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In the United States District Court for the District of Utah, Central Division

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In the United States District Court for the District of Utah, Central Division Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, REPORT AND RECOMMENDATION Plaintiff, v. Case No. 2:14 CV 77 BENSON HSU, a.k.a. Hung Yen Hsu, a.k.a. Charles Hsu, District Judge David Nuffer Defendant. Magistrate Judge Dustin B. Pead This is an action under 8 U.S.C. § 1451(a) (2012) brought by Plaintiff, the United States of America (“United States”), against Defendant, Benson Hsu (“Hsu”), to revoke and set aside the order admitting Hsu as a United States citizen. (Docket No. 2.) On February 5, 2014, the District Court referred the case to this Court under 28 U.S.C. § 636(b)(1)(B) to hear dispositive motions and issue a Report and Recommendation. (Docket No. 7.) On November 7, 2014, the United States moved for summary judgment on Counts I and III of its complaint under Rule 56(a) of the Federal Rules of Civil Procedure. (Docket No. 19.) The United States argues that Hsu illegally procured citizenship because he committed unlawful acts that adversely reflected upon his moral character during the period he was required to show good moral character to naturalize. (Docket No. 2, 19.) The United States also argues that Hsu procured citizenship by misrepresenting or concealing material facts regarding his criminal history. (Id.) Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 2 of 14 Having reviewed the United States’ motion for summary judgment, Defendant’s opposition to the same, and holding oral argument, this Court RECOMMENDS to the District Court that the motion be GRANTED as to Count I of the Complaint and DENIED as to Count III of the Complaint. I. FACTUAL BACKGROUND1 Hsu is a native of Taiwan. (Docket No. 20.) On April 22, 1989, Hsu was admitted to the United States as a permanent resident. (Id.) On March 9, 1993, Hsu travelled from Dallas, Texas, to Taipei, Taiwan. (Id.) After landing, Taiwanese authorities uncovered a disassembled gun in Hsu’s luggage, specifically hidden inside an amplifier and speaker. (Docket No. 19, Exhibits 9, 10; Docket No. 20 at 7.) As a result, Taiwanese authorities detained and arrested Hsu. (Docket No. 20 at 7.) On May 24, 1993, the Taoyuan, Taiwan District Court convicted Hsu of illegally importing controlled goods without authorization, transporting a handgun without authorization, and transporting bullets without authorization. (Docket No. 19, Exhibit 9; Docket No. 20 at 7.) In a decision rendered January 10, 1994, the Taiwan High Court, sitting on appeal from the Taoyuan District Court decision, upheld Hsu’s conviction of transporting a handgun without authorization, and sentenced Hsu to five years of incarceration. (Id.) Hsu was not present in Taiwan at the time the appellate court rendered judgment, having left Taiwan on or about June 23, 1993. (Docket No. 20 at 7.) On October 4, 1994, Hsu applied to naturalize as a United States citizen by filing Form N-400, Application for Naturalization, with the legacy U.S. Immigration and Naturalization 1 The following material facts are undisputed unless otherwise indicated. 2 Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 3 of 14 Service (“INS”).2 (Id. at 7.) Form N-400 asked Hsu questions relating to his criminal history; specifically, whether he had been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking any law. (Docket No. 19, Exhibit 2; Docket No. 20 at 10.) While it is undisputed that Hsu’s Form N-400 lists “no” as the answer to this question, Ex. 2, Form N-400, the parties dispute whether Hsu himself made this representation. Hsu contends that his prior attorney prepared the Form N-440, answered the question, and that he just merely signed Form N-400. (Docket No. 20 at 10.) On February 22, 1995, Officer Esteban Garcia (“Officer Garcia”) of the INS interviewed Hsu in connection with his application for naturalization. Id. However, the parties dispute facts relating to how the interview transpired. The United States contends that Officer Garcia asked Hsu whether he had any arrests or convictions, and that Hsu said “no.” (Docket No. 19 at 8-9.) Hsu disputes this allegation. (Docket No. 20 at 10.) Instead, Hsu contends that he was never asked questions regarding his criminal history during his short interview. (Id.) Hsu also claims that Officer Garcia did not follow proper procedures when conducting naturalization interviews and that Officer Garcia’s performance reviews reveal that there were issues with his processing of naturalization applications. (Docket No. 20 at 14-15; Docket No. 24 at 5-7.) Notwithstanding what exactly transpired at Hsu’s naturalization interview, on March 7, 1995, the INS approved his application for naturalization, and on June 9, 1995, Hsu naturalized as a United States citizen 2 On March 1, 2003, the functions of the former INS were transferred from the Department of Justice to three distinct agencies (United States Immigration and Customs Enforcement, United States Customs and Border Protection, and United States Citizenship and Immigration Services) in the newly formed Department of Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). 3 Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 4 of 14 after taking the oath of allegiance before the United States District Court for the Southern District of Texas. (Docket No. 20 at 11.) II. LEGAL BACKGROUND A. Summary judgment. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe all facts and inferences in the light most favorable to the nonmoving party. See Simmons v. Sykes Enterprises, Inc., 647 F.3d 943, 947 (10th Cir. 2011). B. Law governing revocation of naturalization. The Court must revoke an individual’s naturalization and cancel his Certificate of Naturalization if his naturalization was either (1) illegally procured, or (2) procured by concealment of a material fact or by willful misrepresentation. 8 U.S.C. § 1451(a); see also Fedorenko v. United States, 449 U.S. 490, 517 (1981). Naturalization is “illegally procured” when an individual was naturalized as a United States citizen in spite of not meeting the naturalization requirements. See Fedorenko, 449 U.S. 490 at 506. An individual procures naturalization by concealment of a material fact or willful misrepresentation if (1) the naturalized citizen misrepresented or concealed some fact during the naturalization process, (2) the misrepresentation or concealment was willful, (3) the fact was material, and (4) the naturalized citizen procured citizenship as a result of the misrepresentation or concealment. See Kungys v. United States, 485 U.S. 759, 767 (1988). 4 Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 5 of 14 Relevant to this case is the good moral character requirement for naturalization. To naturalize, an individual must establish that he was a person of good moral character during the statutory period which begins five years before the applicant files his application for naturalization until he takes the oath of allegiance and becomes a United States citizen. 8 U.S.C. §§ 1427(a)(1), (3); 8 C.F.R. § 316.10(a)(1). The Immigration and Nationality Act and related regulations do not define the term “good moral character” but provide a non-exhaustive list of the conduct that precludes a finding of good moral character. See 8 U.S.C. § 1101(f)(1)-(9); 8 C.F.R. § 316.10(b). The regulations provide that an applicant lacks good moral character if, during the statutory period, he committed an unlawful act that adversely reflects upon his moral character and no extenuating circumstances are present. 8 C.F.R. § 316.10(b)(3)(iii); United States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007) (holding that committing the unlawful acts during the statutory period, for which the alien was later convicted, demonstrated a lack of good moral character under 8 C.F.R. § 316.10(b)(3)(iii)). This regulation is a reasonable construction of the good moral character regulations. United States v. Jean-Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005). III. ANALYSIS A. Hsu was ineligible for United States citizenship for lack of good moral character because Hsu’s commission and subsequent conviction of illegal transport of a weapon into Taiwan is an unlawful act that adversely reflected upon his moral character. The United States argues that Hsu illegally procured citizenship because he lacked good moral character during the statutory period. (Docket No. 19 at 15.) The United States contends that the absence of good moral character stems from Hsu’s commission and conviction of illegally transporting a weapon into Taiwan. (Id.) This crime precluded Hsu from establishing 5 Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 6 of 14 good moral character because the illegal transport of a weapon into Taiwan is an unlawful act that adversely reflected upon his moral character and no extenuating circumstances were present. (Id. at 15-17; 8 C.F.R. § 316.10(b)(3)(iii)). Hsu opposes summary judgment on the basis that there are genuine issues of material facts regarding his moral character.
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