United States District Court, D. New Mexico
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