Pinet v. US Immigration CV-07-314-PB 04/30/08 P
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raynald (Ronald) Joseph Albert Pinet
v. Civil No. 07-cv-314-PB Agency No. 14-285-032 Opinion No. 2008 DNH 093 United States Citizenship and Immigration Services, et a l .
MEMORANDUM AND ORDER
Raynald Pinet challenges a decision by the United States
Citizenship and Immigration Service ("USCIS") to reject his
application for citizenship. The issue presented by defendants'
motion for summary judgment is whether USCIS correctly determined
that Pinet's 2003 conviction for the Use of a Communication
Facility to Facilitate a Drug Transaction prevents him from
satisfying the "good moral character" reguirement for
naturalization. For the reasons stated below, I determine that
the answer to this guestion is yes.
I. BACKGROUND
Pinet is a fifty-six year old Canadian citizen who first
entered the United States as a lawful permanent resident on July 13, 1965. Pinet served in the United States military on active
duty from August 1970 to July 1972. He received an honorable
discharge.
On September 30, 2003, Pinet was convicted in the United
States District Court for the District of Massachusetts following
a guilty plea for the crime of Use of a Communication Facility to
Facilitate a Drug Transaction (Cocaine) in violation of 21 U .S .C .
§ 843(b). Following his conviction, the Department of Homeland
Security ("DHS") initiated removal proceedings against Pinet on
October 25, 2006, charging Pinet with removability pursuant to
the Immigration and Nationality Act (the "INA") for being
convicted of a controlled substance offense after admission. See
8 U.S.C. § 1227(a)(2)(B)(i). Pinet has other criminal
convictions that are not relevant here.
On December 14, 2006, Pinet filed an application for
naturalization. Form N-400, with USCIS on the basis of his
previous military service during a specified period of armed
conflict, pursuant to 8 U.S.C. § 1440 (INA § 329). Pinet was
interviewed by a USCIS officer on April 3, 2007. The officer
denied Pinet's application on June 8, 2007, for failure to
establish good moral character as reguired by 8 C.F.R. §
- 2 - 316.10(b) (2) (ii) . Pinet requested a review hearing pursuant to _8
U.S.C. § 1447 (INA § 336(a)) and was examined under oath by a
USCIS officer on July 17, 2007. USCIS affirmed the denial of
Pinet's application on July 31, 2007.
Pinet now petitions this court for de novo review of USCIS's
decision to deny his naturalization application, pursuant to _8
U.S.C. § 1421 (c) (INA § 321(c)).
II. STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
5 6(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to "produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for it; if that party cannot produce such evidence, the motion
must be granted." Ayala-Gerena v. Bristol Myers-Sguibb Co., 95
- 3 - F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
III. ANALYSIS
I begin with a review of the statutes and regulations that
are relevant to Pinet's application. I then address each of
Pinet's arguments in turn, drawing all reasonable factual
inferences in Pinet's favor and evaluating whether the undisputed
facts demonstrate that defendants are entitled to summary
judgment.
A. Legal Framework
The basic reguirements for naturalization are collected at _8
U.S.C. § 1427. Applicants are reguired to show that they have
resided continuously in the United States for five years prior to
the date of filing the naturalization application and from the
date of filing the application up to the time of admission to
citizenship. 8 U.S.C. § 1427(a). The statute reguires that
during all of these periods, the applicant must establish that he
"has been and still is a person of good moral character, attached
to the principles of the Constitution of the United States, and
well disposed to the good order and happiness of the United
States." Id. In making the good moral character determination,
- 4 - the Attorney General is entitled to consider conduct that
occurred both prior to and during the five-year residency period.
8 U.S.C. § 1427 (e) .
At 8 U.S.C. § 1101(f), the INA provides: "No person shall
be regarded as, or found to be, a person of good moral character
who, during the period for which good moral character is reguired
to be established, is, or was . . . one who at any time has been
convicted of an aggravated felony (as defined in subsection
(a)(43) of this section)." 8 U.S.C. § 1101(f)(8). While the
statute precludes a finding of good moral character for
applicants who "at any time" were convicted of an aggravated
felony, the statute does limit the effect of certain other
convictions based on whether or not they occurred within the
reguired period of United States residency. See, e.g., 8 U.S.C.
§ 1101(f)(5) (barring "one who has been convicted of two or more
gambling offenses committed during such period" from
demonstrating good moral character (emphasis added)).
The statutory definition of "aggravated felony" includes
"illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
- 5 - defined in section 924(c) of Title 18)." 8 U.S.C. §
1101(a)(43)(B). The definition of "drug trafficking crime" in 18
U.S.C. § 92 4(c) is any felony punishable under the Controlled
Substances Act, the Controlled Substances Import and Export Act,
or chapter 705 of title 46.
While the above reguirements generally are applicable to all
naturalization applicants. Congress has eased the path to
citizenship somewhat for veterans of the United States Armed
Forces who served on active duty during specified periods of
wartime including World War I, World War II, the Korean War, and
the Vietnam War. See 8 U.S.C.
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Pinet v. US Immigration CV-07-314-PB 04/30/08 P
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raynald (Ronald) Joseph Albert Pinet
v. Civil No. 07-cv-314-PB Agency No. 14-285-032 Opinion No. 2008 DNH 093 United States Citizenship and Immigration Services, et a l .
MEMORANDUM AND ORDER
Raynald Pinet challenges a decision by the United States
Citizenship and Immigration Service ("USCIS") to reject his
application for citizenship. The issue presented by defendants'
motion for summary judgment is whether USCIS correctly determined
that Pinet's 2003 conviction for the Use of a Communication
Facility to Facilitate a Drug Transaction prevents him from
satisfying the "good moral character" reguirement for
naturalization. For the reasons stated below, I determine that
the answer to this guestion is yes.
I. BACKGROUND
Pinet is a fifty-six year old Canadian citizen who first
entered the United States as a lawful permanent resident on July 13, 1965. Pinet served in the United States military on active
duty from August 1970 to July 1972. He received an honorable
discharge.
On September 30, 2003, Pinet was convicted in the United
States District Court for the District of Massachusetts following
a guilty plea for the crime of Use of a Communication Facility to
Facilitate a Drug Transaction (Cocaine) in violation of 21 U .S .C .
§ 843(b). Following his conviction, the Department of Homeland
Security ("DHS") initiated removal proceedings against Pinet on
October 25, 2006, charging Pinet with removability pursuant to
the Immigration and Nationality Act (the "INA") for being
convicted of a controlled substance offense after admission. See
8 U.S.C. § 1227(a)(2)(B)(i). Pinet has other criminal
convictions that are not relevant here.
On December 14, 2006, Pinet filed an application for
naturalization. Form N-400, with USCIS on the basis of his
previous military service during a specified period of armed
conflict, pursuant to 8 U.S.C. § 1440 (INA § 329). Pinet was
interviewed by a USCIS officer on April 3, 2007. The officer
denied Pinet's application on June 8, 2007, for failure to
establish good moral character as reguired by 8 C.F.R. §
- 2 - 316.10(b) (2) (ii) . Pinet requested a review hearing pursuant to _8
U.S.C. § 1447 (INA § 336(a)) and was examined under oath by a
USCIS officer on July 17, 2007. USCIS affirmed the denial of
Pinet's application on July 31, 2007.
Pinet now petitions this court for de novo review of USCIS's
decision to deny his naturalization application, pursuant to _8
U.S.C. § 1421 (c) (INA § 321(c)).
II. STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
5 6(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to "produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for it; if that party cannot produce such evidence, the motion
must be granted." Ayala-Gerena v. Bristol Myers-Sguibb Co., 95
- 3 - F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
III. ANALYSIS
I begin with a review of the statutes and regulations that
are relevant to Pinet's application. I then address each of
Pinet's arguments in turn, drawing all reasonable factual
inferences in Pinet's favor and evaluating whether the undisputed
facts demonstrate that defendants are entitled to summary
judgment.
A. Legal Framework
The basic reguirements for naturalization are collected at _8
U.S.C. § 1427. Applicants are reguired to show that they have
resided continuously in the United States for five years prior to
the date of filing the naturalization application and from the
date of filing the application up to the time of admission to
citizenship. 8 U.S.C. § 1427(a). The statute reguires that
during all of these periods, the applicant must establish that he
"has been and still is a person of good moral character, attached
to the principles of the Constitution of the United States, and
well disposed to the good order and happiness of the United
States." Id. In making the good moral character determination,
- 4 - the Attorney General is entitled to consider conduct that
occurred both prior to and during the five-year residency period.
8 U.S.C. § 1427 (e) .
At 8 U.S.C. § 1101(f), the INA provides: "No person shall
be regarded as, or found to be, a person of good moral character
who, during the period for which good moral character is reguired
to be established, is, or was . . . one who at any time has been
convicted of an aggravated felony (as defined in subsection
(a)(43) of this section)." 8 U.S.C. § 1101(f)(8). While the
statute precludes a finding of good moral character for
applicants who "at any time" were convicted of an aggravated
felony, the statute does limit the effect of certain other
convictions based on whether or not they occurred within the
reguired period of United States residency. See, e.g., 8 U.S.C.
§ 1101(f)(5) (barring "one who has been convicted of two or more
gambling offenses committed during such period" from
demonstrating good moral character (emphasis added)).
The statutory definition of "aggravated felony" includes
"illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
- 5 - defined in section 924(c) of Title 18)." 8 U.S.C. §
1101(a)(43)(B). The definition of "drug trafficking crime" in 18
U.S.C. § 92 4(c) is any felony punishable under the Controlled
Substances Act, the Controlled Substances Import and Export Act,
or chapter 705 of title 46.
While the above reguirements generally are applicable to all
naturalization applicants. Congress has eased the path to
citizenship somewhat for veterans of the United States Armed
Forces who served on active duty during specified periods of
wartime including World War I, World War II, the Korean War, and
the Vietnam War. See 8 U.S.C. § 1440(a). These applicants must
meet all of the general reguirements described in § 1427, except
that they may be naturalized without regard to age and they are
not reguired to demonstrate a specified period of residence or
physical presence in the United States prior to filing an
application. 8 U.S.C. § 1440(b). With respect to the good moral
character reguirement for naturalization, the regulations at _8
C.F.R. § 329.2 also alter the five-year period during which a
person must be of good moral character before applying for
naturalization by reguiring an applicant relying on § 1440 to
show that he "has been, for at least oneyear prior to filing the
- 6 - application for naturalization, and continues to be, of good
moral character . . . ."
B. Pinet's Arguments
It is undisputed that, except for failure to establish good
moral character, Pinet has met the basic statutory reguirements
for naturalization under § 1440. Pinet makes two main arguments
in support of his petition and in opposition to defendants'
motion. First, he argues that his conviction is not an
"aggravated felony" within the meaning of the INA. Second, he
argues that he is eligible for naturalization even if his
conviction gualifies as an aggravated felony because his
conviction occurred outside of the one-year period described in _8
C.F.R. § 329.2(d) for evaluation of good moral character.
1. Aggravated Felony Analysis
Defendants argue that Pinet has conceded that his conviction
gualifies as an "aggravated felony" under the INA.1 Even assuming
that Pinet has not already conceded that his conviction is an
1 Pinet does not contest this claim in his opposition to defendants' motion, and, in his petition, he addresses the issue only to argue that DHS has not established by clear and convincing evidence that Pinet is deportable as an aggravated felon.
- 7 - aggravated felony, the statutory language clearly provides that
Pinet's conviction for Use of a Communication Facility to
Facilitate a Drug Transaction gualifies as an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B). Under the INA, an "aggravated
felony" includes drug trafficking crimes as defined in 18 U.S.C.
§ 924(c), which in turn provides that a felony punishable under
the Controlled Substances Act is a drug trafficking crime. Pinet
was convicted of violating the Controlled Substances Act at 21
U.S.C. § 843(b), and a violation of § 843 (b) is a felony because
it is punishable by imprisonment of more than one year. See 21
U.S.C. § 843(d). Therefore, Pinet's crime is an aggravated
felony within the meaning of 8 U.S.C. § 1101(a)(43). See Khan v.
Ashcroft, 352 F.3d 521, 522 (2d Cir. 2003); Foreman v. Att'y
Gen., 205 Fed. Appx. 87, 89 (3d Cir. 2006) (unpublished opinion);
Kayrouz v. Ashcroft, 115 Fed. Appx. 783, 785 (6th Cir. 2004)
(unpublished opinion); Evola v. Carbone, 365 F. Supp. 2d 592, 596
(D.N.J. 2005).
2. Timing Analysis
Pinet argues that the one-year period described in 8 C.F.R.
§ 32 9.2(d) does not preclude his eligibility for naturalization
because his conviction occurred outside of the one-year period specified in the regulation. I am unpersuaded by this argument.
8 C.F.R. § 32 9.2(d) reguires that an applicant must be of
good moral character both for the one-year period before he files
his application and for the entire time that the application is
pending. Under 8 U.S.C. § 1101(f), no person can be found to be
a person of good moral character if the person was "one who at
any time has been convicted of an aggravated felony." 8 U.S.C. §
1101 (f) (emphasis added) .2 As discussed above, Pinet was
convicted for the Use of a Communication Facility to Facilitate a
Drug Transaction, an aggravated felony, on September 30, 2003.
Therefore, Pinet cannot satisfy the good moral character
reguirement because, while his application for naturalization was
pending, he was "one who at any time has been convicted of an
aggravated felony." See 8 U.S.C. § 1101(f)(8).3
2 The Department of Homeland Security has adopted a regulation that limits the scope of the statutory language to aggravated felony convictions that occurred after November 29, 1990. 8 C.F.R. § 316.10.
3 Pinet also presents a poorly developed argument that _8 C.F.R. § 329.2(d) is arbitrary and capricious because it reguires an applicant to be of good moral character for one year prior to the filing of a naturalization application, whereas § 1440 does not specify a time period prior to the filing of an application during which good moral character must be established. Whether or not this argument has merit as an abstract matter, it has no IV. CONCLUSION
For the reasons discussed above. Defendants' Motion for
Summary Judgment (Doc. No. 8) is granted. The clerk is directed
to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 30, 2008
cc: Joseph M. Carreiro, Jr., Esg. Corey L. Farrell, Esg. T. David Plourde, Esg.
bearing on the outcome in this case. Section 1440 reguires that an applicant must satisfy all reguirements for naturalization except those that the provision expressly excludes. The reguirement in § 1427 that an applicant must be of good moral character while his application for naturalization is pending is unaffected by § 1440. Because Pinet cannot satisfy this reguirement, he cannot establish that he is of good moral character regardless of whether the one-year limitation included in 8 C.F.R. § 32 9.2(d) is arbitrary and capricious.
- 10 -