The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER FOLLOWING EVIDENTIARY HEARING; ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT; AND ORDER DENYING PETITION FOR NATURALIZATION
Petitioner, a native and citizen of Guatemala, filed his Petition in this case seeking review of a denial of his application for naturalization. The Petition requests an order requiring that his application for naturalization be granted and that he be naturalized as a U.S. citizen.
The United States Citizenship and Immigration Service (USCIS) found Petitioner lacked good moral character pursuant to 8 U.S.C. § 1101(f)(6) and 8 C.F.R. § 316.10(b)(2)(vi). Specifically, he was found to have made misrepresentations on his application and to have falsely testified that he did not assist anyone's illegal entry into the U.S. The parties filed cross-motions for summary judgment, and Petitioner requested in the alternative summary adjudication.
Petitioner requested an evidentiary hearing in the event the Court was inclined to grant Respondents' motion. On February 9, 2010, the Court issued an order denying the cross motions without prejudice and granting Petitioner's request for a hearing. The order vacated the final pretrial conference on Monday, March 15, 2010 and scheduled the evidentiary hearing in its place. The order said the Court would consider the briefing on the cross motions as the primary hearing briefs, but directed the parties to file a notice stating what testimony or supplementary evidence they intended to present at the hearing.
Respondents then filed supplemental evidence to be considered at the hearing. Petitioner filed nothing, and did not appear at the hearing. At the hearing, the Court considered the evidence before it and rendered judgment for Respondents, noting it would issue an order explaining its ruling in greater detail. The Court noted that it would have granted summary judgment for Respondents had Petitioner not requested a hearing.
Four days later, on March 19, Petitioner moved for reconsideration. Petitioner's counsel represented that he had not received notice of the hearing, but did not explain why he did not prepare for or appear at the pretrial conference that had been scheduled at the same time. Petitioner's counsel concedes he received Respondents' filings in preparation for the hearing but did not read them. In addition, the Court's records show Petitioner's counsel did receive electronic notice of the hearing. On March 24, the Court issued an order denying reconsideration and noting that the hearing could not have affected the outcome of this action in any event. In that order, the Court also said it would render judgment in this action later in a separate order. This is that order.
A person whose application for naturalization has been denied after a hearing before an immigration officer under 8 U.S.C. § 1447(a) may seek review of the denial in U.S. district court. 8 U.S.C. § 1421(c). The review is de novo, and the Court is to make its own findings of fact and conclusions of law. Id. The de novo standard means the Court does not defer to the USCIS's findings or conclusions. United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004). The Court does not review all prior proceedings de novo, only the USCIS's findings and conclusions regarding the naturalization proceedings being reviewed. See id. (explaining the application of § 1421(c)). The decisions of courts and adjudicative agencies in other proceedings may if appropriate have preclusive effect. See Sabbaghi v. Napolitano, 2009 WL 4927902, slip op. at *4 (W.D.Wash., Dec. 11, 2009) (discussing case law governing collateral estoppel when reviewing denial of naturalization).
Upon request, a petitioner is ordinarily entitled to a hearing. 8 U.S.C. § 1421(c). This does not necessarily require an evidentiary hearing or bench trial, however, nor is summary judgment precluded where there is no genuine issue of material fact. Abghari v. Gonzales, 596 F. Supp. 2d 1336, 1343--44 (C.D.Cal., 2009) (citing Chan v. Gantner, 464 F.3d 289, 295--96 (2d. Cir. 2006)). Petitioner bears the burden of showing he is entitled to naturalization. Berenyi v. I.N.S., 385 U.S. 630, 673 (1967).
The Supreme Court has held that § 1106(f)6)'s prohibition covers only false testimony under oath for the subjective purpose of obtaining immigration benefits. Kungys v. United States, 485 U.S. 759, 780 (1988). This does not include inaccurate testimony due to faulty memory, vague questioning, or other factors having no bearing on an applicant's character for truthfulness. United States v. Hovsepian, 422 F.3d 883, 887--88 (9th Cir. 2005) (en banc).
In 1986 and again in 1987, Petitioner was arrested and pleaded guilty to violations of 8 U.S.C. § 1325, for assisting aliens to elude examination and inspection by immigration officials. These two incidents occurred at checkpoints within the U.S., and Petitioner maintained he had picked up the aliens within the U.S., and had not helped them enter the U.S. While the parties devote a good part of their briefing to these incidents, the Court finds the motions can be resolved more directly by relying on a third incident on August 8, 1995, when Petitioner was stopped while entering the U.S. from Mexico and accused of alien smuggling. The Court therefore focuses its discussion on that incident and the exclusion proceedings that followed.
Petitioner was a frequent border crosser, having crossed into Tijuana roughly a hundred times. (Resps.' Mot., Ex. O at 110:14--18). He explains the trip on August 8, 1995 by saying he went to Tijuana to buy medicine for his wife. He was driving a 1985 Toyota pickup truck with a camper shell. (Resps.' Mot., Ex. Z (Pet'r's Depo. Tr.) at 257--59.) The truck's locks were working and he believed he locked his truck when he parked it, but the lock on the camper shell was broken. (Id.) It was a single cab truck, with no extra space behind the front seat for passengers.
On his return trip, a large man was concealed in the cab behind the passenger's seat. Petitioner says he knew nothing about this, and did not suspect anything after driving for several hours, until shortly before he reached the checkpoint, when he felt movement behind him. He did not look behind the seat, but instead hit it, and the movement stopped. As he neared the port of entry, he says he attempted to summon an officer to let them know someone was hiding in his truck, but was unable to get the officer's attention. He proceeded to the inspection point without taking any further action. He says he did this thinking he would tell the officer there that someone was behind his seat and that as a result nothing would happen to him. Instead, he says, the officer at the inspection point took his credentials and began to walk around the truck to inspect it, even though he was trying to tell the officer someone was hiding in his truck. At the officer's request, Petitioner opened the door to reveal a pair of feet sticking out of the cab of the truck. The officer began to hit the concealed man's feet, causing him to give himself up.
Petitioner was then handcuffed, questioned and, he says, pressured and terrified into admitting wrongdoing. Videotapes were made of the questioning but are no longer available.*fn1 Petitioner was not prosecuted, but on August 30, 1995, was put in exclusion proceedings pursuant to 8 U.S.C. § 1182(a)(6)(E)(I). He testified at the proceedings before an immigration judge, who found him excludable but granted a waiver of removal. Although the immigration judge found the equities warranted granting the waiver, he specifically found Petitioner's story was not credible and noted "the reluctance of Mr. Garcia to recognize his wrongdoing and his attempts to shield the court from it." (Resp.'s Mot., Ex. Q at 214.)*fn2 The immigration judge also ruled the confession was voluntary and admitted it as evidence. Both parties appealed, and the Board of Immigration Appeals dismissed both appeals, affirming the immigration judge's decision.
Later, the USCIS relied on the hearing before the immigration judge, the immigration judge's findings, and Petitioner's naturalization interview to find he had given false testimony. (Resps.' Mot., Ex. W at 245--46 (USCIS Decision, Jan. 11, 2007); Pet., Ex. 1 (USCIS Final Determination, Feb. 25, 2008).) Both decisions were broad, and relied on general findings that, contrary to his testimony and statements during the interview, Petitioner had at some time helped one or more persons illegally enter the U.S.*fn3
Except as noted, the facts set forth above are undisputed. The Respondent offers portions of the transcripts of the hearings before the immigration judge on May 8 and 24, 1996, at which Petitioner was represented by counsel. (Resp.'s Mot., Exs. O (May 8 Tr.), P (May 24 Tr.).) Those transcript record, among other things, Petitioner's own sworn testimony about the 1995 incident. Although Petitioner argues otherwise, that testimony was given to obtain immigration benefits, namely to show either that Petitioner was not excludable or to show he was entitled to a waiver. Furthermore, Petitioner's statement on ...