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Jose Gonzalez v. Janet Napolitano

March 16, 2011

JOSE GONZALEZ,
PETITIONER,
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL ., RESPONDENTS.



The opinion of the court was delivered by: Hon. William J. Martini

OPINION

MEMORANDUM OPINION

I. INTRODUCTION

Petitioner has filed a Petition for Review of [the Administrative] Denial of [His] Application for Naturalization. Since then, both parties have filed competing motions for summary judgment.

For the reasons elaborated below and because there appears to be no question of material fact, the Court will DENY Petitioner's Motion for Summary Judgment; will GRANT Respondent's Motion for Summary Judgment; and, will DENY Petitioner's Petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Jose Gonzalez (a/k/a Tito) was born in Panama on August 1, 1966 and is a citizen of Spain. When he was about 32 he moved to the United States and began work in the construction industry. At the time of his deposition in 2010, he was working as a longshoreman. Soon after arriving in the United States, Petitioner began relationships with two women.

Ines Beatriz Otero. During 1999, Petitioner met and began dating Ines Beatriz Otero, an American citizen, and after roughly 9 months of dating, they married on February 4, 2000.

At the time he married Otero, Petitioner lived in an apartment at 603 North Broad Street, Elizabeth, New Jersey.After marrying Otero, Petitioner moved into her apartment, where Otero's two daughters also lived. Thereafter, Petitioner and Otero's relationship went into decline. He separated from Otero in August 2004, filed for divorce on October 21, 2004, which became final on March 7, 2005. His divorce complaint states that on or about August 1, 2004, he left the marital residence and again took up residence at 603 North Broad Street. The divorce complaint also noted that Petitioner has two children and named YGP and AGP.*fn1

Margarete Picinin. Margarete Picinin is the mother of YGP and AGP. Picinin is a married Brazilian citizen, who entered the United States around 1995 on a now expired ten-year visa. Picinin married her Brazilian husband while she still lived in Brazil, came to the United States without him, and has had no contact with her husband since that time. During 1998 or 1999, Petitioner began dating Picinin. After some six months to a year of dating, Petitioner began a long term on-again off-again intimate relationship with Picinin. Some time in 2000 or 2001, Picinin moved to 603 North Broad Street. Picinin paid the rent, although Petitioner helped Picinin out with her bills. Petitioner gave Picinin around $300 a month, although he gave her more when, late in her pregnancy, she was unable to work. Petitioner also helped Picinin with her bills during her second pregnancy. Petitioner believed that Picinin also had another male friend who helped her with her bills. In 2003, while still married to Otero, Petitioner moved into Picinin's apartment for several weeks, at a time when Petitioner and Picinin were already having relations. Afterwards Petitioner returned to his marital residence and continued living with Otero. The depositions of Petitioner, Otero, and Picinin do not reflect a second such incident over the course of the marriage prior to Otero and Petitioner's separation in 2004.

When Petitioner met Otero, he had already begun his relationship with Picinin. After marrying Otero, he continued both relationships and it is less than clear what Picinin knew about Otero and when she knew it. At her deposition, Otero denied knowing anything about Picinin.

Picinin gave birth to two children, YGP (a girl), during February 2000,*fn2 and AGP (a boy), during August 2001. Picinin Depo. 27:22-24, Oct. 13, 2010. Initially, no father was listed on the two birth certificates. According to Gonzalez, when YGP and AGP were born, Picinin told him that he was the father. Petitioner claims he did not believe Picinin's claim as to his paternity.*fn3 In his deposition, Gonzalez neither admits nor denies that these children are his biological children, but he does allow them to use his last name, apparently because he thinks they "may" be his children.*fn4

On March 27, 2000, Petitioner filed an Adjustment of Status I-485 Form. Otero supported the application. Indeed, on the same day, Otero filed an Alien Relative Petition I-130 Form on behalf of Petitioner. The application requires the applicant to list all children. Petitioner did not list YGP, who was born earlier that year. See Ex. 6 at 7, part 3(b). Although, Petitioner's statement appears to be false, it was not oral testimony. (The Government's brief states that there was an oral interview in which Petitioner affirmed under oath that he had no children, but the Government puts forward no evidentiary support for its position.) On May 19, 2001, Petitioner was granted lawful permanent resident status based on his application.

Petitioner and Otero's tax transcripts for their joint returns reflect that during the years 2001, 2002, and 2003, Petitioner claimed 5 or 6 deductions (with four deductions being accounted for by Petitioner, Otero, and Otero's two children from her prior marriage). The Government believes that these deductions in excess of four reflect that Petitioner knew and acted upon the knowledge that YGP and AGP were his children, even at this early juncture. In his deposition, Petitioner was unable to account for why these Government-created records reflected this number of deductions. The Government also points to the fact that it made a timely discovery request to Petitioner for his actual tax returns, but Petitioner did not produce the returns.

On February 14, 2003, Petitioner filed a Petition to Remove Conditions on Residence I-751 Form. The application requires the applicant to list all children. Here, too, Petitioner did not list YGP and AGP. On or about, July 26, 2004, Gonzalez and Otero's joint checking and joint money market accounts were closed.

On or about July 2004, Petitioner and Otero's relationship went into decline. On or about August 1, 2004, Gonzalez separated from his wife and moved out of the marital residence (which he shared with Otero), moved (back to) 603 North Broad Street, and took up ...


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