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Nguyen v. Monica

November 29, 2006

XUAN THI NGUYEN PLAINTIFF,
v.
DONALD J. MONICA, DISTRICT DIRECTOR, U.S. CITIZENSHIP AND MMIGRATION SERVICE, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Before me is Plaintiff's petition to review the decision of the United States Citizenship and Immigration Service's denial of her application for naturalization to be-come a United States citizen. I have jurisdiction under the provisions of 8 U.S.C. §1421.*fn1 The following constitute my findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff, Xuan Nguyen, was born in Vietnam on February 10, 1962. She never attended school. She had two children in Vietnam but never married because she had no permit to do so. She left Vietnam in 1987 or 1988 with her children and their father and settled in Canada. She later separated from her husband. She did not speak English, and never had enough money to live. Between September, 1993 and May 23, 1995, she shoplifted a number of times in Canada because she could not afford food and clothing. She was arrested and charged with retail theft in Windsor, Ontario for retail theft not exceeding $1,000. She was convicted in December, 1993. In 1994, she was arrested for retail theft not exceeding $1,000 in Kitchener, Ontario. She was convicted in December, 1994. In May, 1995, she was arrested for retail theft not exceeding $1,000 in Kitchener, Ontario. A bench warrant issued.

In 1993, she also met Tommy Nguyen, who was from the same village in Vietnam as Plaintiff, and he had become a United States citizen in 1983. They had a son in September, 1994 and were married in July, 1995 in Elkton, Maryland.

In November, 1995, Plaintiff filed an Application to Register Permanent Residence and Adjust Status (Form I-485). She completed this with the assistance of an attorney. She responded "no" to the question of whether she had ever been arrested.

In February, 1997, Plaintiff was arrested and charged with retail theft (18 P.S. §3929(a)(1)). On August 26, 1997, she was sentenced to 12 months probation and community service.

Just a little more than two months later, Plaintiff filed a Petition to Remove the Conditions of Residence (I-751) with the assistance of someone who held himself out in an Asian newspaper as a preparer of such documents. Again, she answered "no" to the question as to whether she had been arrested, and again she certified her answers under oath.

On September 11, 2002, Plaintiff filed her Application for Naturalization (N-400). It was prepared with the assistance of Marshall Kornblatt, an insurance executive whose wife was a customer of Plaintiff at the nail salon she and her husband operated. Again, she certified under oath that she had never been arrested.

After a June 29, 2003 interview before an Immigration Officer was cancelled because of Plaintiff's inability to read, write and speak English to the extent necessary to become a citizen, she was interviewed by Melvin Roby, the District Adjudication Officer. Prior to administering the test concerning, among other things, the reading and writing of English, he reviewed the application with Plaintiff. He asked if she had ever been ar-rested and she admitted to the King of Prussia incident, but she denied any other arrests.

The Plaintiff's Application for Naturalization was granted on or about October 27, 2003, but it was later revoked on November 12, 2004 by the United States Citizen and Immigration Services. Plaintiff timely filed her complaint to review the adverse action on July 12, 2005.

The issue in this case is whether the Plaintiff gave false testimony for the purpose of gaining immigration and naturalization benefits. It arises in the context of the Plaintiff's Application for Naturalization and the requirement that she have good moral character for five years prior to her application in September, 2002. See 8 U.S.C. § 1254(e).

APPLICABLE LAW AND CONCLUSIONS OF LAW

The United States contends that Plaintiff has not been lawfully admitted as a permanent resident of the United States because she secured that status as a result of fraud. The United States also contends that she does not speak, write ...


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