Opinion
Civil Action No. DKC 2000-1624
July 25, 2001
MEMORANDUM OPINION
Presently pending and ready for resolution is the unopposed motion of the United States for summary judgment. For the following reasons, the motion will be GRANTED.
A notice was sent to Defendant, advising him of the necessity and opportunity to file a response. See, Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). No response has been received.
I. Background
The United States filed a complaint, under 8 U.S.C. § 1451(a) (The Immigration and Nationality Act of 1952), seeking to revoke and set aside the order admitting Defendant to citizenship and to cancel his certificate of naturalization based on allegedly false representations concerning his criminal record. A letter from Mr. Vo was construed as an answer, and a scheduling order was entered.
Defendant, a native of Viet Nam, entered the United States on or about December 20, 1989, as a lawful permanent resident. He filed an application with the Immigration and Naturalization Service for naturalization on or about December 13, 1995. The application, signed under the penalties of perjury, required disclosure of arrests and convictions. Defendant answered "no." At a later interview in March, 1996, Defendant again reaffirmed that answer.
Mr. Vo had been arrested twice prior to taking the oath, and convicted once. The second charge was still pending. Specifically, in 1993, he was arrested and charged with being a rogue and vagabond, pled guilty, and was sentenced to one day in jail and probation. The probation terminated in December 1994, and a request for reconsideration was formally denied in January 1995. The second arrest occurred five days after he signed the application, but before he submitted it.
The complaint alleges that Defendant had, contrary to his representations, been charged and convicted of criminal offenses. As a result, the government asserts that his naturalization is subject to revocation and cancellation. At his deposition, Vo stated that he had responded "no" to the questions about arrest for a variety of reasons: he might not have understood the question and he labored under the mistaken assumption that he might still be able to obtain an expungement of the first arrest, and because the second charge was still pending.
II. Summary Judgment Standard
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate.
Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 128 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256.
Civil denaturalization proceedings may be resolved by summary judgment: "Although the Supreme Court has imposed on the Government a stricter burden of proof in denaturalization proceedings, summary judgment procedure remains applicable in such actions." United States v. Dercacz, 530 F. Supp. 1348, 1349 (E.D.N.Y. 1982). Accord, United States v. Dailide, 227 F.3d 385, 389 (6th Cir. 2000) (finding summary judgment may be appropriate in denaturalization proceedings). The burden of proof in a denaturalization proceeding is one of "clear, unequivocal and convincing" evidence. Schneiderman v. United States, 320 U.S. 118, 122 (1943).
III. Analysis
As the Third Circuit has observed, there are:
"two competing concerns" at issue in denaturalization cases, United States v. Breyer, 41 F.3d 884, 889 (3d Cir. 1994). . . . As acknowledged by the Supreme Court, "the right to acquire American citizenship is a precious one, and . . . once citizenship has been acquired, its loss can have severe and unsettling consequences." Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1981). Thus, the government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 536, 5 L.Ed.2d 551 (1961). At the same time, however, courts require "strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko, 449 U.S. at 506, 101 S.Ct. at 747. These two factors combine to "reflect our consistent recognition of the importance of the issues at stake — for the citizen as well as the Government — in a denaturalization proceeding." Id. at 507, 101 S.Ct. at 747.
United States v. Koreh, 59 F.3d 431, 438 (3d Cir. 1995). Pursuant to 8 U.S.C. § 1451 (a), it is the duty of the United States Attorney to bring a proceeding such as this when it can show that the naturalization was illegally procured, or procured by concealment of a material fact or by willful misrepresentation. The government contends that the same allegedly false statements during the naturalization process demonstrate both that the naturalization was illegally procured and that it was procured by concealment of a material fact and willful misrepresentation. Because Mr. Vo's explanations simply do not justify the obviously false answers concerning his criminal history, which were knowingly made, the court concludes that the petition should be granted.
A. Illegal Procurement.
A naturalization may be considered illegally procured under 8 U.S.C. § 1451(a) when a naturalized citizen fails "to comply with the statutory prerequisites for naturalization," Fedorenko, 449 U.S. at 514, such as lawful permanent residence, Dercacz, 530 F. Supp. at 1351 (finding invalid entrance visa prohibits lawful admission for permanent residence and citizenship was, therefore, illegally procured) and, as applicable to the instant case, good moral character.
Good moral character is a statutory prerequisite: "No person, . . . shall be naturalized unless such applicant . . . (3) during all the period referred to in this subsection has been and still is a person of good moral character. . . ." 8 U.S.C. § 1427. "Good moral character" is defined in 8 U.S.C. § 1101(f), and, as most applicable to the instant case, can be found to be lacking when a person "has given false testimony for the purpose of obtaining [immigration or naturalization] benefits." 8 U.S.C. § 1101(f)(6). As found by the Supreme Court, § 1101(f)(6) applies to misrepresentations made with the subjective intent to obtain immigration or naturalization benefits. Kungys v. United States, 485 U.S. 759, 780 (1988). Earlier decisions recognized that lack of candor shown by false answers concerning criminal and arrest records is inconsistent with finding good moral character. United States v. Montalbano, 236 F.2d 757, 759 (3d Cir. 1956) (finding that the deliberate failure of each defendant to disclose his criminal record shows that he was not of good moral character and therefore did not meet the statutory prerequisite to citizenship); Petition of de la Cruz, 565 F. Supp. 998, 999 (S.D.N.Y. 1983) (finding petitioner's lack of candor about her arrest sufficient to satisfy lack of good moral character).
B. Willful Misrepresentation.
A second, somewhat different ground for revocation of citizenship under 8 U.S.C. § 1451(a) is willful misrepresentation: "[T]he naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment." Kungys, 485 U.S. at 767.
1. Misrepresentation or concealment of a fact.
Denaturalization proceedings have been brought on the basis of concealment or misrepresentation of facts such as a criminal record, marital status, residence, and identity. United States v. Oddo, 314 F.2d 115, 116 (2d Cir. 1963) (finding concealment of arrest record justifies denaturalization); United States v. D'Agostino, 338 F.2d 490, 491 (9th Cir. 1956) (finding answers about marital status that were untruthful to be grounds for denaturalization); United States v. Riela, 337 F.2d 986, 989 (3d Cir. 1964) (finding residence and identity misrepresented).
2. Willful.
A misrepresentation must be willful. Kungys, 485 U.S. at 767. Where a misrepresentation is unintentional, a claim of willful misrepresentation cannot be sustained. Nowak v. United States, 356 U.S. 660, 665 (1958) (finding question was too ambiguous to sustain fraud claim); United States v. Profaci, 274 F.2d 289, 292 (2d Cir. 1960) (finding intent to deceive is not necessarily implied when a question is ambiguous).
3. Material.
A misrepresentation is grounds for revocation of citizenship only when it is material, meaning that it has "a natural tendency to influence the decisions of the Immigration and Naturalization Service." Kungys, 485 U.S. at 772. Justice Brennan, in his concurring opinion, agreed with that definition but emphasized that "a presumption of ineligibility does not arise unless the Government produces evidence sufficient to raise a fair inference that a statutory disqualifying fact actually existed." Id. at 783 (Brennan J., concurring). In an unpublished opinion, the Fourth Circuit stated this test for materiality:
A statement is material if it has a natural tendency to influence, or be capable of influencing, the decision of the decision making body to which it was addressed. In the immigration context, a statement is material if a different answer would have disclosed other facts relevant to an individual's qualifications for naturalization.
United States v. Agunbiade, 172 F.3d 864, 1999 WL 26937, **3 (4th Cir. Jan. 25, 1999).
4. Procurement of Citizenship.
Finally, citizenship must have been procured as a result of the concealment or misrepresentation. When material misrepresentations are made in a naturalization proceeding, the applicant is presumably disqualified from citizenship, but has the right to show, "through a preponderance of the evidence, that the statutory requirement as to which the misrepresentation had a natural tendency to produce a favorable decision was in fact met." Kungys, 485 U.S. at 777. In sum, an applicant who makes misrepresentations in a naturalization proceeding presumptively is disqualified from citizenship but can refute the presumption by showing that statutory requirements were met.
IV. Discussion
The evidence submitted is uncontradicted that Mr. Vo had been arrested and convicted in 1993 for being a rogue and vagabond and was arrested in December 1995 for attempted automobile theft. It is also uncontradicted that he signed an application under oath and later reaffirmed the answers under oath at an interview. He has admitted to knowing and remembering about the first arrest and conviction when he signed the application, and knowing of the second arrest at the time of his interview. He also knew that revealing a criminal record might delay or prevent his naturalization. The records clearly reflect that the proceedings surrounding his first arrest had been fully completed a year prior to his application. Thus, his assertion that he still thought he could obtain an expungement lacks force. In any event, he knew that he had not obtained an expungement and thus should have revealed the arrest and conviction. At the time of the interview, he also knew of his second arrest, even though the proceedings were ongoing, and he should have revealed it at the time. The evidence is also uncontradicted that disclosure of either of the arrests would have resulted in suspension of the naturalization proceedings and, once the second arrest resulted in a conviction, Mr. Vo would have been asked to withdraw his application or it would have been denied.
As it turns out, these uncontradicted facts support denaturalization under both prongs. His false statements during the application process with the intent to obtain benefits demonstrates a lack of good moral character. He thus procured his naturalization illegally. The same willful, material misrepresentations which enabled him to procure citizenship satisfy the separate basis for denaturalization. Accordingly, the petition will be granted by separate order.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this ___, day of July, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. The motion of the United States of America for summary judgment BE, and the same hereby IS, GRANTED;
2. The June 8, 1996 naturalization order entered by the Attorney General of the United States admitting Hieu Hien Vo to United States citizenship BE, and the same hereby IS, REVOKED and SET ASIDE;
3. Certificate of Naturalization number 21566748 issued to Hieu Hien Vo by the Attorney General of the United States BE, and the same hereby IS, CANCELLED;
4. Defendant Vo BE, and he IS HEREBY, RESTRAINED and ENJOINED from claiming any right, privilege or advantage of United States citizenship based upon the June 8, 1996 naturalization;
5. Defendant Vo BE, and he IS HEREBY, DIRECTED to SURRENDER and DELIVER to the Attorney General (or his representative, the United States Attorney for the District of Maryland) his certificate as well as any indicia of United States citizenship within his possession, custody or control; and
6. The clerk will transmit copies of the Memorandum Opinion and this Order to Defendant and to counsel for Plaintiff and CLOSE this case.