Virginia Lawyers Weekly//September 30, 2022
Virginia Lawyers Weekly//September 30, 2022//
Where the petitioner was required to demonstrate that he was lawfully admitted to the United States, but he had been previously deemed inadmissible to the United States because of a prior conviction for embezzlement, he failed to meet his burden of demonstrating he was lawfully admitted when he last entered this country.
On July 26, 2010, Raymond Sefakor Yao Azumah was admitted to the United States as a lawful permanent resident. On July 11, 2012, petitioner was convicted of embezzlement in violation of Va. Stat. Ann. § 18.2-111.
On Dec. 15, 2013, petitioner travelled to Ghana for a family visit and returned to the United States on Jan. 21, 2014. While reentering the United States, petitioner was charges as inadmissible to the United States because of his previous criminal conviction.
Petitioner was then subjected to removal proceedings before an immigration judge, or IJ, who terminated the proceedings without prejudice after petitioner and DHS jointly moved to end them. During his removal proceedings, petitioner never applied for a waiver of inadmissibility under the Immigration and Nationality Act, which if granted, would have eliminated any basis for his potential inadmissibility.
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On Dec. 3, 2018, petitioner filed his application for United States citizenship with United States Immigration and Citizenship Services, or USCIS. When USCIS informed him that he was not eligible for naturalization because in its view, he had not been lawfully admitted to the United States when he last entered the country carrying a conviction of a crime of moral turpitude, petitioner argued that he was still eligible because his status as a lawfully admitted permanent resident had not changed since he was first admitted to the United States in 2010. He further claimed that only an IJ had the authority to determine whether his status had changed, which could not have occurred due to the termination of his removal proceedings.
USCIS subsequently interviewed petitioner and affirmed its denial on the grounds that he was not eligible to naturalize because, irrespective of the termination of his removal proceedings, he could not prove that he had been lawfully admitted upon his last entry to the United States. Petitioner then filed this suit. Both parties have filed motions for summary judgment.
Petitioner contends that because his removal proceedings were terminated, he was never determined to be inadmissible into the country and should therefore be presumed lawfully admitted. But that argument both misplaces the burden of proof in naturalization proceedings and overstates the significance of any findings, or lack thereof, in removal proceedings. It is petitioner’s burden to demonstrate by a preponderance of the evidence that he was lawfully admitted, not USCIS’, and he has provided no evidence as to why his most recent entry was lawful. He did not receive a waiver, which would have excused his criminal conviction and eliminated any basis for his inadmissibility.
The fact that an IJ made no determination as to his inadmissibility in removal proceedings is irrelevant. With respect to matters of naturalization, neither USCIS nor this court owes any deference to the findings or lack thereof by an IJ in removal proceedings. Therefore, petitioner has not met his burden of demonstrating he was lawfully admitted when he last entered this country.
In the alternative, petitioner argues that irrespective of the lawfulness of his latest entry, his undisputed status as a lawful permanent resident is sufficient to make him eligible for citizenship because it demonstrates he was lawfully admitted at one point in time. He states that 8 C.F.R. § 316.2(b) is ultra vires insofar as it notes that to maintain eligibility for citizenship, an applicant’s subsequent reentry must be lawful.
However, § 316.2(b) does not expand or redefine the requirements for citizenship under 8 U.S.C. § 1429, but rather clarifies that the statute’s lawful admission requirement is ongoing. This is a reasonable interpretation of a statute that stresses the continuous nature of naturalization requirements.
Petitioner’s motion for summary judgment denied. Respondent’s motion for summary judgment granted.
Azumah v. United States Citizenship and Immigration Services, Case No. 1:22-cv-29, Sept. 16, 2022. EDVA at Alexandria (Hilton). VLW 022-3-411. 8 pp.