Polizzi v. U.S. Dept of Homeland Security U.S. Citizenship and Immigration Services IN THE UN...
determined that plaintiff was deportable as a result of her two criminal convictions. However, thedepartment granted plain...
extenuating and/or exonerating circumstances exist that would establish his or her good moralcharacter.8 C.F.R. § 316.10(c...
PREREQUISITES TO NATURALIZATION; BURDEN OF PROOFINA § 318 [8 USC § 1429]Except as otherwise provided in this title, no per...
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Polizzi v USDHS USCIS 2008 Natz and GMC

Published on: Mar 4, 2016
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Transcripts - Polizzi v USDHS USCIS 2008 Natz and GMC

  • 1. Polizzi v. U.S. Dept of Homeland Security U.S. Citizenship and Immigration Services IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN June 8, 2006 1 LIEN LE POLIZZI, PLAINTIFF, v. U.S. DEPT. OF HOMELAND SECURITY U.S. CITIZENSHIP AND IMMIGRATION SERVICES, MILWAUKEE, WI, DEFENDANT.The opinion of the court was delivered by: Barbara B. Crabb District JudgeOPINION AND ORDERThis is a civil action brought under 8 U.S.C. § 1421(c), in which plaintiff Lien Le Polizzipetitions for review of an October 5, 2005 decision of the District Director of the United StatesDepartment of Homeland Security denying her application for naturalization. Now before thecourt is the motion of defendant United States Department of Homeland Securitys motion forsummary judgment, which plaintiff has not opposed. Because the undisputed facts reveal that theplaintiff has been convicted of crimes that bar approval of her application for naturalization,defendants motion will be granted.From defendants proposed findings of fact, I find the following to be material and undisputed.UNDISPUTED FACTSPlaintiff Lien Le Polizzi is a fifty-one year old native and citizen of Vietnam. On November 22,1972, she entered the United States on a fiancée visa. On June 20, 1973, she became a lawfulpermanent resident of the United States.In 1990, plaintiff was convicted of misdemeanor theft in violation of Wis. Stat. § 943.20(l) (a)(3)(c), and on June 22,1992, she was convicted of two counts of "forgery-uttering" in violation ofWis. Stat. § 943.38(2). Plaintiff was sentenced to four years in the Wisconsin state prison systemfor her forgery conviction.On June 1, 1993, the Immigration and Naturalization Service (a precursor agency to theDepartment of Homeland Securitys Bureau of Citizenship and Immigration Services)1 Case Number: 3:2006cv00038 Filed: January 20, 2006; Wisconsin Western District Court Nature of Suit: Petitionfor Review of naturalization denial.SEE: http://www.wiwd.uscourts.gov/opinions/pdfs/2006-2009/06-C-0038-C-06-08-06.PDF Page 1 of 4
  • 2. determined that plaintiff was deportable as a result of her two criminal convictions. However, thedepartment granted plaintiff a waiver of deportability under section 212(c) of the ImmigrationAct, thereby terminating deportation proceedings.On April 29, 2002, plaintiff filed an application for naturalization with the Bureau of Citizenshipand Immigration Services, which was denied on June 14, 2004, on the ground that plaintifflacked "good moral character." Plaintiff appealed the decision. On October 5, 2005, following areview hearing conducted before an immigration officer, the Bureau denied plaintiffs appeal.OPINIONTo be eligible for naturalization, an alien must show (1) that "after being lawfully admitted forpermanent residence," she has resided continuously in the United States "for at least five years";(2) "has resided continuously within the United States from the date of the application up to thetime of admission to citizenship"; and (3) "during all the[se] periods . . . has been and still is aperson of good moral character, attached to the principles of the Constitution of the UnitedStates, and well disposed to the good order and happiness of the United States." 8 U.S.C. §1427(a).The parties do not dispute that plaintiff was lawfully admitted to the United States as apermanent resident and that she has resided here continuously since her arrival in 1973. At issueis whether her state criminal convictions prohibit immigration officials from finding her topossess "good moral character." In her petition for review in this case, plaintiff asked the court tofind her eligible for naturalization despite her prior convictions because she has demonstratedexceptional rehabilitation since she was released from prison.Although immigration officials are given some discretion in determining whether to countcertain minor criminal offenses as evidence of a lack of "moral character," under 8 C.F.R. §316.10(b)(1)(ii), "an applicant shall be found to lack good moral character if the applicant hasbeen . . . convicted of an aggravated felony as defined in section 101(a)(43) of the Act [codifiedas 8 U.S.C. § 1101(a)(43)] on or after November 29, 1990." (Emphasis added.) Aggravatedfelonies include any "offense relating to . . . forgery . . . for which the term of imprisonment is atleast one year." 8 U.S.C. § 1101(a)(43)(R). Therefore, the plain language of the statute requiresofficials to find an applicant lacking in moral character when she has been convicted of forgeryand sentenced to more than one year in prison. It is undisputed that plaintiff was convicted offorgery-uttering on June 22,1992, and that she was sentenced to four years imprisonment as aresult of the conviction. Consequently, immigration officials were bound by law to find herlacking in "moral character" as that term is defined by § 1101(a)(43) and to deny her application.When an applicant who has been convicted of an aggravated felony wants to become anaturalized citizen of the United States, there is only one possible way to clear the path forachieving that goal: to seek a "full and unconditional executive pardon." Although a pardon doesnot guarantee that an applicant will be found to possess good moral character, an applicant whoreceives a full and unconditional executive pardon during the statutory period is not precluded . .. from establishing good moral character, provided the applicant can demonstrate that Page 2 of 4
  • 3. extenuating and/or exonerating circumstances exist that would establish his or her good moralcharacter.8 C.F.R. § 316.10(c)(2). Therefore, should plaintiff wish to continue her pursuit of naturalization,her only recourse is to first obtain a pardon from the State of Wisconsin, pursuant to the processdescribed in Wis. Stat. §§ 304.08 et seq. Unless she does so, neither the Bureau nor this court hasauthority to grant her application. Consequently, plaintiffs application must be denied.ORDER IT IS ORDERED that the motion for summary judgment of defendant United StatesDepartment of Homeland Security is GRANTED. The clerk of court is directed to enterjudgment in favor of defendant and close this case._____________________________________________________________________________USEFUL BLURB:Polizzi v. U.S. Dept. Of Homeland Security, 2006 WL 3025686 (W.D. Wash.June 8, 2006) (“When an applicant who has been convicted of an aggravatedfelony wants to become a naturalized citizen of the United States, there is only onepossible way to clear the path for achieving that goal: to seek a ‘full andunconditional executive pardon.’”)FULL QUOTE: “When an applicant who has been convicted of an aggravated felony wants to become a naturalized citizen of the United States, there is only one possible way to clear the path for achieving that goal: to seek a “full and unconditional executive pardon.” Although a pardon does not guarantee that an applicant will be found to possess good moral character, an applicant who receives a full and unconditional executive pardon during the statutory period is not precluded . . . from establishing good moral character, provided the applicant can demonstrate that extenuating and/or exonerating circumstances exist that would establish his or her good moral character. 8 C.F.R. § 316.10(c)(2). Therefore, should plaintiff wish to continue her pursuit of naturalization, her only recourse is to first obtain a pardon from the State of Wisconsin, pursuant to the process described in Wis. Stat. §§ 304.08 et seq. Unless she does so, neither the Bureau nor this court has authority to grant her application. Consequently, plaintiff’s application must be denied.” Polizzi at p. 4 http://www.wiwd.uscourts.gov/opinions/pdfs/2006-2009/06-C-0038-C-06-08-06.PDF Page 3 of 4
  • 4. PREREQUISITES TO NATURALIZATION; BURDEN OF PROOFINA § 318 [8 USC § 1429]Except as otherwise provided in this title, no person shall be naturalized unless hehas been lawfully admitted to the United States for permanent residence inaccordance with all applicable provisions of this Act. The burden of proof shall beupon such person to show that he entered the United States lawfully, and the time,place, and manner of such entry into the United States, but in presenting such proofhe shall be entitled to the production of his immigrant visa, if any, or of other entrydocument, if any, and of any other documents and records, not considered by the[Secretary of Homeland Security or] Attorney General to be confidential,pertaining to such entry, in the custody of the Service [DHS or other GovernmentAgency]. Notwithstanding the provisions of section 405(b) , and except asprovided in sections 328 and 329 no person shall be naturalized against whomthere is outstanding a final finding of deportability pursuant to a warrant of arrestissued under the provisions of this or any other Act; and no application fornaturalization shall be considered by the [Secretary of Homeland Securitythrough USCIS] if there is pending against the applicant a removal proceedingpursuant to a warrant of arrest issued under the provisions of this or any other Act:Provided, That the findings of the Attorney General [or any DHS Agency] interminating removal proceedings or in canceling the removal of an alien pursuantto the provisions of this Act, shall not be deemed binding in any way upon the[Secretary of Homeland Security through USCIS]with respect to the question ofwhether such person has established his eligibility for naturalization as required bythis title. Page 4 of 4