Pinet v. US Immigration CV-07-314-PB 04/30/08 P

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Raynald (Ronald) Joseph Albert Pinet

v. Civil No. 07-cv-314-PB Agency No. 14-285-032 Opinion No.

United States Citizenship and Immigration Services, et a l .

MEMORANDUM AND ORDER

Raynald Pinet challenges a decision by the United States

Citizenship and Immigration Service ("USCIS") to reject his

application for citizenship. The issue presented by defendants'

motion for summary judgment is whether USCIS correctly determined

that Pinet's 2003 conviction for the Use of a Communication

Facility to Facilitate a Drug Transaction prevents him from

satisfying the "good moral character" reguirement for

naturalization. For the reasons stated below, I determine that

the answer to this guestion is yes.

I. BACKGROUND

Pinet is a fifty-six year old Canadian citizen who first

entered the United States as a lawful permanent resident on July 13, 1965. Pinet served in the United States military on active

duty from August 1970 to July 1972. He received an honorable

discharge.

On September 30, 2003, Pinet was convicted in the United

States District Court for the District of Massachusetts following

a guilty plea for the crime of Use of a Communication Facility to

Facilitate a Drug Transaction (Cocaine) in violation of 21 U .S .C .

§ 843(b). Following his conviction, the Department of Homeland

Security ("DHS") initiated removal proceedings against Pinet on

October 25, 2006, charging Pinet with removability pursuant to

the Immigration and Nationality Act (the "INA") for being

convicted of a controlled substance offense after admission. See

(a)(2)(B)(i). Pinet has other criminal

convictions that are not relevant here.

On December 14, 2006, Pinet filed an application for

naturalization. Form N-400, with USCIS on the basis of his

previous military service during a specified period of armed

conflict, pursuant to

(INA § 329). Pinet was

interviewed by a USCIS officer on April 3, 2007. The officer

denied Pinet's application on June 8, 2007, for failure to

establish good moral character as reguired by 8 C.F.R. §

- 2 - 316.10(b) (2) (ii) . Pinet requested a review hearing pursuant to _

(INA § 336(a)) and was examined under oath by a

USCIS officer on July 17, 2007. USCIS affirmed the denial of

Pinet's application on July 31, 2007.

Pinet now petitions this court for de novo review of USCIS's

decision to deny his naturalization application, pursuant to _

(c) (INA § 321(c)).

II. STANDARD OF REVIEW

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

5 6(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986). The burden then shifts to the

nonmoving party to "produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

must be granted." Ayala-Gerena v. Bristol Myers-Sguibb Co., 95

- 3 - F.3d 86, 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

I begin with a review of the statutes and regulations that

are relevant to Pinet's application. I then address each of

Pinet's arguments in turn, drawing all reasonable factual

inferences in Pinet's favor and evaluating whether the undisputed

facts demonstrate that defendants are entitled to summary

judgment.

A. Legal Framework

The basic reguirements for naturalization are collected at _

. Applicants are reguired to show that they have

resided continuously in the United States for five years prior to

the date of filing the naturalization application and from the

date of filing the application up to the time of admission to

citizenship.

(a). The statute reguires that

during all of these periods, the applicant must establish that he

"has been and still is a person of good moral character, attached

to the principles of the Constitution of the United States, and

well disposed to the good order and happiness of the United

States."

In making the good moral character determination,

- 4 - the Attorney General is entitled to consider conduct that

occurred both prior to and during the five-year residency period.

(e) .

At

(f), the INA provides: "No person shall

be regarded as, or found to be, a person of good moral character

who, during the period for which good moral character is reguired

to be established, is, or was . . . one who at any time has been

convicted of an aggravated felony (as defined in subsection

(a)(43) of this section)."

(f)(8). While the

statute precludes a finding of good moral character for

applicants who "at any time" were convicted of an aggravated

felony, the statute does limit the effect of certain other

convictions based on whether or not they occurred within the

reguired period of United States residency. See, e.g.,

(f)(5) (barring "one who has been convicted of two or more

gambling offenses committed during such period" from

demonstrating good moral character (emphasis added)).

The statutory definition of "aggravated felony" includes

"illicit trafficking in a controlled substance (as defined in

section 802 of Title 21), including a drug trafficking crime (as

- 5 - defined in section 924(c) of Title 18)."

(a)(43)(B). The definition of "drug trafficking crime" in

4(c) is any felony punishable under the Controlled

Substances Act, the Controlled Substances Import and Export Act,

or chapter 705 of title 46.

While the above reguirements generally are applicable to all

naturalization applicants. Congress has eased the path to

citizenship somewhat for veterans of the United States Armed

Forces who served on active duty during specified periods of

wartime including World War I, World War II, the Korean War, and

the Vietnam War. See

(a). These applicants must

meet all of the general reguirements described in § 1427, except

that they may be naturalized without regard to age and they are

not reguired to demonstrate a specified period of residence or

physical presence in the United States prior to filing an

application.

(b). With respect to the good moral

character reguirement for naturalization, the regulations at _

also alter the five-year period during which a

person must be of good moral character before applying for

naturalization by reguiring an applicant relying on § 1440 to

show that he "has been, for at least oneyear prior to filing the

- 6 - application for naturalization, and continues to be, of good

moral character . . . ."

B. Pinet's Arguments

It is undisputed that, except for failure to establish good

moral character, Pinet has met the basic statutory reguirements

for naturalization under § 1440. Pinet makes two main arguments

in support of his petition and in opposition to defendants'

motion. First, he argues that his conviction is not an

"aggravated felony" within the meaning of the INA. Second, he

argues that he is eligible for naturalization even if his

conviction gualifies as an aggravated felony because his

conviction occurred outside of the one-year period described in _

(d) for evaluation of good moral character.

1. Aggravated Felony Analysis

Defendants argue that Pinet has conceded that his conviction

gualifies as an "aggravated felony" under the INA.1 Even assuming

that Pinet has not already conceded that his conviction is an

1 Pinet does not contest this claim in his opposition to defendants' motion, and, in his petition, he addresses the issue only to argue that DHS has not established by clear and convincing evidence that Pinet is deportable as an aggravated felon.

- 7 - aggravated felony, the statutory language clearly provides that

Pinet's conviction for Use of a Communication Facility to

Facilitate a Drug Transaction gualifies as an aggravated felony

under

(a)(43)(B). Under the INA, an "aggravated

felony" includes drug trafficking crimes as defined in

(c), which in turn provides that a felony punishable under

the Controlled Substances Act is a drug trafficking crime. Pinet

was convicted of violating the Controlled Substances Act at

(b), and a violation of § 843 (b) is a felony because

it is punishable by imprisonment of more than one year. See

(d). Therefore, Pinet's crime is an aggravated

felony within the meaning of

(a)(43). See Khan v.

Ashcroft,

(2d Cir. 2003); Foreman v. Att'y

Gen.,

(3d Cir. 2006) (unpublished opinion);

Kayrouz v. Ashcroft,

(6th Cir. 2004)

(unpublished opinion); Evola v. Carbone,

(D.N.J. 2005).

2. Timing Analysis

Pinet argues that the one-year period described in

9.2(d) does not preclude his eligibility for naturalization

because his conviction occurred outside of the one-year period specified in the regulation. I am unpersuaded by this argument.

9.2(d) reguires that an applicant must be of

good moral character both for the one-year period before he files

his application and for the entire time that the application is

pending. Under

(f), no person can be found to be

a person of good moral character if the person was "one who at

any time has been convicted of an aggravated felony."

(f) (emphasis added) .2 As discussed above, Pinet was

convicted for the Use of a Communication Facility to Facilitate a

Drug Transaction, an aggravated felony, on September 30, 2003.

Therefore, Pinet cannot satisfy the good moral character

reguirement because, while his application for naturalization was

pending, he was "one who at any time has been convicted of an

aggravated felony." See

(f)(8).3

2 The Department of Homeland Security has adopted a regulation that limits the scope of the statutory language to aggravated felony convictions that occurred after November 29, 1990.

.

3 Pinet also presents a poorly developed argument that _

(d) is arbitrary and capricious because it reguires an applicant to be of good moral character for one year prior to the filing of a naturalization application, whereas § 1440 does not specify a time period prior to the filing of an application during which good moral character must be established. Whether or not this argument has merit as an abstract matter, it has no IV. CONCLUSION

For the reasons discussed above. Defendants' Motion for

Summary Judgment (Doc. No. 8) is granted. The clerk is directed

to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 30, 2008

cc: Joseph M. Carreiro, Jr., Esg. Corey L. Farrell, Esg. T. David Plourde, Esg.

bearing on the outcome in this case. Section 1440 reguires that an applicant must satisfy all reguirements for naturalization except those that the provision expressly excludes. The reguirement in § 1427 that an applicant must be of good moral character while his application for naturalization is pending is unaffected by § 1440. Because Pinet cannot satisfy this reguirement, he cannot establish that he is of good moral character regardless of whether the one-year limitation included in

9.2(d) is arbitrary and capricious.

- 10 -