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United States District Court, N.D. California

March 26, 2004.


The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Respondent's motion for summary judgment was granted. Accordingly, judgment is entered in favor of respondent and against petitioner.



  Now before the Court is respondent's motion for summary judgment. Having carefully considered the arguments of the parties and all papers submitted, the Court hereby GRANTS respondent's motion.


  Petitioner Tony Bakerian was born and raised in Jerusalem. Decl. of Edward Olsen, Ex. A. He entered the United States as an immigrant in 1989. Id. Petitioner was convicted of involuntary manslaughter in Marin County Superior Court pursuant to a plea of nolo contendere in April of 1992 and was sentenced to two years in prison. Olsen Decl., Ex. B at 17. Petitioner filed an application for naturalization on May 7, 1997. Olsen Dec., Ex. E. The Bureau of Citizenship and Immigration Services ("BCIS")*fn1 denied petitioner's application because his involuntary manslaughter conviction precluded him from being "a person of good moral character," a requirement for citizenship. Olsen Dec., Ex. F; Page 2 8 U.S.C. § 316(a), (e). Petitioner requested and received a hearing on the denial of his application, which was held on August 22, 2001. Olsen Decl., Ex. G. On September 25, 2002, the BCIS affirmed the denial of Petitioner's application, because inter alia, involuntary manslaughter is an "aggravated felony," and petitioner's conviction for that crime made him ineligible for naturalization. Id. The letter of denial notified petitioner that he had 120 days to file a petition for de novo review in this Court. Id. Mr. Bakerian prepared a pro se petition for review of his first application; it was stamped "received" by the clerk of this Court on January 24, 2003, and filed February 26, 2003. Resp't. Mot. for Summ. J. at 4n.4.

  Petitioner filed a second application for naturalization with the BCIS on October 2, 2002. Olsen Decl., Ex. H. This new application included a Certificate of Rehabilitation from the court that convicted and sentenced him in 1992. Olsen Decl., Ex. I. Respondent asserts and petitioner does not contest that this second application was denied on September 19, 2003 for the same reasons as the first. Resp't. Mot. for Summ. J. at 4-5. Respondent further asserts and petitioner does not contest that the BCIS rejection letter states that the Certificate of Rehabilitation did not alter petitioner's immigration status and that he is "permanently ineligible for naturalization." Resp't. Mot. for Summ. J. at 5. Petitioner never requested a hearing regarding the denial of his second application.*fn2

  Respondent filed a motion for summary judgment on January 29, 2004. On February 19, 2004, petitioner filed a document titled "Petitioner's Motion for Summary Judgment." The Court treats this document as an opposition to respondent's motion. The Court permitted Respondent to file its reply on February 24, 2004 pursuant to its unopposed request for extension of time. In addition, at the hearing of this matter the Court requested further materials from petitioner, concerning his underlying conviction. These materials were duly provided and reviewed. Page 3


  A person whose application for naturalization is denied after a hearing with an immigration officer has 120 days to seek review of that denial in the United States District Court for the district where that person resides. 8 U.S.C. § 1421(c); 8 C.F.R. § 336.9(b). The reviewing court does so de novo, reaching its own findings of fact and conclusions of law. 8 U.S.C. § 1421(c); 8 C.F.R. § 336.9(b).

  A court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of the lawsuit under governing law, and a dispute about such a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in the light most favorable to the nonmoving party. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In this case, however, there are no factual issues to resolve on summary judgment. Here, the question of the status of an individual convicted of involuntary manslaughter is a legal one.


 I. Petitioner's first application

  Mr. Bakerian's first petition for review was filed late on February 26, 2003, but was received by the Court Clerk's Office on January 24, 2003. Respondent contends that this Court has no jurisdiction to review the petition because it was filed after the 120-day deadline imposed by 8 U.S.C. § 1421(c). The 120-day deadline for Mr. Bakerian's petition fell on January 23, 2003. The petition was stamped "received" on Friday, January 24, 2003 and thereafter filed on February 26, 2003. In the interest of fairness to petitioner, the Court asserts its jurisdiction to review his petition.

  An application for naturalization will be denied if the applicant lacks "good moral character." Page 4 8 U.S.C. § 1427(a). An applicant must demonstrate that he or she has been a person of good moral character during the five years preceding filing the application. 1427 8 C.F.R. § 316.10(a)(1). In making its determination whether an applicant is actually of good moral character, however, the BCIS can consider the applicant's conduct at any time preceding the filing of the application. 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10(a)(2).

  An applicant lacks good moral character if the applicant has been convicted of an "aggravated felony" as defined by section 8 U.S.C. § 1101(a)(43) on or after November 29, 1990. 8 C.F.R. § 316.10(b)(1)(ii). The statutory definition of "aggravated felony" does not specifically include involuntary manslaughter, but the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") amended the definition of aggravated felony to include "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year," 8 U.S.C.A. § 1101(43)(F). Involuntary manslaughter under California Penal Code§ 192(b) falls within the definition of "a crime of violence" under 8 U.S.C. § 16. Park v. INS. 252 F.3d 1018, 1022 (9th Cir. 2001).

  The IIRIRA definition of "aggravated felony" applies retroactively to convictions that occurred before its enactment or effective date. Id. at 1025; see also Aragon-Avon v. INS. 206 F.3d 847, 853 (9th Cir. 2000) (holding that "Congress intended the 1996 amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed").

  Petitioner was convicted of involuntary manslaughter under California Penal Code § 192(b) and received a two-year sentence. Even though his conviction occurred prior to the enactment of the IIRIRA, the statute retroactively applies to him and encompasses his conviction. Petitioner has therefore been convicted of a crime of violence for which the term of imprisonment was more than one year. Petitioner's crime constitutes an aggravated felony and thus disqualifies him from meeting the moral character requirements for obtaining naturalization. Accordingly, Mr. Bakerian's petition on his first application is DISMISSED.

 II. Petitioner's second application

  Petitions for de novo review of rejected applications for naturalization cannot be heard until an Page 5 applicant has exhausted the available administrative remedies. 8 C.F.R. § 336.9(d). Such remedies include requesting a hearing before an immigration agent. 8. C.F.R. § 336.9(a). Petitioner failed to seek this administrative remedy on his second application. Accordingly, this Court has no jurisdiction to review it, and the petition is DISMISSED.

  Assuming arguendo that this Court could assert jurisdiction over petitioner's second application, the certificate of rehabilitation that petitioner included as part of that application does not override his felony conviction and does not change the result. A conviction vacated for "reasons unrelated to the merits of the underlying criminal proceedings" remains a conviction for immigration purposes. Matter of Pickering, 23 I. & N. Dec. 621, 624 (2003). Moreover, "expungement of a state conviction does not eliminate the immigration consequences of that conviction." Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1067 (9th Cir. 2003), citing Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001).

  Petitioner's certificate of rehabilitation neither vacates nor expunges his conviction. Rather, the certificate confirms that petitioner was convicted of a felony, and "recommends" that the Governor of California grant a pardon. This does not amount to a substantive vacatur of conviction, and is insufficient to relieve petitioner of the immigration consequences of his 1992 conviction. The petition is DISMISSED.


  For the foregoing reasons and for good cause shown, the Court hereby GRANTS respondent's motion for summary judgment. [Docket #23]


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