# Iqbal v. United States Citizenship and Immigration Services

> District Court, W.D. New York · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10361229

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

ATES DISTR]
KO. SLED □□□
UNITED STATES DISTRICT COURT SEP 10 2019
WESTERN DISTRICT OF NEW YORK ty □□
Wak LOFWENGUIN wi
STERN DISTRICLS
GHAZANFAR IQBAL,
DECISION AND ORDER
Plaintiff,
Vv. 1:17-CV-01066-EA W
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, ET AL.,
Defendants.

INTRODUCTION
Ghazanfar Iqbal (‘Plaintiff’) commenced this action on October 23, 2017,
challenging the United States Citizenship and Immigration Service’s (the “USCIS”) denial
of his naturalization application under the Immigration and Nationality Act, 8 U.S.C.
§ 1101 et seg. (the “INA”), and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
(the “APA”). (Dkt. 1). Plaintiff claims that Defendants violated the INA and the APA by
improperly concluding that he failed to maintain continuous residency in the United States
for the statutorily required period and lacked the “good moral character’ necessary for
naturalization. (See Dkt. 1 at 12-13). Plaintiff requests that the Court order a plenary
hearing, review his application for naturalization de novo, and grant him his request for
naturalization. (/d. at 14).
Pending before the Court is Defendants’ motion for summary judgment (Dkt. 15)
and motion to amend/correct the motion for summary judgment (Dkt. 16). Because the
Court concludes that the undisputed facts establish that Plaintiff failed to maintain

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continuous residency in the United States from the date of his naturalization application up
to the time of admission to citizenship, summary judgment is granted in favor of Defendant
without the Court reaching the issue concerning the determination as to Plaintiff's good
moral character.
BACKGROUND
Unless otherwise indicated, the following facts are taken from the parties’ Rule 56
statements. (See Dkt. 15-17; Dkt. 20). Plaintiff, a citizen of Pakistan, arrived in this
country in 1996 and is a lawful permanent resident of the United States. (Dkt. 15-17 at
44 1-3; Dkt. 20 at Ff 1-3). According to Plaintiff, he has a wife and four children who are
all citizens of the United States. (Dkt. 1 at 24 (Complaint); see Dkt. 15-16 at 9 (testifying
about his family)). Plaintiff was self-employed at Kohinoor, a Halal meat store, from 2002
until 2005. (Dkt. 15-17 at 95; Dkt. 20 at 5).
On September 14, 2009, Plaintiff applied for naturalization and was interviewed by
the USCIS on December 8, 2010. (Dkt. 15-17 at ¢ 10; Dkt. 20 at 4 10; see Dkt. 15-2 at
4 9 (Declaration of Adam Gallagher)). On March 1, 2011, Plaintiffs application was
denied based on his failure to disclose past due taxes. (See Dkt. 1 at § 26; Dkt. 18-1 at 5-6
(USCIS 2011 Notice of Decision)). The USCIS specifically relied upon the requirement
in 8 U.S.C. § 1427(a) that an applicant “during all the periods referred to in this subsection
has been and still is a person of good moral character,” and the definition in 8 U.S.C.
§ 1101(f) that “[n]o 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 required to be

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established, is, or was . . . [o]ne who has given false testimony for the purpose of obtaining
any benefits under this Act.” (Dkt. 18-1 at 4-5).
On March 30, 2011, Plaintiff filed a Form N-366 Request for Hearing on a Decision
of Naturalization to administratively challenge the USCIS’s determination, pursuant to 8
U.S.C. § 1447(a). (Dkt. 1 at 27; see Dkt. 18-3 (N-366 Request for a Hearing)). Plaintiff
subsequently attended two interviews in relation to his § 1447(a) administrative appeal, on
March 13, 2012, and April 9, 2015. (See Dkt. 15-17 at § 11; Dkt. 20 at ¢ 11; see also Dkt.
15-2 at § 9; Dkt. 15-5 at 1 (2017 Decision denying naturalization application)).
Frustrated that after many years a decision had not been made with respect to his
administrative appeal, Plaintiff filed a federal lawsuit pro se on July 21, 2015. Within a
matter of weeks, the USCIS reached a decision denying Plaintiff's administrative appeal,
but it delayed issuing its determination because of the pending litigation. Ultimately, on
June 6, 2016, this Court granted the USCIS’ motion to dismiss the pro se action for lack of
subject matter jurisdiction because, among other things, the USCIS had not yet issued its
final decision. See Iqbal v. Sec’y U.S. Dep’t of Homeland Sec., 190 F. Supp. 3d 322
(W.D.N.Y. 2016). On September 20, 2016, the USCIS issued a “Notice of Intent to Deny”
Plaintiff's application for naturalization, and then officially denied the application on June
28, 2017. (Dkt. 15-17 at 4§ 12-13; Dkt. 20 at 12-13; see Dkt. 15-4; Dkt. 15-5).
The USCIS based its final decision upon two separate findings. First, the USCIS
determined that Plaintiff failed to demonstrate that he was “a person of good moral

- character” from the time he filed his application to the present because he “provided false
testimony, under oath, with the intent to obtain an immigration benefit.” (Dkt. 15-5 at 2).
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Second, the USCIS determined that Plaintiff had not demonstrated that he “continuously
reside[d] within the United States” since the date he filed his application because he had
spent a significant period of time making frequent and lengthy trips outside this country
between July 9, 2014, and July 2, 2016, which cast doubt on whether the United States was
Plaintiff's actual place of residence. (See id. at 3, 5).
Plaintiff's wife and their four children moved to Saudi Arabia in September 2016,
and, apart from one of his children, Plaintiff's immediate family has not since returned to
the United States. (Dkt. 15-17 at 14-15; Dkt. 20 at Ff 14-15). Plaintiff also carries a
“Saudi Arabian Iqama Resident Identity Card” (the “Iqama Card”). (Dkt. 15-17 at 4;
Dkt. 20 at § 4; see Dkt. 15-12 ([qama Card)). According to Plaintiff, the Iqama Card
permits him to remain in Saudi Arabia for extended periods (see Dkt. 15-16 at 32) and is
both a “work permit” (id. at 22) and proof of Saudi Arabian residency (id. at 34). Plaintiff's
wife and children planned to move to Malaysia in January 2019 and intend to remain there
for at least the following four years while their children engage in educational endeavors.
(Dkt. 15-17 at § 16; Dkt. 20 at J 16; see Dkt. 15-16 at 15-17). Beginning July 8, 2014,
Plaintiff traveled outside the United States during the following timeframes:
July 8, 2014 to October 4, 2014 (89 days)
October 13, 2014 to November 22, 2014 (41 days)
December 5, 2014 to February 28, 2015 (86 days) □
March 5, 2015 to April 7, 2015 (34 days)
June 20, 2015 to November 17, 2015 (151 days)
December 18, 2015 to January 11, 2016 (48 days)
February 13, 2016 to July 2, 2016 (141 days)
September 18, 2016 to March 2, 2017 (166 days)
March 18, 2017 to October 16, 2017 (213 days)
November 24, 2017 to July 10, 2018 (229 days)

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(Dkt. 15-17 at § 17; Dkt. 20 at 17).
PROCEDURAL HISTORY
Plaintiff commenced this action on October 23, 2017, alleging that Defendants
violated the INA and the APA by wrongfully denying his naturalization application after
concluding that he lacked “good moral character” and failed to maintain continuous
residency in the United States as required by law. (Dkt. 1 at 12-13). Defendants answered
the Complaint on December 29, 2017 (Dkt. 3), and the case proceeded to discovery (see
Dkt. 9). Discovery concluded on November 7, 2018. (Dkt. 12).
On December 21, 2018, Defendants filed a motion for summary judgment.’ (Dkt.
15). Defendants move for summary judgment on three grounds. First, Defendants argue
that the USCIS’ determination as to whether Plaintiff maintained continuous residency in
the United States for the statutorily required period is completely discretionary and thus, is
not subject to judicial review. (Dkt. 15-1 at 13-16). Second, and in the alternative,
Defendants argue that even if the Court can review the USCIS’ residency determination,
Plaintiff failed to maintain continuous residency as a matter of law. (/d. at 16-20). Finally,
Defendants argue that because Plaintiff provided multiple misrepresentations and false
statements in an effort to obtain immigration benefits, Plaintiff lacks the “good moral

| Defendants also filed a motion to amend/correct the motion for summary judgment
on the same day. (Dkt. 16). This “motion” should not have been filed as such because the
docket entry simply contains a corrected notice of motion pertaining to the already filed
motion for summary judgment. The original notice of motion was filed along with an
unexecuted and incomplete attorney declaration. (See Dkt. 15 at 3-4). The Court presumes
this was an inadvertent filing error for which no motion was required to remedy. However,
to the extent Defendants have moved to correct their initial notice of motion by eliminating
the unexecuted attorney declaration (Dkt. 16), that motion is granted.
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character” required for naturalization. (/d. at 20-27). Although Plaintiff concedes every
factual assertion contained in Defendants’ Rule 56 statement (Dkt. 20), he argues that
Defendants’ factual statements do not entitle them to judgment as a matter of law on the
issues of his continuous residency and “good moral character” (Dkt. 19).
The Court held oral argument in this matter on July 22, 2019, and reserved decision.
(Dkt. 27).
DISCUSSION
L Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact... .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
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moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)). Specifically, the non-moving party “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654
F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
II. Standards Applicable to the Naturalization Context
“Congress vested the Attorney General with ‘sole authority to naturalize persons as
citizens of the United States,’ 8 U.S.C. § 1421(a), and the Attorney General in turn
delegated that authority to USCIS.” Rivera v. U.S. Citizenship & Immigration Servs., 5 F .
Supp. 3d 439, 441 (S.D.N.Y. 2014). However, “a person whose application for
naturalization has been denied by USCIS, and then upheld on administrative appeal, ‘may
seek review of such denial before the United States District Court for the district in which
such person resides.’” Del Orbe v. Holder, No. 12 Civ. 1057 (PAE), 2012 WL 3655923,
at *2 (S.D.N.Y. Aug. 27, 2012) (quoting 8 U.S.C. § 1421(c)). Section 1421(c) “requires
the District Court to review the denial of naturalization ‘de novo,’ to ‘make its own findings
of fact and conclusions of law,’ and ‘at the request of the petitioner, [to] conduct a hearing
de novo on the application.’” Chan v. Gantner, 464 F.3d 289, 295 (2d Cir. 2006) (quoting
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8 U.S.C. § 1421(c)). “Nevertheless, a court may grant summary judgment in cases brought
under 8 U.S.C. § 1421(c).” Ali v. Holder, No. 11-CV-6122 CJS, 2012 WL 1014834, at *4
(W.D.N.Y. Mar. 22, 2012) (citing Chan, 464 F.3d at 295-96).
“No alien has the slightest right to naturalization unless all statutory requirements
are complied with[.]” United States v. Ginsberg, 243 U.S. 472, 475 (1917); see also
Fedorenko v. United States, 449 U.S. 490, 506 (1981) (“[T]here must be strict compliance
with all the congressionally imposed prerequisites to the acquisition of citizenship.”). “[I]t
has been universally accepted that the burden is on the alien applicant to show his eligibility
for citizenship in every respect.” [.N_S. v. Pangilinan, 486 U.S. 875, 886 (1988) (quoting
Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637 (1967))); see Rivera, 5 F. Supp. 3d at 442
(stating that the applicant “must affirmatively show that he has met all statutory
requirements for becoming a naturalized citizen”). “When an applicant fails to do so,
summary judgment for the Government may be appropriate.” Rivera, 5 F. Supp. 3d at 442
(citing Chan, 464 F.3d at 295-96).
Ill. The Attorney General’s Discretion Under 8 U.S.C. § 1427(b) is Not Implicated
Section 1427(a) of Title 8 of the United States Code “sets forth the general
requirements for naturalization[.]” Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 379
(E.D.N.Y. 2003), aff'd sub nom. Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. 2005). It
provides as follows:
No person, except as otherwise provided in this subchapter, shall be
naturalized unless such applicant, (1) immediately preceding the date of
filing his application for naturalization has resided continuously, after being
lawfully admitted for permanent residence, within the United States for at
least five years and during the five years immediately preceding the date of
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filing his application has been physically present therein for periods totaling
at least half of that time, and who has resided within the State or within the
district of the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously within the
United States from the date of the application up to the time of admission to
citizenship, and (3) during all the periods referred to in this subsection 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.
8 U.S.C. § 1427(a) (emphasis added); see Gizzo v. [N.S., No. 02 Civ. 4879 (RCC), 2003
WL 22110278, at *2 (S.D.N.Y. Sept. 10, 2003). Section 1427(b), entitled “Absences,”
describes what effect continuous extended absences from the United States have on the
applicant’s continuity of residence. See 8 U.S.C. 1427(b). This subsection provides, in
pertinent part, as follows:
Absence from the United States of more than six months but less than one
year during the period for which continuous residence is required for
admission to citizenship, immediately preceding the date of filing the
application for naturalization, or during the period between the date of filing
the application and the date of any hearing under section 1447(a) of this title,
shall break the continuity of such residence, unless the_applicant_shall
establish to satisfaction of the Attorney General that he did not in fact
abandon his residence in the United States during such period.
8 U.S.C. § 1427(b) (emphasis added). Section 1427(b) also provides that a continuous
absence of a year or more “during the period for which continuous residence is required
for admission to citizenship (whether preceding or subsequent to the filing of the
application for naturalization) shall break the continuity of such residence.” Id.
Accordingly, subsection (b) sets forth two bright-line time periods at which point the
applicant’s continuity of residence is definitively broken or is rendered presumptively so,
depending on whether the absence was more than a year or more than six months but less

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than a year. See United States v. Larsen, 165 F.2d 433, 434 (2d Cir. 1947) (interpreting an
earlier version of the statute and stating that while “continuous absence from the United
States for more than six months but less than a year during the five-year period is made
presumptively a break in continuity which . . . may be rebutted by satisfactory evidence of
reasonable cause for such absence[,] . . . continuous absence for more than that is expressly
made a break in continuity, with exceptions not here pertinent, without provision for any
rebuttal”); In re Naturalization of Vafaei-Makhsoos, 597 F. Supp. 499, 501 (D. Minn.
1984) (“The conclusion that Congress meant to erect an absolute bar in cases of absences
greater than one year is strengthened by the fact that the statute specifically allows
petitioners the opportunity to demonstrate that they did not abandon their United States
residence in cases of shorter absences (from six months to one year).”).
Defendants argue that the USCIS’ continuous residence determination is not subject
to judicial review because the naturalization applicant must “establish to the satisfaction of
the Attorney General” that he did not abandon his residency during the statutorily required
period. (Dkt. 15-1 at 13-14). Plaintiff concedes that the periods set forth in Defendants’
Rule 56 statement correctly identify the timeframes in which he was absent from this
country. (Dkt. 20 at § 17). However, Plaintiff argues that his absences that occurred after
his § 1447(a) hearing on the initial denial of his application cannot be considered. (Dkt.
19 at 8-9). At least as it pertains to whether § 1427(b)’s provisions apply to this case—and
thus, whether the Attorney General’s discretion has even been implicated here—Plaintiff s
interpretation of the statute appears to be correct.

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Defendants have submitted no evidence that Plaintiff has ever been absent from the
United States for a continuous period of a year or more. At most, Defendants contend—
and Plaintiff concedes—that he was absent for a continuous period of six months or more
on two occasions: March 18, 2017, to October 16, 2017, and November 24, 2017, to July
10, 2018. (Dkt. 15-17 at ¥ 17; Dkt. 20 at J 17). However, those time periods occurred after
Plaintiff's § 1447(a) hearing, and by its terms, the presumptions under § 1427(b) for
absences greater than six months but less than one year only apply prior to the §1447(a)
hearing. See 8 U.S.C. 1447(b) (any absence of more than six months but less than one year
must occur “during the period for which continuous residence is required for admission to
citizenship, immediately preceding the date of filing the application for naturalization, or
during the period between the date of filing the application and the date of any hearing
under section 1447(a),” in order to presumptively break continuity of residence). *

Section 1447(a) provides that “[i]f, after an examination under section 1446 of this
title, an application for naturalization is denied, the applicant may request a hearing before

an immigration officer.” Jd. § 1447(a). It is undisputed that Plaintiff filed his application

2 The Court is not convinced that it is clear that the phrase “the period for which
continuous residence is required for admission to citizenship” in § 1447(b) is limited by
the language that follows (describing the time period before filing the naturalization
application and the time period after the application filing but before the § 1447(a) hearing).
In other words, “the period for which continuous residence is required for admission to
citizenship” could arguably be defined by § 1427(a) and therefore would run through the
date of admission to citizenship—thus making the presumption under § 1427(b) for an
absence greater than six months but less than one year relevant up until the time of
admission to citizenship. However, the Government has not specifically advocated for this
interpretation of the statute, and such a reading would potentially conflict with the Second
Circuit’s decision in Gildernew v. Quarantillo, 594 F.3d 131 (2d Cir. 2010) (discussed
below).
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for naturalization on September 14, 2009 (Dkt. 15-17 at § 10; Dkt. 20 at 7 10), and,
according to Plaintiff, this application was denied on March 1, 2011 (see Dkt. 1 at 26;
Dkt. 18-1 at 5-6). Plaintiff requested a hearing on the denial of his application (Dkt. 1 at J
27; see Dkt. 18-3) and was subsequently interviewed in March 2012 and April 2015 (see
Dkt. 15-17 at § 11; Dkt. 20 at § 11; see Dkt. 15-2 at 9 9; Dkt. 15-4 at 4; Dkt. 15-5 at 1).
Because both periods during which Plaintiff was continuously absent from the United
States for over six months occurred after Plaintiff's § 1447(a) hearing took place (i.e., in
2017 and 2018), § 1427(b) precludes either one of those absences from—standing alone—
creating a presumption that there was a break in continuity of residence. The Second
Circuit has indicated that this is the correct construction of § 1427(b) in explaining how
§ 1427(b) and § 1447(a) intersect:
The two clauses[ within the first paragraph of § 1427(b)], read
together, . . . embody the entire relevant period with respect to continuous
residence: the period immediately preceding the filing of the application, and
the period subsequent to the filing of the application until the sooner of the
applicant’s admission to citizenship, or an administrative hearing following
denial of the application.
Gildernew v. Quarantillo, 594 F.3d 131, 134 (2d Cir. 2010) (addressing an absence of
greater than one year).
The USCIS did not determine that Plaintiff’s break in continuity of residency was
based upon § 1427(b)—USCIS issued its “Notice of Intent to Deny” Plaintiff's
naturalization application on September 20, 2016, before Plaintiff was ever absent for these
periods exceeding six months. Thus, although Defendants ask this Court to determine that
the Attorney General’s discretion under § 1427(b) is unreviewable, this discretion was

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never triggered because the presumptions of § 1427(b) were not applicable at the time of
the USCIS’ decision and remain inapplicable now. While the Court seriously doubts that
the Attorney General’s continuous residence determination is unreviewable in light of the
“sweeping de novo review provided by Section 1421(c),” Escaler v. U.S. Citizenship &
Immigration Servs., 582 F.3d 288, 291 n.1 (2d Cir. 2009); see Ali, 2012 WL 1014834, at
*5-7 (rejecting the contention that the phrase “to the satisfaction of the Attorney General”
precluded judicial review of a § 1427(b) continuous residency determination), the Court
need not decide this issue because the continuous residency analysis relevant to this action
is performed under § 1427(a)(2)— not § 1427(b)—where no similar discretionary language
has been inserted into the statute.
IV. Defendants Established that Plaintiff Failed to Maintain Continuous Residency
as a Matter of Law, and Plaintiff Failed to Raise a Triable Issue of Fact
As noted above, “[t]o become a naturalized citizen, an applicant must meet the
statutory preconditions set forth in 8 U.S.C. § 1427.” Mitu v. Sessions, No. 16 Civ. 5876
(KPF), 2018 WL 456290, at *6 (S.D.N.Y. Jan. 17, 2018). “Under 8 U.S.C. § 1427(a), the

threshold issue is whether the naturalization applicant continuously resides in the United
States prior to filing [his] application and during the pendency of [his] application.”
McElhaney v. U.S. Citizenship & Immigration Servs., No. 3:09-CV-1474 (CFD), 2010 WL
4365819, at *4 (D. Conn. Oct. 20, 2010). “The INA defines ‘residence’ as ‘the place of
general abode; the place [of] general abode of a person means his principal, actual dwelling
place in fact, without regard to intent.’” Raynolds v. Napolitano, No. 3:11CV205 (AVC),
2013 WL 2149702, at *3 (D. Conn. May 16, 2013) (quoting 8 U.S.C. § 1101(a)(33)).

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“Residence” is similarly “defined in the Code of Federal Regulations as the ‘alien’s
domicile, or principal actual dwelling place, without regard to the alien’s intent.’” Jd.
(quoting 8 C.F.R. § 316.5(a)).
As explained above, § 1427(b) identifies consequences particular to an applicant
who has been absent from the United States for “more than six months but less than one
year” or for “a continuous period of one year or more” during “the period for which
continuous residence is required for admission to citizenship.” 8 U.S.C. § 1427(b).
Meanwhile, § 1427(a) imposes an overarching requirement that an applicant for
naturalization reside “continuously within the United States from the date of the application
up to the time of admission to citizenship.” Jd. § 1427(a)(2). Because Plaintiff was
continuously absent from the United States for six months or longer only after April 9,
2015, the last “administrative hearing following denial of [his] application” for
naturalization, Gildernew, 594 F.3d at 134, § 1427(b)’s presumptions do not apply.
However, the inapplicability of § 1427(b)’s temporal rules does not foreclose the
conclusion that Plaintiff has nevertheless failed to “reside[] continuously within the United
States from the date of the application up to the time of admission to citizenship.” See 8
U.S.C. § 1427(a)(2) (emphases added); 8 C.F.R. § 316.2(6)(2) (“[To be eligible for
naturalization, an alien must establish[, among other things,] that he or she... [h]asresided
continuously within the United States from the date of application for naturalization up to
the time of admission to citizenship.” (emphasis added)); Escaler, 582 F.3d at 289
(acknowledging that “continuous residence from the date of application until admission to

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citizenship” is among a number of requirements necessary to “[b]ecoming a naturalized
USS. citizen’).
At least two courts outside this Circuit have adopted this viewpoint. The decision
in Sharma v. U.S. Dep’t of Homeland Sec., No. CV H-08-1197, 2009 WL 10697616 (S.D.
Tex. Sept. 11, 2009) succinctly explained the distinction between § 1427(b) and § 1427(a):
Sharma misinterprets the relationship between absences and continuity of
residence. While 8 U.S.C. § 1427 assumes a break in continuity of residence
in specific scenarios (e.g. absences longer than six months), it does not
preclude a finding of a break in residency absent those circumstances.
Sharma mistakenly reasons that a condition sufficient to break residency
(absence of more than six months) is necessary to break residency, and that
without such an absence he cannot have abandoned his residence.
Id. at *3; see also Khan v. U.S. Citizenship & Immigration Servs., No. 15-CV-23406, 2019
WL 1323688, at *5 (S.D. Fla. Mar. 25, 2019) (“[E]ven if Plaintiff had initially established
residence in the United States, the Court may still consider his regular and frequent trips to
Pakistan in determining whether there was a break in residency.” (citing Sharma, 2009 WL
10697616, at *3)), appeal filed, No. 19-12050 (11th Cir. May 28, 2019).
The interpretation of § 1427 adopted by Sharma and Khan is persuasive. By
contrast, Plaintiff takes the position that the INA categorically permits repeated absences
from the United States of less than six months before the § 1447(a) hearing and of less than

one year before admission to citizenship. Plaintiff has cited no case authority for this
proposition. Instead, he relies on several commentators in the field of immigration and
naturalization. (See Dkt. 19 at 10). Plaintiffs citations do suggest that “absences of less
than six months between the filing of the application and the date of admission to
citizenship do not interrupt continuous residence.” David Levy, U.S. Citizenship and
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Naturalization Handbook § 7:15 (2018); see also Gordon, et al., 4 Immigration Law and
Procedure § 95.02 (2019) (“Absence from the United States of six months or less does not
affect the continuity of residence. The statute does not mention such absences, but
manifestly sanctions them in the light of the specific directives spelled out in the following
paragraphs.”). However, neither source analyzes the effect of several successive multi-
month absences on the continuity of residence.
According to Plaintiff, an applicant for naturalization may reside outside the United
States for the overwhelming majority of time between the filing of his application and his
admission to citizenship so long as the applicant returns to the United States just prior to
the running of the six-month or one-year abandonment period—whichever the case may
be. Plaintiff's position leaves § 1427(a)(2) without any significant meaning.
Section 1427(a)(2) requires the applicant to have “resided continuously within the
United States” for the relevant statutory period. 8 U.S.C. § 1427(a)(2). As noted above,
INA defines ‘residence’ as ‘the place of general abode; the place [of] general abode
of a person means his principal, actual dwelling place in fact, without regard to intent.’”
Raynolds, 2013 WL 2149702, at *3 (quoting 8 U.S.C. § 1101(a)(33)) (emphasis added).
The word “continuous” is not defined in the INA. “When a term goes undefined in a
statute, [courts] give the term its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560, 566 (2012). The common dictionary definition of “continuous” describes
an activity that is “marked by uninterrupted extension in space, time, or sequence.”
Continuous, Merriam-Webster, https://www.merriam-webster.com/dictionary/continuous
(Aug. 22, 2019).
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Certainly, one or even several temporary absences of less than six months in
duration would likely have little impact on whether an applicant has “resided continuously
within the United States . . . up to the time of admission to citizenship.” 8 U.S.C. § 1427(a);
see Alcarez-Garcia v Ashcroft, 293 F.3d 1155, 1158 (9th Cir. 2002) (“[T]he government
concedes that continuous physical presence is not required to establish residence and that
temporary absences do not operate to interrupt the period of the residence.”); Li v. Chertoff,
490 F. Supp. 2d 130, 132 (D. Mass. 2007) (“[{T]he mere fact of physical departure does not
alone constitute the lack of ‘physical presence’ necessary to result in a conclusion of
abandonment.”). In other words, a strict application of the word “continuously” may not
be appropriate where such absences are fleeting and few. However, to conclude that an
applicant’s “principal, actual dwelling place in fact” has continuously remained in the
United States even though he chose to live abroad for the vast majority of the statutorily
required period—returning only to avoid § 1427(b)’s presumption of abandonment—
would render § 1427(a)(2)’s continuity of residence requirement superfluous. See Puello

v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 330 (2d Cir. 2007) (noting
the “usual practice of rejecting a reading of a statute that would render a section of it
superfluous”); Allen Oil Co. v. Comm’r, 614 F.2d 336, 339 (2d Cir. 1980) (“Normally, a
statute must, if reasonably possible, be construed in a way that will give force and effect to
each of its provisions rather than render some of them meaningless.”’).
Since Plaintiff was required to have “resided continuously within the United States

... up to the time of admission to citizenship,” all of Plaintiff's frequent and extended
absences from the United States are appropriately considered in determining whether he
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satisfied § 1427(a)(2). The period of time relevant to this analysis is the 1,463 days
between July 8, 2014, and July 10, 2018, identified in Defendants’ unopposed Rule 56
statement. (Dkt. 15-17 at § 17; Dkt. 20 at § 17). Of those 1,463 days, Plaintiff was absent
from the United States for 1,198 days. Stated differently, Plaintiff remained outside the
United States for almost 82% of the time over the course of about four years. No rational
factfinder could conclude that the United States remained Plaintiff's “principal, actual
dwelling place in fact,” 8 U.S.C. § 1101(a)(33), and that he resided here “continuously”
when Plaintiff lived in the United States just 18% of the time, see also Khan, 2019 WL
1323688, at *5 (stating that the applicant’s technical compliance with the statute,
“returning to the United States . .. on multiple occasions before the six-month presumptive
time limit was triggered,” was insufficient to “establish continuous residence in the United
States”); see generally Berenyi, 385 U.S. at 637 (“This Court has often stated that doubts
should be resolved in favor of the United States and against the claimant.” (quotation
omitted)).
Defendants rely on Raynolds v. Napolitano, No. 3:11CV205 (AVC), 2013 WL
2149702 (D. Conn. May 16, 2013), where the court dealt with a relatively analogous set of
facts. In Raynolds, the alien filed a naturalization application on December 27, 2004, but,
“[bJeginning in 2005, [she] spent the majority of her time outside the United States.” Jd.
at *1, *3. Although the applicant spent at least one “seven[-]month absence” outside the
United States prior to her second interview with the USCIS and the denial of her
application, id. at *1, the Raynolds court did not base its decision on the presumption found
in § 1427(b). Instead, the court emphasized the fact that the applicant “was only in the
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United States for 52 days” between 2007 and December 22, 2010. Jd. at *3. As a result,
the court held that it could not “conclude that Connecticut was Raynolds’ ‘actual dwelling
place in fact,’” and determined that the applicant “did not meet the continuous residency
requirement contained in 8 U.S.C. § 1427(a).” Id.
The Raynolds decision is consistent with the approach taken by the courts in Sharma
and Khan. The Sharma and Khan courts also sought guidance from a set of non-exclusive
factors outlined in the USCIS’ regulations pertaining to the disruption of continuity of
residence. These factors include whether: (1) “[t]he applicant did not terminate his or her
employment in the United States”; (2) “[t]he applicant’s immediate family remained in the
United States” (3) “[t]he applicant retained full access to his or her United States abode”;
and (4) “[t]he applicant did not obtain employment while abroad.” 8 C.F.R.
§ 316.5(c)(1)(G)(A)-(D); see Khan, 2019 WL 1323688, at *5; Sharma, 2009 WL 10697616,
at *4. Defendants have cited to those same factors here and argue that they resolve in their
favor. (Dkt. 23 at 6).
The record evidence establishes that Plaintiff's immediate family moved to
Malaysia and intends to remain there for at least the next four years. (Dkt. 15-16 at 15-
17). In addition, Plaintiffs Iqama Card indicates that he is a resident of Saudi Arabia and
is actively employed by a foreign company. (See Dkt. 15-13; Dkt. 15-16 at 22-23, 34).
Accordingly, the second and fourth factors weigh heavily against Plaintiff.
Although Defendants contend that “Plaintiff has submitted no evidence as to his

access to his United States abode for the nearly two years that he was in Saudi Arabia”
(Dkt. 23 at 6), Defendants, as the movants on this motion, carry the burden of production,
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see generally Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)
(“If the evidence submitted in support of the summary judgment motion does not meet the
movant’s burden of production, then summary judgment must be denied even if no
opposing evidentiary matter is presented.” (quotation omitted)). According to Plaintiff's
supplemental responses to Defendants’ interrogatories, Plaintiff maintained a place of
abode within the United States from 2000 until at least 2018. (Dkt. 15-9 at 2). Thus, this
third factor either weighs in Plaintiffs favor or is neutral.
With respect to the first factor—Plaintiff’'s termination of employment in the United
States—the record is somewhat ambiguous. Although it appears that Plaintiff was
unemployed between 2013 and 2018 (Dkt. 15-9 at 3-4), the record also suggests that
Plaintiff suffered a “disabling accident” on December 6, 2013, and “has been disabled and
not working” since that date (Dkt. 15-10 at 4). While Plaintiff maintained relatively stable
employment and a place of abode in the United States for several years (see Dkt. 15-9 at
2-4), it appears that Plaintiff became unemployed after December 2013 and remained as
such until sometime in 2018 (id. at 4; see Dkt. 15-10 at 4). Although Plaintiff claims that
this period of unemployment was due to a “disabling accident,” there is little to no evidence
in the record relating to this incident. Indeed, Plaintiff testified that he did not receive
“disability benefits” while recovering from his injuries and simply relied upon “insurance.”
(Dkt. 15-16 at 9). Despite suffering some unidentified injury, which prevented him from
seeking new employment for about four years, Plaintiff was still able to travel abroad for
significant periods of time between July 2014 and July 2018, and he is now apparently
working in Saudi Arabia. Thus, this first factor either weighs against Plaintiff or is neutral.
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In addition, while Plaintiff appears to have complied with the technical requirements
of § 1427(b), by returning to the United States before a presumptive break in continuity
occurred, Plaintiff's sporadic and brief return visits were simply calculated to avoid the
consequences of these temporal time constraints and do not demonstrate any further
connections to his purported residency in New York. (Dkt. 15-16 at 29 (testifying that he
remained abroad for five months because, while he “wanted to be with [his] family, . . . the
law requires that you cannot be for like, whatever, six months so I had to come back, stay
here for sometime [sic] and then go back”), 31 (testifying that the reason he returned to the
United States for just 16 days was because he “didn’t want to go over [the] six month legal
period because [he is] a Green Card holder”)); see Abdul-Khalek v. Jenifer, 890 F. Supp.
666, 671 (E.D. Mich. 1995) (“It would appear from the record that Ms. Abdul-Khalek only
returned to the United States to preserve her status as a lawful permanent resident (and to
see her extended family).”). And, of course, the fact that Plaintiff spent almost 82% of his
time between July 8, 2014, and July 10, 2018, living abroad significantly weighs against
him. See Khan, 2019 WL 1323688, at *5 (considering that the plaintiff had “spent more
time living with his wife and children in his home in Pakistan than he spent at any address
in the United States”); Raynolds, 2013 WL 2149702, at *3 (considering that the applicant
“spent the majority of her time outside the United States” and only resided within the
United States for 52 days between 2007 and December 22, 2010).
Furthermore, the time Plaintiff spends abroad appears to have only increased since
2016, when his immediate family left the United States. (See Dkt. 15-16 at 9; Dkt. 15-17
at 17; Dkt. 20 at 17). Although his youngest son returned to the United States with him
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on at least two occasions (Dkt. 15-16 at 25), Plaintiff's immediate family is expected to
remain in Malaysia for the foreseeable future (id. at 15-17). While Plaintiff claims he will
remain in the United States to attend to his job (id. at 17), it is notable both that his Iqama
Card allows him to work in Saudi Arabia (id. at 22; see Dkt. 15-13), and that he maintains
real property in Pakistan (Dkt. 15-9 at 4). The balance of Plaintiff's contacts abroad
outweighs his comparatively minimal contacts here and further undermines any argument
that the United States has remained Plaintiff's “principal, actual dwelling place in fact.” 8
U.S.C. § 1101(a)(33); see 8 C.F.R. § 316.5(a). This is especially true in light of the
increasing frequency and duration of his extended periods away from this country. See
Khan, 2019 WL 1323688, at *5; Raynolds, 2013 WL 2149702, at *3; Sharma, 2009 WL
10697616, at *3; see also McElhaney, 2010 WL 4365819, at *4 (“To continuously reside
in the United States necessarily requires an applicant to ‘reside’ in the United States.”).
Accordingly, Defendants have established that Plaintiff has not “resided
continuously within the United States from the date of the application up to the time of
admission to citizenship,” and Plaintiff has failed to raise a triable issue of fact. Therefore,
Defendants are granted summary judgment based on Plaintiffs failure to satisfy the
continuous residence requirement of § 1427(a)(2).
CONCLUSION
For the foregoing reasons, Defendants’ motion to amend the initial notice of motion
(Dkt. 16) and motion for summary judgment (Dkt. 15) are granted, and the Complaint is
dismissed with prejudice. The Clerk of Court is directed to terminate this action.

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SO ORDERED.

apne of
United States District Judge
Dated: September 10, 2019
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361229. Public record. Not legal advice.