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Aswad v. Johnson

United States District Court, D. New Mexico

May 24, 2017

MOHAMED BASEL ASWAD, Petitioner,
v.
JEH JOHNSON, et al., Defendants.

          ORDER SUSTAINING OBJECTIONS TO MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         This matter is before the Court upon the Defendants' Objections to Proposed Findings and Recommended Disposition (“Objections”), (Doc. 28), filed on December 16, 2016. Petitioner filed a response to the Objections on December 30, 2016. (Doc. 29). Having considered the Objections and the response brief, the Court sustains the Objections and Grants Defendants' Motion to Dismiss, (Doc. 20), filed September 30, 2016.

         A. Background

         On May 31, 2016, Petitioner Mohamed Basel Aswad filed his Petition for Hearing on Naturalization (“Original Petition”), alleging that Defendant United States Citizenship and Immigration Services (“USCIS”) wrongly denied his Application for Naturalization. (Doc. 1). Petitioner filed an Amended Petition for Hearing on Naturalization (“Amended Petition”) on September 16, 2016. (Doc. 18). Thereafter, Defendants filed a Motion to Dismiss, arguing that Petitioner's Amended Petition fails to state a claim upon which relief can be granted, as Petitioner is ineligible for the relief he seeks. (Doc. 20) at 1.

         The Court referred Defendants' Motion to Dismiss to a United States Magistrate Judge to perform legal analysis and recommend an ultimate disposition. (Doc. 26). On December 2, 2016, the Magistrate Judge concluded that, taking all of Petitioner's allegations as true, Petitioner has pled sufficient facts to show that he could be eligible to naturalize. (Doc. 27) at 12. Accordingly, the Magistrate Judge ultimately recommended in the Proposed Findings and Recommended Disposition (“PFRD”) that Defendants' Motion to Dismiss be denied. Id.

         Defendants object to the Magistrate Judge's ultimate finding in the PFRD. Specifically Defendants object to the PFRD because it (1) makes factual findings that are inconsistent with the allegations of the Complaint and the documents attached to the Complaint; (2) considers a broader range of factors than the regulation contemplates in assessing whether Petitioner's crime adversely reflects on his moral character; and (3) expands the definition of “extenuating circumstances” to encompass factors that do not relate directly to Petitioner's culpability for his crime. (Doc. 28 at 1).

         B. Discussion

         1. Standard of Review

         A party may serve and file specific written objections to a magistrate judge's proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). An objection must be both timely and “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). However, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (internal citations omitted).

         When resolving objections to a magistrate judge's recommendation, the Court must make a de novo determination regarding any part of the recommendation to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). In doing so, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         2. Establishing Good Moral Character

         In order to survive a motion to dismiss, a Petitioner 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 v. USCIS, 2013 WL 4094440, at *2 (D. Kan.) (unpublished) (citing 8 U.S.C. §§ 1427, 1429). Here, the parties dispute whether there are sufficient facts for Petitioner to prove the requisite good moral character.

         Both a statute and a regulation govern the determination of good moral character. See 8 U.S.C. § 1101(f), 8 C.F.R. § 316.10. The statute does not define good moral character, but lists specific characteristics that would preclude a finding of good moral character. 8 U.S.C. § 1101(f). A person that (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) is barred from making a showing of good moral character. Id. at § 1101(f)(1)-(9). Petitioner's crime of Receipt in Interstate Commerce of any Drug that is Misbranded, and the Delivery Thereof for Pay does not fall into any of these specific categories, but it does fall within the “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.” Id.

         In this “catch-all provision, ” Congress intentionally left “a statutory gap for the administrative agency to fill.” United States v. Dang, 488 F.3d 1135, 1140 (9th Cir. 2007).

         Therefore, if an individual falls into the “catch-all” provision in the statute, the regulation “offer[s] ‘guidance to officials making moral character determinations.'” Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir. 2016) (quoting Dang, 488 F.3d at 1139). The regulation states that claims of good moral character should be evaluated “on a case-by-case basis taking into account the elements enumerated in [the regulation] and the standards of the average citizen in the community ...


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