summ. J.).
During the motion hearing on July
15, 2011, this Court expressed a strong inclination to grant the
defendants' dispositive summary judgment motion, but ultimately
held any ruling on that motion in abeyance so that the parties
could complete additional discovery, as petitioner himself had
requested.
See Dkt. No. 64; see also Dkt. No. 46 (Nesari's Mot.
for Extension of Time to Complete Discovery).
The Court then scheduled an evidentiary hearing for August 4,
2011, and ordered that Nesari provide written responses to all
outstanding discovery requests and make himself available for a
26
deposition in advance of that hearing.
See Dkt. No. 64 (July 15,
2011 Order) . The Court also requested that Eastin (a/kL'a "Marijane
Star") appear before the Court to provide testimony during the
evidentiary hearing, see id.. and on July 19, 2011, Eastin was
accordingly served with a subpoena.
See Dkt. No. 65.
Ml]n view
of the nature of the testimony that would be elicited from Ms. Star
[Eastin] at the hearing," the government requested that
she be
appointed counsel to represent her and to advise her of
her Fifth
Amendment rights under Miranda v. Arizona.
384 U.S. 436 (1966), and
an attorney from the Federal Public Defender's Office wks therefore
appointed, at the taxpayers' expense, to represent Eastin in
connection with this matter.
Id.
Under these circumstances, granting Nesari's motion to
voluntarily dismiss his petition without prejudice under Fed. R.
Civ. P. 41(a)(2) would result in significant hardship and
prejudice to the government.
This is the third federal
lawsuit
that Nesari has brought in connection with his naturalisation
application, and in the case at bar alone, the defendants have
clearly incurred substantial costs in responding to Neseiri's
petition, gathering and producing discovery materials, eind filing
and arguing various motions.
This Court has also devoted
significant time and attention to the case, and the Federal Public
Defender's Office has been forced to divert some of its
valuable resources to the matter.
scarce and
Particularly in light of the
late stage of this litigation - where discovery has closed and
27
defendants have filed a compelling motion for summary judgment
that is ripe for adjudication - granting the petitioner's motion
to dismiss under Fed. R. Civ. P. 41(a) (2) would simply '"waste
judicial resources."
Miller. 114 Fed. Appx. at 540 (affirming a
district court order refusing to grant plaintiff's motion for
voluntary dismissal "because [the motion] is untimely aid would
waste judicial resources" since it was filed after discovery had
closed and a dispositive order was imminent); see also Howard v.
Inova, 302 Fed. Appx. 166, 180 (4th Cir. 2008)
(holding that the
district court had not abused its discretion when it denied
plaintiff's Rule 41(a) motion because the case had advanced to the
summary judgment stage and the parties had already incurred
substantial costs in discovery).
Nesari's "excessive delay and lack of diligence," Miller. 114
Fed. Appx. at 53 9, in the prosecution of his 8 U.S.C. § 1421(c)
petition is another strong factor counseling against voluntary
dismissal of this case.
Nesari has engaged in dilatory tactics
throughout the entire discovery period in this action; :Lndeed, he
failed to produce any discovery whatsoever in response to the
defendants' repeated discovery requests, and he has evaded all
efforts to procure his sworn testimony during a deposition or an
evidentiary hearing - all in violation of multiple orders of this
Court.
See Dkt. No. 4 0 (June 3, 2011 Order requiring Nessari to
contact defense counsel and produce initial discovery
disclosures); Dkt. No. 64 (July 15, 2011 Order again requiring
28
Nesari to provide written discovery responses, and furt ner
ordering him to make himself available for a deposition
appear before the Court for an evidentiary hearing)
and to
N2 sari's
lack of diligence alone could constitute grounds for injvoluntary
dismissal of this action under Fed.
R. Civ.
P. 41(b)
As
stands, however, his failure to comply with even his
t basic
mo 3
discovery obligations renders his Motion for Voluntary
it
Dismissal
under Fed. R. Civ. P. 41(a)(2) completely unavailing.
For all these reasons, allowing Nesari to vo
)luntarlly dismiss
this civil action without prejudice, thereby avoiding
an
adverse
summary judgment ruling and preserving his ability to potentially
file a fourth naturalization-related petition before
would be the height of judicial futility.
th.L
Ls
Furthermore,
Nesari's failure to lift a finger during the discovery
Court,
in view of
process,
all while this Court and the federal government were laboring
diligently to respond to a petition that Nesari himself had filed,
granting the Motion for Voluntary Dismissal at this
belated date
would send exactly the wrong message about the use (and abuse) of
the federal judiciary's limited resources.
Accordingly
Motion for Voluntary Dismissal pursuant to Fed. R. Civ.
41(a)(2)
Nesari's
P.
[Dkt. No. 66] will be denied, and the Court wi 1 proceed
to adjudicate the merits of this case on the parties'
cross-
motions for summary judgment.
B.
Cross-Motions for Summary Judgment [Dkt. Nos.
An applicant seeking to obtain the privilege of
29
1 and 59]
United States
citizenship bears the burden of proof to establish that he or she
is eligible for naturalization.
839 (1971)
Rogers v. Bellei. 401 U.S. 815,
("No alien has the slightest right to naturalization
unless all statutory requirements are complied with"); INS v.
Pangilinan. 486 U.S. 875, 886 (1988) {"[I]t has been universally
accepted that the burden is on the alien applicant to show his
eligibility for citizenship in every respect.").
Courts therefore
"have the power to confer citizenship only *in strict compliance
with the terms of an authorizing statute.'"
Cody v. Caterisano.
631 F.3d 136, 142 (4th Cir. 2011) (quoting Pangilinan. |186 U.S. at
884) .
"[T]he burden is on the alien applicant to show his
eligibility for citizenship in every respect," and any doubts
regarding an applicant's eligibility for naturalization
"should be
resolved in favor of the United States and against the claimant."
Berenvi v. Dist. Dir.. INS. 385 U.S. 630, 637 (1967) (citing
United States v. Macintosh. 283 U.S. 605, 626 (1931)); asee also 8
C.F.R. § 316.2.
In particular, the applicant has the burden of
proving, inter alia, that he was lawfully admitted to the United
States for permanent residence, and that he is of good moral
character.
See 8 U.S.C. § 1429 ("[N]o person shall be naturalized
unless he has been lawfully admitted to the United States for
permanent residence . . . ."); 8 C.F.R. § 316.2(b) (providing that
the applicant for naturalization "shall bear the burden of
establishing by a preponderance of the evidence that he or she
30
meets all of the requirements for naturalization, including that
the applicant was lawfully admitted as a permanent resident to the
United States, in accordance with the immigration laws
at the time"); 8 C.F.R. § 316.10(a)(1)
in effect
("[A]n applicant
for
naturalization bears the burden of demonstrating that, during the
statutorily prescribed period, he or she has been and continues to
be a person of good moral character.").
In this case,
defendants advance several distinct arguments
in support of their contention that Nesari is not statutorily
entitled to naturalization.
Specifically, defendants argue that
Nesari was never lawfully admitted as a permanent resident of the
United States, as defined by U.S.C.
§ 1101(a)(20), and
that he has
failed to demonstrate good moral character, as required by 8
U.S.C.
§ 1427(a) and 8 C.F.R.
Summ. J. at 2-3, 23-30.
§ 316.2(a)(7).
See Defs ' Mot. for
The parties in this civil action also
strenuously dispute the validity of Nesari's marriage tp Eastin,
with Nesari arguing that he married Eastin in good fait l,
see
Pet'r's Mem. in Supp. of Cross-Mot. for Summ. J. at 6-lS, 25-30,
while the government suggests that he committed marriage fraud in
an effort to obtain a green card,
see Defs.' Mot.
for Summ. J. at
27-30.
1.
Marriage fraud and moral character
This Court will not pass judgment at this time on
not Nesari and Eastin's "I do"s were genuine.
whether or
Although the 7,000-
page administrative record in this case gives new meaning
31
to
the
term "voluminous," it does not conclusively answer the question of
whether Nesari's marriage to Eastin was bona fide or fraudulent.
Indeed, the administrative record contains almost as many
contradictions as pages, including at least four separate
statements from Eastin herself, two of which flatly contradict the
others.
Compare A.R. at 477-80 (September 10, 1999 typewritten
statement, avowing that the marriage was bona fide) and A.R. at
480 (handwritten statement from Eastin confirming that "[t]he
statement
detailing the events of my marriage to Bahman was
written by myself, and at my own free will, and to this day rings
true") to A.R. at 390-91 (statement from Eastin to a government
investigator that she had married Nesari at his brother's
suggestion, and that "she never considered the marriage 'a real
marriage'") and A.R. at 868-75 (Eastin's September 1, 1399
handwritten affidavit, stating that she had never met Nesari
before he came to the United States, that Nesari's brotlier filled
out the immigration forms for her "and I [Eastin] signed," and
that she had married Nesari because she had "hit rock bottom" at
the time, and Nesari and his brother promised her "security, [a]
place to live, and a job").
In light of additional contradictory testimony from other
witnesses in the proceedings below, including Nesari's friends,
relatives, and co-workers, it is simply impossible to determine
which of Eastin's many statements reflects the actual truth, and
whether the marriage between Eastin and Nesari was legitimate or a
32
sham.
See,
e.g..
A.R.
at 946-67
(sworn affidavits of four of
Nesari's co-workers, who testified that they understood his
marriage to Eastin to be a sham); id. at 4 82-95 (handwritten
statements from two of Nesari's relatives, averring that Nesari
and Eastin's marriage was legitimate and that the couplsa
bed);
id.
at 292-99
shared a
(affidavits and letters from Eastin'
's mother,
several of Nesari's colleagues and friends, and Nesari'
s
former
English teacher, purporting to establish that Nesari and Eastin
had a bona fide marital relationship).
Under these circumstances,
and in the absence of conducting a full-blown de novo evidentiary
hearing, this Court is in no position to adjudicate the validity
of Nesari and Eastin's failed nuptials.8
The Court also declines the government's invitation to render
judgment on Nesari's "moral character" at this time.
To be sure,
the record is clear that Nesari made several false or inaccurate
statements in his July 8, 2009 naturalization interview concerning
the timing and circumstances of his first meeting with Eastin.
Specifically, Nesari falsely stated under oath and in a written,
sworn statement that he had first met Eastin in August of 1996,
but he then later admitted that he and Eastin had only net once,
8 The simple fact that Nesari has failed to partid:ipate in
discovery in this civil action or to return to the United States
for a deposition or an evidentiary hearing is highly suspicious
and could easily give rise to the adverse inference that: Nesari
has something to hide.
Nevertheless, without the benefit of
holding an evidentiary hearing at which the Court could
observe
the demeanor of Eastin, Nesari, and other relevant witnesses, the
Court simply cannot render a conclusive judgment at thi^ time as
to whether the Nesari-Eastin marriage was genuine.
33
in late October 1996, before their November 1996 marriage.
A.R.
at 25,
54,
Under 8 C.F.R.
394;
see also id.
§ 316.10(b)(2)(vi),
at 3693-94
See
(220:22 - 221:4)
false statements need not be
material to bar a finding of good moral character, and
"even the
most immaterial of lies with the subjective intent of obtaining
immigration or naturalization benefits" can justifiably
finding of good moral character.
U.S. 759, 779-80 (1988).
prevent a
Kungys v. United States. 485
Defendants thus argue that Nesari's
false statements alone establish that he does not posse;3s the
"good moral character" required to become a naturalized citizen of
this country.
See Defs.' Mot. for Summ. J. at 27-30.
However, for false statements to disqualify someonk from
eligibility for naturalization, the Supreme Court has held that
the statements must have been "made with the subjective
intent of
obtaining immigration benefits," and not simply as a result of a
momentary lapse in recall.
Kungys. 485 U.S. at 780.
Here, there
is admittedly some evidence to support the inference that Nesari
acted with the requisite mens rea, as he was no doubt acutely
aware at the time that he made his statements that the liact that
he had only met Eastin once - and only a week or so before they
were married - could prove harmful to his naturalization efforts.
On the other hand, the questions that Nesari was asked concerned
specific details of events that took place in 1996, almost 13
years before his July 8, 2009 naturalization interview.
Under
those circumstances, it is entirely possible that Nesari was
34
simply confused and inadvertently mixed up his dates by
two.
month or
After all, it would be the rare person indeed who is able to
recall with perfect clarity what happened to them over
ago.
a
a decade
This Court therefore will not express any judgment
time as to whether Nesari's incorrect statements during
naturalization interview were made with the subjective
at this
his
intent to
deceive and should operate to disqualify him from eligi^i ility
for
naturalization.
2.
Lawful admission to the United States
Instead, this case can be resolved on a much simpler and
narrower basis: namely, Nesari is not entitled to naturalization
as a United States citizen because he was never lawfully admitted
into the United States in accordance with the in-person meeting
requirement of 8 U.S.C.
§ 1184(d)(1).
As a result, the
K-l fiance
visa which Nesari used to enter the United States was ikvalid and
void ab initio, and that erroneously-issued K-l visa copters no
lawful status on Nesari.
For those reasons, petitioner is
statutorily ineligible for naturalization, and judgment must be
entered in favor of the defendants as a matter of law.
a.
Statutory Framework
Among other statutory requirements for naturalization, an
alien applicant seeking to become a United States citizen "must
establish that he or she has been lawfully admitted as a permanent
resident of the United States.
See 8 U.S.C. § 142 9 ("[N]o person
shall be naturalized unless he has been lawfully admitted to the
35
United States for permanent residence in accordance with all
applicable provisions of this chapter.").
"The term 'lawfully
admitted for permanent residence' means 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)(20).
Whether the applicant was actually admitted to the United States
or had his or her status adjusted to that of a permanent resident
is not dispositive.
Rather, the pertinent question is whether the
applicant, at the time of his adjustment, was "lawfully accorded"
such status, in strict compliance with all applicable statutory
requirements.
See id.
Importantly, the term "'lawfully' denotes compliance with
substantive legal requirements, not mere procedural regularity."
Matter of Longstaff. 716 F. 2d 1439, 1441 (5th Cir. 1983).
As
such, "the substance of [the] action" admitting the applicant to
the United States for permanent residence must have "complied with
the governing law."
De La Rosa v. U.S. Dep't of Homeland Sec.
489 F.3d 551, 554 (2d Cir. 2007); see also Fedorenko v.
States. 449 U.S. 490, 505 (1981)
United
(affirming the decision to
denaturalize a plaintiff based on a finding that he was ineligible
for a visa); United States v. Koreh. 59 F.3d 431 (3d Cir. 1995)
(upholding denaturalization because the individual did rjiot fall
within the criteria required by the statute pursuant to which his
visa was issued, and finding that he accordingly was not. lawfully
36
eligible for the visa when he entered the United States)
The specific governing provision of law relevant here, 8
U.S.C. § 1184(d)(1), provides, in pertinent part, that
A visa [to a fiance of a United States citizen]
. shall be approved only after satisfactory evidlence
is submitted by the petitioner to establish that the
parties have previously met in person within 2 ybars
before the date of filing the petition, have a bbna
fide intention to marry, and are legally able and
actually willing to conclude a valid marriage infthe
United States within a period of ninety days after
the alien's arrival, except that the Secretary of
Homeland Security in his discretion may waive the
requirement that the parties have previously met in
person.
8 U.S.C. § 1184(d)(1)
(emphasis added).
Additionally, applicable
DHS regulations provide that:
As a matter of discretion, the director may exempt
the petitioner from th[e meeting] requirement only if
it is established that compliance would result in
extreme hardship to the petitioner or that compliance
would violate strict and long-established customs of
the K-l beneficiary's foreign culture or social
practice, as where marriages are traditionally
arranged by the parents of the contracting parties
and the prospective bride and groom are prohibited
from meeting subsequent to the arrangement and prior
to the wedding day.
. . .
Failure to establish that the petitioner and K-l
beneficiary have met within the required period or
that compliance with the requirement should be waived
shall result in the denial of the petition.
8 C.F.R. § 214.2(k)(2).
Taken together, 8 U.S.C. § 1184(d)(1) and
8 C.F.R. § 214.2(k)(2) prove fatal to Nesari's naturalisation
petition.
b.
Alleged Preclusive Effect of Prior BIA Decision
As a preliminary matter,
this Court is well aware that the
37
BIA previously determined, in the context of determining whether
Nesari should be removed from the United States, that Nesari was
lawfully admitted to the country as a K-l fiance because "[t]he
Form I-129F was approved by the INS and the DHS has not
established that the respondent was not given a waiver of the
requirement that the petitioner and beneficiary have met."
at 29.
A.R.
Nesari argues vigorously that those findings should bind
this Court, and that "[i]t is not within the district court's
purview to re-adjudicate Bahman's [Nesari's] Lawful Permanent
Resident (LPR) status."
for Summ. J.
See Pet'r's Amend. Opp. to Defs.' Mot
("Pet'r's Opp.") at 2-3.
In effect, Nesari's
argument boils down to the assertion that this Court owps a form
of Chevron deference to the findings and conclusions of
the previous removal proceedings involving Nesari, and
the BIA in
:hat
the
BIA's prior holdings should therefore effectively supplknt this
Court's judgment and foreclose the de novo review set forth in 8
U.S.C.
§ 1421(c).
Those arguments are unavailing.
First, deference to the
administrative agency under the Chevron doctrine, as such, is
somewhat misplaced in this context, because Chevron is usually
invoked for the proposition that courts should defer to an
agency's interpretation of a statute that it is charged with
implementing, not its factual findings.
See Chevron U.S.A.. Inc
v. Natural Res. Def. Council. Inc.. 467 U.S. 837 (1984)
Moreover, even if Chevron were applicable to the BIA's rjiixed
38
findings of fact and conclusions of law regarding Nesari's
immigration status, the BIA's assertion that "the DHS has not
established that the respondent was not given a waiver of the [in-
person meeting] requirement," A.R. at 29, does not refljject
a
reasonable or permissible construction of the relevant
statutes
and implementing regulations concerning naturalization,
all of
which place the burden of establishing eligibility for
admission squarely on the applicant's shoulders.
§ 1429;
8 C.F.R.
§ 316.2(b);
see also Berenvi.
See 8
385 U.S.
lawful
U.S.C.
at
637.
In short, this Court simply cannot square the BIA' 3 holding,
which was issued in the separate context of Nesari's removal
proceedings, with the plain language of 8 C.F.R. § 316 2(b), which
provides that applicants for naturalization "shall bear
the burden
of establishing by a preponderance of the evidence that
he or she
meets all of the requirements for naturalization, including that
the applicant was lawfully admitted as a permanent resident to the
United States."
8 C.F.R. § 316.2(b).
That text makes pellucidly
clear that it is the naturalization petitioner who must
affirmatively prove lawful admission, including any waiter of
otherwise operable prerequisites to such lawful admission.
By
contrast, the government bears no concomitant burden to prove that
the petitioner is not entitled to become a United States citizen
When applied to the instant naturalization controversy, therefore,
the BIA's efforts to force the government to prove a negative,
i.e., to show "that the respondent was not given a waivesr of the
39
requirement that the petitioner and beneficiary have met," A.R. at
29, get matters exactly backwards.
Furthermore, and perhaps even more importantly, dejference to
the executive agency's conclusions simply does not apply in this
particular situation, where 8 U.S.C.
§ 1421(c) makes clear that
the district courts must review the USCIS's denial of a
naturalization application de novo.
also Chan.
464 F.3d at 291
See 8 U.S.C. § 1421(c); see
("Judicial review of naturalization
denials is always available and is de novo, and is not limited to
any administrative record.").
That system of de novo review for
naturalization applications stands in "sharp contrast"
deferential review that courts provide in the context o
~o the more
other
immigration appeals: "whereas judicial review in other immigration
contexts, such as removal or asylum, is highly deferential and
expressly limited by statute," in the naturalization cojitext, the
Court is not limited to the facts in the administrative record,
and in fact is permitted to engage in its own de novo fkct
finding.
Mobin v. Tavlor. 598 F. Supp. 2d 777, 780 (E.D. Va
2009) (Ellis, J.); see also 8 U.S.C. § 1421(c).
In reviewing
denials of naturalization applications, therefore, courts are not
required to uphold or defer to the administrative findings of the
BIA or the Immigration Courts.
Id.; see also Hovsepian
359
F.3d
at 1162 (holding that "even if the INS is allowed to make the
initial decision on a naturalization application, the district
court has the final word and does not defer to any of the INS's
40
findings or conclusions").
Nesari has not cited any legal authority wherein a finding of
the BIA or an immigration judge regarding removability was found
to bind a federal court or to preclude that court from reaching a
different result on a later petition for review of the denial of a
naturalization application.
In fact, all of the cases cited by
Nesari in support of his argument that federal courts mast afford
deference to administrative findings in this context ara wholly
inapposite.
For example, Gao v. Holder. 595 F.3d 549 (1th Cir.
2010), holds only that the factual determinations of th£ BIA must
be afforded deference when federal courts review the
determinations of asylum and removal proceedings pursuant to 8
U.S.C. § 1252, a statutory provision that does not provide for de
novo review.
The same is true for Camara v. Ashcroft.
378 F.3d
361 (4th Cir. 2004), Gandziami v. Gonzales. 445 F.3d 351 (4th Cir.
2006), and Dankam v. Gonzales. 495 F.3d 113 (4th Cir. 2)07), all
of which also relate to the appropriate standards of review for
appeals of asylum and removal determinations.
Those cases thus
have no bearing on the instant action, in which Nesari seeks
review of the denial of his naturalization application under 8
U.S.C.
9
§ 1421(c).9
Nesari also cites 8 C.F.R. § 1003.1(d)(3), purportedly
support of the proposition that the factual determinati
ions
IJ or the BIA control in the context of this Court's
of
j
iuclicial
in
the
review of naturalization denials under 8 U.S.C. § 1421( ), unless
clearly erroneous. See Pet'r's Opp. at 2. However, 8
§ 1003.1(d)(3)(i) simply provides that "[t]he Board [of
.F.R.
Immigration Appeals] will not engage in de novo review §f
41
Nesari also attempts to invoke various preclusion doctrines,
including res judicata and collateral estoppel, arguing
that the
findings of the IJ and the BIA in the prior removal proceedings
against him should have preclusive effect on the USCIS'
s
decision
to deny his naturalization application and on this Court
review pursuant to 8 U.S.C.
§ 1421(c).
In other words,
argues that (a) the question of whether he was lawfully
s
de novo
Nesari
admitted
on a K-l fiancS visa has already been determined by the
Immigration Court and the BIA, and therefore (b) the
USCIS
and
this Court are bound by those findings and determinations
See
Pet'r's Opp. at 6.
Once again, however, that argument is incorrect,
as it rests
on a fundamental misunderstanding of the laws governing
naturalization and removal.
Specifically, Congress has explicitly
stated that the findings of the BIA or an IJ in terminating
removal proceedings do not have any effect whatsoever
on the
question of whether the USCIS should naturalize a persok
[T]he findings of the Attorney General in terminating
removal proceedings or in cancelling the removal Of an
alien pursuant to the provisions of this chapter,
shall not be deemed binding on any way upon the
findings of fact determined by an immigration judge. Facts
determined by the immigration judge, including findings as to the
credibility of testimony, shall be reviewed only to determine
whether the findings of the immigration judge are clearly
erroneous."
In other words,
8 C.F.R.
§ 1003.1(d)(3)
sets out
internal review standards for the BIA, but it has no bearing on a
district court's statutorily-conferred responsibility to conduct
de novo review in the context of a naturalization proceeding. In
fact, it has absolutely no bearing on a district court'| form of
review at all.
42
Attorney General with respect to the question of
whether such person has established his eligibility
for naturalization as required by this subchapter.
8 U.S.C. § 1429 (emphasis added).
Indeed, as the BIA ijtself has
admitted, "neither the Board [BIA] nor the Immigration Judges have
jurisdiction to determine an alien's eligibility for
naturalization."
In re Hildago. 24 I. & N. Dec. 103, l)05-06 (BIA
2007); see also Mobin, 598 F. Supp. 2d at 780-81; Application of
Martini. 184 F. Supp. 395, 399 (S.D.N.Y. 1960) (holding] that
naturalization and removal are entirely different matters, and
that "[p]resence in the United States, lawful or unlawful, does
not affect the right to naturalization").
Accordingly, under the
plain language of 8 U.S.C. § 1429, the BIA and IJ's resplution of
Nesari's removal proceedings in his favor has no claim preclusive
or issue preclusive effect on the USCIS's decision regarding his
eligibility for naturalization, nor on this Court's de novo review
of that naturalization decision pursuant to 8 U.S.C. § 1421(c).
Ultimately, for all the reasons explained above, this Court
is simply not bound by the findings of either the IJ or the BIA
during the prior removal proceedings, and must instead conduct its
own de novo review and reach its own conclusions.
See 8 U.S.C
§ 1429 (making clear that the findings of the BIA and Immigration
Courts are not binding in any way in adjudications of
naturalization applications); 8 U.S.C. § 1421(c) (providing for de
novo review by the district courts of USCIS decisions regarding
naturalization).
Indeed, to hold otherwise, and to find this
43
Court bound in naturalization proceedings to findings of fact or
conclusions of law made by the BIA during separate and distinct
removal proceedings, would be "to ignore the fundamental and
essential difference between removal and naturalization."
Mpbin, 598 F. Supp. 2d at 784-85.
See
This Court will therefore
proceed to conduct its own analysis of the lawfulness of Nesari's
admission to the United States.
c.
Invalidity of Nesari's K-l Fiance Visa
The Court's de novo review of the administrative record
compels the conclusion that Nesari is not entitled to
naturalization because he was not lawfully admitted to the United
States for permanent residence, as is required by 8 U.S
C.
instead, Nesari was statutorily ineligible to receive t ie
§ 1429;
K-l
fiance visa that he used to enter the United States in August
1996.
That conclusion rests on the straightforward application of
8 U.S.C. § 1184(d)(1) and 8 C.F.R. § 214.2(k)(2), which set forth
the requirements for the issuance of a proper visa to a fianci of
a United States citizen.
Under those statutory and regulatory
provisions, the issuance of an I-129F alien fiance peti izion
is
precluded if the petitioner and the potential K-l beneficiary have
not met in person within the two years immediately preceding the
filing of the petition, and if they do not qualify for an
exemption from that meeting requirement pursuant to 8 C
214.2.
44
F.R.
§
Here, it is undisputed that Nesari and Eastin did
not meet
in
person at any time within the two years immediately preceding the
filing of their I-129F Petition.
See PL's Compl. H 20; see also
A.R. at 300, 394; id^. at 871-72, 1874-75 (statement from Eastin,
indicating:
"I was introduced to Bahman [Nesari] one week before
the marriage. ... I was informed by Joe [Nesari] about the
fianc6 petition and that we would have to meet prior to the
marriage . . . [Joe Nesasri] arranged for Bahman [Nesari] and I to
meet in Turkey, but I didn't go.").
In fact, Eastin and Nesari
did not meet in person until approximately two months after
Nesari's arrival in the United States.
- 221:4).
See id. at 3693-94 (220:22
Nesari therefore plainly failed to fulfill the in-
person meeting requirement under 8 U.S.C. § 1184(d)(1).
Moreover, Nesari has not met his burden to establish that he
qualified for an exemption from the in-person meeting requirement
under 8 C.F.R. § 214.2(k)(2).
That regulation provides that an
alien petitioning for naturalization may be exempt from the inperson meeting requirement "only if it is established that
compliance would result in extreme hardship to the petitioner," or
"that compliance would violate strict and long-established customs
of the K-l beneficiary's foreign culture or social practice, as
where marriages are traditionally arranged by the parents of the
contracting parties and the prospective bride and groom are
prohibited from meeting subsequent to the arrangement and prior to
the wedding day."
8 C.F.R.
§ 214.2(k)(2).
45
Nesari has never
claimed that the "long-established customs" exemption applies
here, and courts typically find "extreme hardship" only in cases
involving a risk of physical injury, or some other unique or
unusual hardship.
1991)
See Hassan v. INS. 927 F.2d 465, 468 (9th Cir.
(holding that "[e]xtreme hardship will not be found absent a
showing of significant actual or potential injury"); see also
Hernandez-Cordero v. INS.
819 F.2d 558,
564
(5th Cir.
1987)
(explaining that in the deportation context, "extreme hardship"
rests on a showing of "unique" or "unusually severe" hardship)
In this case, the government never granted Nesari
an official
exemption from the in-person meeting requirement, nor dbes it
appear that Nesari ever formally requested such an exemption.
A.R. at 300-29.
See
Moreover, although Nesari argues that tie must
have been granted an implicit exemption or waiver because his K-l
fianc6 visa was eventually approved, such implicit waivers are not
granted by immigration officials.
Instead, when a waivsr of the
meeting requirement is granted, it is explicitly noted on the I
129F Petition itself.
Mot. for Summ. J.
See Reply Mem. of Law in Supp. of Defs.'
[Dkt. No. 58] at Ex. 1 (Zeppi Decl.)
(explaining
that when "USCIS determines to grant the exemption, and [a] waiver
of the requirements under 8 C.F.R. § 214.2(k)(2), [it] is always
acknowledged by the officer with an explicit annotation
on the
Form I-129F Petition in the 'Remarks' section in the top box
labeled 'DO NOT WRITE IN THIS BLOCK'").
No such notation was
provided on Nesari's petition, and it therefore appears that no
46
waiver of the meeting requirement was granted.
See A.Rj. at 300
In any event, even if the government effectively o|r
inadvertently waived the in-person meeting requirement
for Nesari
and Eastin, Nesari's K-l fianci visa itself, along with
any
accompanying waivers, was void ab initio if it was issued in error
and did not comply with the governing statutory and regulatory
requirements.
See, e.g..
De La Rosa.
489 F.3d at 554-55
(explaining that even if an alien has been granted an adjustment
of immigration status, if the alien is subsequently determined in
an immigration proceeding to have originally been ineligible for
that status, that alien has not been "lawfully admitted for
permanent residence" because "the alien is deemed,
ab initio.
never to have obtained lawful permanent resident status '); Matter
of Longstaff. 716 F.2d at 1441 (holding that because the plaintiff
was excludable under the INA at the time he was granted an
immigrant visa by mistake, he had not been "lawfully admitted" to
the United States, and was therefore ineligible for
naturalization); Lai Haw Wong v. INS. 474 F.2d 739, 741-42 (9th
Cir. 1973) (holding that when a visa was issued in error, "[s]uch
mistaken admission conferred no status, permanent or otlierwise, on
[the petitioners] . . . [because] [n]one was lawfully admitted");
see also Savoury v. U.S. Att'y Gen.. 449 F.3d 1307, 13l} (11th
Cir. 2006); Arellano-Garcia v. Gonzales. 429 F.3d 1183, 1187 (8th
Cir.
2005) .
47
Here, there does not appear to be any valid basis jupon which
a waiver of the in-person meeting requirement, either explicit or
implicit, could have been granted.
Rather, in her I-129F
Petition, Eastin originally indicated that she had not yet met
Nesari in person because it was dangerous for her to travel to
Iran, and because Nesari had military obligations until on or
around February 7, 1996.
See A.R. at 313.
However, in response
to INS's queries regarding why she and Nesari had not met in a
third country after February 7, 1996, Eastin simply made a vague
and unsatisfactory allusion to "passport and other related
arrangements that
[Nesari]
had to make."
Id.
at 314.
i3uch
bureaucratic and administrative difficulties plainly do not meet
the requirement of the "long-established customs" exemption, nor
do they demonstrate that meeting in person would result in
"extreme hardship" to either Eastin or Nesari, as required by 8
C.F.R.
§ 214.2(k)(2).
Notably, in fact, far from establishing the foundation for
any "extreme hardship" waiver of the in-person meeting
requirement, Eastin did not even attempt to claim that she was
entitled to such an exemption.
Rather, she stated just the
opposite: that she and Nesari could, and in fact would, comply
with the meeting requirement by traveling to Turkey in July 1996
to meet each other.
Id.
(responses from Eastin, statinc that
"July is the earliest possible time for us to meet in a third
country" and "[e]nclosed please find a copy of my ticket for
48
departing the U.S. to travel to Turkey in July 1996 in order to
meet my fiance. . . . Upon my return requested documents will be
submitted to your office.").
Nesari's and Eastin's own conduct
thus demonstrates their understanding that, contrary to Nesari's
current claims, the couple had not qualified for any waiver of the
in-person meeting requirement.
Their failure to follow through on
their plans to meet each other before Nesari entered the United
States therefore undermines the validity of Nesari's K-l visa,
To be sure, the fact that the immigration authorities had
already approved Eastin and Nesari's I-129F Petition may have
contributed to their decision not to meet each other in a third
country before Nesari entered the United States.
Nesarli therefore
argues that equitable considerations, including the doctrine of
equitable estoppel, preclude defendants from arguing that he is
now ineligible for naturalization.
See, e.g.. Pet'r's Opp. at 10,
13.
Unfortunately, however, because this case involves
naturalization, Nesari's invocation of such equitable doctrines is
misplaced.
The INA provides that "[a] person may only be
naturalized as a citizen of the United States in the manner and
under the conditions prescribed in this subchapter, and
otherwise."
not
8 U.S.C. § 1421(d) (establishing the "sole procedure"
for naturalization).
Based on that clear statutory directive, the
Supreme Court has held that the power to make someone a citizen of
the United States has not been conferred upon the federal courts,
49
like mandamus or injunction, as one of their generally applicable
equitable powers.
See Pangilinan. 486 U.S. at 883-84 (citing 28
U.S.C. §§ 1361 and 1651).
Rather, it has been given to
specific function to be performed in strict compliance
them as a
with the
terms of 8 U.S.C. § 1421(d) and all other authorizing s tatutes.
Id.; see also Fedorenko.
44 9 U.S. at 506 ("[T]here must be strict
compliance with all the congressionally imposed prerequisites to
the acquisition of citizenship.")
As such, aliens like Nesari "must possess the qual[ifications
prescribed by the statutes" to be entitled to naturalization
Estrin v. United States. 80 F.2d 105, 105 (2d Cir. 1935).
If they
do not, this Court is powerless to award any equitable relief
conferring citizenship upon them, regardless of how compelling
their excuses for non-compliance may be.
In this case, it is
unclear whether Nesari and Eastin did not meet in persoh in Turkey
before Nesari's entry because of the government's mistaken
approval of the I-129F Petition, because they did not actually
have any bona fide relationship with one another, or for some
other reason entirely.
irrelevant.
Ultimately, however, the reasons are
The simple fact is that Nesari and Eastin did not
meet in person, nor did they obtain a waiver of the meeting
requirement, and Nesari therefore does not "possess the
qualifications prescribed" to become a naturalized United States
citizen.
Estrin.
80 F.2d at 105
50
In the final analysis,
the interrelation of the substantive
requirements for lawful admission to the United States and the
facts in this administrative record yields only one possible
conclusion: the INS approved Eastin and Nesari's fiance petition
in error on June 5, 1996, and the resulting K-l fiance visa is a
legally nullity.
embarrassing.
That fact is as unfortunate as it is
Quite frankly, this Court expects better of our
federal government.
Nonetheless, the simple fact remains that
because Nesari's entrance into the United States on his K-l visa
was not granted "in accordance with the immigration lawb," as
mandated by the applicable statutes and regulations, he is
ineligible for naturalization as a matter of law.
See 8 U.S.C.
§ 1101(a)(20); see also 8 U.S.C. § 1184(d)(1); 8 C.F.R.
§ 214.2(k)(2).
Indeed, Nesari's failure to comply with the
meeting requirements of 8 U.S.C. § 1184(d)(1) rendered him
excludable under the INA at the very moment of his entrance
Under these circumstances, Nesari is plainly not entitled to
become a naturalized United States citizen,
IV.
Under 8 C.F.R.
Conclusion
§ 214.2(k)(2), a "[f]ailure to establish that
the petitioner and K-l beneficiary have met within the required
period or that compliance with the requirement should be waived
shall result in the denial of the [admission] petition."
That language begins and ends our inquiry.
Id.
Without an i\n-person
meeting between the engaged couple or a valid waiver of that
51
meeting requirement, there can be no lawful admission of a K-l
fiance.
And without such lawful admission, there can tje no
entitlement to naturalization.
For all these reasons, petitioner cannot meet his
burden on
his "Petition for Review of Denial of Application for
Naturalization Pursuant to 8 U.S.C. § 1421(c) and Requejst for De
Novo Hearing."
Accordingly, defendants' Motion for Summary
Judgment [Dkt. No. 41] will be granted, Nesari's Cross-]Motion for
Summary Judgment [Dkt. No. 59] and his Motion for Voluntary
Dismissal [Dkt. No. 66] will be denied, and judgment willl
be entered in favor of the defendants by an Order to be
issued
with this Memorandum Opinion.
Entered this //
day of August, 2011
Alexandria, Virginia
Leonie M. Brinkema
United States District Judge
52
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?