Opinion
CASE NO. 09CV2053 DMS (POR).
October 12, 2010
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pending before the Court are Defendants' motion for summary judgment ("MSJ") and motion to stay discovery and vacate the scheduling order. For the following reasons, Defendants' MSJ is granted and Defendants' motion to stay and vacate the scheduling order is denied as moot.
I. BACKGROUND
Plaintiff, a native of Jordan and a citizen of Saudi Arabia, came to the United States in 1997 on a student visa. (MSJ Exs. C, D; Doc. 1 ¶ 2.) On September 25, 1999, Plaintiff married Rebecca Sweezey, a United States citizen. (MSJ Ex. E.) Slightly less than one month later, on October 22, 1999, Plaintiff applied for adjustment of his status to that of lawful permanent resident based upon his marriage to a United States citizen. ( Id. at Ex. D.) On January 21, 2001, police arrested Plaintiff following a domestic violence incident involving him and Ms. Sweezey, although no formal charges resulted from the arrest. ( Id. at Exs. C, F.) On June 4, 2001, the former Immigration and Naturalization Service ("INS") granted Plaintiff's application for adjustment of status, rendering him a lawful permanent resident. ( Id. at Ex. D.) On June 8, 2003, Plaintiff was again arrested following a domestic violence incident between him and Ms. Sweezey. ( Id. at Exs. C, F, H.) Charges were brought and Plaintiff pled guilty to a misdemeanor count of battery under California Penal Code §§ 242, 243(a). ( Id. at Ex. H.) Plaintiff was sentenced to three years' probation and was ordered to complete a 52-week domestic violence recovery program. ( Id. at Exs. F, H.)
On March 17, 2004, Plaintiff filed an application for naturalization pursuant to 8 U.S.C. § 1430(a) based upon his marriage to Ms. Sweezey. ( Id. at Ex. C; Doc. 1 ¶ 8.) In 2006, Plaintiff and Ms. Sweezey divorced. (MSJ Ex. F.) On February 8, 2008, having not yet received a decision on his application for naturalization, Plaintiff filed a complaint in this Court against the United States Citizenship and Immigration Services ("USCIS") and various individuals seeking a de novo review of his application for naturalization by the Court. (Doc. 1 ¶ 13.) On June 11, 2008, upon a joint motion to remand, an Order was issued remanding the case for adjudication by USCIS within sixty days. ( Id.) On August 7, 2008, USCIS issued its initial decision denying Plaintiff's application for naturalization. (MSJ Ex. I.) Plaintiff timely filed an administrative appeal from the decision. ( Id.) A USCIS officer interviewed Plaintiff on June 2, 2009. ( Id. at Exs. F, I; Doc. 1 ¶ 15.) On or about August 21, 2009, USCIS upheld its decision denying Plaintiff's application for naturalization. (MSJ Ex. I; Doc. 1 ¶ 16.) Plaintiff filed the instant action on September 21, 2009. (Doc. 1.) Defendants filed a motion for summary judgment on August 12, 2010. (Doc. 18.) Plaintiff filed an opposition to Defendants' motion for summary judgment and Defendants filed a reply. (Docs. 22, 24.)
II. LEGAL STANDARD
This Court is authorized to conduct a de novo review of Plaintiff's application for naturalization pursuant to 8 U.S.C. § 1421(c). In its review, the Court "has the final word and does not defer to any of [USCIS's] findings or conclusions." United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004) ( en banc) (emphasis omitted). However, if the Court concludes that there are no "disputed issues of material fact," it need not engage in its own fact-finding and may grant a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Chan v. Gantner, 464 F.3d 289, 296 (2nd Cir. 2006); see also Garcia-Garcia v. Holder, No. 08cv1129 LAB (AJB), 2010 WL 1292155, at *2 (S.D. Cal. Mar. 30, 2010); Abghari v. Gonzalez, 596 F. Supp. 2d 1336, 1343 (C.D. Cal. 2009) ("The Court need not proceed with an evidentiary hearing or otherwise conduct new fact finding where the Court believes that the legal question it has identified . . . is a threshold matter.").
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Fed.R.Civ.P. 56(e)(2).
III. DISCUSSION
Defendants contend that Plaintiff is not eligible for naturalization as a matter of law because 1) he does not meet the statutory residency requirement and 2) he cannot demonstrate good moral character. Because the Court finds that summary judgment is appropriate based upon Plaintiff's statutory ineligibility for naturalization under the residency requirement, it does not address Defendants' argument concerning good moral character.
Under the Immigration and Nationality Act ("INA"), an individual must meet several requirements prior to being eligible for naturalization. One such requirement is continuous residency in the United States after being lawfully admitted for permanent residence for a period of at least five years immediately preceding filing of an application for naturalization. 8 U.S.C. § 1427(a). An exception to this requirement provides that "[a]ny person whose spouse is a citizen of the United States" may be naturalized upon compliance with the requirements for naturalization if such person has continuously resided in the United States after being lawfully admitted for permanent residence for a period of at least three years immediately preceding filing of an application for naturalization. 8 U.S.C. § 1430(a). Individuals subject to either the three-year or five-year residency requirements are eligible to file their applications for naturalization three months early. 8 U.S.C. § 1445(a); 8 C.F.R. § 334.2(b).
Plaintiff became a lawful permanent resident on June 4, 2001. Based upon his marriage to a United States citizen, Plaintiff filed his application for naturalization on March 17, 2004, a couple of months prior to having been a lawful permanent resident for a period of three years. However, although Plaintiff was the spouse of a United States citizen at the time of filing his application for naturalization, the INA requires an applicant who chooses to apply pursuant to the three-year residency requirement under Section 1430(a) to remain to be married to the United States citizen at the time of actual naturalization, and not just at the time of filing the application. 8. U.S.C. § 1430(a) ("Any person whose spouse is a citizen of the United States . . . may be naturalized upon compliance with all the requirements of this title"); 8 C.F.R. § 319.1(b)(2)(I); In re Lee, 480 F.2d 673, 675 (2d Cir. 1973); see also Ali v. Smith, 39 F. Supp. 2d 1254, 1256 (W.D. Wash. 1999) ("It is undisputed that [§ 1430(a)] requires marriage at the time the naturalization is granted.").
Defendants submitted exhibits in support of their MSJ, including a copy of a sworn statement recording the June 2, 2009 interview of Plaintiff by a USCIS officer in connection with his administrative appeal from the denial of his naturalization application. (MSJ Ex. F.) Plaintiff's sworn statement indicates that he divorced Ms. Sweezey in 2006. ( Id.) Defendants rely upon this in support of their argument that Plaintiff is statutorily ineligible for naturalization because he was not a "person whose spouse is a citizen of the United States" at the time his naturalization determination was made. In his Opposition, Plaintiff states he "meets the residency requirement as he applied based on the fact that he has been a Permanent resident of [t]he United States for at least 3 years, and has been married to and living with the same U.S. citizen for the last 3 years, and his spouse has been a U.S. citizen for the last 3 years." (Opp. at 2.) Plaintiff, however, fails to provide any specific facts regarding his marriage history or to dispute the fact that his marriage to Ms. Sweezey ended in divorce in 2006. Accordingly, Plaintiff has not "set out specific facts showing a genuine issue for trial" as to his eligibility for naturalization pursuant to the statutory residency requirement. Fed.R.Civ.P. 56(e)(2).
Even if Plaintiff has remarried since his divorce from Ms. Sweezey in 2006, which he does not claim to have done in his Opposition, it would not affect his current application for naturalization. See 8 C.F.R. § 319.1(b)(2)(i) ("A person is ineligible for naturalization as the spouse of a United States citizen under section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce. . . . Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.").
Because Plaintiff divorced his United States citizen wife in 2006, and because his naturalization application was based upon his marriage to her, he is not eligible for naturalization under the three-year residency requirement of 8 U.S.C. § 1430(a) and must instead satisfy the five-year residency requirement of 8 U.S.C. § 1427(a). As Plaintiff filed his application for naturalization less than three years after becoming a lawful permanent resident, he cannot meet the five-year continuous residency requirement on his present application and is therefore statutorily ineligible for naturalization. Therefore, there is no genuine issue as to any material fact and Defendants are entitled to judgment as a matter of law.
Plaintiff may choose to reapply for naturalization based upon having continuously resided in the United States for a period of at least five years after being lawfully admitted for permanent residence. Lang v. Chertoff, No. C08-0610-RSL, 2008 WL 4542410, at *2 (W.D. Wash. Oct. 9, 2008); 8 U.S.C. § 1427(a). Should Plaintiff choose to do so, USCIS would have the sole power to adjudicate the application in the first instance and to review any denial of the application upon a request for an administrative appeal. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.9(d).
IV. CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment is granted. In light of the Court's holding, Defendants' pending motion to stay discovery and vacate the scheduling order is denied as moot.
IT IS SO ORDERED.
DATED: October 12, 2010