United States District Court, E.D. Virginia, Alexandria Division
For Vinita Sharma, Plaintiff: Jennifer Sheethel Varughese, LEAD ATTORNEY, Livesay & Myers, PC (Fairfax), Fairfax, VA.
For Sarah Taylor, District Director USCIS Washington District Office, Kimberly Zanotti, Field Office Director USCIS Washington District Office, Lori Scialabba, Acting Director U.S. Citizenship and Immigration Services, Rendell Jones, Acting Deputy Director U.S. Citizenship and Immigration Services, Jeh Johnson, Secretary U.S. Department of Homeland Security, Eric J. Holder, Attorney General U.S. Department of Justice, Defendants: Dennis Carl Barghaan, Jr., LEAD ATTORNEY, United States Attorney's Office, Alexandria, VA.
T.S. Ellis, III, United States District Judge.
This is a civil action brought pursuant to 8 U.S.C. § 1421(c) seeking review of a denial of an application for naturalization by the United States Citizenship and Immigration Service (" USCIS" ). Petitioner contends USCIS erred in denying her January 22, 2013 naturalization application in the face of a sentence commutation granted by the Governor of Virginia reducing by one day the one-year sentence she received for a 1995 felony larceny conviction. Because the Governor labeled the commutation order " nunc pro tunc " to the date of petitioner's sentencing, petitioner contends that the order effectively erased the " aggravated felony" nature of the 1995 conviction that had previously been a bar to her naturalization, pursuant to the Immigration & Naturalization Act (" INA" ), 8 U.S.C. § 1101(f). Respondents, for their part, contend that 8 C.F.R. § 316.10(c)(2)(i) governs petitioner's application, and thus that she must wait three years from the date of her sentence commutation to establish the " good moral character" required by the INA, 8 U.S.C. § 1101(f) Petitioner, in response, argues that USCIS's construction and application of § 316.10(c)(2)(i) is incorrect, and that the nunc pro tunc label of the Governor's sentence commutation order results in her immediate eligibility for naturalization.
At issue, therefore, on cross-motions for summary judgment, are the following questions:
(1) Whether the USCIS's construction of § 316.10(c)(2)(i) to apply to sentence commutations as well as pardons is entitled to deference so that the regulation governs petitioner's application for naturalization; and
(2) Whether the commutation order's nunc pro tunc label is effective to erase the aggravated felony nature of petitioner's conviction so as to render her immediately eligible for naturalization.
Petitioner Vinita Sharma, a 54-year old citizen of India, is married to a U.S. citizen and has been a lawful permanent resident of the United States since October 16, 1980.
Respondents are six officials within the USCIS or supervising agencies, all sued in their official capacity. Sarah Taylor, District Director of the USCIS Washington District Office, and Kimberly Zanotti, Field Office Director of the USCIS Washington District Office, are responsible for adjudicating N-400 applications for naturalization by applicants within that office's jurisdiction. Lori Scialabba and Rendell Jones are Acting Director and Acting Deputy Director of USCIS, respectively. Jeh Johnson is the Secretary of the Department of Homeland Security (" DHS" ), which has authority over the administration and enforcement of U.S. immigration laws, policies, and procedure. Eric Holder is Attorney General of the United States, charged under 8 U.S.C. § 1103 with determining all issues of law pertaining to the immigration and naturalization of aliens.
The administrative record reflects the following pertinent facts:
On May 18, 1995, petitioner was arrested and charged with stealing over $200 of merchandise from a department store in Fairfax County, Virginia. Petitioner pled guilty to a charge of concealment of merchandise, a violation of Virginia Code § 8.2-103. On October 13, 1995, she was
sentenced to twelve months in jail, with all twelve months suspended.
Five years later, on August 28, 2000, petitioner filed her first naturalization application, in which, as required, she disclosed her 1995 felony conviction. On July 17, 2001, USCIS's predecessor, the Immigration and Naturalization Service (" INS" ), denied her application on the ground that her Virginia felony larceny conviction, which resulted in a twelve-month sentence, qualified as an " aggravated felony" under the INA, thereby precluding her from demonstrating the " good moral character" required by the INA for naturalization. 8 U.S.C. § 1427(a).
Petitioner sought to remove this bar to her naturalization by requesting executive clemency from the Governor of Virginia via a sentence commutation. The Governor granted this request on December 18, 2012, issuing a commutation order reducing her sentence from twelve months to 364 days, " nunc pro tunc " to the date of her 1995 sentencing. Thereafter, believing that the sentence commutation served to erase the " aggravated felony" classification of her conviction, petitioner, on January 22, 2013, once again filed a naturalization application. This application also failed: USCIS denied it on June 3, 2013, explaining that it regarded the sentence commutation order as a form of executive clemency akin to a pardon. According to USCIS, this sentence commutation order entitled petitioner to the benefit of 8 C.F.R. § 316.10(c)(2)(i), which allows petitioner to demonstrate the requisite good moral character, but only after a period of three years following the date of the commutation order. This result, the USCIS noted, is required by § 316.10(c)(2)(i), which provides that an applicant convicted of murder or an aggravated felony is no longer precluded from establishing good moral character if they receive executive clemency " prior to" the beginning of the statutory period. On administrative appeal, USCIS's interpretation of § 316.10(c)(2)(i) and the decision to deny petitioner's naturalization application were affirmed.
A brief summary of the statutory and regulatory framework governing naturalization provides useful context for the resolution of the parties' dispute.
The INA authorizes the U.S. Attorney General to naturalize persons as citizens of the United States. 8 U.S.C. § 1421(a). A person seeking naturalization must file a sworn application with the Attorney General through the USCIS. Id. § 1445(a); 8 C.F.R. § 316.4(a). Once this occurs, USCIS must examine the applicant's qualifications for naturalization and " make a determination as to whether the ...