NANCY K. JOHNSON, District Judge.
Pending before the court
On July 29, 2015, Plaintiff filed this action seeking judicial review of the denial of his petition for naturalization pursuant to 8 U.S.C. § 1421(c).
Plaintiff is from Honduras and has had lawful permanent residence status in the United States since November 1996.
Following that conviction, in November 2007, Plaintiff returned to Honduras for two weeks.
While in removal proceedings, Plaintiff filed an application for naturalization and moved the immigration court to terminate the removal proceedings pursuant to 8 C.F.R. § 1239.2(f) in order to allow his application for naturalization to be adjudicated.
While that decision was on appeal to the Board of Immigration Appeals ("BIA"), another arm of the Department of Homeland Security, Immigration and Customs Enforcement, moved to terminate the removal case based on its prosecutorial discretion, citing "current enforcement priorities."
In its decision the BIA stated:
Act and ineligible for relief in removal proceedings.
Plaintiff filed a second application for naturalization in August 2013 and was interviewed in February 2014.
Summary judgment is warranted when the evidence reveals that no genuine dispute exists on any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues.
Cross-motions for summary judgment are considered separately under this rubric.
Pursuant to 8 U.S.C. § ("Section") 1421(c), an applicant for naturalization is entitled to seek judicial review of the denial of his application in a United States District Court. Section 1421(c) states that "[s]uch review shall be de 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 hearing de novo on the application." 8 U.S.C. § 1421(c). The court is not bound by administrative findings and conclusions pertaining to the denied petition but may make its own findings based on a de novo review.
In their motion, Defendants argue that Plaintiff does not meet the eligibility criteria required for naturalization. Specifically, Defendants assert that Plaintiff was inadmissible upon return to the United States from a trip to Honduras due to his prior felony conviction for possession of a controlled substance in 2000 and therefore is ineligible for naturalization. Plaintiff contends that he is eligible for naturalization because he was not seeking admission when he re-entered the country, never lost his lawful permanent resident status, and meets the residence and physical presence requirements for naturalization. Therefore, the issues in this case are whether Plaintiff was inadmissible upon his return to the country, and, if so, whether this renders him ineligible for naturalization.
Plaintiff bears the burden to show by a preponderance of the evidence that he is entitled to naturalization. 8 C.F.R. § 316.2(b);
Pursuant to the Immigration and Nationality Act, the terms "admission" or "admitted" "mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). "An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien . . . has committed an offense identified in section 1182(a)(2) of this title." 8 U.S.C. § 1101(a)(13)(C)(v). Offenses under Section 1182(a)(2) include crimes of moral turpitude and violations of laws or regulations regarding a controlled substance. 8 U.S.C. § 1182(a)(2). Controlled substances are defined under 21 U.S.C. § 802(6) as Schedule I, II, III, IV, V drugs or other substances. Cocaine is considered a Schedule II drug. 21 U.S.C. § 812(c), Schedule II(a)(4).
Defendants contend because Plaintiff committed an offense involving a controlled substance, namely, possession of cocaine, he became an alien seeking admission upon his return from Honduras, and, therefore, is not eligible for naturalization. Plaintiff asserts that because he is still a lawful permanent resident, he was lawfully admitted and may be naturalized.
The Fifth Circuit has not directly addressed this question in the context of eligibility for naturalization. However, in the removal context, the Fifth Circuit has found that lawful permanent residents are deemed to be seeking admission upon their return into the United States. For example, in
Additionally, the Supreme Court has stated that "lawful permanent residents returning post-IIRIRA may be required to seek an admission into the United States."
These cases demonstrate that the Fifth Circuit and Supreme Court have interpreted these statutes to mean that a lawful permanent resident who travels out of the country is to be treated as seeking admission upon their return to the United States and is inadmissible if previously convicted of a crime falling under Section 1182(a)(2). The court finds no reason to interpret these statutes differently in Plaintiff's case. Plaintiff cites
Next, the court must determine whether this inadmissibility makes Plaintiff ineligible for naturalization. 8 U.S.C. § 1427 requires that a person be lawfully admitted for permanent residence to be eligible for naturalization.
The applicable regulation, 8 C.F.R. § 316.2(b), requires that the applicant for naturalization demonstrate that he "was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant's initial entry or any subsequent reentry." Plaintiff contends that this means that a lawful permanent resident only must obtain the status at some time in the past but does not have to show lawful admission for permanent residence every time that he enters the country. The court disagrees with this interpretation. "Lawfully admitted for permanent residence" is defined in Section 1101(a)(20) to mean "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, such status not having changed." 8 U.S.C. § 1101(a)(2).
Plaintiff, a lawful permanent resident, sought reentry into the United States upon his return from Honduras. And, upon reentry, it was found that he was inadmissible due to his conviction for possession of a controlled substance, a fact that is undisputed. In the context of removal proceedings, the Fifth Circuit has treated lawful permanent residents returning to the country as arriving aliens seeking admission if they have committed a disqualifying offense. Therefore, Plaintiff cannot demonstrate that he was lawfully admitted as a permanent resident in accordance with the immigration laws at the time of his subsequent reentry. At this time, Plaintiff has not met his burden to demonstrate that he meets the strict requirements of eligibility for naturalization.
Based on the foregoing, the court