United States District Court, N.D. California
March 26, 2004.
TONY BAKERIAN, Plaintiff,
IMMIGRATION & NATURALIZATION SERVICE, Respondent
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 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."
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
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
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
For the foregoing reasons and for good cause shown, the Court hereby
GRANTS respondent's motion for summary judgment. [Docket #23]
IT IS SO ORDERED.