Opinion
1:22-CV-00836-ELR
2023-03-30
Sanoussy DIAKITE, Petitioner, v. Ur Mendoza JADDOU, Director of U.S. Citizenship and Immigration Services, et al., Respondents.
H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Petitioner. Elissa Fudim, Office of Immigration Litigation, Washington, DC, for Respondents.
H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Petitioner. Elissa Fudim, Office of Immigration Litigation, Washington, DC, for Respondents.
ORDER
Eleanor L. Ross, United States District Judge
Presently before the Court is Respondents' "Motion to Dismiss." [Doc. 9]. The Court sets forth its reasoning and conclusions below. I. Background
For purposes of the present motion only, the Court "accept[s] the allegations in the [Petition] as true and constru[es] them in the light most favorable to" Petitioner. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
This case arises from United States Citizenship & Immigration Services' ("USCIS") denial of Petitioner Sanoussy Diakite's application for naturalization as a United States citizen. See generally Pet. for Review of a Naturalization Decision ("Pet.") [Doc. 1]. Respondent Ur Mendoza Jaddou is USCIS' director. Id. ¶ 3. Respondent Shineka Miller is the director of USCIS' Atlanta field office. Id. ¶ 4.
Because the requirements of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq., are intertwined with the facts of this case, the Court begins with a brief overview of the pertinent parts of that statute and the regulations associated with it before discussing the specifics of this suit.
A. The INA's Good Moral Character Requirement
The INA sets forth several requirements an applicant for U.S. citizenship must establish before he can be naturalized as such. See 8 U.S.C. § 1427(a).
For an individual seeking naturalization based on residence, one such requirement is that the applicant establish good moral character during the statutory period . . . . See 8 C.F.R. § 316.10. The statutory period includes "the five years immediately preceding the date of filing his application" and the period from "the date of the application up to the time of admission to citizenship." 8 U.S.C. § 1427(a) . . . .
"Good moral character" is not statutorily defined. See 8 U.S.C. § 1101(f). Instead, the statute provides a non-exhaustive list of categories of persons who cannot
establish good moral character and a "catch-all" provision stating that a person may lack good moral character for "other reasons." 8 U.S.C. § 1101(f). A regulation [promulgated by USCIS], 8 C.F.R. § 316.10, further defines what those "other reasons" might be. This regulation, too, has a catch-all provision, which provides that, absent "extenuating circumstances," applicants who have committed unlawful acts reflecting adversely on moral character during the statutory period cannot establish the requisite good moral character. 8 C.F.R. § 316.10(b)(3)(iii).United States v. Dor, 729 F. App'x 793, 797 (11th Cir. 2018). Specifically, 8 C.F.R. § 316.10(b)(3)(iii) provides as follows:
(3) Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:
. . .
8 C.F.R. § 316.10(b)(3)(iii). Section 316.10(b)(1) of title 8 of the Code of Federal Regulations directs that an applicant must be found to lack good moral character if he is convicted of murder or an aggravated felony. Id. § 316.10(b)(1). Section 316.10(b)(2) of the same directs that an applicant must be found to lack good moral character if, during the five (5)-year statutory period, he engages in certain conduct, admits to committing certain offenses, is incarcerated for 180 days, "[e]arns his or her income principally from illegal gambling activities[,] or . . . [i]s or was a habitual drunkard." Id. § 316.10(b)(2).(iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).
B. The Specifics of This Case
Petitioner, a "native and citizen of Guinea[,]" became "a lawful permanent resident" of the United States on July 14, 2006. See Pet. ¶¶ 1-2, 13. On October 3, 2017, Petitioner was convicted of one count of "Unlawful Procurement of Citizenship or Naturalization" in violation of 18 U.S.C. § 1425(a) following his June 30, 2017 guilty plea to the same charge. See id. ¶ 19; [see also Doc. 12-2]. Petitioner's conviction was based on "the commission of [an] unlawful act [that] occurred on or about October 15, 2009[.]" See Pet. ¶ 19.
"On or around November 29, 2019, Petitioner filed an application for naturalization with" USCIS (the "Application"). See id. ¶¶ 2, 14; [see also Doc. 1-1]. Part of the Application included an interview with USCIS that took place on April 1, 2021. [See Doc. 1-2 at 4]. On May 10, 2021, USCIS denied the Application, "finding that Petitioner had not established that he was a person of good moral character," as required pursuant to 8 U.S.C. § 1427(a)(3) for him to be entitled to citizenship. See id. ¶¶ 11, 15. In its initial decision denying the Application, USCIS wrote:
"A district court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of the complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit controls." Hoefling v. City of Mia., 811 F.3d 1271, 1277 (11th Cir. 2016).
Petitioner alleges that he "filed an application for naturalization with Defendants" and that "Respondents are responsible for the grant or denial of naturalization applications filed within the Atlanta District." Pet. ¶¶ 2, 8. He brings suit against Respondents in their official capacities pursuant to 8 USC § 1421(c). See id. ¶¶ 3-4. In substance, Petitioner's suit challenges USCIS' actions and not those directly attributable to either of the individual Respondents. See generally id. Therefore, the Court herein primarily refers to USCIS and not to the individual Respondents. See 8 C.F.R. § 336.9(a)-(b) (directing that "petition[s] for review" brought pursuant 8 USC § 1421(c) "be brought against USCIS"); Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity").
The record reflects that during the statutory period of November 29, 2014[,] to present, you pled guilty to one count of knowingly procuring naturalization in violation of 18 U.S. Code § 1425 in the United States District [C]ourt for Northern District of Georgia on October 3, 2017.[][Doc. 1-2 at 4]; accord Pet. ¶¶ 16-17, 24-25.
. . . .
To be eligible for naturalization, you must demonstrate that you are a person of good moral character. USCIS finds that the unlawful act for which you have been convicted adversely reflect[s] upon your moral character because you were convicted of unlawfully procuring naturalization during the statutory period. Even though[ ] you completed the terms of your sentence, not enough time has passed for USCIS to determine that you are reformed and rehabilitated. Additionally, you have not established any extenuating circumstances that would warrant a departure from this finding. Since you have not established that you are a person of good moral character because of the crime(s) for which you have been convicted, you are ineligible for naturalization at this time. See INA [§§] 101(f) and 316(a)(3) and Title 8, Code of Federal Regulations (8 CFR), section 316.10 (b)(3)(iii).
This date, which is also referenced as the date of Petitioner's guilty plea at least once in the Petition, is incorrect. See Pet. ¶ 19. Court records from Petitioner's criminal case reveal that Petitioner pled guilty on June 30, 2017, and that, on October 3, 2017, another judge of this district entered judgment against Petitioner and imposed sentence upon him. [See Doc. 12-2] (a copy of the judgment entered against Petitioner); Minute Sheet for Proceedings Held In Open Court on 06/30/2017, United States v. Diakite, Criminal Action No. 1:17-cr-00010-WSD-JFK (June 30, 2017), ECF No. 24 (noting that date of Petitioner's guilty plea); see also Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010) (providing that a district court may take judicial notice of documents filed in another case when evaluating a motion to dismiss); Paez v. Sec'y, Fla. Dep't of Corr., 947 F.3d 649, 652 (11th Cir. 2020) (holding that "dates . . . from . . . online . . . court dockets constitute judicially noticeable facts under Rule 201").
Petitioner was entitled to "request a hearing on the denial of" his Application provided he made a request for the same "within thirty days after . . . [he] receive[d his] . . . notice of denial." See 8 C.F.R. § 336.2(a); [see also Doc. 1-2 at 4]. Petitioner timely requested such a hearing and appeared for one on October 19, 2021. See Pet. ¶ 18. "During that interview, Petitioner, through his counsel, explained that [USCIS] erroneously denied [his] [A]pplication" because he committed the unlawful conduct for which he was convicted in October 2017 "on or about October 15, 2009, outside the good moral character statutory period." See id. ¶ 19. "Petitioner also argued" that as of the date of the Application he "had . . . complied with . . . all the requirements" that came with his conviction and that he had "proven himself to be rehabilitated by not having encountered law enforcement for any reason since his previous indiscretion." See id. ¶¶ 20-21. On October 30, 2021, USCIS "reaffirm[ed]" its earlier decision denying the Application. [See Doc. 1-5 at 1]. In so doing, USCIS noted Petitioner's statement "that [he] ha[d] overcome the grounds of the denial because the commission of [his] crime was outside of the statutory 5-year period." [See id.] However,
Petitioner also appears to allege that he committed this conduct in 2014. See Pet. ¶ 20. This allegation appears to be an error. Compare id., [with Doc. 12-1 at 2] (the indictment in Petitioner's criminal case alleging that he committed the relevant unlawful conduct on October 15, 2009). Viewing the Petition in the light most favorable to Petitioner, the Court disregards Petitioner's allegation that he committed unlawful conduct in 2014. See Hill, 321 F.3d at 1335.
USCIS found no section of the INA to support [the] claim [that] the date of commission of a crime, not the date of conviction for the crime, is the correct application of the law for [the] period of time required for good moral character for Naturalization. See INA [§] 316 and Title 8, Code of Federal Regulations (8 CFR) [§] 316.10.[See id.]
On February 2, 2022, Petitioner timely filed his present Petition pursuant to 8 U.S.C. § 1421(c), challenging the denial of the Application. See generally Pet.; see also 8 C.F.R. § 336.9(a)-(b). Petitioner alleges that it was error for USCIS to deny the Application for two (2) reasons. See Pet. ¶¶ 19, 31-33, 39-41, 43. First, Petitioner claims that 8 C.F.R. § 316.10(b)(3)(iii) only applies to unlawful acts committed during the five (5)-year statutory good character period preceding the filing of a naturalization application even if the applicant is convicted or imprisoned for such an act during those five (5) years. See id. ¶¶ 19, 31. Thus, Petitioner argues that USCIS could not find that he lacked good moral character pursuant to 8 C.F.R. § 316.10(b)(3)(iii) based on his 2017 conviction for unlawful procurement of citizenship or naturalization because the criminal conduct underlying that conviction took place in 2009 and his statutory good character period did not begin until November 29, 2014, five (5) years before his Application. See id. ¶¶ 32-33. Second, Petitioner contends that even if 8 C.F.R. § 316.10(b)(3)(iii) covers convictions during the statutory period for unlawful acts that took place before that period, USCIS failed to adequately consider whether he demonstrated good moral character through extenuating circumstances that mitigated the effect of his 2017 conviction. See id. ¶¶ 21, 31, 39-41, 43.
The Petition could be read to assert claims pursuant to both the INA and the Administrative Procedure Act (the "APA"). See Pet. ¶ 23. However, Petitioner has clarified that he is not asserting an APA claim and that his sole cause of action arises under the INA. [See Doc. 12 at 10] ("Petitioner is not filing a complaint under the Administrative Procedure Act."). In any event, to the extent Petitioner alleges an APA claim, that claim is due to be dismissed for lack of subject matter jurisdiction. See Heslop v. Att'y Gen., 594 F. App'x 580, 584 (11th Cir. 2014) (concluding that the "APA does not authorize judicial review" of the denial of an application for naturalization because "the INA provides" "sweeping de novo review" of such denials (quoting Escaler v. U.S. Citizenship & Immigr. Servs., 582 F.3d 288, 291 n.1 (2d Cir. 2009))).
Respondents filed their present "Motion to Dismiss" on May 5, 2022. [See Doc. 9]. Petitioner opposes that motion. [See Doc. 12]. Having been fully briefed, Respondents' motion is now ripe for the Court's review. [See Docs. 9, 12, 13].
II. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, a pleading must "contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.' " See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Put differently, a pleader must allege "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See id. This so-called "plausibility standard" is not akin to a probability requirement; rather, the pleader must allege sufficient facts such that it is reasonable to expect that discovery will lead to evidence supporting the claim. See id.
When considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true the allegations set forth in the operative pleading, drawing all reasonable inferences in the light most favorable to the pleader. See Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955; United States v. Stricker, 524 F. App'x 500, 505 (11th Cir. 2013) (per curiam). Even so, a pleading offering mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" is insufficient. See Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); accord Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007). Rather, "a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief" so as to satisfy "the pleading requirements of Rule 8." See Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1294 (N.D. Ga. 2005) (citing FED. R. CIV. P. 8(a)(2)).
III. Discussion
USCIS argues that this Court should dismiss the Petition because (1) Petitioner's argument that 8 C.F.R. § 316.10(b)(3)(iii) does not cover convictions during the statutory period for acts before that period is incorrect and (2) Petitioner "identifies no extenuating circumstances" mitigating his 2017 conviction, "nor could he, in light of his" guilty plea that led to the same. [See Doc. 9 at 6-13]. The Court addresses both arguments in turn.
A. The Scope of 8 C.F.R. § 316.10(b)(3)(iii)
The Court begins with Petitioner's argument that 8 C.F.R. § 316.10(b)(3)(iii) cannot apply to convictions based on unlawful acts that occurred outside the statutory period. As noted above, that regulation provides:
(3) Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:
. . .
8 C.F.R. § 316.10(b)(3)(iii). USCIS claims that 8 C.F.R. § 316.10(b)(3)(iii)'s plain text, the principle of statutory construction against surplusage, and case law all support its interpretation that the regulation covers any conviction or imprisonment during the statutory period for an unlawful act adversely reflecting upon a naturalization applicant's moral character, regardless of whether the unlawful act underpinning the conviction or imprisonment occurred before or during the statutory period. [See Docs. 9 at 6-12; 13 at 4-7]. Alternatively, USCIS argues that the Court should defer to this interpretation of 8 C.F.R. § 316.10(b)(3)(iii) pursuant to the Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. [See Docs. 9 at 11-12 (citing 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); 13 at 7].(iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).
In response, Petitioner focuses on the fact that the phrase "during the statutory period" modifies "[c]ommitted unlawful acts that adversely reflect upon the applicant's moral character." See 8 C.F.R. § 316.10(b)(3)(iii); [see also Doc. 12 at 6-8]. Petitioner contends that USCIS' proffered construction of the regulation renders this modification meaningless by improperly confining the "for such acts" limitation to the phrase "[c]ommitted unlawful acts that adversely reflect upon the applicant's moral character" instead of applying it to the entire phrase "during the statutory period, the applicant: . . . [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character." See 8 C.F.R. § 316.10(b)(3)(iii); [see also Doc. 12 at 6-8]. Petitioner further contends that his proffered interpretation of 8 C.F.R. § 316.10(b)(3)(iii) is supported by how the regulation's "extenuating circumstances provision [is] applied in modern jurisprudence." [See Doc. 12 at 8-9].
A court interprets "regulations 'in much the same way [it] interpret[s] statutes[;]' " it "start[s] with the text—and, if [it] find[s the text] clear, [it] end[s] there as well." See Young v. Grand Canyon Univ., Inc., 980 F.3d 814, 818 (11th Cir. 2020); see also Landau v. RoundPoint Mortg. Servicing Corp., 925 F.3d 1365, 1369-70 (11th Cir. 2019) ("If our review of the regulatory language unambiguously answers the question at issue, that is the end of the matter[.]"). In reading a regulation's text, a court looks to the "common usage or ordinary meaning" of "the actual language used." See CBS Inc. v. Prime-Time 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001) (applying this principle in the context of statutory interpretation); Young, 980 F.3d at 818 (noting that regulations and statutes are interpreted similarly); see also Washington v. Comm'r, 906 F.3d 1353, 1362 (11th Cir. 2018) ("A regulation should be construed to give effect to the natural and plain meaning of its words" (alteration adopted)). Courts look to "the particular context in which that language appears," Landau, 925 F.3d at 1369, "giv[ing] effect, if possible, to every clause and word of" the regulation, see Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), and avoiding "strain[ing the] ordinary rules of grammar." See Med. Transp. Mgmt. Corp. v. Comm'r, 506 F.3d 1364, 1369 (11th Cir. 2007).
Upon review and consideration, the Court finds that 8 C.F.R. § 316.10(b)(3)(iii) covers "convict[ions] or imprison[ments] for" any "unlawful acts that adversely reflect upon the applicant's moral character[,]" regardless of whether an applicant for naturalization "committed" those acts before or during the statutory period. The Court finds that this construction of the regulation best effectuates its plain meaning because the regulation's "operative terms"—that is, "[c]ommitted unlawful acts[,]" "convicted . . . for such acts," and "imprisoned for such acts"—"are connected by the conjunction 'or.' " See id.; see also United States v. Woods, 571 U.S. 31, 45-46, 134 S.Ct. 557, 187 L.Ed.2d 472 (2013). Thus, these terms "are to 'be given separate meanings.' " See Woods, 571 U.S. at 45-46, 134 S.Ct. 557 (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)). Petitioner's interpretation of 8 C.F.R. § 316.10(b)(3)(iii) would violate this principle of construction. Because in order to be convicted or imprisoned for an unlawful act one necessarily must commit the same first, interpreting 8 C.F.R. § 316.10(b)(3)(iii) to cover only convictions or imprisonments for unlawful acts committed during the statutory period would eliminate the "separate meanings" that must be given to the phrases "convicted . . . for such acts" and "imprisoned for such acts" given that the regulation uses "or" to connect these two phrases with each other and with the phrase "[c]ommitted unlawful acts[.]" See Woods, 571 U.S. at 45-46, 134 S.Ct. 557; 8 C.F.R. § 316.10(b)(3)(iii).
In other words, by virtue of its use of the word "or," the text of 8 C.F.R. § 316.10(b)(3)(iii) indicates that convictions and imprisonments for unlawful acts during the statutory period must provide independent bases for USCIS to find that a naturalization applicant lacks the moral character required for citizenship. See Woods, 571 U.S. at 45-46, 134 S.Ct. 557; 8 C.F.R. § 316.10(b)(3)(iii). USCIS' interpretation of the "or convicted or imprisoned for such acts" language in 8 C.F.R. § 316.10(b)(3)(iii) conforms to this mandate by construing the regulation to allow USCIS to find an applicant lacks good moral character where he (1) commits a wrongful act during the statutory period, (2) is convicted during the statutory period for committing an unlawful act regardless of when he committed that act, or (3) is imprisoned for committing a wrongful act during the statutory period regardless of when he committed that act or was convicted for it. Petitioner's interpretation does the opposite because, if the unlawful act underlying a conviction or imprisonment must be committed during the statutory period for USCIS to base a finding of lack of good moral character on it, a naturalization applicant's subsequent conviction or imprisonment for an unlawful act does not provide USCIS with an independent basis to make a finding of lack of good moral character, rendering the phrase "or convicted or imprisoned for such acts" functionally meaningless.
For this same reason, USCIS' interpretation of 8 C.F.R. § 316.10(b)(3)(iii) does not render the phrase "during the statutory period" meaningless as Petitioner claims it does. Instead, pursuant to USCIS' interpretation, that phrase is applied to each of "[c]ommitted unlawful acts," "was convicted" of unlawful acts, and was ". . . imprisoned for" unlawful acts. See 8 C.F.R. § 316.10(b)(3)(iii).
That the above-described construction of 8 C.F.R. § 316.10(b)(3)(iii) is the proper one is further confirmed by the last antecedent rule. That rule provides that "a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows." See Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). Here, the phrase "for such acts" follows only "[c]ommitted unlawful acts that adversely reflect upon the applicant's moral character"; the "during the statutory period" language appears farther away in the main paragraph of 8 C.F.R. § 316.10(b)(3). See 8 C.F.R. § 316.10(b)(3). Thus, limiting the reach of "for such acts" to "[c]ommitted unlawful acts that adversely reflect upon the applicant's moral character" as USCIS proposes—rather than expanding it cover all of "during the statutory period, the applicant: . . . [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character" as Petitioner suggests—conforms with the last antecedent rule. See id.; see Barnhart, 540 U.S. at 26, 124 S.Ct. 376.
In short, when read most naturally, the plain language of 8 C.F.R. § 316.10(b)(3)(iii) allows USCIS to find a naturalization applicant lacks good moral character when he (1) is convicted or imprisoned during the statutory period for an unlawful act that adversely reflects upon his moral character, regardless of whether the applicant committed that act before or during the statutory period, and (2) fails to demonstrate extenuating circumstances. See Khamooshpour v. Holder, 781 F. Supp. 2d 888, 895 (D. Ariz. 2011) (concluding, without any substantive analysis, that "under 8 C.F.R. § 316.10(b)(3)(iii), it is enough to bar a finding of good moral character that the conviction occurred during the statutory period; the underlying crime itself does not have to have been committed during the statutory period" (emphasis in original)).
The Court finds USCIS' Chevron deference argument inapposite because the question here is what one of USCIS' regulations means, not what the meaning of "the statute which it administers" (i.e., the INA) is. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778; see also Bowe v. HHJJ, LLC, No. 6:16-cv-1844-Orl-37KRS, 2016 WL 11234451, at *4 (M.D. Fla. Dec. 13, 2016) ("Agency interpretations of their own regulations . . . are not entitled to Chevron deference[.]"), report and recommendation adopted, 2017 WL 56401 (Jan. 5, 2017); United States ex rel. Phalp v. Lincare Holdings, Inc., 116 F. Supp. 3d 1326, 1348 (S.D. Fla. 2015) ("Chevron deference applies to agency interpretations of ambiguous statutes; Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) deference applies to agency interpretations of the agency's own ambiguous regulations; and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944) deference applies to less formal agency guidance documents and opinions."). In any event, the Court need not decide whether USCIS' interpretation of 8 C.F.R. § 316.10(b)(3)(iii) is entitled to any deference, because, as explained herein, the Court finds the regulation at issue to be unambiguous. See Palm Beach Cnty. v. Fed. Aviation Adm'r, 53 F.4th 1318, 1330 (11th Cir. 2022) (explaining that a court "needn't and won't defer to" an agency's interpretation of its regulation if [it] find[s] th[at] regulation[ ] to be unambiguous").
B. Whether Petitioner's 2017 Conviction Was For An "Unlawful Act[ ] That Adversely Reflect[s] Upon the [His] Moral Character"
Having established that the timing of the unlawful act for which Petitioner was convicted in 2017 does not exclude it from the scope of 8 C.F.R. § 316.10(b)(3)(iii), the Court next addresses whether the "unlawful act" underlying that conviction "adversely reflect[s] upon [Petitioner's] moral character." See 8 C.F.R. § 316.10(b)(3)(iii). Whether "an unlawful act" is one "that adversely reflect[s] upon [a naturalization] applicant's moral character" is a determination that a court makes on "a case-by-case basis" by looking to "the circumstances of [the] crime or conviction" at issue. See Khamooshpour, 781 F. Supp. 2d at 896.
Here, the crime Petitioner was convicted of—unlawful procurement of citizenship or naturalization—is necessarily one "involving moral turpitude" because "to sustain a section 1425(a) conviction, the government must prove that the defendant acted with a culpable state of mind." See Amouzadeh v. Winfrey, 467 F.3d 451, 457-58 (5th Cir. 2006). And because Petitioner committed a crime of moral turpitude, the Court finds that he necessarily committed an "unlawful act[ ] that adversely reflect[s] upon [his] moral character." See 8 C.F.R. § 316.10(b)(3)(iii).
Petitioner agrees that a violation of § 1425(a) is a crime of moral turpitude. [See Doc. 12 at 5] ("18 USC [§] 1425(a) is clearly a crime involving moral turpitude."). However, Petitioner appears to suggest that crimes of moral turpitude cannot be "unlawful acts that adversely reflect upon the applicant's moral character" within the meaning of 8 C.F.R. § 316.10(b)(3)(iii) because 8 C.F.R. § 316.10(b)(2)(i) separately mandates that a naturalization applicant "shall be found to lack good moral character if during the statutory period . . . [, he c]ommitted one or more crimes involving moral turpitude . . . for which [he] was convicted[.]" [See id. at 5-6].
The Court finds Petitioner's argument in this regard unavailing. Nothing in the text of 8 C.F.R. § 316.10(b)(3)(iii) suggests that it excludes crimes of moral turpitude from the definition of "unlawful acts that adversely reflect upon the applicant's moral character[.]" See 8 C.F.R. § 316.10(b)(3)(iii). Indeed, as several courts have observed, 8 C.F.R. § 316.10(b)(3)(iii) "is meant to apply to a broader scope of unlawful activity" than crimes of moral turpitude. See Khamooshpour, 781 F. Supp. 2d at 896; accord Agarwal v. Napolitano, 663 F. Supp. 2d 528, 542 (W.D. Tex. 2009) (citing United States v. Dang, 488 F.3d 1135, 1141 (9th Cir. 2007)). And because 8 C.F.R. § 316.10(b)(3)(iii) covers a broader range of conduct than 8 C.F.R. § 316.10(b)(2)(i), it would be absurd for the Court to find that the broader category of "unlawful acts that adversely reflect upon the applicant's moral character" referenced in 8 C.F.R. § 316.10(b)(3)(iii) does not include the narrower class of "crimes of moral turpitude" referenced in 8 C.F.R. § 316.10(b)(2)(i). See United States v. AseraCare, Inc., 938 F.3d 1278, 1292 (11th Cir. 2019) ("To determine the plain meaning of a statute or regulation, we do not look at one word or term in isolation, but rather look to the entire statutory or regulatory context."); see also United States v. Seaman, No. 12-572-TUC-DCB(BPV), 2013 WL 4046662, at *7 (D. Ariz. Aug. 8, 2013) (observing that an individual's commission of a crime of moral turpitude would constitute an "unlawful act[ ] that adversely reflect[s] upon the [individual's] moral character" pursuant to 8 C.F.R. § 316.10(b)(3)(iii)).
Additionally, the Eleventh Circuit has described crimes of moral turpitude as those that "involve[ ] an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Pierre v. U.S. Att'y Gen., 879 F.3d 1241, 1251 (11th Cir. 2018) (quoting Cano v. U.S. Att'y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013)). Such acts certainly "adversely reflect upon [a naturalization] applicant's moral character." See 8 C.F.R. § 316.10(b)(3)(iii). Accordingly, accomplishing a crime of moral turpitude necessarily requires an individual to commit an "unlawful act[ ] that adversely reflect[s] upon [his] moral character." See id.; Pierre, 879 F.3d at 1251. Therefore, because Petitioner's 2017 conviction was for a crime of moral turpitude, he necessarily was, during the statutory period, convicted for an "unlawful act[ ] that adversely reflect[s] upon [his] moral character." See 8 C.F.R. § 316.10(b)(3)(iii).
C. Whether Petitioner Can Establish Extenuating Circumstances
Having established that Petitioner's 2017 conviction for unlawful procurement of citizenship or naturalization falls within the ambit of 8 C.F.R. § 316.10(b)(3)(iii), the final question for the Court is whether Petitioner can "establish[ ] extenuating circumstances" such that his 2017 conviction does not automatically mean that he "lack[s] good moral character." See 8 C.F.R. § 316.10(b)(3)(iii). USCIS argues that Petitioner "cannot take advantage of the 'absent extenuating circumstances' " provision because " '[e]xtenuating circumstances,' as used in section 316.10(b)(3)(iii) must 'relate to the individual's culpability for the crime' " and "does not refer to whether the individual has been rehabilitated or is otherwise a good person[.]" [See Docs. 9 at 12; 13 at 10] (quoting Dor, 729 F. App'x at 798 and citing United States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005) and Khamooshpour, 781 F. Supp. 2d at 895). USCIS further contends that because he "pleaded guilty to a" crime of moral turpitude for which "a knowing mens rea" is required, Petitioner "could [not] . . . possibly show 'extenuating circumstances' " as a matter of law. [See Doc. 13 at 13]. Petitioner does not directly respond to these arguments. [See generally Doc. 12].
The Eleventh Circuit has explained that "extenuating circumstances" in the context of 8 C.F.R. § 316.10(b)(3)(iii) "must pertain to" the naturalization applicant's "culpability for the" act on which USCIS' finding of a lack of good moral character is based as well as that act's "negative impact on his moral character." See Jean-Baptiste, 395 F.3d at 1195. In other words, "[e]xtenuating circumstances are those which render" the relevant unlawful act "less reprehensible than it otherwise would be, or tend to palliate or lessen" the naturalization applicant's "guilt" for the same. See United States v. Coloma, 535 F. Supp. 3d 1279, 1286 n.5 (S.D. Fla. 2021). The naturalization applicant, "not the government, has the burden of showing whether he faced extenuating circumstances at the time of the" relevant unlawful act. Id.
Upon review and consideration, the Court disagrees with USCIS that Petitioner's guilty plea to a crime of moral turpitude for which "a knowing mens rea" is required necessarily precludes a finding of extenuating circumstances as a matter of law. [See Doc. 13 at 13]. USCIS cites to the Eleventh Circuit's unpublished decision in United States v. Dor in support of this argument. [See id.] (citing 729 F. App'x at 798). The government brought that case to revoke an already-naturalized citizen's citizenship "on the ground that he had illegally procured" the same. See Dor, 729 F. App'x at 794. Unlike the present case, Dor was decided with a full summary judgment record. See Dor, 729 F. App'x at 794, 799. Thus, the Dor panel's observation that the defendant naturalized citizen's "culpability for his crime was indisputable" because he "admitted he was guilty of participating in a fraudulent scheme" is best understood as a factual finding based on the record of a particular case rather than a blanket statement that one who pleads guilty to a crime of moral turpitude with knowledge element can never show extenuating circumstances related to that crime.
However, the Court agrees with USCIS that Petitioner has failed to plead any legally cognizable extenuating circumstances. The only extenuating circumstance Petitioner has alleged is that he has "proven himself to be rehabilitated by not having encountered law enforcement for any reason since his previous indiscretion." See Pet. ¶ 21; see also id. ¶¶ 17, 20-21. But, as a matter of law, rehabilitation is not an extenuating circumstance that can overcome a naturalization applicant's conviction during the statutory period for the commission of an unlawful act. See Haciosmanoglu v. Tritten, No. 3:21-CV-00005, 2021 WL 2785290, at *4 (D.N.D. July 2, 2021), rev'd and remanded on other grounds, No. 21-2584, 2022 WL 781047 (8th Cir. Mar. 15, 2022); Khamooshpour, 781 F. Supp. 2d at 896 (finding that a naturalization applicant "did not put forward any evidence of extenuating circumstances" where "all of the evidence he presented related instead to his rehabilitation"). This is so because "post-offense rehabilitation derives from conduct that [Petitioner] undertook after commission of the unlawful act." See Haciosmanoglu, 2021 WL 2785290, at *4. Thus, "rehabilitation in no way pertains to [Petitioner's] culpability" for that unlawful act "and its negative impact on his moral character." See id. (quoting Jean-Baptiste, 395 F.3d at 1195); see also 12 U.S. Citizenship & Immigr. Servs., Policy Manual pt. F, ch. 5, § L(2) (Mar. 22, 2023), https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5 (citing to Jean-Baptiste and explaining that "[a]n [immigration] officer may not . . . consider conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act as an extenuating circumstance" because "[e]xtenuating circumstances . . . must precede or be contemporaneous with the commission of the unlawful act").
D. Summary
In sum, USCIS was entitled to conclude that Petitioner lacked the good moral character necessary to obtain naturalized citizenship based on his 2017 conviction for unlawful procurement of citizenship or naturalization. This conviction occurred during the statutory period, so it is irrelevant that it was based on an unlawful act that took place before the statutory period began. Finally, Petitioner's claim that he has been rehabilitated since his 2017 conviction is not an "extenuating circumstance" that USCIS could use to find that he was of good moral character despite his 2017 conviction. Accordingly, the Petition fails to allege any facts which, if proven, would provide the Court with a basis to reverse USCIS' denial of his naturalization application. For this reason, the Court dismisses the Petition without holding an evidentiary hearing as Petitioner requests. See Pet. ¶ 45.
The statute pursuant to which Petitioner brings this case provides:
A person whose application for naturalization . . . is denied, after a hearing before an immigration officer . . . , 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 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). However, on multiple occasions the Eleventh Circuit has affirmed a district court's dismissal of a petition for review of the denial of a naturalization application where the facts alleged in the petition, taken as true, fail to demonstrate that the naturalization applicant is entitled to citizenship. See Morfa Diaz v. Mayorkas, 43 F.4th 1198, 1201-02, 1206-07 (11th Cir. 2022); Williams v. U.S. Dep't of Homeland Sec., 275 F. App'x 922, 925 (11th Cir. 2008); Gulbalis v. U.S. Citizenship & Immigr. Servs. Kendall Field Off., 642 F. App'x 953, 956 (11th Cir. 2016). Thus, the Court finds it appropriate to dispose of the merits of the Petition now.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Respondents' "Motion to Dismiss." [Doc. 9]. The Court DISMISSES Petitioner's "Petition for Review of a Naturalization Decision." [Doc. 1].
SO ORDERED, this 30th day of March, 2023.