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Hamdan Fayad v. Carol Keller

March 14, 2011

HAMDAN FAYAD,
PLAINTIFF,
v.
CAROL KELLER, ET AL.,
DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

(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,

I.BACKGROUND

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. ยง 1421 (regarding a district 2 court's authority to review ...


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