# Mashoud

> District Court, N.D. New York · March 4, 2026

URL: https://www.frixlaw.com/law-library/cases/11277581

## Case

- **Full name:** Moussa Mashoud v. USCIS: United States Citizenship and Immigration Services, and Sarah French, USCIS Syracuse Field Office
- **Court:** District Court, N.D. New York
- **Decided:** March 4, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________

MOUSSA MASHOUD,

Petitioner,
vs. 5:25-CV-289
(MAD/DJS)
USCIS: UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, and SARAH FRENCH,
USCIS Syracuse Field Office,

Respondents.
____________________________________________

APPEARANCES: OF COUNSEL:

MOUSSA MASHOUD
Oswego, New York
Plaintiff, pro se

OFFICE OF THE UNITED KAREN F. LESPERANCE, AUSA
STATES ATTORNEY
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, New York 12207
Attorney for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 5, 2025, Petitioner Moussa Mashoud filed a complaint, pro se, against
Respondents United States Citizenship and Immigration Services ("USCIS") and Sara French, the
Director of the USCIS Syracuse Field Office (collectively, "USCIS" or "Respondent"), seeking
this Court's review of USCIS's decision to deny Petitioner's application for naturalization pursuant
to two provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1421 and 1447(e),
and the Administrative Procedures Act ("APA"), 5 U.S.C. § 702. See Dkt. No. 1.
Presently before the Court is Respondent's motion to dismiss Plaintiff's complaint for lack
of subject matter jurisdiction and failure to state a claim. See Dkt. No. 22. Respondent argues
that "[a]s to Section 1421, petitioner cannot meet his statutory burden as a matter of law. As to 5
U.S.C. § 702, that remedy is unavailable where another statutory remedy exists. Petitioner's
Section 1447(e) cause of action fails because USCIS acted on his application and denied it." Dkt.
No. 22-3 at 7.1 Petitioner opposes the motion and asks for leave to amend his complaint. See

Dkt. No. 31. Respondent replied in further support of its motion. See Dkt. No. 32.
On August 27, 2025, Petition requested a Clerk's entry of default against Respondent. See
Dkt. No. 36. The Clerk's Office denied the request. See Dkt. No. 37. On February 4, 2026,
Petitioner filed a motion for default judgment. See Dkt. No. 49. He also filed a second request
for entry of default. See Dkt. No. 51. The Clerk's Office again denied Petitioner's request for
default stating as follows: "Request for Entry of Default CANNOT be honored for the following
reason: Pursuant to Rule 12, Defendant Sarah French filed 22 Motion to Dismiss in lieu of filing
an Answer. Therefore, Defendant Sarah French is not in default." Dkt. No. 52.
For the following reasons, Respondent's motion to dismiss is granted, Petitioner's

complaint is dismissed, and Petitioner's motions to amend and for default judgment are denied.
II. BACKGROUND
Petitioner alleges USCIS improperly denied his application for naturalization on
December 18, 2024, and his request for a hearing on February 25, 2025. See Dkt. No. 1 at 2 at ¶
4. He explains that USCIS denied his application because he "failed to submit an original or

1 The Court cites to the pagination generated by CM/ECF in the header of each page.
certified copy of the full arrest record from the incident on July 18, 2018[,]" and he could not
"establish [good moral character] if he or she was imprisonment for an aggregate of 180 days or
more during the statutory period based on the conviction." Id. Petitioner attached the two USCIS
decisions he presently challenges as exhibits to his complaint. See Dkt. No. 1-1.
The December 18, 2024, decision states that Petitioner obtained permanent resident status
on October 12, 2011, through his spouse. See id. at 2. He applied, via Form N-400, for
naturalization on November 4, 2023, and he was interviewed by USCIS on October 31, 2024. See
id. USCIS concluded Petitioner was "ineligible for naturalization because of an unlawful act you

committed." Id. It noted that "to be eligible for naturalization, you must demonstrate that you are
a person of good moral character. We find that the unlawful act you committed on July 18,
2018[,] and were imprisoned for during the statutory period adversely reflects upon your moral
character." Id.
USCIS explained as follows:
On July 18, 2018, you were arrested in the State of New York on
the following charges: Criminal Possession of a Weapon 2d Degree:
Loaded Firearm (PL 265.03); Criminal Possession of a Weapon 3d
Degree (PL 265.02); Criminal Possession of a Weapon 4th Degree:
Armor Piercing Ammunition Queens County, following your guilty
plea to 2 counts of Criminal Possession of a Weapon in the 4th
Degree (PL 265.01).

Id. It also stated that Petitioner was "subsequently sentenced to 364 days imprisonment on each
charge. During your interview on October 31, 2024, you testified that during the statutory period
you were incarcerated for an unknown amount of time in 2020 for this arrest." Id. In the
decision, USCIS concluded Petitioner had "not established that [he was] a person of good moral
character because of his unlawful act and [he had] not established any extenuating circumstances
that would warrant a departure from this finding." Id.
USCIS asserted it was also "denying [Petitioner's] application due to an insufficient
response to evidence requested from you." Id. USCIS requested "an original or certified copy of
the full police report and final court disposition showing how the incident on July 18, 2018[,] was
resolved. This evidence was due to USCIS no later than December 30, 2024." Id. USCIS stated
that Petitioner responded on December 2, 2024, with "a court disposition of the arrest dated June
14, 2022[,] and a payment receipt for a total of $250 in fines related to the arrest, both issued by
the Supreme Court of the State of New York, Queens County." Id. USCIS determined Petitioner
"failed to submit an original or certified copy of the full arrest record from the incident on July 18,

2018." Id. USCIS concluded Petitioner had "not submitted sufficient evidence to show that [he
met] the good moral character requirement. For this reason, [he had] not established that [he is]
eligible for naturalization." Id.
Two days later, on December 20, 2024, Petitioner filed a Form N-336 for a hearing on the
decision. See id. at 4. Petitioner appeared for the hearing on February 21, 2025. See id. On
February 25, 2025, USCIS affirmed its previous denial of Petitioner's application. See id. at 4-5.
USCIS reiterated its statements that Petitioner failed to provide sufficient evidence in response to
the RFE. See id. at 4. It also stated as follows:
[F]ollowing your July 18, 2018, [arrest] you were held in
confinement for 2 years and 28 days. Related to this arrest and
confinement, you were convicted on 2 counts of Criminal
Possession of a Weapon in the 4th Degree (PL 265.10.01). Each
charge carried a confinement of 364 days. The period of you[r]
confinement lasted until approximately August 15, 2020. You filed
your Form N-400 on November 04, 2023, thus your confinement
falls into the statutory period, which began 5 years prior to the date
of filing.

Id. at 4-5. USCIS explained that applicants for naturalization are unable to establish good moral
character "if he or she is or was imprisoned for an aggregate of 180 days or more during the
statutory period based on the conviction. The bar to [good moral character] applies regardless of
the reason for the conviction or when the conviction occurred, as long as the confinement
occurred during the statutory period." Id. at 5. Both decisions are signed by Defendant French.
See id. at 3, 5.2
Petitioner states in his response to the motion to dismiss that he was not incarcerated for
more than 180 days "based on a conviction" because he was incarcerated between July 18, 2018,
and August 15, 2020, which was before he was convicted on April 26, 2022. Dkt. No. 31 at 6.
Petitioner contends he "was given the option to leave the pretrial detention of the state if he

wished to do so, and $10[,]000 bond Bail was available to him, but defendant preferred to enter
into [] protective custody with the state, as at the time of his arrest [Petitioner]'s life was in
danger, and [Petitioner] did not feel safe bailing himself at that time[.]" Id. Petitioner states that,
on August 15, 2020, he was not released from incarceration because of "completing a sentence or
a conviction for a crime, but" because he "bailed himself out[.]" Id. at 7. He notes that after he
paid bail and was released, he "went to court every week for a total of 2 years from 2020 to 2022,
which gave him a favorable outcome of the deal with the people, [Petitioner] was given [] time
served." Id. Petitioner explains that he "show[ed] good moral character for 4 years post arrest . . .

2 USCIS provided the Court with a copy of the certified administrative record with its motion to
dismiss. See Dkt. No. 22-2. However, it is unnecessary to rely on any information outside
Petitioner's complaint and the USCIS decisions attached thereto. To be sure, part of the
administrative record includes the documents Petitioner submitted to USCIS related to his state
court conviction. Petitioner provided USCIS with a copy of a "Certificate of Disposition
Indictment" which is signed by the Queens County Court Clerk and indicates that on April 26,
2022, Petitioner was convicted of two counts of criminal possession of a weapon in the fourth
degree in violation of New York Penal Law § 265.01(1), an A Class Misdemeanor and was
sentenced to 364 days' imprisonment on each count. See id. at 68. However, the Court need not
address the propriety of USCIS's determination that Petitioner failed to submit sufficient evidence
because his application must be denied for the inability to establish the good moral character
requirement. The Court has been able to make that determination with only the evidence
submitted by Plaintiff with his complaint and the arguments of the parties.
never missed court, never got into trouble, and has not been in trouble since his arrest in 2018[.]"
Id.
III. DISCUSSION
USCIS raises three grounds in support of its motion to dismiss: (1) Petitioner failed to
establish good moral character under 8 U.S.C. § 1421 because of his conviction and incarceration;
(2) Petitioner cannot bring a claim under the APA; and (3) the claim brought pursuant to 8 U.S.C.
§ 1447(e) must be dismissed because USCIS acted on Petitioner's application. See Dkt. No. 22-3
at 7. Respondent is correct on all three grounds.

A. Standard of Review
"A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must
decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a
decision on the merits and, therefore, an exercise of jurisdiction." Dutrow v. New York State
Gaming Commission, No. 13-CV-996, 2014 WL 11370355, *3 (E.D.N.Y. July 29, 2014), aff'd,
607 Fed. Appx. 56 (2d Cir. 2015). "[A] federal court generally may not rule on the merits of a
case without first determining that it has jurisdiction over the category of claim in suit ([i.e.,]
subject-matter jurisdiction)." Sinochem Int'l Co., Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S.
422, 430-31 (2007) (citation omitted). "A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power
to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
When subject matter jurisdiction is challenged, a plaintiff "bear[s] the burden of 'showing
by a preponderance of the evidence that subject matter jurisdiction exists.'" APWU v. Potter, 343
F.3d 619, 623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)).
"In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a
district court may consider evidence outside the pleadings." Morrison v. Nat'l Australia Bank
Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citing Makarova, 201 F.3d at 113).
In reviewing a motion to dismiss under Rule 12(b)(1), the court "must accept as true all
material factual allegations in the complaint, but [is] not to draw inferences from the complaint
favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
The court "may consider affidavits and other materials beyond the pleadings to resolve the
jurisdictional issue, but [ ] may not rely on conclusory or hearsay statements contained in the
affidavits." Id. In resolving a Rule 12(b)(1) motion, a court may also "consider 'matters of which

judicial notice may be taken.'" Greenblatt v. Gluck, No. 03-CV-597, 2003 WL 1344953, *1 n.1
(S.D.N.Y. Mar. 19, 2003) (quoting Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.
1993)).
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not

extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," FED. R. CIV. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled
to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the
speculative level," id. at 555 (citation omitted), and present claims that are "plausible on [their]
face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678
(citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's

liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'"
Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where
a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]" id. at 570.
B. Respondent's Motion to Dismiss Based on Lack of Subject Matter Jurisdiction
1. Administrative Procedures Act
Petitioner alleges in his complaint that the APA gives this Court the power to review an
administrative agency's actions and determination. See Dkt. No. 1 at 5. Respondent does not

disagree, as a general matter, but argues that because the INA provides a procedural mechanism
for this Court to review USCIS's decision, the APA is inapplicable. See Dkt. No. 22-3 at 11-12.
"The APA generally provides a waiver of the United States' sovereign immunity for suits
seeking relief other than monetary damages brought by '[a] person suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency action within the meaning of the
relevant statute.'" De Dandrade v. United States Dep't of Homeland Sec., 367 F. Supp. 3d 174,
187 (S.D.N.Y. 2019), aff'd sub nom. Moya v. United States Dep't of Homeland Sec., 975 F.3d 120
(2d Cir. 2020) (quoting 5 U.S.C. § 702); see also Bowen v. Massachusetts, 487 U.S. 879, 891-92
(1988). "'There are . . . many threshold limitations to judicial review under the APA.'" Id.
(quoting Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008)). "The APA only provides for
judicial review of actions that are reviewable by statute or any 'final agency action for which there
is no other adequate remedy in a court.'" Id. (quoting 5 U.S.C. § 704).
Petitioner cannot bring a claim under the APA because the relief he seeks—"judicial
review [of] the findings and decision" of USCIS—is available under § 1421(c) of the INA. Dkt.

No. 1 at 7. "Courts have recognized that § 1421(c) is the 'sole means of seeking judicial review of
the actual denial of naturalization application.'" Rahman v. Garland, 791 F. Supp. 3d 357, 367
(E.D.N.Y. 2025) (quoting Kaibanda v. U.S. Citizenship & Immigr. Serv., 2022 WL 2195345, *8
n.8 (S.D.N.Y. June 17, 2022)); see De Dandrade, 367 F. Supp. 3d at 187 ("All relief that
individual plaintiffs seek may be granted under section 1421(c)); see also Alfar v. Gray, No. 22-
CV-10260, 2024 WL 4653000, *6 (S.D.N.Y. Oct. 31, 2024) (citing Li v. Garland, No. 21-CV-
10601, 2022 WL 17095250, *14 (S.D.N.Y. Nov. 21, 2022)); Miriyeva v. U.S. Citizenship &
Immigr. Serv., 436 F. Supp. 3d 170, 178 n.11 (D.D.C. 2019), aff'd, 9 F.4th 935 (D.C. Cir. 2021).
Accordingly, because there are alternative means for this Court to review Petitioner's

claim, the Court lacks subject matter jurisdiction to consider his APA claim. Respondent's
motion is granted on this issue.
2. 8 U.S.C. § 1447(e)
Petitioner brings a claim pursuant to § 1447(e) of the INA for "a de novo hearing in this
court for a name change requested on the N 400 naturalization application that was denied by the
respondent on December 18, 2024[,] or during the N 336 request for hearing interview which was
also denied by responded on February 25, 2025." Dkt. No. 1 at 6, ¶ 12.
Respondent argues the § 1447 claim must be dismissed for lack of subject matter
jurisdiction because "[t]he district court's jurisdiction under Section 1447(b) vests with a
naturalization applicant's petition for a hearing in the absence of a timely decision by USCIS," but
USCIS acted on Petitioner's application. Dkt. No. 22-3 at 12 (emphasis added). Respondent also
contends that § 1447(e) concerning name changes is inapplicable where a naturalization
application has been denied. Id. at 13 n.6.

"Section 1447(a) provides an applicant whose application was denied under § 1447(b)
with the opportunity to request a hearing before an immigration officer—an administrative
appeal." Iqbal v. Sec'y U.S. Dep't of Homeland Sec., 190 F. Supp. 3d 322, 329 (W.D.N.Y. 2016)
(citing 8 U.S.C. 1447(a)). "USCIS must schedule the § 1447(a) review hearing 'within a
reasonable period of time not to exceed 180 days from the date upon which the appeal is filed.'"
Id. (quoting 8 C.F.R. § 336.2(b)). "The district court's jurisdiction under Section 1447(b) vests
with a naturalization applicant's petition for a hearing in the absence of a timely decision by
USCIS." Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir. 2009). "USCIS also retains
jurisdiction beyond the 120-day period following the initial examination as long as a

naturalization applicant does not file a Section 1447(b) petition." Id. (citing 8 U.S.C. § 1447(b)).
"When a petitioner's case does not fall into the exceptions carved out by . . . § 1447(b), the Court
lacks adjudicatory authority." Donnelly v. Controlled Application Rev. & Resol. Program Unit,
503 F. Supp. 3d 100, 105 (S.D.N.Y. 2020), aff'd but criticized, 37 F.4th 44 (2d Cir. 2022).
"If . . . the USCIS denied a naturalization application before the filing of a complaint
under § 1447(b) in federal district court, 'a live controversy concerning the determination of the
application—the subject matter of Section 1447—d[oes] not exist and the claim [i]s moot.'" Rizk
v. Mayorkas, No. 22-CV-5692, 2024 WL 2860230, *7 (D.N.J. June 6, 2024) (quoting Assem
Abulkhair v. Bush, 413 Fed. Appx. 502, 505, n.1 (3d Cir. 2011)); see also Usoh v. U.S.C.I.S., No.
2:22-CV-1470, 2023 WL 4634955, *3 (D.S.C. July 20, 2023), aff'd as modified sub nom. Usoh v.
United States Citizenship & Immigr. Servs., 2024 WL 3842106 (4th Cir. Aug. 16, 2024) ("As
noted by the magistrate judge, the USCIS has resolved Petitioner's N-400 application. Thus, 8
U.S.C. § 1447(b) does not apply"); Pena Grullon v. Barr, No. 3:20-CV-0312, 2021 WL 743296,
*5 (M.D. Pa. Feb. 25, 2021) ("It is undisputed that [the petitioner's] N-400 application had been

fully adjudicated prior to the initiation of this action. The plain language of 1447(b) applies to
unadjudicated applications").
Because Petitioner did not file his complaint in this Court until after USCIS denied his
application, the Court lacks jurisdiction to hear his claim under § 1447(b). Insofar as Petitioner
cited § 1447(e) in this complaint, the Court agrees with Respondent that such a claim concerns the
changing of an applicant's name when their application has been granted. See 8 U.S.C. § 1447(e)
("It shall be lawful at the time and as a part of the administration by a court of the oath of
allegiance under section 1448(a) of this title for the court . . . to make a decree changing the name
of said person, and the certificate of naturalization shall be issued in accordance therewith").

Because USCIS denied Petitioner's application, § 1447(e) in inapplicable.
C. De Novo Review of Naturalization Application Pursuant to 8 U.S.C. § 1421(c)
"Congress has provided an avenue for seeking naturalization in federal court after an
unsuccessful administrative appeal of an initial denial." Donnelly v. Controlled Application Rev.
& Resol. Program Unit, 37 F.4th 44, 48 (2d Cir. 2022). The INA provides as follows:
[a] person whose application for naturalization under this
subchapter is denied, after a hearing before an immigration officer
under [8 U.S.C. § 1447(a)], may seek review of such denial before
the United States district court for the district in which such person
resides in accordance with chapter 7 of title 5.

8 U.S.C. § 1421(c). "When its conditions are met, § 1421(c) 'offers an expansive form of judicial
review.'" Donnelly, 37 F.4th at 48 (quoting Moya v. DHS, 975 F.3d 120, 127 (2d Cir. 2020)).
"According to its terms, '[s]uch review shall be de novo, and the court shall make its own findings
of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de
novo on the application.'" Id. (quoting 8 U.S.C. § 1421(c)).
"As the Second Circuit has described, 'this grant of authority is unusual in its scope—
rarely does a district court review an agency decision de novo and make its own findings of fact.'"
Saleh v. Jaddou, No. 21-CV-10240, 2023 WL 5671149, *6 (S.D.N.Y. Sept. 1, 2023) (quoting
Chan v. Gantner, 464 F.3d 289, 291 (2d Cir. 2006)). "Nevertheless, although USCIS 'is allowed
to make the initial decision on a naturalization application, the district court has the final word
and does not defer to any of the [USCIS's] findings or conclusions.'" Id. (quoting Chan, 464 F.3d
at 291).
"[T]he district court may rely on both the administrative record and facts established in the
district court.'" Id. (citations and quotation marks omitted). "The burden remains on the
'applicant to show his eligibility for citizenship in every respect,' and 'doubts "should be resolved
in favor of the United States and against the claimant."'" Id. (quoting Berenyi v. District Director,
385 U.S. 630, 637 (1967)); see also United States v. Macintosh, 283 U.S. 605, 626 (1931).
1. Request for a Hearing
Section 1421(c) states that "the court shall . . . at the request of the petitioner, conduct a
hearing de novo on the application." 8 U.S.C. § 1421(c). The Second Circuit has stated,
however, that "[a]bsent some otherwise expressed Congressional intent, the mere use of the word
'hearing' in a statute does not mandate an evidentiary hearing be held." Chan, 464 F.3d at 296
(citing J.D. ex. rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 68 (2d Cir. 2000)). The Second Circuit
has, therefore, affirmed a district court's grant of summary judgment in USCIS' favor without the
holding of a bench trial or evidentiary hearing. See id.; see also Rahman, 791 F. Supp. 3d at 363
("[T]he Federal Rules of Civil Procedure 'apply to proceedings for admission to citizenship,' . . .
and therefore 'a court need not conduct an evidentiary hearing' in cases where 'there are no
disputed issues of material fact'") (quoting FED. R. CIV. P. 81(a)(3); Del Orbe v. Holder, 12-CV-

1057, 2012 WL 3826182, *2 (S.D.N.Y. Aug. 27, 2012)).
Here, although Petitioner requests a "hearing" in his complaint, the Court finds that, based
on the facts set forth in the complaint and the USCIS decisions attached thereto, Plaintiff has
failed to state a claim for relief and a hearing would be futile.
2. Merits of Naturalization Application
"'The general naturalization statute, 8 U.S.C. § 1427, sets forth various conditions with
which an individual must comply in order to be eligible for naturalization.'" Saleh, 2023 WL
5671149, at *4 (quoting Boatswain v. Gonzales, 414 F.3d 413, 416 (2d Cir. 2005)). "[A]pplicants
must first be 'lawfully admitted for permanent residence,' and they then must maintain continuous

residence within the United States (1) for at least five years immediately preceding the date of the
naturalization application and (2) during the interval between the application and admission for
citizenship." Id. (quoting 8 U.S.C. § 1427(a)). "Where the applicant is the spouse of a U.S.
citizen, 'and during the three years immediately preceding the date of filing his application [the
applicant] has been living in marital union with the citizen spouse,' the requirement is shortened
to three years of continuous residence." Id. (quoting 8 U.S.C. § 1430(a)). However, during the
"five years immediately preceding the date of the naturalization application," the applicant must
"ha[ve] been and still [be] a person of good moral character." 8 U.S.C. § 1427(a)(3).
Good moral character is defined by the INA. The statute states, in part, as follows:
No person shall be regarded as, or found to be, a person of good
moral character who . . . during such period has been confined, as a
result of conviction, to a penal institution for an aggregate period of
one hundred and eighty days or more, regardless of whether the
offense, or offenses, for which he has been confined were
committed within or without such period[.]

8 U.S.C. § 1101(f)(7); see also Rivera v. U.S. Citizenship & Immigr. Servs., 5 F. Supp. 3d 439,
442 (S.D.N.Y. 2014) ("An applicant is also precluded from establishing good moral character if,
during the relevant statutory period, he has been incarcerated for 180 days or more as a result of a
criminal conviction").
Here, Petitioner raises a textualist argument concerning application of the 180-day-
confinement rule which prohibits a finding of good moral character. He argues that because his
confinement preceded his conviction, then it was not "as a result of conviction[.]" 8 U.S.C. §
1101(f)(7); see also Dkt. Nos. 1, 31.
Recently, the Third Circuit, relying on decisions from the Ninth and Tenth Circuits, has
held that "§ 1101(f)(7) is best understood to include the period of a defendant's pre-conviction
confinement if it is later credited toward his sentence." Aguilar v. Att'y Gen. United States, 107
F.4th 164, 170 (3d Cir. 2024). The Third Circuit explained that "[a]s both the Ninth and Tenth
Circuits reasoned, crediting the time spent in detention against the term of imprisonment imposed
after conviction now is a 'uniform practice.'" Id. (quoting Arreguin-Moreno v. Mukasey, 511 F.3d
1229, 1232 (9th Cir. 2008)); see also Garcia-Mendoza v. Holder, 753 F.3d 1165, 1170-71 (10th
Cir. 2014). Relying on a Second Circuit case, which addressed a different provision of the INA,
the Third Circuit noted that "'[t]he federal government, fifty states, and the District of Columbia
provide by statute, rule, or court decision that time spent by a defendant in pre-conviction
detention is to be treated as a day-for-day credit or reduction of the term of imprisonment
imposed upon conviction.'" Id. (quoting Spina v. Dep't of Homeland Sec., 470 F.3d 116, 127 (2d
Cir. 2006)).
The Third Circuit stated, "[t]he reason defendants 'will ordinarily earn time-served credit
for any period of presentencing detention' is that 'postconviction incarceration is considered
punishment for the offense.'" Id. (quoting Betterman v. Montana, 578 U.S. 437, 447 n.9 (2016)).

"So when a defendant spends time in custody in connection with the crime for which he is later
convicted, and that pre-conviction confinement is credited toward his ultimate sentence, his
detention effectively becomes part of the term of imprisonment imposed by the judgment." Id.
Therefore, the Third Circuit concluded that "[f]or practical purposes, [the petitioner's pre-
conviction] confinement thus is 'a result of conviction' under § 1101(f)(7)." Id.
As noted, the Second Circuit has considered a similar issue. The Second Circuit was
tasked with answering whether the Immigration and Naturalization Service erred in "deeming [a
petitioner] ineligible for discretionary relief from deportation pursuant to § 212(c) . . . on the
ground that he had served a term of imprisonment of at least five years" because the "time he

spent in pre-conviction detention was not 'served' as part of the 'term of imprisonment' imposed
upon conviction . . . ." Spina, 470 F.3d at 119. The Second Circuit stated that "when courts
sentence defendants in pre-conviction detention to 'time served,' it is generally understood that the
pre-conviction custody thereby becomes the term of imprisonment imposed by the judgment." Id.
at 128 (collecting cases). Therefore, the Second Circuit concluded as follows:
[W]hen, as in this case, a defendant is credited with time served in
pre-conviction detention, thereby reducing on a day-for-day basis
the remaining time he will have to serve on his term of
imprisonment, that pre-conviction detention is plainly understood to
be part of the term of imprisonment "served" for the felony crime of
conviction, regardless of whether the result is to make the defendant
eligible for earlier release from confinement or ineligible for
discretionary relief pursuant to INA § 212(c).

Id. at 129.
In making its determination, the Second Circuit referenced § 1101(f)(7) in a footnote. See
id. at 125, n.7. The Second Circuit noted that "[t]he government invites us to defer to the BIA's
conclusion that, in the context of another provision of immigration law, INA § 101(f)(7), 8 U.S.C.
§ 1101(f)(7), pre-conviction detention constitutes service of the term of imprisonment." Id.
(citing Matter of Valdovinos, 18 I. & N. Dec. 343 (BIA 1982)). The Second Circuit declined to
consider the Government's argument because it "conclude[d] that, when time spent in pre-
conviction detention is credited against or used to reduce a term of imprisonment, that detention is
plainly and commonly understood to qualify as part of the time 'served on the term of
imprisonment' for the felony crime of conviction. 8 U.S.C. § 1182(c)." Id.
The Seventh Circuit has concluded the same. See Moreno-Cebrero v. Gonzales, 485 F.3d
395, 400 (7th Cir. 2007). In addressing the same language from § 212(c) which was considered
by the Second Circuit, the Seventh Circuit explained that it had "no reason to think that it
mattered to Congress whether the person served time before conviction or after: it is the overall
service of a term of imprisonment that reflects the seriousness of the crime and the culpability of
the alien." Id. The Seventh Circuit noted that "[f]or example, INA § 101(f)(7), 8 U.S.C. §
1101(f)(7), excludes from the definition of someone with 'good moral character' any person 'who
during [the preceding five years] has been confined, as a result of conviction, to a penal institution
for an aggregate period of 180 days or more.'" Id. It explained that "[i]n computing the period of
time for purposes of this section, the BIA has held that confinement prior to conviction should be
included." Id. (citation omitted).
Accordingly, based on the Second Circuit as well as other circuit courts' understanding
"that pre-conviction detention is . . . to be part of the term of imprisonment" Spina, 470 F.3d at
129, for purposes of calculating one's length of incarceration under the INA, the Court concludes
that Petitioner's time served before his conviction constitutes confinement "as a result of
conviction[.]" 8 U.S.C. § 1101(f)(7).

Petitioner does not dispute USCIS's finding that he was "held in confinement for 2 years
and 28 days" related to his conviction for two counts of criminal possession of a weapon in the
fourth degree. Dkt. No. 1-1 at 4. Because that confinement is more than 180 days and those 180
days occurred within the five years of his application for naturalization, his application must be
denied. See 8 U.S.C. §§ 1101, 1427; cf. Chan, 464 F.3d at 296 (describing the provisions in
§ 1101(f) as "statutory bar[s]" to establishing the good moral character requirement).
This conclusion does raise some practical concerns, however. For example, what if a
defendant is incarcerated for years, but goes to trial and is found not guilty? What if a defendant
is ultimately sentenced to a term of imprisonment less than the time they spent being incarcerated

before they were convicted? The Third Circuit, in Aguilar, discussed such concerns.
The Third Circuit agreed there is "[n]o doubt an individual's confinement would be 'a
result of his inability to post bail' rather than 'a result of conviction' if his pretrial detention were
not credited as time served in the judgment of conviction." Aguilar, 107 F.4th at 171 (citing
Troncoso-Oviedo v. Garland, 43 F.4th 936, 941 (9th Cir. 2022)). "In that context, casting pretrial
detention as confinement under § 1101(f)(7) indeed would 'unduly discriminate[ ] against those
too poor to muster sufficient funds for bail.'" Id. (citation omitted). Likewise, "if a defendant's
conviction were vacated, any period of pretrial confinement in connection with it logically would
not preclude a finding of good moral character." Id. "And, if a defendant's pretrial detention
exceeds the sentence ultimately imposed, only the latter would count as confinement under the
statute." Id. "For instance, a defendant who spent 200 days in pretrial detention and is sentenced
to 170 days' imprisonment with credit for time served could still establish his good moral
character." Id. Therefore, the Third Circuit concluded that "[t]his fact-based inquiry, which looks
to the actual sentence for the conviction, alleviates any fear that defendants may be penalized for

their inability to make bail." Id.
The Court agrees. Plaintiff alleges that, within the five years before he applied for
naturalization on November 4, 2023, he was convicted and he served more than 180 days in jail
for those convictions, even though the confinement came before the conviction. Plaintiff does not
allege that his conviction was overturned or that he was sentenced to less time than the time he
served. As such, he is ineligible to be regarded as a person of good moral character for purposes
of applying for naturalization under 8 U.S.C. § 1427(a).3 Petitioner's application for
naturalization, therefore, must be denied and his complaint must be dismissed.
IV. CONCLUSION

Upon careful consideration of the entire record in this matter, the parties' submissions and
the applicable law, and for the reasons set forth herein it is hereby

3 Petitioner labels his response in opposition to the motion to dismiss as a cross-motion to amend,
but he does not include any additional allegations in his filing. See Dkt. No. 31. As such, his
motion to amend is denied. Likewise, because the Court is dismissing Petitioner's complaint, his
motion for default judgment is denied as moot. See Dkt. No. 49.
ORDERS the Respondents’ motion to dismiss (Dkt. No. 22) is GRANTED; and the Court
further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice for
lack of subject matter jurisdiction as for the claims brought pursuant to 8 U.S.C. § 1447(e) and 5
U.S.C. § 702; and with prejudice for the claim brought pursuant to 8 U.S.C. § 1421; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that Petitioner's cross-motion to amend (Dkt. No. 31) is DENIED: and the
Court further
ORDERS that Petitioner's motion for default judgment (Dkt. No. 49) is DENIED as
moot; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: March 4, 202 dh fhe ie DL? ict Z
Albany, Now ork
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11277581. Public record. Not legal advice.