The opinion of the court was delivered by: William W. Caldwell United States District Judge
Richard Andria Johnson has filed a petition for review of the decision of the respondent, U.S. Citizenship and Immigration Service (the "USCIS"), denying his application for naturalization. The USCIS denied the application under 8 U.S.C. § 1447(a), and we have jurisdiction over the petition for review by way of 8 U.S.C. § 1421(c). Respondent has filed a motion for summary judgment.
The USCIS denied the application because Petitioner had two convictions involving moral turpitude while his naturalization petition was pending. Johnson's petition for review presents as the sole ground for relief that the government should be equitably estopped from denying him citizenship. He bases this position on the USCIS's failure to decide his naturalization application within the mandated 120-day period for doing so, and for about a year and nine months thereafter, before Petitioner committed the offenses involving moral turpitude. Petitioner asserts that the USCIS should have decided his application during this period of time when he was eligible for citizenship, and that its delay until after he had his two convictions entitles him to equitable relief.
We will deny the petition as equity cannot be invoked in a citizenship claim.
We take this background from the respondent's statement of material facts in support of summary judgment and Petitioner's response thereto.
Johnson is a citizen of Jamaica. He entered the United States on September 12, 1985, and became a lawful permanent resident on or about that date by virtue of an immigration visa petition filed by his mother, who lives in Brooklyn, New York.
On October 6, 2004, under 8 U.S.C. § 1446, he filed his naturalization application.*fn1 On July 5, 2005, a USCIS officer interviewed him regarding the application. In September 2005, while his naturalization application remained pending, Johnson committed criminal acts in the course of his employment at a McDonald's restaurant in Connecticut. A Connecticut prosecutor eventually filed charges against Johnson as a result of his September 2005 criminal actions. On March 21, 2007, Johnson pled guilty under Connecticut law to larceny in the fourth degree (Conn. Gen. Stat. § 53a-125) and to passing a bad check (Conn. Gen. Stat. § 53a-128). The same day, the state court sentenced Johnson to consecutive one-year sentences of imprisonment, to be followed by consecutive two-year sentences of probation, and ordered him to pay $2,550 in restitution to the McDonald's restaurant. Johnson paid restitution the same day, and the court suspended execution of his two-year term of imprisonment and converted 47 months of his 48-month total probation term to conditional discharge.*fn2
On August 21, 2009, the USCIS denied Johnson's naturalization application, finding that he lacked good moral character based on the two Connecticut convictions, considered crimes of moral turpitude. On administrative appeal under 8 U.S.C. § 1447(a), the USCIS affirmed its denial on January 19, 2010. Johnson then filed this suit seeking review of USCIS's decision to deny his naturalization application.
Under 28 U.S.C. § 1421(c), our review of the USCIS's determination is de novo, and we can make our own findings of fact and conclusions of law.*fn3 If there are no disputed issues of material fact, we may dispose of the petition by way of a motion for summary judgment. Chan v. Gantner, 464 F.3d 289, 296 (2d Cir. 2006); Abulkhair v. Bush, No. 08-5410, 2010 WL 2521760, at *5 (D.N.J. June 14, 2010)(citing Chan).
In pertinent part, under 8 U.S.C. § 1427(a), an alien may be naturalized if he meets the following requirements: (1) after being lawfully admitted for permanent residence, he resided in the United States for five years immediately preceding his application for naturalization; (2) "resided continuously within the United States from the date of the application up to the time of admission to citizenship"; and (3) during all of these periods "has been and still is a person of good moral character . . . ." Id. These requirements mean that the statutory requirement of good moral character extends for five years before the application until the oath of allegiance is administered. See 8 C.F.R. § 316.10(a)(1).
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 ...