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Hamdan Fayad v. Carol Keller


March 14, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


(re: Dkt. #13 and #17)

Plaintiff Hamdan Fayad ("Plaintiff") brings suit against the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and various officials 19 (collectively "Defendants") in connection with USCIS's denial of his application for naturalization.

Presently before the Court are the parties' cross-motions for summary judgment. The Court held a 21 hearing on this matter on March 9, 2011. The parties agree that the key dispute is a legal one: 22 whether Plaintiff satisfies the relevant three-year residency requirement for naturalization of lawful 23 permanent residents. Because Plaintiff does not yet satisfy the residency requirement, the Court GRANTS Defendants' motion for summary judgment and DENIES Plaintiff's cross-motion for 25 summary judgment.

1998 in F-1 student status. See Pl.'s Cross-Mot. for Sum. J. at 2. Plaintiff married Amal Ibrahim Ms. Ibrahim filed an I-130 Petition for Alien Relative ("I-130 Petition"), and Plaintiff concurrently 8 filed an I-485 Adjustment of Status application ("I-485 Application") to adjust his status to that of 9 a Lawful Permanent Resident ("LPR"). See Exh. A and B to Defs.' Mot. for Sum. J. On Petition and I-485 Application, and granted Plaintiff conditional permanent residence.*fn1

On December 7, 2001, Plaintiff was convicted of a felony offense in violation of California Penal Code §273.5(a) (domestic violence). See Exh. D to Defs.' Mot. for Sum. J. Plaintiff was 14 sentenced to 90 days imprisonment, imposed a fine, ordered 80 hours of community service, 15 ordered mandatory domestic violence counseling, and sentenced to a three-year period of 16 probation. Id. On May 7, 2003, the Santa Clara County Superior Court reduced Plaintiff's felony 17 conviction to a misdemeanor. Id. According to Plaintiff, in June 2003, his conviction was 18 expunged pursuant to California statute. See Exh. I to Defs.' Mot. for Sum. J at 12 ("Addendum to Form N-400 [Plaintiff's first naturalization application]").

with a Notice to Appear in immigration court in San Francisco, California. See Exh. E to Defs. Mot. for Sum. J. Plaintiff was charged with removability under 8 U.S.C. §1227(a)(2)(E)(i) for his 24 conviction for domestic violence. During the removal proceedings, Plaintiff's spouse (Ms. 25 I-485 Application on March 3, 2007. See Exh. G and H to Defs. Mot. for Sum. J. On May 2,


A.Factual Background

The parties agree on the basic factual background. Plaintiff is a 37-year old native of Lebanon. See First Am. Compl. (FAC) ¶ 5. Plaintiff entered the United States on December 5, Ramlaoui ("Ms. Ibrahim"), a United States citizen, on February 13, 1999. Id. On March 23, 1999, December 15, 2000, the Immigration and Naturalization Service ("INS") approved the I-130

B.Removal Proceedings and Application for Naturalization

On May 19, 2006, DHS commenced removal proceedings against Plaintiff and served him Ibrahim) submitted a second I-130 Petition on November 3, 2006, and Plaintiff submitted a second 2007, USCIS approved the second I-130 Petition submitted on behalf of Plaintiff. On September 6, 2007, while in removal proceedings, Plaintiff also applied for naturalization via a "N-400 Application" as the spouse of a U.S. citizen. See Exh. I to Defs. Mot. for Sum. J. In order to 4 naturalize as a spouse of a U.S. citizen, Plaintiff was required to establish that he resided 5 continuously in the U.S. as a LPR during the three years immediately preceding his application for 6 naturalization. See 8 U.S.C. §1430(a).

in a summary one-page order. See Exh. F. to Defs.' Mot. for Sum. J. The USCIS issued Plaintiff a 9 new I-551 Permanent Resident Card ("green card"), which indicated that Plaintiff became an LPR 10 on July 9, 2008. See Exh. J. to Defs.' Mot. for Sum. J. The parties agree that the IJ's July 9, 2008 11 order granted Plaintiff LPR status as of July 9, 2008. However, the parties dispute whether the IJ's

On July 9, 2008, the immigration judge (IJ) approved Plaintiff's second I-485 Application order also found Plaintiff removable. That dispute is analyzed below. naturalization. On July 29, 2009, USCIS denied Plaintiff's naturalization application on the ground 15 that Plaintiff did not satisfy the relevant three-year continuous residency requirement. See Exh. K 16 to Defs.' Mot. for Sum. J. USCIS reasoned that Plaintiff LPR's status re-started on July 9, 2008, 17 the day the IJ approved his second I-485 Petition. Id. Thus, Plaintiff would not satisfy the 18 residency requirement until July 2011. Plaintiff appealed USCIS's denial of his application for 19 naturalization. See Exh. L to Defs.' Mot. for Sum. J. On June 10, 2010, USCIS upheld the denial 20 of Plaintiff's application for naturalization for failure to satisfy the three-year continuous residency 21 requirement. See Exh. M to Defs. Mot for Sum. J.

Order 61), Plaintiff moved for summary judgment, and Defendants opposed. On November 12, 2010, the Court denied Plaintiff's motion for summary judgment for failure to plead proper subject 27 matter jurisdiction. See November 12, 2010 Order [dkt. #11]. The Court, however, granted 28

On May 20, 2009, USCIS interviewed Plaintiff in connection with his application for

C. Procedural History before this Court

On July 30, 2010, Plaintiff filed suit in this Court, seeking relief from the USCIS decision.

See Compl. [dkt. #1]. Pursuant to the District's Immigration Mandamus Cases Order (General Plaintiff leave to amend to plead proper jurisdiction under 8 U.S.C. § 1421 (regarding a district 2 court's authority to review denials of applications for naturalization). See id. at 3.

deficiency. See Am. Compl. [dkt. #12]. Defendants filed a motion for summary judgment on 2011. The hearing on those motions was originally scheduled for February 24, 2011. Pursuant to 7 the parties' joint stipulation requesting a continuance due to counsel's personal matter, the Court 8 continued the hearing on the motions to March 10, 2011. See Dkt. #21. Counsel for both parties 9 appeared at the March 10, 2011 motion hearing.

Plaintiff filed an amended complaint on November 17, 2010 remedying the jurisdictional December 1, 2010, and Plaintiff then filed a cross-motion for summary judgment on January 18,


This Court is authorized to conduct a de novo review of Plaintiff's application for naturalization pursuant to 8 U.S.C. § 1421(c). In its review, the Court "has the final word" and 13 need not defer to any of USCIS's findings or conclusions. See United States v. Hovsepian, 359 "disputed issues of material fact," it need not engage in its own fact-finding and may grant a 16 motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See, e.g., Alenazi v. 596 F. Supp. 2d 1336, 1343 (C.D. Cal. 2009) ("The Court need not proceed with an evidentiary 19 hearing or otherwise conduct new fact finding where the Court believes that the legal question it 20 has identified ... is a threshold matter.").

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is 23 material when, under the governing substantive law, it could affect the outcome of the case. 24

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue as to a material fact is 25 genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving 26 party." Id. ). In a motion for summary judgment, the Court draws all reasonable inferences that 27 may be taken from the underlying facts in the light most favorable to the nonmoving party.

F.3d 1144, 1162 (9th Cir. 2004) (en banc). However, if the Court concludes that there are no USCIS, 2010 U.S. Dist. LEXIS 108458 (S.D. Cal. Oct. 12, 2010); see also Abghari v. Gonzales, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on 2 allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise 3 provided in this rule - set out specific facts showing a genuine issue for trial. If the opposing party 4 does not so respond, summary judgment should, if appropriate, be entered against that party." Fed. 5 R. Civ. P. 56(e)(2).

because: (1) he does not meet the statutory continuous residency requirement; and (2) he has not 9 demonstrated good moral character. Because the Court finds that summary judgment appropriate 10 based on Plaintiff's ineligibility for naturalization under the continuous residency requirement, the the evidence each of the requirements enumerated in the relevant section of the Immigration and Nationality Act. See 8 U.S.C. §1427(a); C.F.R. § 316.2(b). Generally, in order to be eligible for 16 naturalization, an alien must continuously reside in the U.S. for five years after being lawfully 17 admitted for permanent residence. See 8 U.S.C. §1427; 8 C.F.R. §316.5. However, the five-year 18 period is reduced to three years if the alien is applying for naturalization as the spouse of a U.S. 19 citizen and lived in marital union with the spouse for three years prior to applying for 20 naturalization. See 8 U.S.C. §1430(a); 8 C.F.R. §319.1. In addition, the applicant must satisfy the 21 continuous residence requirement from the time the naturalization application is filed up to the time 22 of admission to citizenship. See 8 U.S.C. §1427(a)(2); 8 C.F.R. §316.2(a)(6). 23

An alien's LPR status is recorded on the date the USCIS or the IJ approves the alien's I-485 application. See 8 U.S.C. § 1255(b); 8 C.F.R. § 245.2(a)(5)(ii). "Lawfully admitted for permanent 25 residence" is defined as "the status of having been lawfully accorded the privilege of residing 26 permanently in the US as an immigrant in accordance with immigration laws, such status not 27 having changed." 8 U.S.C. §1101(a)(2). 28


Defendants contend that Plaintiff is not yet eligible for naturalization as a matter of law Court does not reach Defendant erning Plaintiff's moral character. s' argument conc

A.The Dispute over Plaintiff's Continuing LPR Status

In order to be naturalized, Plaintiff bears the burden of establishing by a preponderance of Here, the INS approved Plaintiff's first I-130 Petition and first I-485 Application on December 15, 2000. At the time of the I-130 Petition approval, the Department of State allocated 3 an immigrant visa to Plaintiff, and subtracted Plaintiff's immigrant visa from the total number of 4 visas available in the family-based immigrant category for that year. See Defs.' Mot. for Sum. J. at 10. Upon the INS's approval of his I-485 Application, Plaintiff became a LPR or green card 6 holder. While in removal proceedings,*fn2 Plaintiff applied for, and received a second green card as a 7 result of the IJ's July 9, 2008 Order granting Plaintiff's application for adjustment of status. The 8

State Department issued Plaintiff a second immigrant visa, and subtracted Plaintiff's second 9 immigrant visa from the total number of visas available in the family based immigrant category for 10 that year as well. Id.

Plaintiff's LPR status. The Defendants, as did the USCIS in its decision below, assert that the IJ's

B.Whether the IJ's July 9, 2008 Order found Plaintiff Removable?

The parties dispute the legal significance of the July 9, 2008 Order with respect to July 9, 2008 Order found Plaintiff removable. If so, both sides acknowledge that Plaintiff's 15 previous LPR status would have "terminated" on that date. However, the Court cannot find, on de 16 novo review, that the IJ necessarily found Plaintiff removable. The July 9, 2008 Order is a one-17 page checklist that merely shows that the IJ granted Plaintiff's application for adjustment of status. 18

See Exh. F to Defs.' Mot. for Sum. J. (with checkmarks on the line stating that "Respondent's 19 application for adjustment of status" was "granted"). Nowhere does it actually enumerate that 20

Plaintiff was found removable. The July 9, 2008 Order does state that it "is solely for the 21 convenience of the parties. If the proceedings should be appealed or reopened, the oral decision 22 will become the official opinion in the case." The parties did not provide a transcript of the oral 23 decision.*fn3

otherwise, the IJ would not have adjudicated Plaintiff's second I-485 Application. This is an 3 eminently plausible argument, and may, in fact, be true. The Court, however, will not infer a 4 finding of removal solely on the basis of the IJ's grant of Plaintiff's application for adjustment of 5 status. An inference that the IJ found Plaintiff removable is especially inappropriate because the 6

None of those options, however, was checked by the IJ. 8

Defendants further argue that the IJ must have found Plaintiff removable because, July 9, 2008 Order includes options regarding removal and also includes an option entitled "other." 7

On this record, the Court cannot find that the IJ found Plaintiff removable.

C.Whether Plaintiff's LPR Status re-started on July 9, 2008?

Defendants also argue that, aside from the issue of removability, Plaintiff's LPR status re- started on July 9, 2008, the day the IJ approved his second I-485 adjustment of status application.

See Defs.' Mot. for Sum. J. at 7-10. Defendants contend that since Plaintiff's LPR status re-started 13 on July 9, 2008, Plaintiff will not satisfy the relevant three-year residency requirement until July 14 2011. Plaintiff responds that, without a final order of removability, his LPR status never changed 15 or was terminated, and thus he meets the continuous residency requirement. Defendants have the 16 better of the argument.*fn4 17

based immigration. See 8 U.S.C. §§ 1151, 1153. When a visa petition (I-130) is granted, the 19 § 245.1(g). Upon approval of an "adjustment of status application" (I-485), the State Department 21 subtracts one visa from the total number available for the fiscal year. 8 U.S.C. § 1255(b). The 22 statute specifically states, in relevant part, that: 23


There are only a limited number of visas that may be awarded to aliens based on family-

USCIS requests a family-based immigrant visa number from the State Department. 8 C.F.R. 20

[u]pon the approval of an application for adjustment . . . the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General [or USCIS by delegation] approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued. . . .

8 U.S.C. § 1255(b) (emphasis added).

adjustment of status; (2) be eligible to receive an immigrant visa; and (3) an immigrant visa must 5 be immediately available at the time he or she files the adjustment application. See 8 U.S.C. § 1255(a). Furthermore, 8 C.F.R. Section 204.2(h)(2), provides, in pertinent part, that: [w]hen a visa petition has been approved, and subsequently a new petition by the same petitioner is approved for the same preference classification on behalf of the same beneficiary, the latter approval shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except when . . . an immigrant visa has been issued to the beneficiary as a result of the petition approval.

In order to qualify for an adjustment of status, an alien must: (1) have applied for C.F.R. § 204.2(h)(2) (emphasis added). In other words, if an alien is the beneficiary of a second 13 visa petition, the alien may not use the first petition to his adjust his status a second time. An alien 14 may only use an approved immigrant visa petition once to adjust status to lawful permanent 15 residence. See Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (2006).

As explicitly enumerated under 8 U.S.C. § 1255(b), the Court finds that Plaintiff's LPR status began anew on the date that the second visa was issued. Plaintiff may not bootstrap his years 18 of residency through the simultaneous use of two different immigrant visas. See 8 C.F.R. § 204.2(h)(2) (the grant of a subsequent visa petition to the same petitioner is not a "reaffirmation 20 or reinstatement of the original petition" where immigrant visa has been issued to beneficiary as a 21 result of the petition approval). At the March 10, 2011 hearing, counsel for Plaintiff represented 22 that Plaintiff could have sought the alternate remedy of cancellation of removal. If cancellation of 23 removal was granted, both parties acknowledge that it would have been unnecessary to seek a new 24 visa petition or a new naturalization application, as Plaintiff could have simply relied on his first 25 grant of LPR status for purposes of the continuous residency requirement. See 8 C.F.R. §§ 1240.11(a) and 1240.20. Counsel for Plaintiff also represented that, for strategic reasons, aliens 27 in removal proceedings may often seek adjustment of status as relief instead of cancellation of 28 removal, in order to preserve the cancellation of removal remedy, which is a one-time remedy, for a later, potential removal proceeding. Plaintiff's counsel also stated that Plaintiff sought, and 2 received, the relief of adjustment of status expressly to overcome his deportability. Plaintiff's 3 argument that "his status as an LPR was never terminated, rescinded, or changed in any way" 4 completely ignores the fact that Plaintiff chose to seek adjustment of status in order to protect 5 himself from deportation. Such relief included the granting of LPR status by the IJ, and the 6 issuance of a second green card by the USCIS with a start date of July 9, 2008. 7

8 subtracted from the total number of family-related immigration visas available during their 9 respective years. Although the parties agreed that, in practice, the annual statutory cap for family-10 related immigrations visas has never been exceeded, it is still true that Plaintiff used his second 11 visa to adjust his status a second time. After receiving such a bene fit from the IJ, Plaintiff may not now claim that his original LPR status continued without interruption. The Court will not ignore 13 the second grant of adjustment of status in considering whether Plaintiff meets the relevant 14 continuous residency requirement.

changed was with a final order of removability. Plaintiff relies heavily upon the Board of Immigration Appeals (BIA) decision in Matter of Lok. See 18 I&N Dec. 101 (BIA 1981). In Matter of Lok, respondent, a LPR, was convicted of narcotics offenses and placed in removal 19 proceedings. Respondent conceded deportability, but argued he was eligible for relief from 20 deportation through a "discretionary waiver" based on his seven consecutive years of lawful 21 unrelinquished domicile. Id. at 103. The BIA ruled that, in those circumstances, the termination of 22 respondent's lawful permanent resident status ended upon the entry of a final order of deportation. 23

However, the BIA also recognized "other circumstances" in which lawful permanent resident 24 status may change, including rescission of adjustment status, adjustment to nonimmigrant status, 25 and intentional or unintentional relinquishment of status. Id. at 107. 26

decision does not encompass every way in which an alien's LPR status can change, nor does it 28 claim to. See United States v. Yakou, 428 F.3d 241, 250 (D.C. Cir. 2005) ("'termination' of LPR

Furthermore, both of the visas awarded to Plaintiff were statutorily required to have been Plaintiff contends that the only way his LPR status, based on the first visa, could have

Plaintiff's reliance is not so much misplaced as incomplete. The BIA's 1981 Matter of Lok status under 8 C.F.R. § 1.1(p) [and Matter of Lok] is only a subset of the 'change' of such status 2 mentioned in the INA, 8 U.S.C. § 1101(a)(20), and does not address the totality of the means by 3 which Yakou's LPR status could change."). As explained above, the allocation and use of a second 4 immigrant visa by Plaintiff, especially where Plaintiff chose to seek adjustment of status as relief 5 from deportation and was actually granted such relief, constitutes a change in Plaintiff's status. 6

In sum, Defendants are correct that Plaintiff's LPR status re-started on July 9, 2008.

Plaintiff does not meet the three-year continuous residency requirement on his present application 8 and is therefore statutorily ineligible for naturalization. Therefore, there is no genuine issue as to 9 any material fact, and Defendants are entitled to judgment as a matter of law.


Accordingly, Defendants' motion for summary judgment is GRANTED, and Plaintiff's cross-motion for summary judgment is DENIED. The Clerk shall close the file.


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