United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Cross Motions for Summary
Judgment by the Plaintiff and the Defendant.
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.
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.
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).
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).
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. §
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).
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)).
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)).
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).
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.