Reimers v. United States Citizenship and Immigration Services et al, No. 2:2020cv00459 - Document 32 (E.D. Wash. 2022)

Court Description: ORDER GRANTING 15 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING 17 PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT. This file is CLOSED. Signed by Senior Judge Rosanna Malouf Peterson. (CLP, Case Administrator)

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Reimers v. United States Citizenship and Immigration Services et al Case 2:20-cv-00459-RMP ECF No. 32 1 Doc. 32 filed 02/07/22 PageID.473 Page 1 of 25 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Feb 07, 2022 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MARIA ELENA REIMERS, USCIS A#097 107V629 NO: 2:20-CV-459-RMP 8 Plaintiff, 9 v. 10 11 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT 12 Defendants. 13 14 BEFORE THE COURT, without oral argument, are cross-motions for 15 summary judgment from Defendant United States Citizenship and Immigration 16 Services, et al., (“Defendants”), ECF No. 15, and from Plaintiff Maria Elena 17 Reimers, ECF No. 17. Having reviewed the respective motions, the record, and the 18 relevant law, the Court is fully informed. For the reasons given below, Defendants’ 19 Motion for Summary Judgment is granted, and Plaintiff’s Motion for Summary 20 Judgment is denied. 21 / / / ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:20-cv-00459-RMP 1 2 ECF No. 32 filed 02/07/22 PageID.474 Page 2 of 25 BACKGROUND The following facts are undisputed unless otherwise noted. Plaintiff, an El- 3 Salvadorian citizen, moved to the United States in 2004 and married Richard 4 Reimers, a U.S. citizen, that same year. ECF Nos. 16 at 2, 18 at 3–4. On May 21, 5 2007, Plaintiff adjusted her status to that of a lawful permanent resident. ECF No. 6 16 at 2. In 2014, Plaintiff and her husband opened a business called “Cannarail 7 Station” in Ephrata, Washington. Id. Cannarail Station exclusively sells marijuana 8 and marijuana-related paraphernalia. Id. 9 Plaintiff has worked in several capacities at Cannarail Station, including as a 10 “budtender” who helps answer customer questions and sells the store’s marijuana 11 products to customers who are 21 and older. Id. at 4. Plaintiff also manages the 12 store and orders the store’s inventory. Id. 13 On May 8, 2017, Plaintiff filed a Form N-400 Application for Naturalization 14 (“Form N-400”) with the United States Citizenship and Immigration Services 15 (“USCIS”). Id. at 2. Plaintiff checked “no” on Form N-400 to the following 16 question: “Have you EVER: Sold or smuggled controlled substances, illegal drugs, 17 or narcotics?” Id. (citing ECF No. 16-1 at 4). In an addendum to her naturalization 18 application, Plaintiff explained her answer about having never sold controlled 19 substances by stating that “[t]he answer to this question is somewhat of a gray area 20 federally.” ECF No. 16-1 at 42. She noted that her and her husband “are legally 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 2 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.475 Page 3 of 25 1 licensed in the State of Washington to sell [m]arijuana[,]” and she provided the 2 name and license information for Cannarail Station. Id. 3 On August 23, 2017, Plaintiff appeared for a naturalization interview. ECF 4 No. 16 at 2. The interviewer circled Plaintiff’s “no” answer to the question about 5 selling controlled substances and noted that Plaintiff stated that “marijuana is legal 6 in W[ashington] State.” ECF Nos. 16-1 at 39, 18 at 5. Almost a year later, on May 7 14, 2018, Plaintiff appeared for a second naturalization interview. ECF Nos. 16 at 2, 8 at 18 at 5. 9 At the outset of the second interview, the immigration officer placed Plaintiff 10 under oath and began questioning her about her eligibility for naturalization. ECF 11 No. 16-1 at 68. The officer encouraged Plaintiff to say if she needed a question 12 repeated or if she did not understand a question. Id. Plaintiff agreed that she was 13 appearing voluntarily and could end the interview at any time. Id. 1 The officer then 14 began asking questions about Plaintiff’s self-employment. 15 1 16 Before telling Plaintiff that she could end the interview at any time, the USCIS officer stated the following: “I do need to let you know that if you choose not to 17 answer a question, it may reflect negatively on your application.” ECF No. 16-1 at 18 68. Plaintiff argues that “the officer only stating that she was free to leave right after stating that if she does not answer questions it may reflect negatively on her, 19 should not be enough to constitute giving voluntary answers.” ECF No. 23 at 6 20 (citing ECF No. 16-1 at 68). Plaintiff does not cite any legal authority for this 21 argument. In light of the absence of authority supporting Plaintiff’s position, the ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 3 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.476 Page 4 of 25 1 Plaintiff stated that she is employed at Cannarail Station, a state-licensed 2 marijuana store that she co-owns with her husband. Id. at 69. In response, the 3 officer began reading a portion of the Controlled Substances Act (“CSA”), noting 4 that marijuana is a schedule one controlled substance and that the CSA “makes the 5 cultivation, distribution or possession of any amount of marijuana . . . a criminal 6 offense.” Id. at 70. The officer defined the term “distribution” and set out the 7 specific elements of distribution of a controlled substance as: (1) possession of a 8 controlled substance; (2) that is knowing or intentional; (3) done with the intent to 9 distribute to another person; and (4) results in the knowing distribution of a 10 controlled substance. Id. 2 The officer asked Plaintiff if she understood the 11 12 Court determines that Plaintiff’s appearance and the answers given at her naturalization interview were made voluntarily. 13 2 14 sub-elements of distribution of a controlled substance under 21 U.S.C. § 841(a). 15 ECF No. 22 at 4 (citing ECF No. 16-1 at 70). Plaintiff disputes this claim and Defendants argue that the “USCIS officer listed out the elements as well as the counters that the “officer conflated two separate crimes—possession and 16 distribution.” ECF No. 24 at 2 (citing ECF No. 1). A review of the transcript 17 shows that the officer first discussed the crime of “possessing a controlled 18 substance unless such substance was obtained directly or pursuant to a valid prescription.” ECF No. 16-1 at 70. The officer then noted that the CSA also 19 “makes the cultivation, distribution or possession of any amount of marijuana . . . a 20 criminal offense.” Id. In mentioning the word “possession” for the latter offense, 21 the officer omitted the additional language that it is unlawful to “possess with ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 4 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.477 Page 5 of 25 1 information given to her about the CSA regarding possession and distribution of 2 marijuana and Plaintiff responded, “[n]ot 100 percent.” Id. Plaintiff stated that she 3 understood the federal law to mean that she could be viewed as “distributing to 4 [an]other person” and the officer restated the elements of the criminal offense under 5 the CSA. Id. Plaintiff next asked the officer to spell out the CSA, which the officer 6 did. The officer reminded Plaintiff that she was under oath and was “free to leave at 7 any time.” Id. 8 The interview continued and Plaintiff admitted to occasional use of the store’s 9 marijuana candies to help her sleep. Id. at 71. Plaintiff also described the types of 10 marijuana products sold at the store and her role as a “budtender” and as a business 11 manager. Id. at 71–73. In her managerial role, Plaintiff stated that she places orders, 12 checks in inventory, supervises employees, and helps customers. Id. at 73. She 13 confirmed that, under Washington State law, all marijuana products sold at the store, 14 other than drug paraphernalia, must contain marijuana. Id. at 72. Plaintiff 15 16 17 intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 18 841(a); see also ECF No. 16-1 at 70. After reading the separate offenses of possession and distribution, the officer stated the “specific elements of a federal 19 crime of distribution of controlled substances” and proceeded to list the sub- 20 elements as they appear in 21 U.S.C. § 841(a), including that the person “possessed 21 with the intent to distribute to another person.” ECF No. 16-1 at 70. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 5 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.478 Page 6 of 25 1 confirmed that she knowingly and intentionally distributes the store’s marijuana 2 products to customers who are 21 and older. Id. at 74. 3 On July 2, 2018, USCIS denied Plaintiff’s application for naturalization, 4 finding that Plaintiff’s role as co-owner of Cannarail Station made her an “illicit 5 trafficker of a controlled substance.” ECF No. 18-2 at 17. USCIS noted that 6 although “medical and recreational marijuana possession, distribution, and sale are 7 legal in Washington State under state law,” they are illegal under federal law. Id. 8 Citing the Supremacy Clause, USCIS applied federal law in determining Plaintiff’s 9 eligibility for naturalization and found that Plaintiff’s status as an illicit drug 10 trafficker meant that she lacked “good moral character during the requisite statutory 11 period.” Id. 12 Plaintiff requested a hearing on the denial decision with USCIS, and the 13 decision was affirmed on May 4, 2020. ECF No. 16 at 3. Plaintiff filed a complaint 14 for de novo review of the denial of her naturalization application with this Court on 15 December 14, 2020. See ECF No. 1. On July 29, 2021, counsel for Defendants 16 deposed Plaintiff in the presence of Plaintiff’s attorney. ECF No. 16-1 at 11–12. 17 Plaintiff confirmed that she took an oath requiring her to answer all questions asked 18 of her at the deposition fully and honestly. Id. at 9. Plaintiff also confirmed that the 19 answers she gave during her naturalization interviews were accurate. Id. at 15–16. 20 Counsel for Defendants asked Plaintiff whether she “intentionally sell[s] the 21 marijuana at Cannarail Station” and she answered as follows: “If someone comes ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 6 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.479 Page 7 of 25 1 and wants to buy a product, we just provide the service.” Id. at 25–26. Plaintiff 2 then confirmed that the service she provides are the marijuana products sold at the 3 store. Id. at 26. Counsel for Defendants asked Plaintiff if she knows that marijuana 4 is a controlled substance and she answered, “I do now.” Id. at 29. Both parties now 5 move for summary judgment on whether Plaintiff is eligible for naturalization. 6 7 LEGAL STANDARD Although the Attorney General is vested with the “sole authority to naturalize 8 persons as citizens of the United States[,]” 8 U.S.C. § 1421(a), district courts have 9 jurisdiction to review the denial of a naturalization application. 8 U.S.C. § 1421(c). 10 “Under § 1421(c), the district court has the last word with respect to denied 11 applications, by conducting its own hearing and reviewing the application de novo.” 12 United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004) (en banc). 13 Summary judgment is appropriate when “the movant shows that there is no 14 genuine dispute as to any material fact and the movant is entitled to judgment as a 15 matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 16 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine dispute exists where 17 “the evidence is such that a reasonable jury could return a verdict for the nonmoving 18 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. 19 Ed. 2d 202 (1986). A fact is material if it “might affect the outcome of the suit 20 under the governing law.” Id. “Factual disputes that are irrelevant or unnecessary 21 will not be counted.” Id. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 7 Case 2:20-cv-00459-RMP 1 ECF No. 32 filed 02/07/22 PageID.480 Page 8 of 25 The moving party bears the initial burden of demonstrating the absence of a 2 genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party 3 meets this challenge, the burden shifts to the nonmoving party to “designate specific 4 facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. 5 P 56(e)). “A non-movant’s bald assertions or a mere scintilla of evidence in his 6 favor are both insufficient to withstand summary judgment.” FTC v. Stefanchik, 559 7 F.3d 924, 929 (9th Cir. 2009). In deciding a motion for summary judgment, the 8 court must construe the evidence and draw all reasonable inferences in the light most 9 favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors 10 Ass’n, 809 F.2d 626, 631–32 (9th Cir. 1987). If the party opposing summary 11 judgment fails to cite specifically to evidentiary materials, the Court need not search 12 the entire record for evidence establishing a genuine issue of material fact or obtain 13 the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 14 1028−29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 15 1417−18 (9th Cir. 1988). Courts evaluate cross-motions for summary judgment 16 separately and under the same standard. ACLU of Nev. v. City of Las Vegas, 333 17 F.3d 1092, 1097 (9th Cir. 2003). 18 19 20 21 DISCUSSION I. Legal Framework for Naturalization Applications District courts have authority to grant naturalization applications, which are reviewed pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. Ch. 12. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 8 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.481 Page 9 of 25 1 See Hovsepian, 359 F.3d at 1164. Title 8 U.S.C. § 1427 provides “a number of 2 requirements that a naturalization applicant must meet[,]” including that the 3 applicant, “during the five years immediately preceding the date of filing the 4 application, ‘has been and still is a person of good moral character.’” Id. (quoting 8 5 U.S.C. § 1427(a)(3)). 6 The INA does not define the term “good moral character,” but 8 U.S.C. § 7 1101(f) provides several factors that preclude a finding of good moral character for 8 naturalization applicants. Among these factors is the applicant’s criminal 9 background, 8 U.S.C. §1101(f)(3), including admission to committing “a violation 10 of (or a conspiracy or attempt to violate) any law or regulation of . . . the United 11 States.” 8 U.S.C. § 1182(a)(2)(A)(i)(II). 12 The naturalization applicant has “the burden of establishing good moral 13 character.” 8 U.S.C. § 1427(e); see also Berenyi v. District Director, INS, 385 U.S. 14 630, 637, 87 S. Ct. 666, 17 L. Ed. 2d 656 (1967) (“[I]t has been universally accepted 15 that the burden is on the [noncitizen] applicant to show his eligibility for citizenship 16 in every respect.”). Any doubts to the applicant’s eligibility “‘should be resolved in 17 favor of the United States and against the claimant.’” Id. (quoting United States v. 18 Macintosh, 283 U.S. 605, 626, 51 S. Ct. 570, 576, 75 L. Ed. 1302 (1931), overruled 19 in part on other grounds by Girouard v. United States, 328 U.S. 61, 66 S. Ct. 826, 20 90 L. Ed. 1084 (1946)). Courts require “strict compliance with the statutory 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 9 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.482 Page 10 of 25 1 conditions precedent to naturalization.” Fedorenko v. United States, 449 U.S. 490, 2 506, 101 S. Ct. 737, 66 L. Ed. 2d 686 (1981). 3 4 II. De Novo Review and Summary Judgment This Court conducts a de novo review of Plaintiff’s application for 5 naturalization. 8 U.S.C. § 1421(c). Although USCIS makes the initial decision on 6 an individual naturalization application, “the district court has the final word and 7 does not defer to any of the [agency’s] findings or conclusions.” Hovsepian, 359 8 F.3d at 1162 (emphasis omitted). Plaintiff argues that de novo review “does not 9 mean a district court starts completely from scratch” because the court “must review 10 [USCIS’s] decision.” ECF No. 23 at 3. However, de novo review requires courts to 11 “consider the matter anew, the same as if it had not been heard before, and no 12 decision was previously rendered.” Ness v. Comm’r of Internal Revenue Serv., 954 13 F.2d 1495, 1497 (9th Cir. 1992) (citing United States v. Silverman, 861 F.2d 571, 14 576 (9th Cir. 1988)). 15 Applying de novo review, Defendants argue that the Court “need not engage 16 in fact finding and may dispose of the case by way of summary judgment under 17 [Federal Rule of Civil Procedure] 56.” ECF No. 15 at 7 (collecting cases). Plaintiff 18 concedes that, pursuant to Rule 81(a)(3), the Federal Rules of Civil Procedure apply 19 in naturalization proceedings, although she maintains that the Court, at Plaintiff’s 20 request, is required to hold a hearing de novo before resolving motions for summary 21 judgment. ECF No. 17 at 4 (citing 8 U.S.C. § 1447(a)). Section 1447(a) states that, ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 10 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.483 Page 11 of 25 1 “at the request of the petitioner, [the court shall] conduct a hearing de novo on the 2 application.” 3 The Ninth Circuit has not addressed whether the language of § 1447(a) 4 undermines a court’s ability to grant a motion for summary judgment without 5 holding an evidentiary hearing; however, at least two other circuits have rejected 6 such an argument. See Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006) (disagreeing 7 “that the phrase ‘hearing de novo’. . . implies a bench trial or evidentiary hearing” 8 because “[t]he term ‘hearing’ has a ‘host of meanings’ that encompass a wide variety 9 of procedures” (quoting United States v. Florida E. Coast Railway Co., 410 U.S. 10 224, 239, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973)); see also Abulkhair v. Bush, 413 11 Fed. Appx. 502, 507 n.4 (3d Cir. 2011) (agreeing with Chan in holding that “the 12 district court did not err by failing to hold oral argument before deciding the 13 summary judgment motion” in a proceeding reviewing the denial of the plaintiff’s 14 naturalization application). 15 Additionally, multiple district courts in this circuit have cited the Chan 16 decision as persuasive in considering summary judgment motions for naturalization 17 proceedings. See Abghari v. Gonzales, 596 F. Supp. 2d 1336, 1344 (C.D. Cal. 2009) 18 (concluding that “the statutory bar to establishing good moral character makes 19 summary judgment appropriate in this case”); see also Alenazi v. USCIS, No. 20 09CV2053 DMS (POR), 2010 WL 3988744, *2 (S.D. Cal. Oct. 12, 2010) (same); 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 11 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.484 Page 12 of 25 1 and Sabbaghi v. Napolitano, No. C08-1641Z, 2009 WL 4927902, *3 (W.D. Wash. 2 Dec. 11, 2009) (same). Here, Plaintiff’s interpretation of § 1421(c), similar to the plaintiff in Chan, 3 4 would lead to the “absurd” result that “district courts are required to hold bench 5 trials even when there are no disputed issues of material fact.” Chan, 464 F.3d at 6 296. Accordingly, this Court rejects Plaintiff’s argument that a bench hearing or 7 evidentiary hearing is required, pursuant to Plaintiff’s request, prior to issuing 8 summary judgment. The Court considers both summary judgment motions in turn. 9 10 III. Defendants’ Motion for Summary Judgment Defendants argue that they are entitled to summary judgment because 11 “Plaintiff cannot sustain her burden of proving good moral character” given her 12 admission “to committing the essential elements of federal drug offenses.” ECF No. 13 15 at 7. Noncitizens are precluded from meeting the statutory requirement of good 14 moral character if they “admit to having committed. . . a violation of . . . any law or 15 regulation of . . . the United States.” 8 U.S.C. § 1182(a)(2)(A)(II); see also 8 U.S.C. 16 § 1101(f)(3) (stating that, for purposes of naturalization proceedings, no person shall 17 be regarded as having good moral character if they are a member of the classes of 18 persons identified in 8 U.S.C. § 1182(a)(2)(A)). The relevant conduct period for an 19 applicant’s good moral character is “the five years preceding the filing of the 20 applicant,” although the reviewer “may take into consideration . . . the applicant’s 21 conduct and acts at any time prior to that period.” 8 U.S.C. § 1427(e). ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 12 Case 2:20-cv-00459-RMP 1 ECF No. 32 filed 02/07/22 PageID.485 Page 13 of 25 Towards the end of Plaintiff’s second naturalization interview, she confirmed 2 that, in her capacity as co-owner of Cannarail Station, she knowingly and 3 intentionally distributes marijuana products to customers who are 21 and older. ECF 4 No. 16-1 at 74. During Plaintiff’s deposition, she again confirmed that she sells 5 marijuana “to anybody over the age of 21 that comes to [her] store.” Id. at 22. The 6 distribution of marijuana or possession with intent to distribute marijuana are federal 7 crimes. 21 U.S.C. §§ 841(a), 802(6), 812(c). Plaintiff’s admission makes her 8 statutorily ineligible for a finding of good moral character and, subsequently, 9 approval of her naturalization application. 8 U.S.C. §§ 1182(a)(2)(A)(II), 10 11 1101(f)(3). Plaintiff argues that the statutory bar to a good moral character finding does 12 not apply because she did not admit to the essential elements of any federal drug 13 offenses during her naturalization interviews or her deposition. ECF No. 17 at 9–10. 14 The USCIS Policy Manual, Vol. 12, Pt. F, Ch. 5, Sec. (C)(2), notes that “certain 15 conduct involving marijuana, which is in violation of the CSA, continues to 16 constitute a conditional bar to [good moral character] for naturalization eligibility, 17 even where such activity is not a criminal offense under state law.” The manual 18 continues that the “admission” to such an offense “must meet the long held 19 requirements for a valid ‘admission’ of an offense.” Id. (citing Matter of K, 7 I&N 20 Dec. 594, 1957 WL 10581 (BIA 1957)). 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 13 Case 2:20-cv-00459-RMP 1 ECF No. 32 filed 02/07/22 PageID.486 Page 14 of 25 The Matter of K decision, although not binding on this court, states that valid 2 admission of a crime requires that (1) an adequate definition of the crime is 3 provided, including all essential elements, and (2) the crime be explained in 4 understandable terms. 7 I. & N. Dec. at 597. An admission is valid despite failure 5 to comply with the procedural safeguards for obtaining admissions so long as the 6 applicant “was being questioned under oath, in the presence of his attorney.” Urzua 7 Covarrubias v. Gonzales, 487 F.3d 742, 749 (9th Cir. 2007). Moreover, the USCIS 8 Policy Manual provides that even if a valid admission to a marijuana-related offense 9 is not made, the applicant still “may be unable to meet the burden of proof to show 10 that he or she has not committed such an offense.” USCIS Policy Manual, Vol. 12, 11 Pt. F, Ch. 5, Sec. (C)(2). 12 At Plaintiff’s second naturalization interview, the officer read aloud the 13 portion of the CSA regarding the unlawful possession of a controlled substance. 14 ECF No. 16-1 at 70. The officer also stated that the CSA “makes the . . . distribution 15 or possession of any amount of marijuana . . . a criminal offense.” Id. The officer 16 then proceeded to list the sub-elements of the crime of distribution of a controlled 17 substance. Plaintiff stated that she did not understand “100 percent” and the officer 18 offered to go through the elements of the crime again. Id. Plaintiff instead asked the 19 officer to spell out the CSA and the officer complied. Plaintiff gave her testimony 20 voluntarily and under oath. Although Plaintiff did not have an attorney present at 21 either naturalization interview, she had an attorney present at her deposition when ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 14 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.487 Page 15 of 25 1 she affirmed that everything that she had stated during her two interviews was 2 correct. See ECF No. 16-1 at 11–12 (Plaintiff identifies her lawyer, who also speaks 3 on the record), 15–16 (Plaintiff confirms that all her answers for her naturalization 4 interviews were “honest”). 5 The Court concludes that both the definition and the elements of the federal 6 crime of distribution of a controlled substance, which includes marijuana, were 7 provided to Plaintiff during the second naturalization interview. Plaintiff argues that 8 the officer conflated the crimes of possession and distribution. ECF No. 24 at 2. In 9 reviewing the transcript, the Court agrees to the limited extent that the officer failed 10 to include the language “with intent to distribute” when initially discussing the term 11 “possession” as it appears in 21 U.S.C. § 841(a). See ECF No.16-1 at 70. However, 12 the officer accurately stated the crime of distribution and remedied the omission of 13 the language regarding possession “with intent to distribute” by correctly explaining 14 the sub-elements of the crime of distribution of a controlled substance. Id. 15 Moreover, Plaintiff’s argument that she did not understand the crime being 16 read to her is inconsistent with the record. When Plaintiff first applied for 17 naturalization, she knew, at minimum, that there was a conflict between federal and 18 state law regarding the sale of marijuana. See ECF No. 16-1 at 42 (Plaintiff’s 19 addendum application notes that the question about selling illegal drugs is 20 “somewhat of a gray area federally” and provides the information for her state- 21 licensed marijuana store). In her deposition, Plaintiff stated that she first became ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 15 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.488 Page 16 of 25 1 aware that selling marijuana violates federal law during her second naturalization 2 interview. ECF No. 16-1 at 27–28. Regardless of when Plaintiff first understood 3 that marijuana is a controlled substance under federal law, she admitted to learning 4 this fact during the naturalization interview, suggesting that the officer explained the 5 federal law to her in understandable terms. See ECF No. 16-1 at 74 (Plaintiff 6 answers “Yes” to the following question: “And you knowingly and intentionally 7 distribute or sell or deliver the [marijuana] product to persons who come into your 8 store?”). 9 Plaintiff separately contends that the officer should have explained “the 10 purpose of the questioning” regarding her job as it related to the officer’s good moral 11 character inquiry, ECF No. 23 at 4, but such a requirement exceeds the minimal 12 procedural safeguards established by Matter of K. Even if the definitions of the 13 crime or its elements could have been clearer, the Ninth Circuit has determined that 14 such procedural safeguards may be circumvented where the applicant provides 15 sworn testimony in the presence of an attorney. Urzua Covarrubias, 487 F.3d at 16 749. Therefore, Plaintiff’s admission to marijuana distribution during her 17 deposition, made under oath and in the presence of her attorney, provides a valid 18 admission to the crime regardless of whether the procedural requirements of Matter 19 of K were satisfied either at her naturalization interviews or during her deposition. 20 See ECF No. 16-1 at 9, 11–12, 25–26, 29. 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 16 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.489 Page 17 of 25 1 The record before the Court supports the factual finding that Plaintiff admitted 2 to committing the federal crime of distribution of a controlled substance (marijuana) 3 based on her operation of the state-licensed marijuana store she co-owns. 3 4 Therefore, under current law, Plaintiff is statutorily barred from a finding of good 5 moral character, making her ineligible for naturalization. 8 U.S.C. §§ 1101(f)(3), 6 1182(a)(2)(A). Accordingly, Defendants are entitled to summary judgment on 7 Plaintiff’s claim regarding her eligibility for naturalization. Given that the Court 8 agrees with Defendants that Plaintiff is statutorily ineligible for naturalization due to 9 her admission to marijuana distribution, the Court does not address Defendants’ 10 additional argument that Plaintiff is ineligible due to illicitly trafficking marijuana. 11 IV. 12 Plaintiff’s Cross Motion for Summary Judgment For the reasons stated above, the Court denies Plaintiff’s assertion that she 13 is entitled to summary judgment because she does not meet all eligibility 14 requirements for naturalization. Plaintiff validly admitted to committing the federal 15 16 3 17 apply, even absent a valid admission, where Plaintiff fails to overcome the burden 18 of proving that she did not commit the offense in question. USCIS Policy Manual, The Court further observes that the statutory bar to good moral character may Vol. 12, Pt. F, Ch. 5, Sec. (C)(2). Although the Court finds that a valid admission 19 was obtained, the statutory bar would still apply given Plaintiff’s failure to 20 overcome the burden of proving that she does not distribute marijuana in her role 21 as co-owner of Cannarail Station. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 17 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.490 Page 18 of 25 1 crime of distribution of a controlled substance (marijuana), thereby precluding her 2 from qualifying as a person of good moral character. 3 Plaintiff separately argues that application of the statutory bar to good moral 4 character in her case is unconstitutional because (1) the CSA lacks authority under 5 the Commerce Clause to regulate state-licensed marijuana distribution; (2) the CSA 6 violates the Tenth Amendment; and (3) the instant application of the INA’s statutory 7 bar to a good moral character finding violates equal protection and due process. 8 ECF No. 17 at 10–21. The Court addresses these additional arguments in turn and 9 finds that they all lack merit. 10 First, Plaintiff argues that Congress lacks the power to regulate a state- 11 sanctioned marijuana system. ECF No. 17 at 10–11. The Supreme Court holds 12 otherwise. See Gonzales v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 162 L. Ed. 2d 1 13 (2005) (reaffirming “Congress’ power to regulate purely local activities that are part 14 of an economic ‘class of activities’ that have a substantial effect on interstate 15 commerce[,]” including the regulation of the cultivation and use of marijuana in 16 compliance with state law). Plaintiff argues that the rationale in Raich “has been 17 completely eroded” for recreational and medicinal use of state-licensed marijuana in 18 the ensuing years as more states have legalized marijuana in some capacity. ECF 19 No. 17 at 10–11. Plaintiff further contends that Washington “has its own 20 comprehensive regime that has created a completely intrastate system.” Id. at 11. 21 Yet, the Court in Raich rejected such an argument. See 545 U.S. at 22 (“That the ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 18 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.491 Page 19 of 25 1 regulation ensnares some purely intrastate activity is of no moment. As we have 2 done many times before, we refuse to excise individual components of the larger 3 scheme.”). Regardless of the changing landscape of the legalization of marijuana in 4 multiple states, this Court will not flout Supreme Court precedent that remains 5 intact. 6 Plaintiff’s remaining argument that “there is no conflict [between Washington 7 state and federal law] under the Supremacy Clause” is inaccurate. Federal law 8 makes the distribution of marijuana, among other activities, illegal. 21 U.S.C. § 9 841(a). Admission to violation of such a law serves as a statutory bar to a finding of 10 good moral character for naturalization applications. 8 U.S.C. §§ 1101(f)(3), 11 1182(a)(2)(A). Plaintiff’s description of the “careful balance between the CSA and 12 state marijuana law” ignores the fact that distribution of marijuana is illegal under 13 federal law regardless of compliance with an intrastate licensing system. See Raich, 14 545 U.S. at 29 (declining to limit criminal activity to “marijuana possession and 15 cultivation ‘in accordance with state law’ because the “Supremacy Clause 16 unambiguously provides that if there is any conflict between federal and state law, 17 federal law shall prevail”). 18 Plaintiff next argues that the Tenth Amendment of the United States 19 Constitution “gives states police and public safety powers” that preempt federal 20 statutes such as the CSA. ECF No. 17 at 16–17. Again, under Raich, Plaintiff’s 21 argument fails. Following the Supreme Court’s decision, the Raich case was ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 19 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.492 Page 20 of 25 1 remanded to the Ninth Circuit, which determined that “Raich failed to demonstrate a 2 likelihood of success on her claim that the [CSA] violates the Tenth Amendment.” 3 See Raich v. Gonzales, 500 F.3d 850, 867 (9th Cir. 2007) (Raich II); see also id. 4 (“Generally speaking, . . . a power granted to Congress trumps a competing claim 5 based on a state’s police powers.”). In the years following Raich II, similar Tenth 6 Amendment claims brought by state-licensed marijuana farmers have also failed. 7 See Montana Caregivers Ass’n, LLC v. United States, 841 F. Supp. 2d 1147, 1148 8 (D. Mont. 2012) (“Since Congress acted under one of its enumerated powers when it 9 enacted the [CSA], the federal government’s enforcement of the Act[, even where 10 Montana law would permit the production and consumption of medical marijuana,] 11 does not violate the Tenth Amendment.”) (citing Raich II, 500 F.3d at 867). 12 Lastly, Plaintiff brings an as-applied due process 4 and equal protection 13 challenge against the Government based on its disparate enforcement of Title 8 and 14 4 15 Plaintiff asserts a violation of equal protection and due process under the Fifth Amendment of the United States Constitution. Unlike the Fourteenth Amendment, 16 the Fifth Amendment does not contain an Equal Protection Clause. Nevertheless, 17 “the concepts of equal protection and due process, both stemming from our 18 American ideal of fairness, are not mutually exclusive.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 98 L. Ed. 884 (1954). Accordingly, the “approach to 19 Fifth Amendment equal protection claims has always been the same as to equal 20 protection claims under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 21 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 514 (1975) (collecting cases). ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 20 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.493 Page 21 of 25 1 the INA, in relation to the CSA, “depending on alienage and nationality.” ECF No. 2 17 at 19. Plaintiff argues that “[t]here is disparate treatment between those who are 3 U.S. citizens and those who have a different national origin or alienage because the 4 federal government does not enforce the CSA fully against citizens as opposed to 5 non-citizens.” ECF No. 23 at 9. 6 Preliminarily, the parties dispute what level of scrutiny applies to Plaintiff’s 7 equal protection challenge. Plaintiff asserts that the application of the CSA and 8 INA, together, “targets people of a certain nationality or alienage” so “strict scrutiny 9 is applied.” ECF No. 17 at 18 (citing Graham v. Richardson, 403 U.S. 365, 372, 91 10 S. Ct. 1848, 29 L. Ed. 2d 534 (1971)). The Government counters that “[e]qual 11 protection challenges to immigration laws are reviewed under the rational basis 12 standard and upheld ‘if they are rationally related to a legitimate government 13 purpose.’” ECF No. 21 at 11 (quoting Hernandez-Mancilla v. Holder, 633 F.3d 14 1182, 1185 (9th Cir. 2011)). 15 Regardless of the applicable standard of review, the Court concludes that 16 Plaintiff is unable to make a threshold showing of disparate treatment. 5 Plaintiff’s 17 argument is premised on the inaccurate assumption that “the constitutionality of 18 5 19 The Ninth Circuit directs that courts shall “not proceed to inquire whether the basis of discrimination merits strict scrutiny” until the plaintiff has made the 20 threshold showing of disparate treatment between similarly situated individuals. 21 Pimentel v. Dreyfus, 670 F.3d, 1096, 1106 (9th Cir. 2012). ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 21 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.494 Page 22 of 25 1 Defendants[’] actions must be determined by assessing the INA and CSA together.” 2 ECF No. 23 at 10. However, Plaintiff challenges the application of the good moral 3 character bar, a statutory provision under the INA, not the CSA. Accordingly, 4 Plaintiff “must show that the defendant [in applying the INA’s good moral character 5 bar] treated the plaintiff differently from similarly situated individuals.” Pimentel v. 6 Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012). 7 A recent district court decision from this Circuit provides helpful parallels to 8 Plaintiff’s instant challenge. See Voronin v. Garland, No. 2:20-cv-7019, 2021 WL 9 1546957 (C.D. Cal. Aug. 20, 2021). There, the plaintiff, an asylee who was lawfully 10 present in the United States, appealed the denial of his application for lawful 11 permanent resident (“LPR”) status. Id. at *1. Prior to applying for LPR status, the 12 plaintiff worked as a “handyman” for a California state-licensed medical marijuana 13 cultivation and distribution center, and he informed USCIS about his job during his 14 third interview. Id. USCIS denied the plaintiff’s LPR application, based on its 15 substantial belief that he “aided, abetted, assisted, conspired[,] or colluded in the 16 illicit trafficking of marijuana.” Id at *2. The plaintiff appealed the decision, 17 arguing, among other things, that USCIS’s decision violated equal protection. Id. In 18 dismissing the plaintiff’s equal protection claim, the district court held that the 19 plaintiff “is not similarly situated to the broad population of non-aliens operating 20 state-licensed marijuana businesses” because non-aliens are not subject to the 21 admissibility standards of the INA. Id. at *5. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 22 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.495 Page 23 of 25 1 Here too, Plaintiff fails to show that she is similarly situated to U.S. citizens 2 who operate state-licensed marijuana businesses because, unlike Plaintiff, the INA 3 admission requirements do not apply to U.S. citizens. Plaintiff’s attempts to 4 distinguish Voronin are unavailing as she again incorrectly assumes that “the INA 5 and CSA are inextricably intertwined.” ECF No. 23 at 10. The statutes are separate 6 and Plaintiff’s as-applied challenge concerns only the former statute, not the latter. 7 Even considering Plaintiff’s claim as an as-applied equal protection challenge to the 8 CSA, she fails to show that, unlike similarly situated U.S. citizens, she is being 9 federally prosecuted for running a state-licensed marijuana store. The Court finds 10 that Plaintiff has failed to make a threshold showing of disparate treatment among 11 similarly situated individuals and, accordingly, her equal protection challenge fails. 6 12 CONCLUSION 13 Defendants have successfully demonstrated that they are entitled to summary 14 judgment. Plaintiff validly admitted to distributing marijuana in her role as co- 15 16 6 17 that the Government “could amend Title 8 and the INA to take out the conditional 18 bar of good moral character for those non-citizens who own state-sanctioned As a final point, the Court does not consider Plaintiff’s policy-based argument marijuana business and legally use marijuana.” ECF No. 17 at 21. In any case, 19 Defendants aptly observe that Plaintiff “advocates for disparate application of the 20 INA,” but naturalization standards, as a function of federal immigration law, “must 21 be applied uniformly across the country.” ECF No. 21 at 10. ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 23 Case 2:20-cv-00459-RMP ECF No. 32 filed 02/07/22 PageID.496 Page 24 of 25 1 owner of a state-licensed marijuana store. Given that marijuana remains an illicit 2 controlled substance under federal law, Plaintiff’s admission bars her naturalization 3 application for lack of good moral character. 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A). 4 Accepting the facts in the light most favorable to Plaintiff, including her alleged 5 confusion between state and federal law, Plaintiff fails to raise any factual issue of 6 genuine dispute or overcome the burden of proving that she did not commit the 7 federal crime of marijuana distribution. 8 9 Plaintiff’s constitutional arguments challenging the application of the statutory bar to good moral character lack merit. As established in Raich, Congress has 10 authority under the Commerce Clause to regulate the distribution, possession, and 11 manufacture of marijuana among the states. 545 U.S. at 15–17. Under this same 12 line of precedent, the CSA does not violate the Tenth Amendment. Raich II, 500 13 F.3d at 867. Lastly, Plaintiff’s as-applied equal protection claim erroneously 14 conflates the INA and the CSA, resulting in a failure to make a threshold showing of 15 disparate treatment among similarly situated individuals. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. 18 Defendants’ Motion for Summary Judgment, ECF No. 15, is GRANTED. 19 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 20 3. Judgment shall be entered for Defendants. 21 / / / ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 24 Case 2:20-cv-00459-RMP 1 ECF No. 32 filed 02/07/22 PageID.497 Page 25 of 25 IT IS SO ORDERED. The District Court Clerk is directed to enter this 2 Order, enter Judgment for Defendants, provide copies to counsel, and close this 3 case. 4 DATED February 7, 2022. 5 6 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT ~ 25

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