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Ni v. United States Citizenship & Immigration Services

March 9, 2009

DAIJIAN NI PLAINTIFF,
v.
THE UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES ET AL. DEFENDANTS.



The opinion of the court was delivered by: Christina A. Snyder United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On June 13, 2008, plaintiff Dajian Ni petitioned this Court for de novo review of his naturalization application, which was denied by defendant the United States Citizenship and Immigration Service ("CIS") on May 28, 2008. Plaintiff also listed as defendants Jane Arellano, director of the CIS Los Angeles office; Dr. Emilio T. Gonzalez, director of the CIS; Michael Chertoff, Secretary of the United States Department of Homeland Security; and Michael Mukasey, United States Attorney General.*fn1

On January 21, 2009, defendants moved for summary judgment. On February 9, 2009, plaintiff filed his opposition. On February 23, 2009, defendants filed their reply. A hearing was held on March 9, 2009. After carefully considering the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

Plaintiff is a native and citizen of China. Plaintiff became a permanent resident of the United States on December 22, 1992, and is currently a resident of Los Angeles County. Plaintiff has applied for naturalization on two separate occasions. On November 3, 1997, plaintiff filed his first N-400 Application for naturalization. He was interviewed under oath by the Immigration and Naturalization Service ("INS"), hereinafter referred to as the CIS, on November 18, 1998, at which time he testified that the CIS had never taken any action to terminate his resident status. Certified Administrative Record ("CAR") at 90. In fact, the CIS had issued a Notice of Intent to Rescind on February 16, 1995, which was served on plaintiff on June 12, 1996. Id. at 118, 248-52. On September 12, 2005, the CIS denied plaintiff's N-400 application based on a lack of good moral character, as required for naturalization by 8 U.S.C. § 1427(a) and 8 C.F.R. § 316.10(b)(3)(iii). Id. 78-80.

Plaintiff again applied for naturalization on December 22, 2005. He was interviewed under oath on May 2, 2006, at which time he testified that he had never "given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal." Id. at 20. On July 6, 2007, the CIS denied plaintiff's second naturalization application, again because he failed to demonstrate good moral character. Id. at 6-8. Plaintiff filed a request for a review hearing pursuant to 8 U.S.C. § 1447(a) on August 1, 2007. Id. at 3.

On May 28, 2008, the CIS denied plaintiff's appeal. Id. at 1-2. The CIS found that plaintiff had not established good moral character due to his criminal history. CAR at 1-2. In the absence of extenuating circumstances, an applicant cannot be found to have good moral character if he committed or was convicted of an unlawful act that reflects adversely on his moral character during the five year period prior to his application. 8 C.F.R. § 316.10(b)(3)(iii). Plaintiff was convicted of trespassing, in violation of C.P.C. §602(j), on October 30, 2001, within the statutory period.*fn2 Id. For that conviction, he was sentenced to summary probation for three years, and ordered to attend either rehabilitative sessions or psychiatric counseling. Id. Plaintiff was also arrested for, and convicted of, several crimes outside of the statutory period in the early 1990s.*fn3

III. LEGAL STANDARD

Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000).

If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party "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." Celotex, 477 U.S. at 322.

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.

IV. DISCUSSION

Defendants argue that summary judgment should be granted because plaintiff has failed to establish any genuine issue of material fact. Mot. at 8. Defendants argue plaintiff's complaint does not offer any legal or factual argument as to why the CIS erred in rejecting his petition. Id. at 9. Defendants further argue that the CIS correctly denied plaintiff's application because plaintiff failed to establish good moral character as required by 8 U.S.C. § 1427(a) and 8 C.F.R. §316.2(a)(7). Mot. at 13. In the absence of extenuating circumstances, an applicant lacks good moral character if he commits or is convicted of an act that adversely reflects upon his moral character during the five-year statutory period. 8 C.F.R. §316.10(b)(3)(iii). Defendants argue that plaintiff's 2001 conviction for trespassing is sufficient to bar his application for naturalization. Id. at 13. Defendants further argue that plaintiff's convictions and arrests prior to the statutory period also weigh against a finding ...


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