The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [doc. #8] and DIRECTING ENTRY OF JUDGMENT
The United States of America ("United States" or "plaintiff") moves for summary judgment seeking to revoke and set aside the grant of United States citizenship for Nasser Alavi and to cancel his Certificate of Naturalization. Defendant, who is a fugitive, was served with the Complaint pursuant to California Code of Civil Procedure § 415.50 and Civil Local Rule 83.7, by the publication of the summons in the "San Diego Commerce" for the period and in the manner specified in California Government Code § 6064.
Defendant has not responded to the Complaint or to the motion for summary judgment which was filed electronically with the Clerk of the Court.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
Alavi entered the United States on a J-1 visitor visa on June 28, 1992. He was then admitted to the United States for permanent residence on April 9, 1996. Between May 14, 2003 and August 14, 2003, Alavi committed six separate acts of sexual battery and one act of rape by a foreign object. Although an arrest warrant was issued for Alavi on August 15, 2003, he was not arrested and charged with these acts until March 15, 2005.
After committing these acts and the issuance of the arrest warrant, Alavi completed his naturalization application but under penalty of perjury, indicated he had never committed a crime. He filed his application for naturalization and was interviewed. Under oath, he stated he had never committed a crime. On June 1, 2004, Alavi's application for naturalization was granted and on July 15, 2004, he took the Oath of Allegiance and was formally naturalized and admitted as a United States citizen.
On March 15, 2005, Alavi was arrested and charged with seven counts of Felony Sexual Battery committed between May 14, 2003 and August 14, 2003, and one count of Felony Rape by Foreign Object committed on August 14, 2003. Alavi was found guilty of Felony Rape by Foreign Object and six counts of Sexual Battery.*fn1 Pending sentencing, Alavi was released on a $100,000 bond. He failed to appear for sentencing, the bond was forfeited and a bench warrant issued on November 8, 2005. Alavi remains a fugitive.
Alavi bears the burden of demonstrating he possessed good moral character during the statutory period to qualify for naturalization. He has not done so. The United States has presented evidence that proves Alavi had engaged in criminal activity during the statutory period, i.e., Alavi's conviction of Sexual Battery on six separate occasions and Rape by Foreign Object with all acts occurring during the statutory period. His failure to disclose that he had committed these criminals acts to the United States preclude a finding that he had "good moral character."
The Court therefore finds that there are no genuine issues of material fact in dispute concerning Alavi's lack of good moral character and resultant ineligibility for naturalization.
Based on the foregoing, IT IS ORDERED:
1. GRANTING the United States' motion for summary judgment;
2. REVOKING AND SETTING ASIDE the grant of United States citizenship to defendant and CANCELING his Certificate of Naturalization, No. 28 282 586;
3. DIRECTING the United States to publish this Order granting the revocation of Alavi's United States ...