United States District Court, D. New Mexico
December 2, 2016
MOHAMED BASEL ASWAD, Plaintiff,
JEH JOHNSON et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court upon Defendants Jeh Johnson, Leon
Rodriguez, Mario Ortiz, Margaret A. Hartnett, and the United
States Citizenship and Immigration Services'
(collectively, the “Defendants”) Motion to
Dismiss (the “Motion”), (Doc. 20), filed
September 30, 2016; Plaintiff's Opposition to
Defendants' Motion to Dismiss for Failure to State a
Claim (the “Response”), (Doc. 21), filed
October 17, 2016; and Defendants' Reply Brief in
Support of Defendants' Motion to Dismiss (the
“Reply”), (Doc. 24), filed November 9, 2016.
United States District Judge Kenneth J. Gonzales referred
this case to Magistrate Judge Carmen E. Garza to perform
legal analysis and recommend an ultimate disposition of the
case. (Doc. 26). After considering the parties' filings
and the relevant law, the Court RECOMMENDS that
Defendants' Motion be DENIED.
Mohamed Basel Aswad filed his Petition for Hearing on
Naturalization (the “Original Petition”) on
May 21, 2016 alleging that Defendant United States
Citizenship and Immigration Services (“USCIS”)
wrongly denied his Application for Naturalization. (Doc. 1).
Plaintiff subsequently filed an Amended Petition for
Hearing on Naturalization, (the “Amended
Petition”) on September 16, 2016. (Doc. 18). The facts
are alleged as follows: Plaintiff is a physician practicing
internal medicine, hematology, and oncology in the Deming
area since 2003. (Doc. 1-22, Ex. 21 at 3-4). In 2012, agents
from the Food and Drug Administration served a search warrant
on Plaintiff's medical practice. (Doc. 1-22, Ex. 21 at
March 20, 2014, Plaintiff filed an Application for
Naturalization, (Doc. 1-2, Ex. 1), and was scheduled for a
naturalization interview on September 11, 2014. (Doc. 1-3,
Ex. 2). At the interview, Plaintiff notified USCIS that a
search warrant had been served on his medical practice. (Doc.
13 at 13).
criminal information was subsequently filed against Plaintiff
on September 23, 2014 charging him with causing the
introduction into interstate commerce of misbranded drugs in
violation of 21 U.S.C. §§ 331(a), 333(a)(1) and
forfeiture in violation of 18 U.S.C § 982(a)(7), 21
U.S.C. § 334, and 28 U.S.C. § 2461. (Doc. 1-5, Ex.
4). On November 4, 2014, Plaintiff entered a guilty plea to
one count of misbranding in violation of 21 U.S.C.
§§ 331(a), 333(a)(1) and was sentenced to a term of
probation for three years on August 4, 2015. (Doc. 1-6, Ex.
5; Doc. 1-8, Ex. 7; Doc. 1-9, Ex. 8 at 2). In addition to
probation, Plaintiff was ordered to pay a $1, 000.00 fine, a
monetary judgment of $750, 000.00, restitution to
Medicare/Medicaid in the amount of $1, 277, 589.00, and
restitution to United Healthcare/Tricare in the amount of
$20, 954.00. (Doc. 1-9, Ex. 8 at 4). According to the plea
agreement, Plaintiff admitted to purchasing prescription
chemotherapy drugs from a Canadian company that were not
manufactured for distribution in the United States,
administering the drugs, and receiving payment for them.
(Doc. 1-8, Ex. 7 at 4). Subsequently, on April 11, 2016,
Plaintiff was discharged early from probation. (Doc. 1-10,
Mexico Medical Board (“NMMB”) suspended
Plaintiff's medical license on November 13, 2014. (Doc.
1-23, Ex. 22 at 10). Thereafter, NMMB conducted an
investigation and hearings in association with these matters
on December 1, 2014 and February 11, 2015, but Plaintiff was
ultimately allowed to continue practicing medicine. (Doc.
1-23, Ex. 22 at 5-28).
his interview with USCIS, on December 24, 2014, USCIS
approved Plaintiff's naturalization application and
scheduled him for a Naturalization Oath Ceremony taking place
on January 16, 2015. (Doc. 1-4, Ex. 3). Prior to the
ceremony, Plaintiff informed USCIS that he pled guilty to
criminal charges. (Doc. 1-11, Ex. 10). USCIS cancelled
Plaintiff's participation in the oath ceremony on January
9, 2015. (Doc. 1-12, Ex. 11). Subsequently, USCIS reopened
Plaintiff's naturalization application and denied it on
February 19, 2015. (Doc. 1-13, Ex. 12).
appealed the denial because he was not given notice and an
opportunity to respond to the denial, as required by 8 C.F.R.
§ 103.5(a)(5)(ii). (Doc. 18 at 14-15). USCIS reopened
his naturalization case for the second time and issued a
Notice of Intent to Deny (“NOID”) on March 6,
2015. (Doc. 1-15, Ex. 14). The NOID was issued because USICIS
had erroneously denied Plaintiff's application without
giving him notice and an opportunity to respond to the
decision. (Doc. 1-15, Ex. 14).
March 6, 2015 NOID contained several errors and USCIS issued
a new NOID on June 19, 2015, alleging that Plaintiff lacked
the required good moral character to become a citizen.
According to USCIS, he committed “unlawful acts [which]
reflects adversely on [his] moral character because [he was]
aware or should have been aware that misbranded drugs were
being introduced into the United States stream of
commerce.” (Doc. 1-18, Ex. 17 at 2). On September 16,
2015, USCIS issued a final decision denying Plaintiff's
application for naturalization for failure to meet his burden
to establish good moral character during the statutory
period. (Doc. 1-21, Ex. 20).
appealed the final decision and appeared at an appeals
hearing on December 17, 2015. (Doc. 1-22, Ex. 21; Doc. 1-24,
Ex. 22). USCIS affirmed the denial of Plaintiff's
naturalization application for failure to show he was a
person of good moral character during the statutory period.
(Doc. 1-25, Ex. 23). Subsequently, Plaintiff filed his
Original Petition with this Court on May 31, 2016. (Doc. 1).
Defendants then filed their Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), (Doc. 20). Defendants argue that
Plaintiffs' Amended Petition fails to state a claim upon
which relief can be granted because Plaintiff is ineligible
for the relief he seeks. (Doc. 20 at 1). On this ground,
Defendants ask the Court to dismiss the Petition. (Doc. 20 at
Standard of Review
Federal Rules of Civil Procedure provide that a complaint
must contain a “short and plain” statement of:
(1) the ground supporting the court's jurisdiction; (2)
the claim showing that the plaintiff is entitled to relief;
and (3) a demand for the relief sought. Fed.R.Civ.P. 8(a). A
defendant may move the court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6).
survive a Rule 12(b)(6) motion to dismiss, the complaint must
contain allegations of fact that, taken as true, “state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw reasonable inferences that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “The nature and specificity
of the allegations required to state a plausible claim will
vary based on context.” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citations
omitted). While the court must accept as true all of the
allegations in the complaint, the court need not grant the
same deference to conclusory statements. Iqbal, 556
U.S. at 678. Moreover, “a formulaic recitation of the
elements of a cause of action” will not suffice to
state a claim. Twombly, 550 U.S. at 555. Dismissal
with prejudice is appropriate where a complaint fails to
state a claim under Rule 12(b)(6) and granting leave to amend
would be futile. Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006).
evaluating a 12(b)(6) motion, the Court may consider the
complaint, attached exhibits, “and documents
incorporated into the complaint by reference.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009) (collecting cases). The Court “'may
consider documents referred to in the complaint if the
documents are central to the plaintiff's claim and the
parties do not dispute the documents'
authenticity.'” Id. (quoting Alvarado
v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.
the Immigration and Naturalization Act (“INA”),
Congress granted jurisdictional authority for federal
district courts to review de novo the denial of an
application for naturalization. 8 U.S.C. § 1421(c).
“Because the ‘Government has a strong and
legitimate interest in ensuring that only qualified persons
are granted citizenship, ' the burden is on the Plaintiff
to show his ‘eligibility for citizenship in every
respect.'” Bidzimou v. USCIS, No.
13-1124-SAC, 2013 WL 4094440, at *2 (D. Kan. Aug. 13, 2013)
(unpublished) (quoting Berenyi v. INS, 385 U.S. 630,
survive a motion to dismiss, a Plaintiff in a naturalization
action must plead that he: “(1) was lawfully admitted
to the United States as a permanent resident, (2) has resided
continuously; and has been physically present in the United
States for the required statutory period; and (3) is a person
of good moral character and has been so for at least the five
years preceding the filing of his naturalization
application.” Bidzimou, 2013 WL 4094440, at *2
(citing 8 U.S.C. §§ 1427, 1429). Defendants do not
dispute that Plaintiff meets the first two factors; however,
the parties disagree as to whether Plaintiff can show that he
is a person of good moral character. Therefore, the Court
will focus its analysis on the third factor.
their Motion, Defendants argue that, based on the undisputed
facts in the Amended Petition, Plaintiff is ineligible to
naturalize. (Doc. 20 at 1). Defendants state that Plaintiff
has the burden of proving that he is of good moral character
and he cannot demonstrate good moral character because of his
conviction for buying misbranded chemotherapy drugs. (Doc. 20
at 10-16). Further, Defendant argues that Plaintiff cannot
establish extenuating circumstances that would excuse his
conduct. (Doc. 20 at 16-18).
responds that although he committed unlawful acts, these acts
do not adversely reflect on his moral character. (Doc. 21 at
16; 18-20). Even if his act of purchasing and using
misbranded chemotherapy drugs reflected on his moral
character, Plaintiff contends that there are extenuating
circumstances that excuse his conduct. (Doc. 20 at 21-22).
Establishing Good Moral Character
issue before the Court is whether Plaintiff can establish
good moral character. USCIS determines whether an applicant
meets the good moral character standard “on a
case-by-case basis taking into account the elements
enumerated in [8 C.F.R. § 316.10(a)(2)] and the
standards of the average citizen of the community.” 8
C.F.R. § 316.10(a)(2). USCIS regulations specifically
require a person to be of good moral character for the five
years preceding the filing of a naturalization application;
is not limited to reviewing the applicant's conduct
during the five years immediately preceding the filing of the
application, but may take into consideration, as a basis for
its determination, the applicant's conduct and acts at
any time . . . if the earlier conduct and acts appear
relevant to a determination of the applicant's present
law does not expressly define good moral character. Rather,
the Immigration and Nationality Act (“INA”)
enumerates conduct that prohibits a finding of good moral
character. This conduct includes a person who: (1) is a
“habitual drunkard;” (2) is a certain class of
inadmissible alien as defined by 8 U.S.C. § 1182(a); (3)
derives income primarily from illegal gambling activities;
(4) is convicted of two or more gambling offenses; (5) has
given false testimony in order to obtain an immigration
benefit; (6) has been imprisoned for one hundred and eighty
days or more; (7) has been convicted of an aggravated felony;
or (8) engaged in “Nazi persecution, genocide, or the
commission of any act of torture or extrajudicial
killing” in violation of 8 U.S.C. § 1182(a)(3)(E)
or committed “particularly severe violations of
religious freedom” in violation of §
1182(a)(2)(G). 8 U.S.C. § 1101(f)(1)-(9). A person
falling into one of these enumerated categories cannot
establish good moral character as a matter of law.
Plaintiff's crime does not fall into any of these
categories; however, the INA also contains a catch-all
provision, which states: “[t]he fact that any person is
not within any of the foregoing classes shall not preclude a
finding that for other reasons such person is or was not of
good moral character.” § 1101(f).
regulations state that “[u]nless the applicant
establishes extenuating circumstances, the applicant shall be
found to lack good moral character if, during the statutory
period, the applicant . . . [c]ommitted unlawful acts that
adversely reflect upon the applicant's moral character,
or was convicted or imprisoned for such acts.” §
316.10(b)(3)(iii). Therefore, if the Court finds that
Plaintiff's crime adversely reflects on his moral
character, Plaintiff must prove that there were extenuating
Court now turns to whether Plaintiff's conviction for
using misbranded chemotherapy drugs negatively reflects on
his moral character as a matter of law.
Whether Plaintiff's Unlawful Act Adversely Reflects on
his Moral Character
the parties agree that Plaintiff was convicted of an unlawful
act, buying and using misbranded drugs in violation of 21
U.S.C. §§ 331(a), 333(a)(1). Defendants argue that
the facts, as alleged in the Amended Petition, make Plaintiff
ineligible for naturalization. (Doc. 20 at 10). Specifically,
Defendants maintain that “[t]he nature and magnitude of
[Plaintiff's] conduct - selling misbranded chemotherapy
drugs to cancer patients - adversely reflects on his moral
character as a matter of law.” (Doc. 24 at 3).
unlawful act does not fall within one of the enumerated
categories prohibiting a finding of good moral character;
therefore, the Court will consider both Plaintiff's
unlawful act and other factors relevant to the determination
of good moral character. See Torres-Guzman v. INS,
804 F.2d 531, 534 (9th Cir. 1986) (“[i]n the absence of
a congressionally imposed per se rule, a statutory
[directive] to determine the presence or absence of good
moral character requires the fact finder to weigh and balance
the favorable and unfavorable facts or factors, reasonably
bearing on character, that are presented in
evidence.”). Relevant factors may include:
“education, family background, employment history,
financial status, and lack of criminal record.”
Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir.
2016) (citing Torres-Guzman, 804 F.3d at 533).
is a physician who has, since 2003, practiced in Deming, New
Mexico, where he is the only oncologist, hematologist, and
internist in the area. (Doc. 18 at ¶¶ 32-34). He is
one of six physicians that serve a population of
approximately 25, 000 residents. (Doc. 18 at ¶ 42).
Plaintiff purchased cancer drugs from mail order pharmacies
because the pharmacies in the area do not dispense these
drugs. (Doc. 18 at ¶¶ 46, 48). Plaintiff claimed
that he had no knowledge that he purchased drugs that were
not approved by the FDA until FDA agents searched his
practice. (Doc. 18 at ¶¶ 53-54). Following its
investigation, the NMMB determined that Plaintiff was not
aware that he was administering non-FDA approved drugs to his
patients. (Doc. 1-23, Ex. 22 at 9, 22). During the FDA
investigation, Plaintiff participated fully and self-reported
the FDA search to the NMMB. (Doc. 1-23, Ex. 22 at 10, 23-24).
Plaintiff profited from the non-FDA approved drugs he
administered, the NMMB Hearing Officer noted that the price
for cancer drugs varies from supplier to supplier, and the
Hearing Officer could not make the conclusion that Plaintiff
was over- reimbursed for the drugs. (Doc. 1-23, Ex. 22 at
24). The Hearing Officer determined that the amount Plaintiff
was reimbursed was neither “unusual nor
alarming.” (Doc. 1-23, Ex. 22 at 25).
Court weighs this evidence against Plaintiff's criminal
act. The NMMB Hearing Officer stated that Plaintiff
“unquestionably subjected his patients to the dangers
associated with the use of non-FDA approved
medications” and did not immediately abide by
NMMB's suspension of his medical license. (Doc. 1-23, Ex.
22 at 26). Plaintiff pled guilty of violating the Food, Drug,
and Cosmetic Act (“FDCA”), which was passed for
the primary purpose of “protect[ing] the health and
safety of the public at large.” POM Wonderful LLC
v. Coca-Cola Co., 134 S.Ct. 2228, 2234 (2014). FDCA
created a strict-liability criminal offense. See 21 U.S.C.
despite his unlawful action, the NMMB did not take permanent
adverse action against Plaintiff. The Hearing Officer stated
[b]ased on the testimony and letters of support of
[Plaintiff's] patients and colleagues, there is a real
risk of harm to the Deming community if [Plaintiff] is unable
to practice medicine. The evidence offered at the hearings
shows that Deming is an underserved community, and the
patients who need oncology services have expressed a concern
that they will have to travel several hours from home in
order to obtain the necessary treatment of their conditions.
The reports and testimony offered by [Plaintiff's]
patients and colleagues show that [Plaintiff] is a talented
and compassionate practitioner.
(Doc. 1-23, Ex. 22 at 27).
Plaintiff committed a crime that could have harmed his
patients, it appears from the evidence that Plaintiff is a
valued member of the Deming community and there are other
mitigating factors through which Plaintiff may establish good
moral character. Therefore, based on the facts in the Amended
Petition and the exhibits, the Court finds that
Plaintiff's unlawful act does not, as a matter of law,
require an adverse finding as to his good moral character.
their argument, Defendants rely primarily on United
States v. Jammal, 90 F.Supp.3d 618 (S.D. W.Va. Feb. 9,
2015). On a motion for summary judgment, for an individual
USCIS argued should lose his citizenship after being
naturalized, the court found that an individual convicted
under 21 U.S.C. § 331 for introducing into interstate
commerce misbranded food could not establish good moral
character based on the totality of his actions. Jammal, 90
F.Supp.3d at 625. The individual repackaged infant formula,
which the Court found to be “conduct that potentially
threatens the health of the youngest and most vulnerable
among us, for little more than economic gain.”
Id. The Court noted that the applicant
“directly or indirectly caused dates to be placed on
infant formula cases . . . with full knowledge that the
manufacturers used those dates to signal the ‘use
by' dates, ” but that knowledge did not stop the
applicant. Id. The Court found that his
“unlawful and fraudulent acts adversely reflect on [the
applicant's] moral character, demonstrating a willful
disregard for public health and fair dealing.”
case at bar can be distinguished from Jammal. Here, it is
clear from the evidence and the findings of the NMMB that
unlike the applicant in Jammal, Plaintiff did not purchase
non-FDA approved cancer medication for “economic
gain.” (See Doc 1-23, Ex. 22 at 24-25). Additionally,
in Jammal, the applicant argued that the conduct at issue
occurred three years before the indictment and he cooperated
with authorities, which the Court did not find to be enough
to overcome the fact that his conduct adversely reflected on
his moral character. By contrast, this Court has determined
that the favorable factors bearing on Plaintiff's moral
character could outweigh the unfavorable factors. In sum, the
Court concludes that Plaintiffs Amended Pleading provides
sufficient facts to survive Defendants' Motion to
reasons discussed above, the Court finds that taking all of
Plaintiff's allegations as true, Defendant has not
established, as a matter of law, that Plaintiff cannot show
the requisite good moral character in order to naturalize as
an American citizen.
THEREFORE RECOMMENDED that Defendants' Motion to Dismiss,
(CV Doc. 20), be DENIED.
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no
[appellate review will be allowed.
 At this stage of the proceedings, the
Court takes all factual allegations in the Complaint as true.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
 References to exhibits refer to the
exhibits attached to the Original Petition as exhibits were
not attached to the Amended Petition. (See Docs. 1,
 The NMMB suspended Plaintiff's
license on November 13, 2014; however, the notice of summary
suspension was dated November 17, 2014. (Doc. 1-23, Ex. 22 at
14). Plaintiff's attorney was notified by email on
November 17, 2014 of the suspension. (Doc. 1-23, Ex. 22 at
16). Plaintiff's attorney advised Plaintiff that he could
continue working until Plaintiff received the suspension
notice in the mail. (Doc. 1-23, Ex. 22 at 16). Plaintiff
received the notice by mail on November 21, 2014 and stopped
working; however, he should have ceased working when he was
notified of the suspension on November 17, 2014. (Doc. 1-23,
Ex. 22 at 16, 22).