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Tung v. Johnson

United States District Court, E.D. Virginia, Alexandria Division

February 10, 2016

JFHC. JOHNSON, et al., Defendants.


Leonie M. Brinkema, United States Strict Judge

Before the Court are the parties' cross-motions for summary judgment. Plaintiff Ralord Allah Lao Tung ("plaintiff or "Tung") instituted this civil action pursuant to § 310(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1421(c), which provides that a person whose application for naturalization is denied after a hearing before an immigration officer may seek de novo review of such denial before the federal district court where that person resides.[1] Plaintiff argues that the United States Citizenship and Immigration Services ("USCIS") erred in denying his application, specifically by finding that his 1995 robbery conviction qualified as an "aggravated felony" under the INA which operated as an automatic bar to his ability lo establish the "good moral character" required for a successful naturalization application. Plaintiff also contends that the waiver of deportation he received pursuant to former INA § 212(c) operated as a waiver or expungement of his conviction. The named defendants, all government officials, [2] argue in response that the USCIS correctly found that plaintiffs conviction qualified as an "aggravated felony" because it was both a "theft offense" and a "crime of violence, " that any "aggravated felony" conviction occurring on or after November 29, 1990 operates as an automatic bar to establishing "good moral character, " and that the § 212(c) waiver did not change the impact of plaintiff s conviction on his naturalization application.


Plaintiff is a citizen of the Republic of China ("Taiwan"), Pet. for Review & Hr'g De Novo of Den. of Naturalization Appl. [Dkt. No. 1] ("Compl") ¶ 8, where he was born and lived until the age of five, when his family moved to South America. N-400 Appl. for Naturalization [Dkt. No. 16-3] ("Naturalization Appl.") at 7, 52. Plaintiff and his family moved to the United States in 1991, Id. at 52, and plaintiff received permanent resident status in immigration classification P63 (child of an alien classified as P61 or P66-needed skilled or unskilled worker). Decision [Dkt. No. 16-7] ("Reaffirmance") at 1.

On February 3, 1995, when plaintiff was 18 years old, he was arrested in Fairfax, Virginia and charged with Robbery and Use of Firearm in the Commission of a Felony. Id. According to the probation and parole officer's report submitted by plaintiff with his naturalization application, plaintiff convinced three minors to participate in a robbery of a pizza deliveryman on January 29, 1995. Naturalization Appl. at 47. After tricking the deliveryman into driving to a neighbor's home, plaintiff and his co-conspirators trapped the deliveryman in the parking lot. Id., Plaintiff then pointed a shotgun at the victim's head, "racked" the firearm, and took $40.00 from the victim's pocket. ]d, at 48. Plaintiff admitted to robbing the deliveryman and to holding the shotgun, but denied ever threatening the victim or pointing the gun at him. Id. The firearm charge was nolle prossed, and plaintiff pleaded guilty to robbery in violation of Va. Code Ann. § 18.2-58 in the Circuit Court of Fairfax County on September 22, 1995. Compl. ¶ 9. Plaintiff was sentenced to five years imprisonment, although it appears he served less than two years because on September 8, 1997, plaintiff was placed in removal proceedings based on his robbery conviction and on a separate, 1995 conviction for marijuana distribution. Id. ¶ 10. He later received a waiver of deportation under IN A § 212(c) and an adjustment of status to lawful permanent resident in immigrant classification E35 (child of a skilled worker or professional). Id.

In the intervening period between receiving that waiver and instituting this civil action, plaintiff graduated from George Mason University with a Bachelor of Arts in Communication and worked at a nightclub in the District of Columbia for a number of years. Naturalization Appl. at 42-43. Plaintiff has two U.S. citizen children. Id. at 37-38. As of October of 2014. plaintiff was engaged to the children's mother; their current marital status is unclear."[3] N-336 Request for a Hr'g on a Decision in Naturalization Proceedings [Dkt. No. 16-6] ("Request for Hr'g") at 13.

On June 11, 2014, plaintiff filed an N-400 Application for Naturalization, which the USCIS denied on September 30, 2014. Compl. ¶¶ 11-12. The USCIS stated in its decision that the plaintiffs robbery conviction was considered "both a theft offense and a crime of violence, " and that because plaintiff was sentenced to a term of imprisonment of more than one year, the conviction constituted an "aggravated felony" under the terms of the IN A. Decision [Dkt. No. 16-5] ("Denial of Appl.") at 2. The USCIS further found that plaintiffs conviction of an "aggravated felony" on or after November 29, 1990, permanently barred him from establishing "good moral character" and therefore rendered him ineligible for naturalization. Id. On October 31. 2014, plaintiff filed a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings. Compl. ¶ 13. A hearing was held on December 14, 2014, and on June 12, 2015, the USCIS reaffirmed its decision to deny plaintiffs application. Reaffirmance at 1-3. In doing so, the USCIS explained again, in greater detail, why plaintiff was ineligible for naturalization. Id. at 4-7.

The plaintiff filed this civil action seeking de novo review of the denial of his application for naturalization. The parties agreed that discovery was not necessary and that the matter could be decided on their dispositive motions and the Administrative Record of the USCIS proceedings. Agreed Order [Dkt. No. 7], Nov. 5, 2015. The Court now has before it the parties' cross-motions for summary judgment and has heard oral argument on the motions. The parties agree that the action presents only "a question of law that is amenable to disposition on summary judgment" and that "none of the facts material to the resolution of this action are in dispute." Mem. in Supp. of Defs.' Cross Mot. for Summ. J. & In Opp'n to Pl's Mot. for Summ. J. [Dkt. No. 24] ("Defs.' Br.") at 10.


Plaintiff raises three arguments, all of which he raised before the USCIS and all of which the USCIS rejected. Plaintiff argues first that his robbery conviction does not qualify as an "aggravated felony" because it is not a "crime of violence.'' Plaintiff further argues that even if the conviction does quality as an "aggravated felony, " it cannot disqualify him from proving "good moral character" because it occurred outside of the five-year period before his application was filed and because he is fully rehabilitated and has been a person of good moral character during the relevant statutory period. Finally, plaintiff argues that his robbery conviction should not be considered in ruling on his application because he received the § 212(c) waiver. The defendants respond that plaintiffs conviction is an "aggravated felony" because it qualifies as both a "theft offense" and a "crime of violence, " that any "aggravated felony" committed on or after November 29, 1990 acts as a permanent bar to establishing "good moral character, " and that the waiver of deportation does not have any effect on plaintiffs conviction.

A. Standard of Review

Summary judgment is appropriate where the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In the context of an application for naturalization, the applicant bears the burden of demonstrating "his eligibility for citizenship in every respect." INS v, Pangilinan, 486 U.S. 875, 886 (1988) (quoting Berenyi v. Dist. Dir.. INS. 385 U.S. 630, 637 (1967)) (internal quotation marks omitted); see also Rogers v. Bellei, 401 U.S. 815, 839 (1971) ("No alien has the slightest right to naturalization unless all statutory requirements are complied with." (quoting United States v. Ginsberg, 243 U.S. 472, 475 (1917) (internal quotation marks omitted)). "[A]ny doubts regarding an applicant's eligibility for naturalization 'should be resolved in favor of the United States and against the claimant."' Nesari v. Taylor, 806 F.Supp.2d 848, 863 (E.D. Va. 2011) (quoting Berenyi, 385 U.S. at 637 (1967)). The INA provides that "[n]o person ... shall be naturalized unless such applicant" meets certain requirements, including establishing that "during all the periods referred to in this subsection [he] has been and still is a person of good moral character." INA § 316(a), 8 U.S.C. § 1427(a); see also 8 C.F.R. § 316.10(a)(1) ("An applicant... bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character.").

An applicant for naturalization will be barred from establishing "good moral character" if he has been convicted of an "aggravated felony" as defined by IN A § 101 (a)(43) during the relevant time period. INA § 101(f)(8), 8 U.S.C. § 1101(f)(8) ("No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was-one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section)."). Most relevant to this action, an "aggravated felony" is defined as including "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year, " INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), or "a crime ...

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