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Reyes v. Mayorkas

United States District Court, E.D. Pennsylvania

November 4, 2014

VIRGILIO HERRERA REYES, Petitioner,
v.
ALEJANDRO MAYORKAS et al., Respondents

For VIRGILIO HERRERA REYES, A43690940, Plaintiff: SONDRA J. MILLER-WEIN, LEAD ATTORNEY, IMMIGRATION LAW OPTIONS LLC, AMBLER, PA.

For ALEJANDRO MAYORKAS, DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (" USCIS" ), STEPHANIE REITHER, ACTING FIELD OFFICE DIRECTOR, ANGELA KLAPAKIS, ACTING DISTRICT DIRECTOR, PHILADELPHIA FIELD OFFICE USCIS, JANET NAPOLITANO, SEC., U.S. DEPT. OF HOMELAND SECURITY (DHS), Defendants: RICHARD M. BERNSTEIN, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.

MEMORANDUM

Gerald Austin McHugh, United States District Court Judge.

This is an immigration matter brought by an alien who was granted, and currently maintains, lawful permanent resident status within the United States, and now seeks citizenship. Petitioner Virgilio Reyes has been denied naturalization by both an immigration judge and U.S. Citizenship and Immigration Services (USCIS).[1] He challenges that denial, asserting that he is entitled to naturalization because he has possessed lawful permanent resident status for the requisite period of time. The government responds that because he was, in the first instance, not eligible for lawful permanent resident status when he applied, he is also ineligible for naturalization. The matter is before me on a motion for summary judgment, and I am constrained by controlling precedent to rule that the unlawful means by which Mr. Reyes obtained permanent resident status undercuts his quest for citizenship.

I. Factual Background

Petitioner's Answers to Requests for Admissions establish the essential facts. Mr. Reyes illegally entered the United States and was apprehended by Border Patrol agents in 1989. He was released from custody, pending further proceedings. A deportation proceeding was held in absentia and a deportation order was issued. Reyes claims he did not know of this proceeding or the order. His date of entry was March 7, 1989, and the order of deportation was issued May 31, 1989. In December 1989, he married an American citizen. Mr. Reyes remained in the U.S. until 1992, when he departed voluntarily. In October 1992, he applied for lawful permanent resident status, which was granted. He did not mention his prior deportation in his registration, purportedly because he was unaware of it. He returned to the United States in 1992, and has lived here continuously except for periodic trips back to the Dominican Republic. In October 2012, he applied for naturalization, but was denied by both an immigration judge and USCIS.

Reyes has sought review in this Court, which reviews the matter de novo. As the Petitioner notes, his lawful permanent resident status was granted in 1992, which was prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1997.[2]

II. Summary Judgment as the Means of Resolution

A threshold question is whether the de novo nature of this Court's review requires a hearing or trial. I conclude that it is proper to address this issue within the context of a motion for summary judgment. See Chan v. Gantner, 464 F.3d 289, 295-96 (2d Cir. 2006) (rejecting an argument that § 1421(c) " implies a bench trial or evidentiary hearing" and thus precludes motions for summary judgment as a vehicle to obtain review of a denial decision); Abulkhair v. Bush, 413 Fed. App'x 502, 508 n.4 (3d Cir. 2011) (no requirement that the court hold oral argument before deciding a motion for summary judgment on review of denial of naturalization).

III. The Requirement that an Alien be " Lawfully Admitted for Permanent Residence" before Naturalization

An alien becomes eligible for naturalization after five years of continuous residence following lawful admission as a permanent resident. 8 U.S.C. § 1427(a). However, in a section of the Immigration and Naturalization Act (INA) entitled " Prerequisite to Naturalization," Congress provided as follows: " [N]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States." 8 U.S.C. § 1429. Because the statute explicitly requires an alien to bear the burden of showing that he or she was lawfully admitted as a permanent resident, " doubts should be resolved in favor of the United States and against the claimant." Berenyi v. District Director, INS, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967).

The INA further defines the governing standard: " [t]he term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws..." 8 U.S.C. § 1101(a)(20) (unchanged at time of Petitioner's application for lawful permanent resident status). The seemingly redundant wording of Section 1429--" in accordance with all applicable provisions of [the Act]" --is meant to be " emphatic and embracive." In re Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983).

Under the statutory scheme, one can have the legal status of Lawful Permanent Resident (LPR), even if he was not, as factual matter, " lawfully admitted as a permanent resident." " [A]n alien whose status has been adjusted to lawful permanent resident but who is subsequently determined in an immigration proceeding to have originally been ineligible for that status has not been 'lawfully admitted for permanent residence' because the 'alien is deemed, ab initio, never to have obtained lawful permanent resident status.'" De La Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007).

As a result, in cases where the validity of LPR status is controlling, courts have not hesitated to evaluate whether the resident alien was actually eligible, as a factual matter, to be granted such status initially. As stated in one frequently cited decision of the Board of Immigration Appeals, in cases involving fraud, even where an alien is " facially and procedurally in lawful permanent resident status for more than the requisite number of years, he was never, in a legal sense, an alien 'lawfully admitted for permanent residence,' because his acquisition of that status was procured by fraud." In re Koloamatangi,23 I. & N. Dec. 548, 548-49, 2003 WL 77728 (BIA 2003); see Gallimore v. Att'y Gen.,619 F.3d 216, 223 (3d Cir. 2010) (quoting In re Koloamatangi); Adegoke v. Fitzgerald,784 F.Supp.2d 538, 541 (E.D. Pa. 2011) (" Having misrepresented his ...


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