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Koszelnik v. Secretary of Department of Homeland Security

United States District Court, D. New Jersey

November 18, 2014

KRZYSZOF KOSZELNIK, Petitioner,
v.
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

LAW OFFICES OF JOHN KUHN BLEIMAIER John Kuhn Bleimaier, Esq., Princeton, New Jersey, Counsel for Petitioner.

U.S. DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION Neelam Ihsanullah, Esq., Washington, D.C. Counsel for Respondents.

OPINION

JOSEPH E. IRENAS, Senior District Judge.

Petitioner Krzyszof Koszelnik, a Polish citizen, seeks judicial review of the United States Citizenship and Immigration Services' ("USCIS") denial of his naturalization application.[1] Respondent ("the Government") moves for summary judgment, asserting that the decision was correct. The Court agrees and therefore will grant the Government's motion.

I.

The material facts and procedural history are undisputed.

In September, 1984, "during a period of martial law in Poland, during the communist government crackdown on the pro-democracy Solidarity movement, " (Koszelnik Aff. ΒΆ 2), Petitioner came to the United States as a B-2 non-immigrant visitor for pleasure. He overstayed his tourist visa.

On November 25, 1985, the INS charged Petitioner with being deportable for remaining in the United States longer than permitted. (Respondents' Ex. A) At this time, Petitioner was assigned an "A-number."[2]

Petitioner proceeded through the usual legal process, appearing before an Immigration Judge, who denied Petitioner's application for relief from deportation, found Petitioner deportable, and granted him voluntary departure. (Respondents' Ex. B)

The Board of Immigration Appeals subsequently dismissed Petitioner's appeal of the IJ's decision.

Petitioner failed to voluntarily depart, and the voluntary departure order became a final deportation order by operation of law. Although Petitioner states that he was not aware that a deportation order had been issued against him, and the Government admits that the formal Warrant of Deportation "may have been returned to sender, '" (Moving Brief, p. 3 fn. 1), Petitioner does not dispute that he was informed through a translator at his hearing before the IJ that if he failed to voluntarily depart that he would be deported.

Petitioner never left the United States, and subsequently applied for a diversity visa through the State Department's lottery program.

In 1994, in connection with his application for a diversity visa and adjustment of status, Petitioner filed the requisite form with the INS (Respondents' Ex. D) but failed to include his prior A-number. In response to the question, "Have you ever been deported from the U.S., or removed from the U.S. at government expense, excluded within the past year, or are you now in exclusion or deportation proceedings?" Petitioner answered, "no." (Id.)

INS, unaware at the time, of Petitioner's prior deportation proceeding, issued Petitioner a new A-number. On May 3, 1995, the INS approved Petitioner's application and granted him permanent resident status. (Respondents' Ex. E) It is undisputed that because of the prior order of deportation, Petitioner was not actually ...


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