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Giammarco v. Beers

United States District Court, D. Connecticut

March 17, 2016

ARNALDO GIAMMARCO, Plaintiff,
v.
RAND BEERS, ALEJANDRO MAYORKAS, AND JAMES COMEY, Defendants.

MEMORANDUM OF DECISION GRANTING PLAINTIFF’S [Dkt. #23] CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [Dkt. #18]

VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE

Plaintiff Arnaldo Giammarco (“Giammarco”) and Defendants Rand Beers, on behalf of the Department of Homeland Security (“DHS”), and Alexander Majorkas, on behalf of the U.S. Citizenship and Immigration Services (“USCIS”), have moved for summary judgment.[1] For the reasons that follow, Defendants’ motion is DENIED and Plaintiff’s cross-motion is GRANTED.

I. Factual Background

Plaintiff entered the United States in 1960, as a lawful permanent resident. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 1; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 1]. In 1976, he enlisted in the U.S. Army, was stationed abroad, and in 1979, Plaintiff was honorably discharged. [Dkt. #50-3, A. Giammarco Decl. at ¶¶ 5-6; Dkt. #50-6, Ex. B. to Pl.’s Cross-Mot. at 1]. On February 3, 1982, Plaintiff submitted an application for naturalization to the Immigration and Naturalization Service (“INS”), which, at that time, was the agency responsible for processing, advising applicants, and filing petitions for naturalization. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 4; Dkt. #51-4, Pl.’s Local Rule 56(a)(2) Statement at ¶ 4].[2] Plaintiff’s application disclosed a January 1981 arrest for sexual assault in the first degree, and stated that the charge was “still pending.” [Dkt. #49-3, Ex. 1 to Defs.’ Mot. at 2].

On April 8, 1982, Plaintiff met with an INS agent, who reviewed his application. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 6; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 6]. During the meeting, Plaintiff and the agent discussed the sexual assault charge, and the INS agent told Plaintiff that he should inform the agency when the disposition of this criminal charge became available. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶¶ 7, 9; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶¶ 7, 9]. Later that day, the INS agent drafted a memo to Plaintiff’s file, which stated that the charge against Plaintiff was “still pending because [Plaintiff] requested a jury trial” and as a result, the officer would “defer filing [Plaintiff’s naturalization petition] until disposition of case.” [Dkt. #49-3, Ex. 2 to Defs.’ Mot. at 1]. Also after this meeting, Plaintiff’s naturalization application was marked “[n]onfiled.” [Dkt. #49-3, Ex. 1 to Defs.’ Mot. at 4]. In the space provided for “Date, Reasons, ” the reviewing officer wrote “[s]ee memo to file of 4-8-82.” [Id.]. According to a sworn declaration submitted by the Defendants, at and around the time Plaintiff submitted his naturalization application, when an INS examiner designated an applicant’s file as “nonfiled” they were not obligated or expected to issue a written notification to the applicant disclosing this fact. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 5]. Moreover, applications that received a “nonfiled” designation could be revived, if the applicant provided the INS with the information it requested, or otherwise contacted the INS. [Id. at ¶ 8].

On September 27, 1982, Plaintiff sent a letter to the INS informing them that the sexual assault charge had been “nolle[]d” and requesting “an appointment for a[c]quiring [his] U.S. [c]itizenship.” [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1].[3] The letter further explained that Plaintiff “was told to make another appointment when the case had reached a decision.” [Id.]. According to a document from the Hartford Superior Court, the charge was nolled on or around August 23, 1982. See [Dkt. #50-6, Ex. K at 2]. However, Plaintiff did not present this or any other documentary evidence regarding the nolle to the INS or the Defendants in this case until January 2014, long after a final order of removal was issued against him. [Id. at 1].

The INS received Plaintiff’s letter on October 4, 1982. [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1]. A handwritten note in Plaintiff’s INS file indicates that on the same day the INS received his letter, “10/4/82, ” it decided to “[r]eopen” his file. [Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1].[4] On October 12, 1982, the INS sent the Hartford Police Department a records request, seeking the disposition of the January 1981 charge. [Dkt. #50-6, Ex. G to Pl.’s Cross-Mot. at 1]. On October 26, 1982, the INS received a response, in the form of a table depicting the date and nature of the offense and the case number, with no disposition provided. [Id. at 2]. The following day, October 27, 1982, the INS prepared a letter to Plaintiff which instructed him to provide the INS with a certified copy of the disposition of the charge. [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1]. Plaintiff contends that neither he nor any of his family members ever received this letter. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 16; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 16]. No further communication ever occurred between Plaintiff and the INS in connection with this application. [Id. at ¶¶ 16-17].

Nearly six years later, on September 21, 1988, the FBI prepared a report concerning the January 1981 charge against Plaintiff. [Dkt. #50-6, Ex. H to Pl.’s Cross-Mot. at 1]. The report was prepared from information provided by the Hartford Police Department, and it referenced the sexual assault charge and Plaintiff’s January 1981 arrest. [Id.]. However, it did not include a disposition. [Id.]. Although this report was placed in Plaintiff’s INS file, there is no indication which entity requested the report and when it did so. [Id.; see also Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 14]. Following the INS’s receipt of this report, there is no indication that any action was taken, that the INS contacted Plaintiff, or that the INS closed Plaintiff’s file.[5]

Defendants contend that where a naturalization application was submitted to the INS but contained deficiencies which prevented it from filing a petition with the court, the policy of the INS prior to the passage of IMMACT was to retain the application for a limited period of time, and, if the applicant did not provide the missing information the INS requested and it otherwise appeared that the application had been abandoned, the INS would archive it in the ordinary course of business. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 10-11]. Nowhere do Defendants contend that the INS rendered an ultimate determination on or otherwise terminated applications that it deemed abandoned, nor do they maintain that the INS closed files containing abandoned applications within any period of time. Accordingly, there is no indication in the record if and when the INS deemed Plaintiff’s application abandoned, and that, at any time after October 4, 1982, the agency closed or otherwise reached a decision on his application. [Id. at 1-2; Dkt. #49-4, Ex. 200, Keck Decl. at ¶ 5].

On January 21, 1997, and while his application was in this dormant state, Plaintiff was convicted of the offense of larceny in the fifth degree. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 16; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 16]. Shortly thereafter, on March 3, 1997, Plaintiff was convicted of larceny in the sixth degree. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 17; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 17]. On November 5, 2004, Plaintiff was arrested again, for possession of narcotics. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 18; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 18]. These three offenses served as the basis for the INS’s decision to seek Plaintiff’s removal. [Dkt. #49-3, Ex. 8 to Defs.’ Mot. at 4].

On January 23, 2007, Plaintiff was convicted of larceny in the fourth degree and was sentenced to one year of imprisonment, execution suspended after 30 days. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 19; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 19]. The INS determined that this last offense, larceny in the fourth degree, constituted an aggravated felony. [Dkt. #49-3, Ex. 9 to Defs.’ Mot. at 3]. This determination is significant because one who has committed an “aggravated felony, ” as defined by the immigration statutes, is generally precluded from cancelling a removal proceeding. [Id.]. Commission of an aggravated felony also generally prevents an applicant from satisfying the statutory good moral character requirement for naturalization. See 8 U.S.C. § 1101(f)(8) (“No person shall be regarded as . . . a person of good moral character who . . . at any time has been convicted of an aggravated felony . . . .”).[6]

On May 14, 2011, Plaintiff was arrested by officers of Immigration and Customs Enforcement (“ICE”) and placed in removal proceedings. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 27; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 27]. Sometime in 2011, Plaintiff’s counsel made a FOIA request of Defendant DHS. [Dkt. #50-3, A. Giammarco Decl. at ¶ 14]. It was through the documents obtained from this request that Plaintiff claims he first learned of the October 27, 1982 letter prepared by the INS and that his application had been designated as “non-filed.” [Id.].

On May 15, 2012, an immigration judge (“IJ”) entered an order of removal and denied Plaintiff’s request for a cancellation of removal. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 29; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 29]. In reaching his decision, the IJ found that Plaintiff had “conceded the allegations and the two charges of removability, ” and that there was “clear, convincing and unequivocal evidence that the allegations . . . [we]re true.” [Dkt. #49-3, Ex. 9 to Defs.’ Mot. at 2-3]. He denied Plaintiff’s application for cancellation of removal upon concluding that Plaintiff was “ineligible for that form of relief because he has been convicted of an aggravated felony” based on his January 5, 2007 conviction for fourth-degree larceny. [Id. at 3]. Finally, the IJ considered Plaintiff’s assertion that he was “pursuing an old application” for naturalization, an independent basis for avoiding removal. [Id.]. However, the IJ concluded that this application “was never acted upon, ” after the USCIS took the position that the application “was never properly filed because [Plaintiff] never went through the proper process.” [Id. at 4]. The IJ opinion cites to an exhibit, but does not indicate that the USCIS formally considered and reached a final decision regarding the naturalization application, nor does it identify when the USCIS took this position, in what form, and whether Plaintiff was ever given notice or an opportunity to appeal it. [Id.].

On October 1, 2012, the Board of Immigration Appeals (“BIA”) issued its decision affirming the removal order. [Dkt. #50-6, Ex. I to Pl.’s Cross-Mot. at 1]. In dismissing Plaintiff’s appeal, the BIA discussed Plaintiff’s earlier naturalization application and the USCIS’s stated “position . . . that the application was never completed at the time it was filed, ” and that as a result, there was “no application currently pending before the USCIS.” [Id.]. The BIA further noted that “the DHS has exclusive jurisdiction over naturalization determinations, ” and thus, the BIA was bound to accept the DHS’s determination. [Id.]. However, like the IJ opinion, the BIA opinion does not set forth facts demonstrating that the “position” taken by the USCIS constituted a final agency decision which was communicated to Plaintiff and to which Plaintiff received an opportunity to appeal.

On November 26, 2012, Plaintiff was deported to Italy, where he presently resides. [Dkt. #50-6, Ex. J to Pl.’s Cross-Mot. at 2].

II. Legal Standards

A. Summary Judgment

Defendants moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. [Dkt. #49]. Plaintiff cross-moves for summary judgment. [Dkt. #50]. In deciding whether to treat a motion as one for summary judgment, “[t]he essential inquiry is whether the . . . [parties] . . . should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or [were] taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.” In re G&A Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). Here, in addition to cross-moving for summary judgment, Plaintiff relies on documents outside of the pleadings and submits a Local Rule 56(a)(2) statement in opposition to the Defendants’ motion. See [Dkt. ##51-1-5]. Accordingly, the Court evaluates each of the parties’ motions under the Rule 56 standard. See Eidshahen v. Pizza Hut of Am., Inc., 973 F.Supp. 113, 114 (D. Conn. 1997) (treating defendant’s motion to dismiss pursuant to Rule 12, or, in alternative, motion for summary judgment as motion for summary judgment where “[p]laintiff submitted materials outside ...


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