United States District Court, S.D. Texas, Houston Division
before the court are Plaintiff's Motion for Summary
Judgment (Doc. 26) and Defendants' Motion for Summary
Judgment (Doc. 27). The court has considered the motions, the
responses, all other relevant filings, and the applicable
law. For the reasons set forth below, the court
GRANTS Defendants' motion for summary
judgment and DENIES Plaintiff's motion
for summary judgment.
29, 2015, Plaintiff filed this action seeking judicial review
of the denial of his petition for naturalization pursuant to
8 U.S.C. § 1421(c). The facts in this case are not in
is from Honduras and has had lawful permanent residence
status in the United States since November
1996. On January 25, 2000, he pleaded guilty to
felony cocaine possession and was sentenced to eleven months
imprisonment, which was suspended in lieu of two years
that conviction, in November 2007, Plaintiff returned to
Honduras for two weeks. Upon his return, the United States
Customs and Border Protection determined him to be
inadmissible based on his controlled substance
conviction.Removal proceedings were initiated pursuant
to 8 U.S.C. § 1229a, and Plaintiff was paroled into the
United States pending the completion of his removal
in removal proceedings, Plaintiff filed an application for
naturalization and moved the immigration court to terminate
the removal proceedings pursuant to 8 C.F.R. § 1239.2(f)
in order to allow his application for naturalization to be
adjudicated. The immigration judge denied
Plaintiff's motion to terminate on the basis that she
could not terminate removal proceedings without making a
determination that Plaintiff was prima-facie eligible for
naturalization. Thereafter, the immigration judge
ordered Plaintiff's removal from the United
that decision was on appeal to the Board of Immigration
Appeals (“BIA”), another arm of the Department of
Homeland Security, Immigration and Customs Enforcement, moved
to terminate the removal case based on its prosecutorial
discretion, citing “current enforcement
priorities.” Plaintiff opposed this motion because it
would render his eligibility for naturalization
undecided. The BIA granted the motion, and the
removal proceeding was deemed terminated on June 10,
decision the BIA stated:
[Plaintiff] does not dispute that, as a result of this
conviction, he was properly designated as an arriving alien
seeking admission when returned from a trip abroad in 2007.
Section 101(a)(13)(C)(v) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(13)(C)(v)(providing that a
returning lawful permanent resident shall be regarded as
seeking admission if he has committed an offense in section
212(a)(2)). He also concedes that he is inadmissible under
section 212(a)(2)(A)(i)(II) of the Act and ineligible for
relief in removal proceedings.The BIA concluded that the
immigration judge properly relied on its controlling
precedent in In re Acosta-Hildalgo, 24 I&N Dec.
103 (BIA 2007), which held that unless there was an
affirmative communication from the Department of Homeland
Security's Citizenship and Immigration Service
(“USCIS”) stating that the person was prima-facie
eligible for naturalization, the removal proceeding must be
completed. In its decision, however, the BIA
lamented the effect of In re Acosta-Hildalgo because
it precluded the ability of the immigration judge to make an
independent determination of prima-facie eligibility if USCIS
failed to do so.Nonetheless, the BIA declined to revisit
Matter of Acosta-Hildalgo.
filed a second application for naturalization in August 2013
and was interviewed in February 2014. On June 2014,
Defendants denied his application for naturalization on the
grounds that Plaintiff was not lawfully admitted to the
United States after his return from Honduras in
2007. Plaintiff appealed this decision, which
was upheld in April 2015. Plaintiff seeks de novo review
of USCIS's decision denying his petition for
naturalization on the ground that he was not
“admitted” upon his 2007 arrival to the United
judgment is warranted when the evidence reveals that no
genuine dispute exists on any material fact and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Stauffer v. Gearhart, 741 F.3d
574, 581 (5th Cir. 2014). A material fact is a
fact that is identified by applicable substantive law as
critical to the outcome of the suit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet
Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624,
626 (5th Cir. 2001). To be genuine, the dispute
regarding a material fact must be supported by evidence such
that a reasonable jury could resolve the issue in favor of
either party. See Royal v. CCC & R Tres Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir.
2013)(quoting Anderson, 477 U.S. at 248).
movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from
pleadings, depositions, answers to interrogatories,
admissions, or affidavits that demonstrate the absence of
genuine factual issues. Celotex Corp., 477 U.S. at
323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (1992).
If the moving party carries its burden, the nonmovant may not
rest on the allegations or denials in his pleading but must
respond with evidence showing a genuine factual dispute.
Stauffer, 741 F.3d at 581 (citing Hathaway v.
Bazany, 507 F.3d 312, 319 (5thCir. 2007)).
for summary judgment are considered separately under this
rubric. See Shaw Constructors v. ICF Kaiser
Eng'rs, 395 F.3d 533, 538-39 (5th Cir.
2004). Each movant must establish that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law, and the court views the evidence in favor of
each nonmovant. See id.; Tidewater Inc. v.
United States, 565 F.3d 299, 302 (5th Cir.
2009)(quoting Ford Motor Co. v. Tex. Dep't of
Transp., 264 F.3d 493, 499 (5th Cir. 2001)).
Review of Denial of ...