Iqbal v. United States Citizenship and Immigration Services et al, No. 1:2017cv01066 - Document 28 (W.D.N.Y. 2019)
Court Description: DECISION AND ORDER granting 15 Motion for Summary Judgment; granting 16 Motion to Amend or Correct. Signed by Hon. Elizabeth A. Wolford on 09/10/2019. (CDH)-CLERK TO FOLLOW UP-
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Iqbal v. United States Citizenship and Immigration Services et al Doc. 28 r§^g|S.DISg^ SEP 1 0 2019 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK GHAZANFARIQBAL, DECISION AND ORDER Plaintiff, 1:17-CV-01066-EAW V. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,ET AL., Defendants. INTRODUCTION Ghazanfar Iqbal ("Plaintiff) commenced this action on October 23, 2017, challenging the United States Citizenship and Immigration Service's (the "USCIS")denial of his naturalization application under the Immigration and Nationality Act, 8 U.S.C. § IIOI et seq. (the "INA"), and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"). (Dkt. 1). Plaintiff claims that Defendants violated the INA and the APA by improperly concluding that he failed to maintain continuous residency in the United States for the statutorily required period and lacked the "good moral character" necessary for naturalization. {See Dkt. 1 at 12-13). Plaintiff requests that the Court order a plenary hearing, review his application for naturalization de novo, and grant him his request for naturalization. {Id. at 14). Pending before the Court is Defendants' motion for summary judgment (Dkt. 15) and motion to amend/correct the motion for summary judgment (Dkt. 16). Because the Court concludes that the undisputed facts establish that Plaintiff failed to maintain - 1- Dockets.Justia.com continuous residency in the United States from the date ofhis naturalization application up to the time ofadmission to citizenship,summaryjudgment is granted in favor ofDefendant without the Court reaching the issue concerning the determination as to Plaintiffs good moral character. BACKGROUND Unless otherwise indicated, the following facts are taken from the parties' Rule 56 statements. (See Dkt. 15-17; Dkt. 20). Plaintiff, a citizen of Pakistan, arrived in this country in 1996 and is a lawful permanent resident of the United States. (Dkt. 15-17 at fTf 1-3; Dkt. 20 at 1-3). According to Plaintiff, he has a wife and four children who are all citizens ofthe United States. (Dkt. 1 at^24(Complaint);see Dkt. 15-16 at 9(testifying about his family)). Plaintiff was self-employed at Kohinoor,a Halal meat store, from 2002 until 2005. (Dkt. 15-17 at ^ 5; Dkt. 20 at ^ 5). On September 14,2009,Plaintiff applied for naturalization and was interviewed by the USCIS on December 8, 2010. (Dkt. 15-17 at t 10; Dkt. 20 at *[| 10; see Dkt. 15-2 at ^ 9 (Declaration of Adam Gallagher)). On March 1, 2011, Plaintiffs application was denied based on his failure to disclose past due taxes. (See Dkt. 1 at ^ 26; Dkt. 18-1 at 5-6 (USCIS 2011 Notice of Decision)). The USCIS specifically relied upon the requirement in 8 U.S.C. § 1427(a)that an applicant "during all the periods referred to in this subsection has been and still is a person of good moral character," and the definition in 8 U.S.C. § 1101(f) that "[n]o 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 to be established, is, or was ...[o]ne who has given false testimony for the purpose of obtaining any benefits under this Act." (Dkt. 18-1 at 4-5). On March 30,2011,Plaintifffiled a Form N-366 Request for Hearing on a Decision of Naturalization to administratively challenge the USCIS's determination, pursuant to 8 U.S.C. § 1447(a). (Dkt. 1 at ^ 27;see Dkt. 18-3(N-366 Request for a Hearing)). Plaintiff subsequently attended two interviews in relation to his § 1447(a) administrative appeal, on March 13,2012, and April 9,2015. (See Dkt. 15-17 at ^ 11; Dkt. 20 at ^ 11; see also Dkt. 15-2 at ^ 9; Dkt. 15-5 at 1 (2017 Decision denying naturalization application)). Frustrated that after many years a decision had not been made with respect to his administrative appeal. Plaintiff filed a federal lawsuit pro se on July 21, 2015. Within a matter of weeks, the USCIS reached a decision denying Plaintiffs administrative appeal, but it delayed issuing its determination because of the pending litigation. Ultimately, on June 6,2016,this Court granted the USCIS' motion to dismiss the pro se action for lack of subject matter jurisdiction because, among other things, the USCIS had not yet issued its final decision. See Iqbal v. Sec'y U.S. Dep't of Homeland Sec., 190 F. Supp. 3d 322 (W.D.N.Y.2016). On September 20,2016,the USCIS issued a "Notice ofIntent to Deny" Plaintiffs application for naturalization, and then officially denied the application on June 28,2017. (Dkt. 15-17 at 1ft 12-13; Dkt. 20 at tt 12-13; see Dkt. 15-4; Dkt. 15-5). The USCIS based its final decision upon two separate findings. First, the USCIS determined that Plaintiff failed to demonstrate that he was "a person of good moral character" from the time he filed his application to the present because he "provided false testimony, under oath, with the intent to obtain an immigration benefit." (Dkt. 15-5 at 2). -3 - Second, the USCIS determined that Plaintiff had not demonstrated that he "continuously reside[d] within the United States" since the date he filed his application because he had spent a significant period of time making frequent and lengthy trips outside this country between July 9,2014,and July 2,2016, which cast doubt on whether the United States was Plaintiffs actual place of residence. (See id. at 3, 5). Plaintiffs wife and their four children moved to Saudi Arabia in September 2016, and, apart from one of his children. Plaintiffs immediate family has not since returned to the United States. (Dkt. 15-17 at 14-15; Dkt. 20 at 14-15). Plaintiff also carries a "Saudi Arabian Iqama Resident Identity Card"(the "Iqama Card"). (Dkt. 15-17 at ^ 4; Dkt. 20 at ^ 4; see Dkt. 15-12 (Iqama Card)). According to Plaintiff, the Iqama Card permits him to remain in Saudi Arabia for extended periods (see Dkt. 15-16 at 32) and is both a"work permit"(id. at 22)and proofofSaudi Arabian residency(id. at 34). Plaintiffs wife and children planned to move to Malaysia in January 2019 and intend to remain there for at least the following four years while their children engage in educational endeavors. (Dkt. 15-17 at t 16; Dkt. 20 at ^ 16; see Dkt. 15-16 at 15-17). Begirming July 8, 2014, Plaintiff traveled outside the United States during the following timeframes: July 8,2014 to October 4,2014(89 days) October 13, 2014 to November 22,2014(41 days) December 5, 2014 to February 28, 2015(86 days) March 5,2015 to April 7, 2015(34 days) June 20,2015 to November 17,2015(151 days) December 18, 2015 to January 11, 2016(48 days) February 13,2016 to July 2,2016(141 days) September 18, 2016 to March 2,2017(166 days) March 18,2017 to October 16,2017(213 days) November 24,2017 to July 10,2018(229 days) -4- (Dkt. 15-17 at ^ 17; Dkt. 20 at ^ 17). PROCEDURAL HTSTORY Plaintiff commenced this action on October 23, 2017, alleging that Defendants violated the INA and the APA by wrongfully denying his naturalization application after concluding that he lacked "good moral character" and failed to maintain continuous residency in the United States as required by law, (Dkt. 1 at 12-13). Defendants answered the Complaint on December 29, 2017(Dkt. 3), and the case proceeded to discovery (see Dkt. 9). Discovery concluded on November 7, 2018. (Dkt. 12). On December 21, 2018, Defendants filed a motion for summary judgment.' (Dkt. 15). Defendants move for summary judgment on three grounds. First, Defendants argue that the USCIS' determination as to whether Plaintiff maintained continuous residency in the United States for the statutorily required period is completely discretionary and thus, is not subject to judicial review. (Dkt. 15-1 at 13-16). Second, and in the alternative, Defendants argue that even if the Court can review the USCIS' residency determination. Plaintifffailed to maintain continuous residency as a matter oflaw. (Id. at 16-20). Finally, Defendants argue that because Plaintiff provided multiple misrepresentations and false statements in an effort to obtain immigration benefits. Plaintiff lacks the "good moral ' Defendants also filed a motion to amend/correct the motion for summary judgment on the same day. (Dkt. 16). This "motion" should not have been filed as such because the docket entry simply contains a corrected notice of motion pertaining to the already filed motion for summary judgment. The original notice of motion was filed along with an unexecuted and incomplete attorney declaration. (See Dkt. 15 at 3-4). The Court presumes this was an inadvertent filing error for which no motion was required to remedy. However, to the extent Defendants have moved to correct their initial notice of motion by eliminating the unexecuted attorney declaration (Dkt. 16), that motion is granted. -5- character" required for naturalization. {Id. at 20-27). Although Plaintiff concedes every factual assertion contained in Defendants' Rule 56 statement (Dkt. 20), he argues that Defendants' factual statements do not entitle them to judgment as a matter of law on the issues of his continuous residency and "good moral character"(Dkt. 19). The Court held oral argument in this matter on July 22,2019,and reserved decision. (Dkt. 27). DISCUSSION 1. Summary Judgment Standard Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986)). "The moving party bears the burden ofshowing the absence ofa genuine dispute as to any material fact. .. ." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y.2011)(citing Celotex Corp. v. Catrett, All U.S. 317,322-23(1986)). Once the -6- moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358(2d Cir. 2011)). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown,654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48(1986). 11. Standards Applicable to the Naturalization Context "Congress vested the Attorney General with 'sole authority to naturalize persons as citizens of the United States,' 8 U.S.C. § 1421(a), and the Attorney General in turn delegated that authority to USCIS." Rivera v. U.S. Citizenship & Immigration Servs., 5 F. Supp. 3d 439, 441 (S.D.N.Y. 2014). However, "a person whose application for naturalization has been denied by USCIS, and then upheld on administrative appeal,'may seek review of such denial before the United States District Court for the district in which such person resides.'" Del Orbe v. Holder, No. 12 Civ. 1057(PAE), 2012 WL 3655923, at *2(S.D.N.Y. Aug. 27, 2012)(quoting 8 U.S.C. § 1421(c)). Section 1421(c)"requires the District Court to review the denial ofnaturalization 'de novo,' to'make its own findings offact and conclusions oflaw,' and 'at the request ofthe petitioner,[to] conduct a hearing de novo on the application.'" Chan v. Gantner,464 F.3d 289,295(2d Cir. 2006)(quoting -7- 8 U.S.C. § 1421(c)). "Nevertheless, a court may grant summaryjudgment in cases brought under 8 U.S.C. § 1421(c)." Aliv. Holder, No. ll-CV-6122 CJS,2012 WL 1014834, at *4 (W.D.N.Y. Mar. 22, 2012)(citing Chan,464 F.3d at 295-96). "No alien has the slightest right to naturalization unless all statutory requirements are complied with[.]" United States v. Ginsberg, 243 U.S. 472, 475 (1917); see also Fedorenko v. United States, 449 U.S. 490, 506(1981)("[Tjhere must be strict compliance with all the congressionally imposed prerequisites to the acquisition ofcitizenship."). "[I]t has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." I.N.S. v. Pangilinan, 486 U.S. 875, 886(1988)(quoting Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637(1967))); see Rivera, 5 F. Supp. 3d at 442 (stating that the applicant "must affirmatively show that he has met all statutory requirements for becoming a naturalized citizen"). "When an applicant fails to do so, summary judgment for the Government may be appropriate." Rivera,5 F. Supp. 3d at 442 (citing Chan,464 F.3d at 295-96). III. The Attorney GeneraFs Discretion Under 8 U.S.C. S 1427(b)is Not Implicated Section 1427(a) of Title 8 of the United States Code "sets forth the general requirements for naturalization[.]" Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 379 (E.D.N.Y. 2003), aff'd sub nom. Boatswain v. Gonzales, 414 F.3d 413(2d Cir. 2005). It provides as follows: No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of -8- filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, f2) has resided continuously within the United States from the date ofthe application up to the time ofadmission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles ofthe Constitution ofthe United States, and well disposed to the good order and happiness ofthe United States. 8 U.S.C. § 1427(a)(emphasis added); jee Gizzo v. IMS., No. 02 Civ. 4879(RCC), 2003 WL 22110278, at *2 (S.D.N.Y. Sept. 10, 2003). Section 1427(b), entitled "Absences," describes what effect continuous extended absences from the United States have on the applicant's continuity of residence. See 8 U.S.C. 1427(b). This subsection provides, in pertinent part, as follows; Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date offiling the application and the date ofany hearing under section 1447(a)ofthis title, shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period. 8 U.S.C. § 1427(b)(emphasis added). Section 1427(b) also provides that a continuous absence of a year or more "during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence." Id. Accordingly, subsection (b) sets forth two bright-line time periods at which point the applicant's continuity of residence is definitively broken or is rendered presumptively so, depending on whether the absence was more than a year or more than six months but less 9- than a year. See United States v. Larsen, 165 F.2d 433,434(2d Cir. 1947)(interpreting an earlier version of the statute and stating that while "continuous absence from the United States for more than six months but less than a year during the five-year period is made presumptively a break in continuity which ... may be rebutted by satisfactory evidence of reasonable cause for such absence[,]... continuous absence for more than that is expressly made a break in continuity, with exceptions not here pertinent, without provision for any rebuttal"); In re Naturalization of Vafaei-Makhsoos, 597 F. Supp. 499, 501 (D. Minn. 1984)("The conclusion that Congress meant to erect an absolute bar in cases of absences greater than one year is strengthened by the fact that the statute specifically allows petitioners the opportunity to demonstrate that they did not abandon their United States residence in cases of shorter absences(from six months to one year)."). Defendants argue that the USCIS'continuous residence determination is not subject to judicial review because the naturalization applicant must"establish to the satisfaction of the Attorney General" that he did not abandon his residency during the statutorily required period. (Dkt. 15-1 at 13-14). Plaintiff concedes that the periods set forth in Defendants' Rule 56 statement correctly identify the timeframes in which he was absent from this country. (Dkt. 20 at "jf 17). However,Plaintiff argues that his absences that occurred after his § 1447(a) hearing on the initial denial of his application cannot be considered. (Dkt. 19 at 8-9). At least as it pertains to whether § 1427(b)'s provisions apply to this case—and thus, whether the Attorney General's discretion has even been implicated here—^Plaintiffs interpretation ofthe statute appears to be correct. 10- Defendants have submitted no evidence that Plaintiff has ever been absent from the United States for a continuous period of a year or more. At most, Defendants contend— and Plaintiff concedes—^that he was absent for a continuous period of six months or more on two occasions: March 18, 2017, to October 16, 2017, and November 24, 2017, to July 10,2018. (Dkt. 15-17 at T|17; Dkt. 20 at 117). However,those time periods occurred after Plaintiffs § 1447(a) hearing, and by its terms, the presumptions under § 1427(b) for absences greater than six months but less than one year only apply prior to the §1447(a) hearing. See 8 U.S.C. 1447(b)(any absence of more than six months but less than one year must occur "during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 1447(a)," in order to presumptively break continuity of residence).^ Section 1447(a) provides that "[i]f, after an examination under section 1446 ofthis title, an application for naturalization is denied, the applicant may request a hearing before an immigration officer." Id. § 1447(a). It is undisputed that Plaintiff filed his application ^ The Court is not convinced that it is clear that the phrase "the period for which continuous residence is required for admission to citizenship" in § 1447(b) is limited by the language that follows (describing the time period before filing the naturalization application and the time period after the application filing but before the § 1447(a)hearing). In other words, "the period for which continuous residence is required for admission to citizenship" could arguably be defined by § 1427(a) and therefore would run through the date of admission to citizenship—^thus making the presumption under § 1427(b) for an absence greater than six months but less than one year relevant up until the time of admission to citizenship. However,the Government has not specifically advocated for this interpretation ofthe statute, and such a reading would potentially conflict with the Second Circuit's decision in Gildernew v. Quarantillo, 594 F.3d 131 (2d Cir. 2010)(discussed below). -11 - for naturalization on September 14, 2009 (Dkt. 15-17 at ^ 10; Dkt. 20 at ^ 10), and, according to Plaintiff, this application was denied on March 1, 2011 {see Dkt. 1 at T| 26; Dkt. 18-1 at 5-6). Plaintiff requested a hearing on the denial of his application (Dkt. 1 at 27; see Dkt. 18-3) and was subsequently interviewed in March 2012 and April 2015 {see Dkt. 15-17 at t 11; Dkt. 20 at TI 11; see Dkt. 15-2 at ^1 9; Dkt. 15-4 at 4; Dkt. 15-5 at 1). Because both periods during which Plaintiff was continuously absent from the United States for over six months occurred after Plaintiffs § 1447(a) hearing took place {i.e., in 2017 and 2018), § 1427(b)precludes either one ofthose absences from—standing alone— creating a presumption that there was a break in continuity of residence. The Second Circuit has indicated that this is the correct construction of § 1427(b) in explaining how § 1427(b)and § 1447(a)intersect: The two clauses[ within the first paragraph of § 1427(b)], read together, ... embody the entire relevant period with respect to continuous residence: the period immediately preceding the filing ofthe application, and the period subsequent to the filing of the application until the sooner ofthe applicant's admission to citizenship, or an administrative hearing following denial ofthe application. Gildernew v. Quarantillo, 594 F.Sd 131, 134 (2d Cir. 2010)(addressing an absence of greater than one year). The USCIS did not determine that Plaintiffs break in continuity of residency was based upon § 1427(b)—^USCIS issued its "Notice of Intent to Deny" Plaintiffs naturalization application on September 20,2016,before Plaintiffwas ever absent for these periods exceeding six months. Thus, although Defendants ask this Court to determine that the Attorney General's discretion under § 1427(b) is unreviewable, this discretion was - 12- never triggered because the presumptions of § 1427(b) were not applicable at the time of the USCIS' decision and remain inapplicable now. While the Court seriously doubts that the Attorney General's continuous residence determination is unreviewable in light of the "sweeping de novo review provided by Section 1421(c)," Escaler v. U.S. Citizenship & Immigration Servs., 582 F.3d 288, 291 n.l (2d Cir. 2009); see AH,2012 WL 1014834, at *5-7 (rejecting the contention that the phrase "to the satisfaction ofthe Attorney General" precluded judicial review of a § 1427(b) continuous residency determination), the Court need not decide this issue because the continuous residency analysis relevant to this action is performed under § 1427(a)(2)— not § 1427(b)—^where no similar discretionary language has been inserted into the statute. IV. Defendants Established that Plaintiff Failed to Maintain Continuous Residency as a Matter of Law,and Plaintiff Failed to Raise a Triable Issue of Fact As noted above, "[t]o become a naturalized citizen, an applicant must meet the statutory preconditions set forth in 8 U.S.C. § 1427." Mitu v. Sessions, No. 16 Civ. 5876 (KPF),2018 WL 456290, at *6(S.D.N.Y. Jan. 17,2018). "Under 8 U.S.C. § 1427(a), the threshold issue is whether the naturalization applicant continuously resides in the United States prior to filing [his] application and during the pendency of [his] application." McElhaney v. U.S. Citizenship & Immigration iServ^., No.3:09-CV-1474(CFD),2010 WL 4365819, at *4(D. Conn. Oct. 20, 2010). "The INA defines 'residence' as 'the place of general abode;the place[of] general abode ofa person means his principal, actual dwelling place in fact, without regard to intent.'" Raynolds v. Napolitano, No. 3:11CV205(AVC), 2013 WL 2149702, at *3 (D. Conn. May 16, 2013)(quoting 8 U.S.C. § 1101(a)(33)). - 13- "Residence" is similarly "defined in the Code of Federal Regulations as the 'alien's domicile, or principal actual dwelling place, without regard to the alien's intent.'" Id. (quoting 8 C.F.R. §316.5(a)). As explained above, § 1427(b) identifies consequences particular to an applicant who has been absent from the United States for "more than six months but less than one year" or for "a continuous period of one year or more" during "the period for which continuous residence is required for admission to citizenship." 8 U.S.C. § 1427(b). Meanwhile, § 1427(a) imposes an overarching requirement that an applicant for naturalization reside "continuously within the United States from the date ofthe application up to the time of admission to citizenship." Id. § 1427(a)(2). Because Plaintiff was continuously absent from the United States for six months or longer only after April 9, 2015, the last "administrative hearing following denial of [his] application" for naturalization, Gildernew, 594 F.3d at 134, § 1427(b)'s presumptions do not apply. However, the inapplicability of § 1427(b)'s temporal rules does not foreclose the conclusion that Plaintiffhas nevertheless failed to ^^reside[\ continuously within the United States from the date of the application up to the time ofadmission to citizenship.'''' See 8 U.S.C. § 1427(a)(2) (emphases added); 8 C.F.R. § 316.2(6)(2) ("[To be eligible for naturalization, an alien must establish[, among other things,]that he or she...[h]as resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship.'''' (emphasis added)); Escaler, 582 F.3d at 289 (acknowledging that "continuous residence from the date of application until admission to -14 citizenship" is among a number of requirements necessary to "[b]ecoming a naturalized U.S. citizen"). At least two courts outside this Circuit have adopted this viewpoint. The decision in Sharma v. U.S. Dep't ofHomeland Sec., No. CV H-08-1197, 2009 WL 10697616(S.D. Tex. Sept. 11,2009)succinctly explained the distinction between § 1427(b)and § 1427(a): Sbarma misinterprets the relationship between absences and continuity of residence. While 8 U.S.C. § 1427 assumes a break in continuity ofresidence in specific scenarios (e.g. absences longer than six months), it does not preclude a finding of a break in residency absent those circumstances. Sbarma mistakenly reasons that a condition sufficient to break residency (absence of more than six months) is necessary to break residency, and that without such an absence be cannot have abandoned bis residence. Id. at *3;see also Khan v. U.S. Citizenship & Immigration Servs., No. 15-CV-23406,2019 WL 1323688, at *5(S.D. Fla. Mar. 25,2019)("[E]ven ifPlaintiff bad initially established residence in the United States, the Court may still consider bis regular and frequent trips to Pakistan in determining whether there was a break in residency."(citing Sharma,2009 WL 10697616, at *3)), appealfiled, No. 19-12050(1 Itb Cir. May 28,2019). The interpretation of § 1427 adopted by Sharma and Khan is persuasive. By contrast. Plaintiff takes the position that the INA categorically permits repeated absences from the United States ofless than six months before the § 1447(a)hearing and ofless than one year before admission to citizenship. Plaintiff has cited no case authority for this proposition. Instead, he relies on several commentators in the field of immigration and naturalization. (See Dkt. 19 at 10). Plaintiffs citations do suggest that "absences of less than six months between the filing of the application and the date of admission to citizenship do not interrupt continuous residence." David Levy, U.S. Citizenship and - 15- Naturalization Handbook § 7:15 (2018); see also Gordon, et at., 4 Immigration Law and Procedure § 95.02(2019)("Absence from the United States of six months or less does not affect the continuity of residence. The statute does not mention such absences, but manifestly sanctions them in the light ofthe specific directives spelled out in the following paragraphs."). However, neither source analyzes the effect of several successive multimonth absences on the continuity of residence. According to Plaintiff, an applicant for naturalization may reside outside the United States for the overwhelming majority oftime between the filing of his application and his admission to citizenship so long as the applicant retums to the United States just prior to the running of the six-month or one-year abandonment period—^whichever the case may be. Plaintiffs position leaves § 1427(a)(2) without any significant meaning. Section 1427(a)(2) requires the applicant to have "resided continuously within the United States" for the relevant statutory period. 8 U.S.C. § 1427(a)(2). As noted above, "[t]he INA defines 'residence' as 'the place of general abode; the place [of] general abode of a person means his principal, actual dwelling place in fact, without regard to intent.'" Raynolds, 2013 WL 2149702, at *3 (quoting 8 U.S.C. § 1101(a)(33))(emphasis added). The word "continuous" is not defined in the INA. "When a term goes undefined in a statute, [courts] give the term its ordinary meaning." Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). The common dictionary definition of"continuous" describes an activity that is "marked by uninterrupted extension in space, time, or sequence." Continuous, Merriam-Webster, https://www.merriam-webster.com/dictionary/continuous (Aug. 22,2019). - 16- Certainly, one or even several temporary absences of less than six months in duration would likely have little impact on whether an applicant has "resided continuously within the United States...up to the time ofadmission to citizenship." 8 U.S.C.§ 1427(a); see Alcarez-Garcia v Ashcroft, 293 F.3d 1155, 1158 (9th Cir. 2002)("[T]he government concedes that continuous physical presence is not required to establish residence and that temporary absences do not operate to interrupt the period ofthe residence.");Li v. Chertoff, 490 F. Supp. 2d 130,132(D. Mass. 2007)("[T]he mere fact ofphysical departure does not alone constitute the lack of 'physical presence' necessary to result in a conclusion of abandonment."). In other words, a strict application of the word "continuously" may not be appropriate where such absences are fleeting and few. However, to conclude that an applicant's "principal, actual dwelling place in fact" has continuously remained in the United States even though he chose to live abroad for the vast majority of the statutorily required period—^returning only to avoid § 1427(b)'s presumption of abandonment— would render § 1427(a)(2)'s continuity of residence requirement superfluous. See Puello V. Bureau ofCitizenship & Immigration Servs., 511 F.3d 324, 330(2d Cir. 2007)(noting the "usual practice of rejecting a reading of a statute that would render a section of it superfluous"); Allen Oil Co. v. Comm'r,614 F.2d 336, 339(2d Cir. 1980)("Normally, a statute must,ifreasonably possible, be construed in a way that will give force and effect to each of its provisions rather than render some ofthem meaningless."). Since Plaintiff was required to have "resided continuously within the United States ... up to the time of admission to citizenship," all of Plaintiffs frequent and extended absences from the United States are appropriately considered in determining whether he -17- satisfied § 1427(a)(2). The period of time relevant to this analysis is the 1,463 days between July 8, 2014, and July 10, 2018, identified in Defendants' unopposed Rule 56 statement. (Dkt. 15-17 at T| 17; Dkt. 20 at ^ 17). Ofthose 1,463 days. Plaintiff was absent from the United States for 1,198 days. Stated differently. Plaintiff remained outside the United States for almost 82% ofthe time over the course of about four years. No rational factfinder could conclude that the United States remained Plaintiffs "principal, actual dwelling place in fact," 8 U.S.C. § 1101(a)(33), and that he resided here "continuously" when Plaintiff lived in the United States just 18% of the time, see also Khan, 2019 WL 1323688, at *5 (stating that the applicant's technical compliance with the statute, "returning to the United States ... on multiple occasions before the six-month presumptive time limit was triggered," was insufficient to "establish continuous residence in the United States"); see generally Berenyi, 385 U.S. at 637("This Court has often stated that doubts should be resolved in favor of the United States and against the claimant." (quotation omitted)). Defendants rely on Raynolds v. Napolitano, No. 3:11CV205 (AVC), 2013 WL 2149702(D. Conn. May 16,2013), where the court dealt with a relatively analogous set of facts. In Raynolds, the alien filed a naturalization application on December 27,2004, but, "[bjeginning in 2005,[she] spent the majority of her time outside the United States." Id. at *1, *3. Although the applicant spent at least one "seven[-]month absence" outside the United States prior to her second interview with the USCIS and the denial of her application, id. at *1,the Raynolds court did not base its decision on the presumption found in § 1427(b). Instead, the court emphasized the fact that the applicant "was only in the - 18- United States for 52 days" between 2007 and December 22, 2010. Id. at *3. As a result, the court held that it could not "conclude that Connecticut was Raynolds''actual dwelling place in fact,'" and determined that the applicant "did not meet the continuous residency requirement contained in 8 U.S.C. § 1427(a)." Id. The Raynolds decision is consistent with the approach taken by the courts in Sharma and Khan. The Sharma and Khan courts also sought guidance from a set of non-exclusive factors outlined in the USCIS' regulations pertaining to the disruption of continuity of residence. These factors include whether:(1)"[t]he applicant did not terminate his or her employment in the United States";(2)"[t]he applicant's immediate family remained in the United States"(3)"[t]he applicant retained full access to his or her United States abode"; and (4) "[t]he applicant did not obtain employment while abroad." 8 C.F.R. § 316.5(c)(l)(i)(A)-(D);5eeis:/?a«, 2019 WL 1323688, at *5;Sharma,2009 WL 10697616, at *4. Defendants have cited to those same factors here and argue that they resolve in their favor. (Dkt. 23 at 6). The record evidence establishes that Plaintiffs immediate family moved to Malaysia and intends to remain there for at least the next four years. (Dkt. 15-16 at 1517). In addition. Plaintiffs Iqama Card indicates that he is a resident of Saudi Arabia and is actively employed by a foreign company. (See Dkt. 15-13; Dkt. 15-16 at 22-23, 34). Accordingly, the second and fourth factors weigh heavily against Plaintiff. Although Defendants contend that "Plaintiff has submitted no evidence as to his access to his United States abode for the nearly two years that he was in Saudi Arabia" (Dkt. 23 at 6), Defendants, as the movants on this motion, carry the burden of production, - 19- see generally Vt. Teddy Bear Co. v. 1-800 Beargram Co.,373 F.3d 241,244(2d Cir. 2004) ("Ifthe evidence submitted in support ofthe summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented.""(quotation omitted)). According to Plaintiffs supplemental responses to Defendants' interrogatories, Plaintiff maintained a place of abode within the United States from 2000 until at least 2018. (Dkt. 15-9 at 2). Thus, this third factor either weighs in Plaintiffs favor or is neutral. With respect to the first factor—^Plaintiffs termination ofemployment in the United States—^the record is somewhat ambiguous. Although it appears that Plaintiff was unemployed between 2013 and 2018 (Dkt. 15-9 at 3-4), the record also suggests that Plaintiff suffered a "disabling accident" on December 6,2013, and "has been disabled and not working" since that date(Dkt. 15-10 at 4). While Plaintiff maintained relatively stable employment and a place of abode in the United States for several years {see Dkt. 15-9 at 2-4), it appears that Plaintiff became unemployed after December 2013 and remained as such until sometime in 2018 {id. at 4; see Dkt. 15-10 at 4). Although Plaintiff claims that this period ofunemployment was due to a "disabling accident," there is little to no evidence in the record relating to this incident. Indeed, Plaintiff testified that he did not receive "disability benefits" while recovering from his injuries and simply relied upon "insurance." (Dkt. 15-16 at 9). Despite suffering some unidentified injury, which prevented him from seeking new employment for about four years. Plaintiff was still able to travel abroad for significant periods of time between July 2014 and July 2018, and he is now apparently working in Saudi Arabia. Thus,this first factor either weighs against Plaintiff or is neutral. -20- In addition, while Plaintiffappears to have complied with the technical requirements of § 1427(b), by returning to the United States before a presumptive break in continuity occurred. Plaintiffs sporadic and brief return visits were simply calculated to avoid the consequences of these temporal time constraints and do not demonstrate any further cormections to his purported residency in New York. (Dkt. 15-16 at 29 (testifying that he remained abroad for five months because, while he "wanted to be with [his] family,...the law requires that you cannot be for like, whatever, six months so I had to come back, stay here for sometime [sic] and then go back"), 31 (testifying that the reason he returned to the United States for just 16 days was because he "didn't want to go over [the] six month legal period because [he is] a Green Card holder")); see Abdul-Khalek v. Jenifer, 890 F. Supp. 666,671 (E.D. Mich. 1995)("It would appear from the record that Ms. Abdul-Khalek only returned to the United States to preserve her status as a lawful permanent resident(and to see her extended family)."). And,ofcourse,the fact that Plaintiff spent almost 82% of his time between July 8, 2014, and July 10, 2018, living abroad significantly weighs against him. See Khan, 2019 WL 1323688, at *5 (considering that the plaintiff had "spent more time living with his wife and children in his home in Pakistan than he spent at any address in the United States"); Raynolds, 2013 WL 2149702, at *3(considering that the applicant "spent the majority of her time outside the United States" and only resided within the United States for 52 days between 2007 and December 22, 2010). Furthermore, the time Plaintiff spends abroad appears to have only increased since 2016, when his immediate family left the United States. (See Dkt. 15-16 at 9; Dkt. 15-17 at^ 17; Dkt. 20 at ^ 17). Although his youngest son returned to the United States with him -21 - on at least two occasions (Dkt. 15-16 at 25), Plaintiffs immediate family is expected to remain in Malaysia for the foreseeable future {id. at 15-17). While Plaintiff claims he will remain in the United States to attend to his job {id. at 17), it is notable both that his Iqama Card allows him to work in Saudi Arabia {id. at 22;see Dkt. 15-13), and that he maintains real property in Pakistan (Dkt. 15-9 at 4). The balance of Plaintiffs contacts abroad outweighs his comparatively minimal contacts here and further undermines any argument that the United States has remained Plaintiffs "principal, actual dwelling place in fact." 8 U.S.C. § 1101(a)(33); see 8 C.F.R. § 316.5(a). This is especially true in light of the increasing frequency and duration of his extended periods away from this country. See Khan, 2019 WL 1323688, at *5; Raynolds, 2013 WL 2149702, at *3; Sharma, 2009 WL 10697616, at *3; see also McElhaney, 2010 WL 4365819, at *4("To continuously reside in the United States necessarily requires an applicant to 'reside' in the United States."). Accordingly, Defendants have established that Plaintiff has not "resided continuously within the United States from the date of the application up to the time of admission to citizenship," and Plaintiff has failed to raise a triable issue offact. Therefore, Defendants are granted summary judgment based on Plaintiffs failure to satisfy the continuous residence requirement of§ 1427(a)(2). CONCLUSION For the foregoing reasons. Defendants' motion to amend the initial notice of motion (Dkt. 16) and motion for summary judgment (Dkt. 15) are granted, and the Complaint is dismissed with prejudice. The Clerk of Court is directed to terminate this action. -22 so ORDERED. EEI^ UnitedjStates District Judge Dated: September 10, 2019 Roehester, New York -23 -
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