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.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING RESPONDENT'S
MOTION FOR SUMMARY JUDGMENT
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;
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.
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
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.
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 ...