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U.S. v. REVE

December 31, 2002

UNITED STATES OF AMERICA,
v.
HIRAM CRISTOBAL REVE, DEFENDANT.



The opinion of the court was delivered by: Cooper, District Judge

AMENDED MEMORANDUM OPINION

This is an action to revoke and set aside the April 1996 order granting the 1995 application by the defendant, Hiram Cristobal Reve, for naturalized citizenship on the ground that it was procured by concealment of a material fact or by willful misrepresentation. 8 U.S.C. § 1451(a). The plaintiff ("the government") moves for summary judgment on the complaint, or alternatively to strike Reve's six affirmative defenses and preclude discovery as to those defenses. The defendant cross-moves for further discovery and leave to assert the additional defenses of laches and a due process violation. For the following reasons, the branch of the motion that is for summary judgment will be granted, the branch of the motion that is to strike the affirmative defenses and to preclude discovery will be denied as moot, and the cross motion will be denied as moot.

BACKGROUND: APPLICATION FOR NATURALIZED CITIZENSHIP; RELEVANT NEW JERSEY CRIMINAL STATUTES; TIME-LINE OF EVENTS; and, RELEVANT PROCEDURAL HISTORY

I. Application for Naturalized Citizenship

An application for naturalized citizenship should be denied unless the applicant "has been and still is a person of good moral character" during the period encompassing the five years preceding the application through the oath of allegiance. 8 U.S.C. § 1427(a)(3); see 8 C.F.R. § 316.10(a)(1). In addition:

No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was —
(3) a member of [a] class[] of persons, whether inadmissable or not, described in . . . subparagraph[] (A) . . . of section 1182(a)(2) of this title . . . if the offense described therein, for which such person was convicted or of which he [sic] admits the commission, was committed during such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section).

8 U.S.C. § 1101(f)(3)&(8). First, § 1182(a)(2)(A) states in relevant part:

(A) Conviction of certain crimes

(i) In general

. . . [Any] alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of —
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.*fn1

Second, according to the version of § 1101(a)(43) in effect in 1995 and 1996, an "aggravated felony" included:

a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of imprisonment) is at least 5 years.

8 U.S.C. former § 1101(a)(43)(F).*fn2 A "crime of violence" is:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.

The government is authorized to institute a proceeding against a naturalized citizen to:

revok[e] and set[] aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization . . . were procured by concealment of a material fact or by willful misrepresentation.

8 U.S.C. § 1451(a).

II. Relevant New Jersey ...


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