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Rodriguez v. U.S. Citizenship & Immigration Services

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

May 16, 2016




         THIS MATTER comes before the Court on Cross Motions for Summary Judgment by the Plaintiff and the Defendant.

         This case involves a request by Plaintiff Daniel Tiznado Rodriguez ("Plaintiff" or "Rodriguez") for this Court to review his application for naturalization pursuant to Section 310(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1421(c). Plaintiff is a citizen of El Salvador. On July 26, 1995, Plaintiff pled guilty to statutory burglary, in violation of Virginia Code § 18.2-91; a few months later, he was sentenced to three years imprisonment with two years and six months of the sentence suspended, conditioned on his successful completion of two years' probation.

         On March 16, 1998, Plaintiff obtained lawful permanent resident ("LPR") status. Plaintiff then filed an N-400 Application for Naturalization on or about August 29, 2013. On November 15, 2013, Plaintiff appeared for an interview in conjunction with this application. On March 8, 2014, the United States Citizenship and Immigration Services ("USCIS") denied Plaintiff's N-400 application. In its decision, USCIS explained that Plaintiff's 1995 conviction for burglary qualified under the Immigration and Nationality Act ("INA") § 101(a) (43) (G), 8 U.S.C. § 1101(a)(43)(G), as a "theft or burglary offense for which the term of imprisonment is at least one year" - and therefore as an "aggravated felony" within the meaning of the INA. Because such aggravated felonies act as a permanent bar on an alien's ability to establish the good moral character necessary for naturalization, USCIS denied the application.

         On or around April 8, 2014, Plaintiff filed an N-336 Request for a Hearing on a Decision in Naturalization Proceedings (i.e., a request for administrative appeal of USCIS's initial decision). On June 3, 2015, USCIS issued a final agency decision denying Plaintiff's N-400 Application for Naturalization, on the grounds that his conviction permanently bars him from establishing two prerequisites for naturalization: (1) a showing of "good moral character, " and (2) a demonstration that he "lawfully" obtained LPR status. On December 10, 2015, Plaintiff filed the instant civil action, seeking judicial review of USCIS's denial of his naturalization application pursuant to 8 U.S.C. § 1421(c).

         Subject to certain exceptions not applicable here, the INA provides that "[n]o person . . . shall be naturalized unless" they satisfy several requirements. INA § 316(a), 8 U.S.C. § 1427(a); see also United States v. Ginsberg, 243 U.S. 472, 475 (1917) ("No alien has the slightest right to naturalization unless all statutory requirements are complied with."). First, the applicant must have resided continuously in the United States for at least five years after being "lawfully admitted for permanent residence." INA § 316(a) (1), 8 U.S.C. § 1427(a) (1); see also 8 C.F.R. § 316.2(a). Second, the applicant must have "resided continuously within the United States from the date of the application [for naturalization] up to the time of admission to citizenship." 8 U.S.C. § 1427(a)(2). Third, "during all the periods referred to in this subsection, " the applicant must demonstrate that he "has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." Id. § 1427(a)(3).

         With respect to the "good moral character" requirement, Congress has provided a non-exhaustive statutory definition, which includes a list of those classes of individuals who are precluded from establishing that they possess the requisite good moral character for naturalization. See 8 U.S.C. § 1101(f). As relevant here, among such persons are those who have been convicted of an "aggravated felony, " as defined by the INA. 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)."); see also 8 C.F.R. § 316.10(b)(1)(ii). And, as further relevant here, the INA includes among such disqualifying "aggravated felonies'7 any "theft offense ... 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).

         Per the terms of the INA, "any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment in whole or in part." INA § 101(a) (48) (B), 8 U.S.C. § 1101(a)(48)(B).

         In determining whether a state conviction qualifies as an "aggravated felony" as defined by the INA, both USCIS and the Court follow the so-called "categorical approach" to "determine whether the state offense is comparable to an offense listed in the INA." Etienne v. Lynch, 813 F.3d 135, 143 (4th Cir. 2015) (noting that "[a]lthough the categorical approach was first introduced in the context of criminal law, it 'has a long pedigree in our Nation's immigration law.'") (quoting Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013)).

         Under this approach, the Court

'consider[s] only the elements of the [state] statute of conviction rather than the defendant's conduct underlying the offense, ' and compare[s] them with the elements of the 'generic' [federal] crime. If the comparison shows that the state offense 'has the same elements as the generic INA crime, then the prior conviction constitutes an aggravated felony.' If, however, the state offense 'sweeps more broadly ..., the prior conviction cannot count as an aggravated felony.'

Id. at 142 (quoting Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)).

         Where the state offense is defined more narrowly than the 'generic' federal crime, the state conviction will also qualify as the generic offense. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

         In certain instances, however, the Court may (and indeed, must) go beyond the categorical approach, and apply a "modified categorical approach, " which is best understood as a "tool for implementing the categorical approach." Id. at 2284. Specifically, when a state criminal offense is "divisible, " meaning that it "sets out one or more elements of the offense in the alternative, " a court may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Id. at 2284; see also Shepard v. United States, 544 U.S. 13, 26 (2005) (acceptable documents that a Court may consult for these purposes include "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information"); Mondragon v. ...

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