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Aswad v. Johnson

United States District Court, D. New Mexico

December 2, 2016

JEH JOHNSON et al., Defendants.



         THIS 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.

         I. Factual Allegations[1]

         Plaintiff 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).[2] In 2012, agents from the Food and Drug Administration served a search warrant on Plaintiff's medical practice. (Doc. 1-22, Ex. 21 at 4).

         On 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).

         A 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, Ex. 9).

         The New 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).

         After 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).

         Plaintiff 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).

         The 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).

         Plaintiff 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 19).

         II. Standard of Review

         The 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).

         To 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 ...

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