# KAILA v. GARLAND

> District Court, D. New Jersey · January 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10272251

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10272251

## How later opinions describe it (automated extraction)

- noting that “speculation and conjecture may not defeat a motion for summary judgment”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

SUKHWINDER SINGH KAILA,

Plaintiff,
Civil No. 20-3145 (RMB/AMD)
v.

MERRICK GARLAND, et al., OPINION

Defendants.

APPEARANCES
Chintan A. Desai
Firouzeh Nur-Vaccary
Kim IP Law Group PLLC
129 W. Evesham Road
Voorhees, New Jersey 08043

On behalf of Plaintiff

Alex D. Silagi
Enes Hajdarpasic
United States Attorney’s Office, District of New Jersey
970 Broad Street
Newark, New Jersey 07102

On behalf of Defendants

RENÉE MARIE BUMB, United States District Judge
This matter comes before the Court upon the Motion for Summary Judgment
filed by Defendants Merrick Garland, Attorney General of the United States;
Alejandro Mayorkas, Secretary of the Department of Homeland Security ("DHS”);
Tracy Renaud, Acting Director of the United States Citizenship and Immigration
Services (“USCIS”); and Larry C. Denayer, Acting Deputy Director of USCIS
(collectively, “Defendants”). [Docket No. 28.] For the reasons set forth below, the
Court will grant Defendants’ Motion.

I. FACTUAL BACKGROUND
A. Plaintiff’s Entry, Arrest, and Immigration Court Proceeding in the
U.S.
Plaintiff Sukhwinder Singh Kaila, claiming civil unrest, left Punjab, India, and

was arrested by U.S. Border Patrol agents in New York for illegally entering the
United States from Canada on November 7, 1993.1 [Docket No. 29-2, at 18–19;
Docket No. 29-3, at US_984.] Plaintiff has since admitted that he knew he was being
arrested at the time. [Docket No. 29-1, at 23:18–19 (“[I]t was . . . really disturbing for
me that I was arrested.”).] At his deposition, he testified that, while he and his

companions were riding a bus to New York City, Border Patrol agents boarded the
bus. [See id. at 21:20–24.] While Plaintiff at that time did not appreciate what Border
Patrol was, specifically, he nevertheless “knew” that the individuals who had
boarded the bus were “some kind of police.” [Id. at 22:17–22.] By Plaintiff’s own
telling, he was then taken off the bus and transported to a building by car. [Id. at

23:3–13.] Although, again, Plaintiff did not specifically appreciate that the building
was a Border Patrol facility, “at that time [he] thought maybe [it was a] jail.” [Id. at

1 As noted below, Plaintiff gained permanent residence status in Canada on
December 17, 1999. [Docket No. 29-10, at US_100.] The record does not make clear
how Plaintiff was granted such status from the Canadian authorities.
24:4–8.] He has also since testified that he was “put . . . in handcuffs” when he was
arrested. [Id. at 24:20–22.]
At the arresting agents’ local station, and with the help of a translator, Plaintiff

identified himself as “Sukwinder Singh”2 and proceeded to sign his name as
“Sukhwinder Singh” four times during the encounter. [See Docket No. 29-1, at 29:8–
30:4; Docket No. 29-3, at US_984, 986, 991, 993]. Also, one of Plaintiff’s signatures
certified, under penalty of perjury, that all the information on his application was
correct and true.3

Thereafter, Plaintiff received service and requested a deportation hearing
before the Immigration Court, and Immigration and Naturalization Services (“INS”)
initiated a removal proceeding against him that charged Plaintiff with entering the
United States without inspection. [Docket No. 29-3, at US_986, 991; Docket No.

29-4, at 1.] During that encounter, Plaintiff signed his removal proceeding notice,
also translated into Punjabi, and was identified as Alien Number A29 700 600.
[Docket No. 29-4, at 1–3.]
On May 5, 1994, Plaintiff failed to appear in Immigration Court despite the
translation services and signed acknowledgements. [Docket No. 29-5, at 3.] In

accordance with INS’s procedure, the Immigration Judge administratively closed

2 This misspelling of Plaintiff’s first name appears to be the result of a typographical
error by the Border Patrol Agent who filled out the relevant forms.

3 Plaintiff also signed and certified all subsequent immigration related applications,
under penalty of perjury, to attest that the information he provided in those
applications was correct and true.
Plaintiff’s removal proceeding, which removed Plaintiff’s case from the Immigration
Court’s calendar until either party filed a recalendar request. [Id.; Docket No. 28-3,
¶ 8].

B. Plaintiff Files Form I-589 and Both Form I-485 Applications and Is
Ultimately Granted Permanent Resident Status
Despite his failure to appear before the Immigration Judge, Plaintiff remained
in the United States until November 1994. [Docket No. 29-1, at 95:12–16.] Plaintiff

first resided in Queens, New York, and then in Jersey City, New Jersey, working at a
gas station from December 1993 to November 1994. [Id. at 95:17–96:8; Docket No.
29-6, at 3.] Plaintiff returned to India at that point, before reentering the United
States on April 10, 1995. [Docket No. 29-1, at 76:24–77:8, 92:7–12.]
In September 1995, Plaintiff filed a Form I-589 claiming asylum, now

identifying himself as “Sukhwinder Singh Kaila” (adding Kaila) with no preexisting
Alien Number. [Docket No. 29-7, at US_969.] When Plaintiff was questioned about
previous arrests in the United States, prior removal proceedings, and alternative
names, he failed to truthfully disclose the relevant information. [See generally Docket
No. 29-7.] Further, Plaintiff’s I-589 application stated that he entered the country

illegally through California in April 1995 and that his prior residence was in India
from 1975 to 1995, when in reality he had entered illegally from Canada in 1993 and
resided in New York and New Jersey from 1993 to 1994. [Id.] Subsequently, in
October 1995, USCIS assigned Plaintiff a new Alien Number (A73 407 231) and
granted his I-589 application, identifying him as an asylee. [Docket No. 29-8, at
US_96–97.]
In November 1996, Plaintiff filed his first asylum-based Form I-485
adjustment to change his asylee status to permanent resident status, and he identified

himself as “Suhkwinder S. Kaila” (dropping Singh) along with his second Alien
Number (A73 407 231). [Docket No. 29-9, at US_372, 377.] When questioned about
previous arrests in the United States and prior removal proceedings, Plaintiff again
omitted the proper identifying information and answered “No” to both inquiries. [Id.
at US_376.] In 2003, USCIS denied Plaintiff’s asylum-based Form I-485 due to his

permanent residence status in Canada disqualifying him from the definition of an
asylee in the United States.4 [Docket No. 29-10, at US_99–100; see also Docket No.
29-1, at 117:2–6 (Plaintiff admitting that he “received [his] Canadian paperwork” in
1999).]

Two years after Plaintiff’s first Form I-485 adjustment application was denied,
he applied for an employment-based H-1B nonimmigrant visa, which USCIS
approved in October 2005. [See Docket No. 29-13, at US_16.] Subsequently, Plaintiff
filed a second Form I-485 in August 2006, this time under the name “Sukhwinder
Singh Kaila” and again omitting his previous U.S. arrest and removal proceeding.

[Id. at US_241–46.] USCIS then issued Plaintiff a third Alien number (A89 140 107)
in October 2007, under the name “KAILA, Sukhwinder.” [Docket No. 28-3, ¶ 12.]
In February 2008, USCIS searched Plaintiff’s RAP sheet, identified all associated

4 Plaintiff gained permanent residence status in Canada on December 17, 1999.
[Docket No. 29-10, at US_100.]
Alien numbers, and consolidated all three Alien files into his third Alien number
(A89 140 107) in May 2008. [Id., ¶ 13]. USCIS approved Plaintiff’s second
adjustment application in September 2011, making him a permanent United States

resident. [Docket No. 29-11, at US_237.]
C. USCIS Denies Plaintiff’s Naturalization Application
Approximately five years after gaining permanent resident status, Plaintiff
filed a Form N-400 naturalization application under the name “Kaila, Sukhwinder”

in July 2016. [Docket No. 29-12, at US_53.] However, in that application Plaintiff
included for the first time his 1993 arrest by United States Border Patrol agents, his
previously issued Alien Number, and his prior Immigration Court removal
proceeding. [Id. at US_53–78.] When prompted for an explanation upon answering
“Yes” to previous arrests in the United States, Plaintiff responded, “I was arrested [in

1993] by US Border Patrol . . . when I tried to enter the United States without
inspection . . . . I was placed in removal proceedings in Buffalo, NY under A29 700
600 but the Immigration Judge administratively closed my case on May 5, 1994.”
[Id. at US_78.]
In April 2019, USCIS denied Plaintiff’s naturalization application and

explained, in relevant part:
You were actually interviewed, under oath, by legacy Immigration and
Naturalization Service (INS) officers and USCIS officers for asylum,
permanent residence, and naturalization. Each and every time, you
concealed the true facts of your case and immigration history. . . . Your
actions denote a lack of good moral character and willful disregard for
the lawful immigration process. In light of your history of
misrepresentations, USCIS can come to no other conclusion but that
your false testimony is to obtain an immigration benefit.

[Docket No. 29-13, at US_17 (emphasis added).]

Further, USCIS explained that Plaintiff’s naturalization was inadmissible
under § 121(h) of the Immigration and Nationality Act (“INA”) because he was
required to apply and receive a waiver in order to adjust his status for making
material misrepresentations in prior applications, but Plaintiff never applied for that
admissibility waiver. [Id.] Nonetheless, even if Plaintiff was granted permanent
resident status by error, USCIS was prohibited from removing Plaintiff, or rescinding
his permanent resident status, because of the five-year statute of limitations under
8 U.S.C. § 1256(a). [Id. at US_18.] Thus the issue presented here is not whether
Plaintiff’s permanent residence status should have been rescinded, but rather whether
USCIS’s denial of his naturalization application was proper.
D. Plaintiff’s Explanations for Misstatements in Applications
After USCIS denied Plaintiff’s naturalization application, he filed a Form

N-336, asking USCIS to reconsider its decision. [Docket No. 29-14, at US_1000.]
Included in Plaintiff’s Form N-336 were written explanations for his misstatements.
[Id.] Plaintiff’s counsel claimed, in relevant part:
The applicant did not have to disclose his 1993 entrance on any of the
applications since that question was not specifically asked on the forms.
Furthermore, with regard to his removal proceedings, the question on
the I-589 and I-485 forms was as follows, to which the Applicant
correctly responded “No”: Have you ever been deported from the
United States, or removed from the United States at government
expense, excluded within the past year, or are you now in exclusion,
deportation, removal or recission proceedings? The Applicant’s removal
proceedings were administratively closed on May 5, 1994 so he was
neither deported, removed, nor excluded. The applicant disclosed his
1993 apprehension and deportation proceedings on his naturalization
application. With regard to the use of his name of “Sukhwinder Singh”
. . . [this was a] scrivener’s error[] on the part of the Border Patrol Agent
( . . . [who] failed to list the Applicant’s full name). On all relevant
paperwork since the removal hearing, the Applicant has listed his name
as Sukhwinder Singh Kaila, so there has been no attempt at deception
on his part.

[Id. at 1002, ¶ 1.]

Despite Plaintiff’s explanations through Counsel, USCIS reaffirmed its denial
of Plaintiff’s naturalization application. [Docket No. 29-15, at US_2, 4.] USCIS’s
affirmation of its denial constituted final agency review of Plaintiff’s naturalization
application. [Id. at US_6.]
II. PROCEDURAL HISTORY
Plaintiff Kaila filed the Complaint in this matter on March 23, 2020, seeking a
de novo review of USCIS’s denial of his naturalization application. [Docket No. 1.]
Plaintiff requests a reconsideration of USCIS’s decision by claiming that he was
“lawfully admitted” for permanent residence status, and his naturalization should be
approved because any misstatement he made was innocent. [Id.]
Defendants filed the pending Motion for Summary Judgment on July 15,
2021, seeking the denial of Plaintiff’s sought after de novo review and the affirmation
of USCIS’s decision to deny Plaintiff’s naturalization application. [Docket No. 28.]
Defendants claim that Plaintiff did not comply with the substantive immigration law
requirements in order to seek naturalization. [Id.] Defendants assert that even though
USCIS approved Plaintiff’s second Form I-485 adjustment application, Plaintiff was
not “lawfully admitted” to the United States for permanent residence status
considering the numerous misstatements USCIS subsequently uncovered upon
comparing Plaintiff’s naturalization application to his previously filed applications.

[Id.] Defendants assert that USCIS’s denial was proper because Plaintiff’s
misstatements in his prior immigration applications fit the statutory definition of
material misinformation, which preclude an applicant from a lawful admission. [Id.]
Plaintiff timely filed his brief in opposition on August 24, 2021. [Docket No. 33.]

Defendants timely filed their reply brief on September 14, 2021. [Docket No. 35.]
The Court held Oral Argument on November 23, 2021. [Docket No. 37.]
There, the parties disputed, among other things, whether the willfulness of Plaintiff’s
misstatements was relevant: Defendants argued that Plaintiff’s mindset is irrelevant,
while Plaintiff argued it was dispositive. At Oral Argument, the Court ordered the

parties to file supplemental briefing and indicated that, if Plaintiff could point to any
caselaw showing that Plaintiff’s misinformation had to be willful for his
naturalization application to be denied, then the Court would hold an evidentiary
hearing to determine whether or not Plaintiff’s misinformation was willful in this
case. However, Defendants’ supplemental brief provides ample authority showing

that Plaintiff’s mindset is irrelevant, [see Docket No. 38], and Plaintiff seems to have
abandoned this argument in his supplemental brief, instead focusing solely on
whether Plaintiff’s omissions were material, [see Docket No. 39]. Therefore, the
Court deems it unnecessary to hold an evidentiary hearing as it had initially
proposed at Oral Argument.
III. JURISDICTION
The Court exercises subject matter jurisdiction over this case pursuant to

8 U.S.C. § 1421(c).
IV. STANDARD
A. Summary Judgment
Summary judgment shall be granted 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 fact is “material” if it will “affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if it could lead a “reasonably jury [to]
return a verdict for the nonmoving party.” Id.
The movant has the initial burden of showing through the pleadings,

depositions, answers to interrogatories, admissions on file, and any affidavits “that
the non-movant has failed to establish one or more essential elements of its case.”
Connection Training Servs. v. City of Phila., 358 F. App’x 315, 318 (3d Cir. 2009). “If
the moving party meets its burden, the burden then shifts to the non-movant to
establish that summary judgment is inappropriate.” Id.

In the face of a properly supported motion for summary judgment, the
nonmovant’s burden is rigorous: they “must point to concrete evidence in the
record”; mere allegations, conclusions, conjecture, and speculation will not defeat
summary judgment. Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995);
accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (noting that “speculation
and conjecture may not defeat a motion for summary judgment”) (citing Acumed LLC
v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)). Failure to sustain

this burden will result in entry of judgment for the moving party.
B. Denial of Naturalization
A district court’s review of naturalization denials “shall be de novo, and the
court shall make its own findings of fact and conclusions of law.” 8 U.S.C. § 1421(c).

“As a consequence, judicial review of naturalization denials ‘is not limited to any
administrative record but rather may be on facts established in and found by the
district court de novo.’” Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) (quoting
Aparicio v. Blakeway, 302 F.3d 437, 445 (5th Cir. 2002)) (citing Abulkhair v. Bush, 413
F. App’x 502, 507–08 (3d Cir. 2011)).

In making this determination, however, the applicant bears the burden of
proving, by a preponderance of the evidence, that she or he meets all of the
requirements and is entitled to naturalization. 8 C.F.R. § 316.2(b); see also Bagot v.
Ashcroft, 398 F.3d 252, 256–57 (3d Cir. 2005); Abulkhair, 413 F. App’x at 508. In
order to meet this burden, the applicant is required to put forth evidence of her or his

“strict compliance with all the congressionally imposed prerequisites” to citizenship.
Haser v. Brown, No. 18-1383, 2020 U.S. Dist. LEXIS 32174, at *14 (W.D. Pa. Feb.
25, 2020) (first citing Fedorenko v. United States, 449 U.S. 490, 506 (1981); and then
citing United States v. Szehinskyj, 277 F.3d 331, 334 (3d Cir. 2002)). Moreover, “the
burden is on the alien applicant to show his eligibility for citizenship in every
respect.” INS v. Pangilinan, 486 U.S. 875, 886 (1988) (quoting Berenyi v. Dist. Dir.,
INS, 385 U.S. 630, 637 (1967)). Thus, “when doubts exist concerning a grant of

[citizenship] . . . they should be [generally] resolved in favor of the Unites States and
against the claimant.” United States v. Manzi, 276 U.S. 463, 467 (1928); see also Bagot,
398 F.3d at 257; Ogundoju v. Att’y Gen., 390 F. App’x 134, 137 (3d Cir. 2010).
“The term ‘lawfully admitted for permanent residence’ means the status of

having been lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws.” 8 U.S.C. §
1101(a)(20). Multiple circuits have noted that this definition is “somewhat circuitous,
and where there is ambiguity, we must give deference to the agency’s interpretation,
if it is reasonable.” Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186 (8th Cir. 2005)

(citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984)); Injeti v. U.S. Citizenship & Immigr. Servs., 737 F.3d 311, 315 (4th Cir. 2013).
The Third Circuit adopted a similarly deferential standard, noting that it was
“especially aware that the INS’s interpretations of the statutes it is charged with
administering have typically been afforded a great deal of deference.” Bamidele v.

INS, 99 F.3d 557, 561 (3d Cir. 1996). The Board of Immigration Appeals (“BIA”)
has also explained that lawful admission requires compliance with all substantive
legal requirements and is not a mere procedural regularity. In re Koloamatangi, 23
I. & N. Dec. 548, 550 (B.I.A. 2003) (quoting In re Longstaff, 716 F. 2d 1439, 1441 (5th
Cir. 1983)).
“According to the BIA, an alien who has obtained lawful permanent resident
status by fraud, or who was otherwise not entitled to it, has not been lawfully

admitted.” Koszelnik v. Sec’y of Dep’t of Homeland Sec., 828 F.3d 175, 180 (3d Cir.
2016) (citing Koloamatangi, 23 I. & N. Dec. at 550–51). The Third Circuit in
Gallimore v. Attorney General of the United States, found that even in cases not involving
fraud, a grant of permanent resident status does not meet the standard of “lawful

admission” if the applicant was not legally entitled to it for any reason. 619 F.3d
216, 224 (3d Cir. 2010) (citing Koloamatangi, 23 I. & N. Dec. at 550) (emphasis
added). Further, the Third Circuit also adopted the BIA’s position that lawful
admission requires strict compliance with both substantive and procedural legal
requirements. Id. at 223 (citing In re Longstaff, 716 F.2d at 1441).

V. ANALYSIS
As discussed above, Defendants move for summary judgment to deny
Plaintiff’s sought after de novo review and to affirm USCIS’s denial of Plaintiff’s
naturalization application. [Docket No. 28-1.] In support of their Motion,
Defendants argue that “Plaintiff failed to show he was a ‘lawfully admitted’

permanent resident under 8 U.S.C. § 1427(c)” for two independent reasons: (1)
because “USCIS lacked jurisdiction to adjust his status” and (2) because “Plaintiff
made material omissions in his prior applications.” [Id. at 13–26 (cleaned up).]
Plaintiff refutes Defendants’ arguments, first arguing that “USCIS retained
jurisdiction over Plaintiff’s adjustment of status application as Plaintiff departed the
United States” and then arguing that “Plaintiff’s omissions were not material.”
[Docket No. 33, at 6–14.] The Court will grant Defendants’ Motion on the latter

independent basis that Plaintiff’s previous omissions were material. Therefore, the
Court need not address the jurisdictional argument.
A. Compliance with Substantive Legal Requirements
First, the Court will consider whether Plaintiff’s grant of permanent resident

status was in compliance with the substantive legal requirements of immigration
laws. 8 U.S.C. § 1429. The Third Circuit has held that an applicant does not
substantively comply with the relevant immigration law’s legal requirements if she or
he either obtained permanent resident status through fraud or “was otherwise not
entitled to it.” Koszelnik, 828 F.3d at 180. An applicant is “otherwise not entitled” to

permanent resident status if the applicant provides “material misinformation” despite
certifying under penalty of perjury that all provided information was true and correct
on her or his application. See id. (citing Injeti, 737 F.3d at 318 (4th Cir. 2013)). The
Third Circuit has approvingly cited a Fourth Circuit case as holding that “because 8
C.F.R. § 103.2(a)(2) requires an applicant to certify that all information contained in

the application ‘is true and correct,’ an applicant fails to comply with the relevant
legal requirements for admission when material information is omitted on his
application, ‘regardless of whether the misrepresentation on [the] application was
willful.” Id. at 180 n.20 (quoting Injeti, 737 F.3d at 318).
However, misinformation is material if it “tends to shut off a line of inquiry
which is relevant to the alien’s eligibility and which might well have resulted in a
proper determination that he be excluded.” Id. at 180 (quoting Matter of Kai Hing Hui,
15 I. & N. Dec. 288, 289 (B.I.A. 1975)). Whether the misinformation would have

actually resulted in a different decision is not the operative question: “[F]inding that
a misrepresentation is material does not require concluding that it necessarily would
have changed the relevant decision.” Injeti, 737 at 316. In Koszelnik, the Third Circuit
held that the applicant’s failure “to include his original assigned [Alien] number and

. . . to disclose the order of deportation that was pending against him” was a clear
example of the applicant not conforming to substantive legal requirements when the
applicant was aware that information existed. Koszelnik, 828 F.3d at 180–81.
Here, it is undisputed that Plaintiff did not disclose (1) that he had been
arrested in 1993, (2) his initial A-number on his asylum application, and (3) that he
had lived in the United States from 1993 to 1994.5 [See Docket No. 33, at 10–12;

Docket No. 29-1, at 95:17–96:8; Docket No. 29-7, at US_974.] Plaintiff blames the
first two of these omissions on not understanding what the documents in question
required: he claims that “he believed the question about arrests referred to arrests in
India only” and that “he did not know what [an A-number] was or what it

referenced” when he was filling out the relevant forms. [Id.] He blames the third on

5 Defendant argues that Plaintiff omitted other pieces of material information, as
well. [See Docket No. 28-1, at 19.] Because the Court relies only on the omitted
pieces of information discussed above, it will not address Defendants’ remaining
arguments.
his attorney at the time—who he claims failed to include the relevant information on
the application—but insists that “it was not [his] intention not to add” that
information. [See Docket No. 29-1, at 98:4–100:5.] However, as discussed above,

Plaintiff’s state of mind is irrelevant in determining whether or not the
misinformation was material.6
Instead, the relevant question is whether the misinformation "tend[ed] to shut
off a line of inquiry which [was] relevant to [Plaintiff’s] eligibility and which might
well have resulted in a proper determination that he be excluded.” Koszelnik, 828

F.3d at 180 (quoting Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289 (B.I.A. 1975)).
Here, the Court finds that the information Plaintiff omitted did so shut off a line of
inquiry relevant to Plaintiff’s eligibility. First, Plaintiff’s failure to disclose his initial
1993 arrest by Border Patrol on every application other than his Form N-400

6 Moreover, the Court notes that Plaintiff’s assertion about why he failed to disclose
his arrest does not save his case, given that the application asked: “Have you ever, in
or outside the U.S.: been arrested, cited, charged, indicted, fined, or imprisoned for
breaking or violating any law or ordinance, excluding traffic violations?” [Docket
No. 29-9, at US_376 (emphasis added).]
Plaintiff also argues that his omission of his 1993 arrest “was not material
because due to the legal insufficiency of the Order to Show Cause (OSC), when . . .
Plaintiff subsequently departed the United States in 1994, the Immigration Court lost
jurisdiction over his case.” [Docket No. 39, at 2–4.] Plaintiff argues that the
omission, therefore, was immaterial “because he would have still obtained the
benefit of asylee status and permanent residence.” [Id. at 4.] Even if that were the
case, however, Plaintiff applies the incorrect standard in making his argument. As
noted throughout this Opinion, the question is whether the misinformation "tend[ed]
to shut off a line of inquiry which [was] relevant to [Plaintiff’s] eligibility and which
might well have resulted in a proper determination that he be excluded.” Koszelnik,
828 F.3d at 180 (quoting Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289 (B.I.A.
1975)). Applying that standard, the Court disagrees with Plaintiff’s argument that the
alleged insufficiency of the OSC renders Plaintiff’s omission immaterial.
application clearly “shut off a line of inquiry which is relevant to the alien’s eligibility
and which might well have resulted in a proper determination that he be excluded.”
See id. Plaintiff disclosing his arrest at the border would have certainly caused further

investigation into Plaintiff’s immigration history and factored into his eligibility
determination. Further, including his arrest could have uncovered other identifying
information that Plaintiff omitted in numerous applications, such as his removal
proceeding, his previous Alien numbers, his use of alternative names, and the fact
that he had lived in the United States for over a year.

Moreover, Plaintiff’s omission of his previous arrest, his prior Alien number,
and the fact that he had lived in the United States for over a year, “shut off a line of
inquiry” for immigration officials as well. The inclusion of this identifying
information could have led immigration officials to inquire into Plaintiff’s
immigration history, most likely uncovering his 1993 arrest. Further, disclosing this

information could have also changed immigration officials’ decision on Plaintiff’s
status. Thus, in addition to Plaintiff’s omission of his arrest, Plaintiff’s omission of
information similar to the applicant in Koszelnik (who failed to disclose a previous
matter in Immigration Court and a prior Alien number) also “might well have

resulted in a proper determination that he be excluded or his status changed,” and
qualifies as material.
Because Plaintiff provided “material misinformation” on his applications, he
was “otherwise not entitled to” permanent resident status. See Koszelnik, 828 F.3d at
180 (citing Injeti, 737 F.3d at 318). As such, his grant of permanent resident status
was not in compliance with the substantive legal requirements of immigration laws.
See 8 U.S.C. § 1429. Therefore, the Court will conclude that Plaintiff’s application for
naturalization was properly denied and will grant Defendants’ Motion for Summary

Judgment.
V. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Motion for
Summary Judgment [Docket No. 28]. An accompanying Order shall issue.

January 25, 2022 s/Renée Marie Bumb
Date Renée Marie Bumb
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272251. Public record. Not legal advice.