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Khuc v. United States Citizenship and Immigration Services

United States District Court, N.D. California, San Jose Division

March 3, 2015

LUAN PHAM KHUC, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Re: Docket No. 12]

HOWARD R. LLOYD, Magistrate Judge.

Luan Pham Khuc, proceeding pro se, challenges the United States Citizenship and Immigration Services' ("USCIS") denial of his May 17, 2011 Form N-400, Application for Naturalization. On January 22, 2015, Defendant filed a motion for summary judgment. Dkt. No. 12. Plaintiff did not file an opposition, but did appear at the March 3, 2015 hearing to oppose the motion. All parties have expressly consented to having all matters proceed before a magistrate judge. Based on the moving and responding papers, as well as the arguments presented at the hearing, the Court grants Defendant's motion for summary judgment.

BACKGROUND

In February 1986, Plaintiff entered the United States as a refugee. Young Decl., Exh. 1, at 2. In April 1988, he obtained permanent resident status as a refugee through 8 U.S.C. § 1159. Id. In January 1999, however, an immigration judge ordered Plaintiff removed from the United States because of Plaintiff's numerous arrests and criminal convictions. Id., Exh. 2. Plaintiff's removal order automatically rescinded his lawful permanent resident status. Id., Exh. 1, at 2. In July 1999, the government issued Plaintiff an order of supervision, which allowed him to remain in the United States temporarily. Id., Exh. 3.

In May 2009, Plaintiff filed an I-485, Application to Register for Permanent Resident Status. Id., Exh. 7. In April 2010, the USCIS deemed Plaintiff inadmissible to adjust his status and denied his lawful permanent resident application, because of his criminal convictions and removal order. Id. Plaintiff subsequently submitted a Form I-602, Application by Refugee for Waiver of Grounds of Inadmissibility, which USCIS granted under 8 U.S.C. § 1159 in August 2010. Id., Exh. 1, at 2.

In May 2011, Plaintiff submitted an N-400, Application for Naturalization. Id., Exh. 8. USCIS denied the application, finding that Plaintiff was not eligible for the lawful permanent resident status he was granted in August 2010, and therefore he was not eligible to naturalize. Id., Exh. 1. Specifically, USCIS determined that under Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010), an individual who previously adjusted his status under 8 U.S.C. § 1159 is not eligible to "re-adjust" under the same statute if he is seeking a waiver under 8 U.S.C. § 1159(c). Id. at 2. USCIS upheld its naturalization denial on rehearing, finding that "[i]nasmuch as [Plaintiff has] failed to meet all the requirements of [8 U.S.C. § 1427], [he has] failed to overcome the grounds of the denial." Id., Exh. 9.

In September 2013, Plaintiff filed the present action, challenging USCIS's denial of his May 2011 Form N-400, Application for Naturalization. Presently before the Court is Defendant's motion for summary judgment. Dkt. No. 12.

LEGAL STANDARD

A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses. See Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1102. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See id. A genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248-49.

"When the nonmoving party has the burden of proof at trial, the moving party need only point out that there is an absence of evidence to support the nonmoving party's case.'" D evereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex Corp., 477 U.S. at 325). Once the moving party meets this burden, the nonmoving party may not rest upon mere allegations or denials, but must present evidence sufficient to demonstrate that there is a genuine issue for trial. Id.

DISCUSSION

Although Plaintiff does not assert any ground for this Court's jurisdiction, he presumably seeks relief under 8 U.S.C. § 1421(c). Under 8 U.S.C. § 1421(c) and 8 C.F.R. § 336.9(b), a person whose application for naturalization is denied after a hearing before an immigration officer may seek review of the denial in the district court for the district in which the he resides. "The review will be de novo, and the court will make its own findings of fact and conclusions of law." 8 C.F.R. § 336.9. If a court concludes that a statutory bar to naturalization exists, the court need not engage in fact finding and may dispose of the case by way of summary judgment. See Chaudhry v. Napolitano, 749 F.Supp.2d 1184, 1184 (E.D. Wash. 2010) (citing Chan v. Gantner, 464 F.3d 289, 296 (2d. Cir. 2006)).

An alien petitioning for naturalization bears the burden of showing that he is eligible "in every respect" to become a United States citizen. Berenyi v. Dist. Dir., Immigration & Naturalization Servs., 385 U.S. 630, 637 (1967); 8 C.F.R. § 316.2(b). "[T]here must be strict compliance with all the congressionally imposed prerequisites to ...


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