The opinion of the court was delivered by: Charles Breyer, District Judge
ORDER GRANTING SUMMARY
Plaintiff filed this action to revoke the naturalization of defendant Raj Kumar Raghav ("defendant"). Now before the Court is plaintiff's motion for summary judgment. Defendant did not file an opposition; instead, on the date his opposition was due his counsel filed an answer to the complaint. After carefully considering the pleadings filed by the parties, including defendant's answer, the Court concludes that oral argument is unnecessary and GRANTS plaintiff's motion for summary judgment.
Defendant is a native and citizen of India who, beginning in 1992, assumed the identity of Rajesh Kumar. Defendant applied for a replacement green card using Kumar's identity. After obtaining the green card, defendant applied for naturalization, again using Kumar's identity. Defendant was naturalized on January 21, 1997 and was issued Certificate of Naturalization Number 23649360. [ Page 2]
Defendant was criminally prosecuted for his fraudulent naturalization application and he pled guilty on March 27, 2002.
The United States filed this complaint for revocation of naturalization on January 16, 2003. Although defendant was personally served with the complaint on January 22, 2003, he did not file an answer until August 6, 2003-after the United States filed its motion for summary judgment. Defendant did not file an opposition to the motion for summary judgment; instead, his answer asserts as an affirmative defense the alleged fact that the United States failed to conduct a personal investigation of defendant before it issued him a naturalization certificate.
The United States Attorneys, upon affidavit showing good cause, may institute proceedings to revoke and set aside an order admitting a person to citizenship and cancelling the certificate of naturalization on the grounds that the order and certificate were illegally procured or procured by willful misrepresentation or concealment of a material fact. 8 U.S.C. § 1451 (a). Revocation of naturalization and cancellation of the certificate of naturalization is effective as to the original date of naturalization. Id.
An alien's entry is not "lawful" if its obtained by fraud. See Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986). An alien who was not lawfully admitted to the United States is not eligible for naturalization. See Fedorenko v. United States, 449 U.S. 490, 514-15 (1981). Failure to comply with the statutory prerequisites for naturalization renders citizenship revocable as "illegally procured" under 8 U.S.C. § 1451(a). Id.
Here, defendant has admitted that he obtained his green card by assuming the identity of Kumar and applying for a replacement green card using Kumar's identity. He did not have the requisite five years of lawful permanent residence in order to qualify for naturalization. See 8 U.S.C. § 1427(a). He was convicted of the offense of personation in naturalization proceedings and admitted that he obtained a fraudulent green card in order to apply for naturalization. Therefore, defendant's naturalization was illegally procured. [ Page 3]
In order to denaturalize a citizen under 8 U.S.C. § 1451(a), for procuring citizenship through concealment of a material fact or willful misrepresentation, the misrepresentations and concealments must be both willful and material. See Kungys v. United States, 485 U.S. 759, 767 (1988). The undisputed facts establish that: (1) defendant misrepresented a material fact, namely, that he was Kumar, (2) his misrepresentation was willful, and (3) he procured his citizenship as a result of his misrepresentation. Accordingly, defendant's naturalization must be revoked.
In his answer, defendant asserts that the United States did not investigate defendant prior to issuing him a certificate of naturalization and that this failure somehow prohibits the United States from revoking defendant's naturalization. Equitable estoppel cannot serve as a basis for relief in this case unless defendant can show that the INS engaged in affirmative misconduct. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1184-85 (9th Cir. 2001) (en banc). Defendant has not come forward with any evidence of such conduct, let alone evidence sufficient to create a genuine dispute of fact.
For the foregoing reasons, the Court GRANTS plaintiff's motion for summary judgment. The undisputed evidence establishes as a matter of law that defendant procured his naturalization illegally and by concealment of a material fact and willful misrepresentation.
The Court revokes defendant's naturalization and order defendant to surrender his Certificate of Naturalization to the United States Attorney ...