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Bidzimou v. United States Citizenship and Immigration Services

United States District Court, Tenth Circuit

August 13, 2013

CONSTANT B. BIDZIMOU, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

MEMORANDUM AND ORDER

Sam A. Crow, United States District Senior Judge

Pursuant to 8 U.S.C. § 1421(c), Plaintiff Constant B. Bidzimou has petitioned for review of the denial of his naturalization application by the Immigration and Naturalization Service (INS). In response, Defendant filed a motion to dismiss, alleging the petition fails to state a claim to relief. Plaintiff has responded. See Dks. 11, 14, 15.

I. Procedural Background

A. Plaintiff’s Underlying Criminal Acts

In September of 2007, Plaintiff sent two faxes with threatening language about its property and personnel to an AT&T office located in Wichita, Kansas. Plaintiff sent additional faxes to two other individuals, threatening them personally and threatening one of their families. Plaintiff was arrested at his home on September 17, 2007, and was charged in Kansas state court with four counts of criminal threat, which are severity level 9 person felonies.

The jury convicted Plaintiff on August 20, 2008 of two of the four counts of criminal threat. Plaintiff was sentenced to 12 months of probation with an underlying sentence of 12 months' incarceration. Plaintiff appealed his conviction and his sentence, but the Kansas Court of Appeals dismissed that appeal.

Plaintiff was incarcerated for over 300 days because of his convictions. From September 17, 2007 to October 16, 2007, Plaintiff served 30 days in Sedgwick County Jail after being arrested for four felony counts of criminal threat and before being released on bond. From April 21, 2008 to June 20, 2008, Plaintiff served 61 days in Sedgwick County Jail before his jury trial began. From October 27, 2009 to December 17, 2009, Plaintiff served 52 days in Sedgwick County Jail after violating the terms of his probation and before being transported to El Dorado Correctional to serve the remainder of his underlying prison sentence. Because Plaintiff had served 91 days in prison prior to his original conviction and 52 days before the Eighteenth Judicial District Court of Kansas in Sedgwick County revoked his parole, the court credited this time served from his underlying twelve-month prison sentence. From December 17, 2009 to February 1, 2010, Plaintiff served 45 days in Sheriff’s custody awaiting transport to the El Dorado Correctional Facility. From February 1, 2010 to June 3, 2010, Plaintiff served 122 days in El Dorado Correctional Facility before being released by the Kansas Parole Board.

B. Plaintiff’s INS Application

On February 22, 2012, after having served more than 300 days in penal confinement during the preceding five years, Plaintiff filed his N-400 Application for Naturalization. In it, Plaintiff answered that he had been arrested, charged, and convicted of a crime and acknowledged that he had served time in prison, listing the start dates of his periods of confinement. On July 24, 2012, USCIS denied Plaintiff’s N-400 on the basis that he had spent an aggregate of 180 days or more in confinement during the statutory five-year good moral character period. Plaintiff sought review of that denial and appeared at a hearing. On March 4, 2013, USCIS reaffirmed its denial, citing court documents Plaintiff had submitted which showed he had been incarcerated for over 180 days during the good moral character period. USCIS also noted that Plaintiff admitted under oath at his N-336 interview that he had been incarcerated for 180 days or more during the relevant time period. On April 2, 2013, Plaintiff filed a Complaint with this Court seeking de novo review of USCIS’s denial of his N-400 Application for Naturalization, and Defendant moved to dismiss.

II. Legal Standards

As part of the Immigration and Naturalization Act (INA), Congress specifically granted jurisdictional authority to the federal district courts to review de novo the denial of an application for naturalization. 8 U.S.C. § 1421(c). “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.” Nagahi v. I.N.S., 219 F.3d 1166, 1168-1169 (10th Cir. 2000). Because the “Government has a strong and legitimate interest in ensuring that only qualified persons are granted citizenship, ” the burden is on the Plaintiff to show his “eligibility for citizenship in every respect.” Berenyi v. INS, 385 U.S. 630, 637 (1967).

The Federal Rules of Civil Procedure apply to this court's review. See Chan v. Gantner, 464 F.3d 289, 295-96 (2d Cir. 2006) (quoting Fed.R.Civ.P. 81(a)(2)) (finding that the mandate of a de novo hearing does not preclude the use of summary judgment procedures where the agency denies an application based on a statutory bar to naturalization.) Therefore, the court can dismiss the complaint or grant summary judgment if appropriate.

Defendant has filed a motion to dismiss. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the complaint for sufficiency for purposes of a Rule 12(b)(6) motion, the court also considers the attachments to the complaint. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Plaintiff has attached numerous documents central to the complaint, so the Court shall consider them. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Chief among them are the following: 1) the journal entry of his criminal trial showing the jury convicted him on two of four counts of criminal threat; 2) the journal entry of judgment in that case showing plaintiff was sentenced to ...


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