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Dolgosheev v. United States Citizenship and Immigration Services

July 25, 2008

MAXIM DOLGOSHEEV, PLAINTIFF,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANT.



The opinion of the court was delivered by: Hon. Nora Barry Fischer U.S. District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Maxim Dolgosheev (hereinafter, "Plaintiff"), a citizen of the Ukraine, brought this action under the Declaratory Judgment Act, 28 U.S.C. § 1361 and the Administrative Procedure Act ("APA"), 5 U.S.C. 551, et seq., against the United States Citizenship and Immigration Service (hereinafter, "USCIS" or "Defendant") seeking to compel Defendant to grant his Application for Naturalization. Presently before the Court is Defendant's Motion for Summary Judgment. For the following reasons, Defendant's Motion [11] is GRANTED.

II. PROCEDURAL HISTORY

On July 20, 2007,Plaintiff filed his Complaint seeking judicial review of the USCIS' denial of naturalization. (Docket No. 1). Defendant filed a Motion for Summary Judgment and Brief in Support on January 28, 2008. (Docket Nos. 11-13). Thereafter, Plaintiff's Response and Brief in Support of Plaintiff's Response were filed on February 15, 2008. (Docket Nos. 20 and 21). Subsequently, Defendant filed a Reply Brief on March 4, 2008. (Docket No. 24). On March 17, 2008, Plaintiff filed a Sur-Reply Brief regarding Defendant's Motion for Summary Judgment (Docket No. 27). On May 13, 2008, the Court conducted a hearing and heard argument on Defendant's Motion for Summary Judgment. Defendant offered its uncontested Oral Argument Exhibit (Exhibit 1).*fn1 (Docket No. 28). Plaintiff did not appear. (Docket No. 28). During said hearing, the Court ordered counsel for the parties to submit additional briefing to address the application, if any, of a recent case from the United States Court of Appeals for the Third Circuit, Manoj Nijhawan v. Attorney General of the United States, 523 F.3d 387 (3d Cir. 2008). (Docket No. 28). Thereafter, Defendant filed its brief addressing Nijhawan on May 27, 2008. (Docket No.29). In turn, Plaintiff filed a Brief in Opposition, which included a supplement regarding the good moral character of the Plaintiff, on June 18, 2008. (Docket No. 30). Subsequently, Plaintiff filed exhibits in support of said brief on June 19, 2008. (Docket Nos. 31-33). On June 23, 2008, Defendant filed its objections to Plaintiff's Post-Hearing Evidentiary Submissions. (Docket No. 34). Despite said objections, on July 11, 2008, Plaintiff filed additional exhibits numbered 4 and 5 in Support of his Brief in Opposition.*fn2 (Docket Nos. 37 and 38). Accordingly, this matter was fully briefed as of July 11, 2008.

III. JURISDICTION AND STANDARD OF REVIEW

Pursuant to 8 U.S.C. § 1421(c), the Court has jurisdiction to conduct a de novo review of Plaintiff's naturalization denial and shall make its own findings of fact and conclusions of law. Section 1421(c) provides: a person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of Title 5. Such review shall bede novo and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearingde novo on the application.

8 U.S.C. § 1421(c). "In a naturalization proceeding, the individual who is seeking to obtain the rights and privileges of United States citizenship bears the burden to prove by a preponderance of the evidence that he or she is eligible to become a United States citizen." Gilkes v. Ridge, No. 03-1417, 2008 WL 545033, at *2 (M.D. Pa. Feb. 25, 2008) (citing Berenyi v. District Director, 385 U.S. 630, 637 (1967) ("[T]he burden is on the alien applicant to show his eligibility for citizenship in every respect")). All doubts as to eligibility for citizenship are to be resolved in favor of the government and against the individual seeking citizenship. Berenyi, 385 U.S. at 637.

Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact.

Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

In evaluating the evidence, the Court must interpret facts in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Initially, the burden is on the moving party to demonstrate that the evidence in the record creates no genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. "The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment." Turner v. Leavitt, No. 05-942, 2008 WL 828033, at *4 (W.D. Pa. March 25, 2008) (citing Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing10 WRIGHT AND MILLER, FEDERAL PRACTICE § 2721at 40 (2d ed. 1983))); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert. denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").

While the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the admissible evidence in the record would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322-323. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. The nonmoving party "cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. FINDINGS OF FACT

The Court makes the following findings of fact as required by 8 U.S.C. § 1421(c) and Federal Rule of Civil Procedure 52(a):

Plaintiff is a 26 year old native and citizen of the Ukraine. (Docket No. 13, at ¶ 1). Pursuant to a non-immigrant visa, he entered the United States on July 22, 1995 at Buffalo, New York. (Docket No. 13, at ¶ 2). On October 28, 1997, Plaintiff adjusted his status to that of lawful permanent resident and was issued a permanent resident card. (Docket No. 13, at ¶ 3). Since 1997, Plaintiff has lived with his parents, both United States citizens, in Pittsburgh, Pennsylvania. (Docket No. 1, at ¶ 4).

On December 17, 2002, Plaintiff filed an Application for Naturalization (Form N-400) with the USCIS after attaining five years as a permanent resident. Id. In accordance with standard procedure, after Plaintiff filed said application, John Meehan, the USCIS adjudication officer in charge of Plaintiff's naturalization application, conducted a search of the USCIS criminal database the night before Plaintiff's scheduled interview. (Defendant's Exhibit 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 4, at ¶ 3). According to Mr. Meehan's uncontested declaration: upon searching the criminal database, I discovered that an Interagency Border Inspection System (IBIS) alert was posted for Mr. Dolgosheev and that his Form G-325 Name Check was still pending with the FBI.

In accordance with standard operating procedures, I immediately contacted the listed point of contact in the IBIS alert, which was a U.S. Customs Intelligence Officer with the U.S. Customs Intellectual Property Rights Coordination Center in Washington, D.C. I spoke with a Customs Agent who indicated that Mr. Dolgosheev was the subject of a criminal software counterfeiting investigation that was still ongoing. This agent advised me that I should only proceed with the naturalization interview for Mr. Dolgosheev with the knowledge that he was the subject of an ongoing criminal investigation. I also reviewed the Form G-325 Name Check database. I noted that Dolgosheev's name was still pending for national security and criminal background clearance with the FBI. In accordance with our standard agency procedures, I annotated Mr. Dolgosheev's file to show that the Form G-325 Name Check was pending with the FBI. As mandated by agency policy, a "pending" Form G-325 Name Check from the FBI means that the naturalization case cannot be adjudicated to completion by an USCIS officer until the issue underlying the "pending status" has been resolved and a final response has been posted by the FBI.

(Defendant's Exhibit 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 4, at ¶ 4).

After receiving said information concerning Plaintiff, Mr. Meehan conducted a naturalization interview of Plaintiff on July 28, 2003. (Docket No. 24, at 4). Mr. Meehan's declaration states: at this interview, Mr. Dolgosheev and I went over his naturalization application line by line. At the beginning of the interview, Mr. Dolgosheev took a verbal oath attesting that all statements he provided during the interview would be true. Upon conclusion of the interview, Mr. Dolgosheev signed a written oath affirming that all the statements in his naturalization application were true. At the conclusion of the interview, I gave Mr. Dolgosheev, a "Naturalization Interview Results" Form (Form N-652) stating that '[A] decision cannot yet be made about your application.' I then placed Mr. Dolgosheev's file in our Form G-325 Name Checks Pending cabinet, which is reviewed and updated on a weekly basis according to any developments that are received in a particular case. At that time, USCIS could not approve Mr. Dolgosheev's application due to both the pending FBI name check and the pending criminal investigation into his counterfeiting activity.

I am statutorily prohibited from approving naturalization applications where the applicant's good moral character is at issue. (Defendant's Exhibit 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 4, at ¶ 5).

Alhough Plaintiff completed all prerequisites for naturalization, a final decision on his application was withheld until the completion of Form G-325 Name Check and the criminal investigation. (Docket No. 13, at ¶ 4).

Plaintiff had been under investigation since 2003 by the Pittsburgh, Pennsylvania Office of the Federal Bureau of Investigation ("FBI") for activity that led to his convictions for trademark counterfeiting and copyright infringement. (Docket No. 4-3, at 6 and Docket No. 24, at 4). Eric Strom, a Supervisory Special Agent with the FBI and the lead investigator in the criminal case against Plaintiff, offered an uncontested declaration based on his participation in the counterfeiting investigation and prosecution of Plaintiff. (Docket No. 28; Defendant's Exhibit No. 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 3, at ¶¶ 1, 2). Strom's declaration states that Plaintiff came to the attention of the FBI sometime in 2000, when Microsoft informed the FBI of its belief that Plaintiff was a participant in a scheme unlawfully distributing Microsoft software for profit over the internet. (Defendant's Exhibit No. 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 3, at ¶ 3). Further, Strom's declaration also offers the following facts: on or about July 17, 2001, I executed a search warrant at the home of Mr. Dolgosheev. The search disclosed numerous pieces of counterfeit Microsoft software and various business records containing fraudulent invoices and other documents related to the counterfeiting scheme. Mr. Dolgosheev was present during the execution of the search warrant. At this time, Mr. Dolgosheev admitted to the selling of counterfeit Microsoft software. Prior to executing the search warrant, we had knowledge that Mr. Dolgosheev was not a United States citizen and that his criminal conviction could result in adverse immigration consequences. Accordingly, we coordinat[ed] with the Immigration and Naturalization Service prior to the execution of the search warrant and made them aware of our criminal investigation. The ensuing investigation revealed that Mr. Dolgosheev knowingly participated in a criminal trademark counterfeiting scheme whereby he purchased counterfeit Microsoft software that contained bogus serial numbers, packaging, and trademarks bearing the Microsoft logo. Mr. Dolgosheev would then place these items for sale on the internet and advertis[e] the product as genuine Microsoft software being sold at discount prices. [The] criminal scheme resulted in approximately 1.5 million dollars in sales. The total loss to Microsoft was estimated at 8-10 million dollars." (Defendant's Exhibit No. 1 Admitted into Evidence at Hearing on May 13, 2008, Tab 3, at ¶¶ 4-6).

Following conviction, on April 15, 2005, Plaintiff pled guilty in the United States District Court for the Western District of Pennsylvania to the following four criminal counts: conspiracy to engage in trademark counterfeiting in violation of 18 U.S.C. § 371; trafficking in counterfeit goods and services in violation of 18 U.S.C. § 2320; and two counts of copyright infringement in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1). See United States v. Dolgosheev, Criminal No. 05-91, Docket No. 15 (W.D. Pa. Jan. 10, 2006).

These convictions were the result of Plaintiff's involvement in the criminal software counterfeiting scheme described in detail by Agent Strom. (Docket No. 14-2, at ¶ 3). This criminal activity operated under the auspices of Inominatus, Inc. (Docket No. 1, at ¶ 3). The counterfeit software included copies of Microsoft Office 2000 Professional and Microsoft Windows NT Server, which were sold and delivered to various individuals ...


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