Haciosmanoglu v. Tritten et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Serkan Haciosmanoglu, )
)
Plaintiff, )
)
vs. )
)
Leslie D. Tritten, Field Office Director, ) ORDER GRANTING DEFENDANTS’
SP-M Field Office, U.S. Citizenship and ) MOTION TO DISMISS
Immigration Services (“USCIS”); David )
Douglas, Director of USCIS, District 151; ) Case No. 3:21-cv-00005
Tracy Renaud, Senior Official Performing )
the Duties of the Director, USCIS; Merrick )
Garland, U.S. Attorney General; and )
Alejandro Mayorkas, Secretary of the U.S. )
Department of Homeland Security, )
)
Defendants. )
Plaintiff Serkan Haciosmanoglu seeks judicial review of a decision by U.S. Citizenship
and Immigration Services (“USCIS”) to deny his application for naturalization. The Defendants
moved to dismiss the complaint on April 21, 2021. Doc. No. 9. Haciosmanoglu responded in
opposition to the motion on April 27, 2021. Doc. No. 11. The Defendants filed a reply on May
11, 2021. Doc. No. 12. For the reasons below, the motion is granted.
I. BACKGROUND
At the motion to dismiss stage, the Court accepts the complaint’s factual allegations as true.
See Doc. No. 4. Haciosmanoglu is a citizen and native of Turkey. Id. ¶ 10. He now resides in
Fargo, North Dakota. Id. He obtained conditional permanent resident status in February 2013
through his then wife, who is a United States citizen. Id. ¶ 25. USCIS later lifted the conditions
1 David Douglas is now Director of District 32, not District 15.
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and granted him lawful permanent resident status. Id. He applied for naturalization on December
6, 2017. Id. ¶ 27.
USCIS denied the application based on a determination that Haciosmanoglu lacked good
moral character. Id. ¶ 31. For support, USCIS pointed to a July 20, 2015 incident where law
enforcement arrested him for domestic assault. Doc. No. 4-9, p. 2.2 Police reports indicate that
Haciosmanoglu attempted to take a phone away from his wife by wrapping his arms around her
chest from behind and grabbing her wrists. Doc. No. 10-1, p. 2. A responding officer observed
injuries on her wrists and a tear in her shirt. Id. at 3. But from Haciosmanoglu’s perspective, he
called 911 due to a verbal disagreement with his wife, and law enforcement arrested him after
disbelieving his statements. Doc. No. 4, ¶ 33. On November 3, 2015, he pleaded guilty to a lesser
disorderly conduct offense. Doc. No. 4-2. A Minnesota state court imposed no jail time but placed
him on probation. Id. Haciosmanoglu satisfied the conditions of the plea deal, resulting in case’s
dismissal on June 6, 2017. Id.
In addition, USCIS mentioned that Haciosmanoglu had previously been arrested for
disorderly conduct on July 23, 2009. Doc. No. 4-9, p. 2. That arrest apparently stemmed from a
profanity-laden outburst at a bank. Doc. No. 10-2. Prosecutors continued the case for dismissal.
Doc. No. 4-1. Like for the later incident, a Minnesota state court sentenced Haciosmanoglu to
probation. Id. He met the conditions, prompting dismissal of the case. Id.
2 Records from Haciosmanoglu’s immigration and criminal proceedings merit consideration on a
motion to dismiss. See Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003) (explaining
that a “district court may take judicial notice of public records and . . . consider them on a motion
to dismiss”).
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Following the denial of his naturalization application, Haciosmanoglu pursued an
administrative appeal. Doc. No. 4-6. He received a hearing before an immigration officer. Doc.
No. 4-7. On November 10, 2020, USCIS reaffirmed the denial. Doc. No. 10-3.
Haciosmanoglu filed the instant complaint on January 11, 2021. Doc. No. 4. The
complaint advances three related claims under the Immigration and Nationality Act (“INA”) for
judicial review of the denial of his naturalization application. Id. Further, the complaint alleges a
violation of the Administrative Procedure Act (“APA”) and requests a declaratory judgment. Id.
II. LEGAL STANDARD
A complaint must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure
authorizes dismissal if a complaint fails to state a claim upon which relief can be granted. “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)). A complaint is facially plausible
where its factual content “allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A plaintiff must plead facts that show more than mere
speculation or possibility that a defendant acted unlawfully. Wilson v. Ark. Dep’t of Hum. Servs.,
850 F.3d 368, 371 (8th Cir. 2017) (citing Iqbal, 556 U.S. at 678). Courts must “review the
plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual allegation.”
Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Zoltek Corp. v. Structural
Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)).
While obligated to accept a complaint’s factual allegations as true, courts are not required
to accept a plaintiff’s legal conclusions or a “formulaic recitation of the elements of a cause of
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action.” In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en
banc) (quoting Iqbal, 556 U.S. at 678). A complaint does not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. Whether a complaint states a plausible
claim is a “context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” In re SuperValu, Inc., 925 F.3d 955, 962 (8th Cir. 2019) (citation omitted).
A noncitizen denied naturalization may petition for judicial review in the federal district
court for the district where he resides. 8 U.S.C. § 1421(c). The district court reviews USCIS’s
decision de novo. Id.
III. DISCUSSION
The Defendants contend that Haciosmanoglu is ineligible for naturalization because he
engaged in criminal conduct that adversely reflects on his moral character within the statutory
lookback period. More specifically, the Defendants assert that he committed domestic assault in
July 2015, for which he later pleaded guilty to disorderly conduct. Haciosmanoglu disputes that
he committed domestic assault. He also argues that his disorderly conduct conviction does not
dispositively impugn his moral character. And even if it does, Haciosmanoglu believes that he has
sufficiently pleaded extenuating circumstances.
A noncitizen “has no inherent right to naturalization.” Ralich v. United States, 185 F.2d
784, 786 (8th Cir. 1950). Because “Congress alone has the constitutional authority to prescribe
rules for naturalization,” judicial review is limited to ensuring “strict compliance with the statutory
conditions precedent.” Fedorenko v. United States, 449 U.S. 490, 507 (1981). The applicant bears
the burden to prove that he satisfies all the prerequisites for naturalization by a preponderance of
the evidence. 8 C.F.R. § 316.2(b).
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The lone contested requirement here mandates proof that an applicant “has been and still
is a person of good moral character” for the five years immediately preceding his application. 8
U.S.C. § 1427(a). The INA leaves good moral character undefined. Nonetheless, the statutory
scheme bars certain classes of persons from establishing good moral character. Examples include
those who have given false testimony to obtain immigration benefits or have been convicted of an
aggravated felony. See 8 U.S.C. § 1101(f)(1)-(9). Yet that list is not exhaustive. A determination
that an applicant is outside the enumerated classes “shall not preclude a finding that for other
reasons such person is or was not of good moral character.” 8 U.S.C. § 1101(f).
To identify “other reasons,” USCIS has promulgated 8 C.F.R. § 316.10. That regulation
ordinarily instructs a reviewing entity to assess an applicant’s moral character “on a case-by-case
basis taking into account the elements enumerated in this section and the standards of the average
citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2). Even so, “[n]o balancing of
factors can occur if [an applicant] lacks good moral character as a matter of law.” Olaifa v.
Mayorkas, No. 18 CV 6801, 2021 WL 1057736, at *5 (N.D. Ill. Mar. 18, 2021). The regulation
goes on to command that an applicant “shall be found to lack good moral character if, during the
statutory period” he “committed unlawful acts that adversely reflect on [his] moral character, or
was convicted . . . for such acts.” 8 C.F.R. § 316.10(b)(3)(iii). The sole exception arises when an
applicant “establishes extenuating circumstances.” Id. The regulation is accorded judicial
deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984);
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United States v. Suarez, 664 F.3d 655, 660-61 (7th Cir. 2011); United States v. Jean-Baptiste, 395
F.3d 1190, 1194 (11th Cir. 2005).3
In sum, the regulation poses three salient questions. First, did Haciosmanoglu commit or
sustain a conviction for an unlawful act during the statutory period? Second, if so, does the
unlawful act adversely reflect on his moral character? And third, if it does, has he plausibly alleged
extenuating circumstances?
As a straightforward starting point, Haciosmanoglu was convicted of an unlawful act
during the statutory period. He pleaded guilty to disorderly conduct on November 3, 2015, just
over two years before he submitted his naturalization application. To the extent Haciosmanoglu
now attempts to contest his conviction, he is collaterally estopped from doing so. See United
States v. Aleff, 772 F.3d 508, 510 (8th Cir. 2014).
The Defendants encourage the Court to venture further and conclude that Haciosmanoglu
committed domestic assault. But such a determination is premature. Haciosmanoglu’s complaint
never admits that he committed domestic assault. Instead, he merely acknowledges that law
enforcement arrested and initially charged him for that offense. See Doc. No. 4, ¶ 26. Prosecutors
later dismissed the charge in favor of a lesser disorderly conduct offense. Nor do the police reports
from the incident definitively establish that a domestic assault occurred. Despite his wife’s
allegations and observed injuries, Haciosmanoglu insists that he called 911 due to a verbal
disagreement. At the pleadings stage, the Court cannot determine that Haciosmanoglu committed
3 The Ninth Circuit takes a unique stance, holding that 8 C.F.R. § 316.10(b)(3)(iii) is not a per se
bar to naturalization. Hussein v. Barrett, 820 F.3d 1083, 1089 (9th Cir. 2016). Under that
approach, a district court confronted with an applicant who committed unenumerated illegal
conduct must “consider all relevant factors in making its ultimate determination . . . of good moral
character.” Id. at 1090. With no precedent from the Eighth Circuit, this Court will adhere to the
majority view and defer to the regulation’s mandatory language.
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domestic assault based on unproven allegations in a police report. The Court will therefore confine
analysis to whether the disorderly conduct conviction precludes naturalization.
Even with that narrower focus, though, Haciosmanoglu’s disorderly conduct conviction
negatively impacts his moral character. A disorderly conduct offense is more than a “mere
technical or regulation violation [that] may not be against the standards of an average member of
the community.” USCIS Policy Manual, Vol. 12, Part F, Ch. 5. And unlike many other
misdemeanor offenses, disorderly conduct inherently suggests a moral transgression. Consider the
adjective’s definition: “Opposed to or violating moral order, constituted authority, or recognized
rule or method.” Disorderly, Oxford English Dictionary, https://www.oed.com/view/Entry/54865
(last visited July 2, 2021). In that sense, the raison d’etre for a law against disorderly conduct is
to penalize aberrant behavior that falls below community standards. Haciosmanoglu pleaded
guilty to violating precisely such a law. See Minn. Stat. § 609.72, subd. 1(3) (prohibiting conduct
that is “offensive, obscene, abusive, boisterous, or noisy”). As a result, Haciosmanoglu’s
disorderly conduct conviction adversely reflects on his moral character.
Remaining for resolution, then, is whether Haciosmanoglu has plausibly alleged
extenuating circumstances. Extenuating circumstances “must pertain to the reasons showing lack
of good character, . . . not to the consequences of these matters.” Suarez, 664 F.3d at 662 (quoting
Jean-Baptiste, 395 F.3d at 1195). In other words, extenuating circumstances “render a crime less
reprehensible than it otherwise would be, or tend to palliate or lessen its guilt.” Id. (cleaned up).
Administrative guidance counsels that extenuating circumstances generally cannot arise from
“conduct or equities (including evidence of reformation or rehabilitation) subsequent to the
commission of the unlawful act.” USCIS Policy Manual, Vol. 12, Part F, Ch. 5.
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Here, the complaint sets out three putative extenuating circumstances—rehabilitation,
minor criminal history, and the charge’s eventual dismissal.4 Doc. No. 4, ¶ 54. None suffice.
Taking each in turn, post-offense rehabilitation derives from conduct that Haciosmanoglu
undertook after commission of the unlawful act. So rehabilitation in no way “pertain[s] to his
culpability” for disorderly conduct “and its negative impact on his moral character.” Jean-Baptiste,
395 F.3d at 1195. Likewise, “that this appears to have been a one-time offense” during the
statutory period does “nothing to mitigate its seriousness.” Olaifa, 2021 WL 1057736, at *7
(quoting Suarez, 664 F.3d at 662). As a compounding factor, “an applicant’s conduct prior to the
statutory period is relevant . . . to the extent that it reflects on his . . . moral character within the
statutory period.” Nyari v. Napolitano, 562 F.3d 916, 920 (8th Cir. 2009). Although not
committed within the five years preceding his application, Haciosmanoglu’s 2009 disorderly
conduct offense illustrates a pattern of failure to comport his behavior with the law. See 8 C.F.R.
§ 316.10(a)(2) (noting that USCIS may consider conduct prior to the statutory period “if the
conduct of the applicant during the statutory period does not reflect that there has been reform of
character from an earlier period or if the earlier conduct and acts appear relevant to a determination
of the applicant’s present moral character”). Finally, the charge’s ultimate dismissal relates
exclusively to the consequences for the offense, offering nothing to “palliate or lessen its guilt.”
Suarez, 664 F.3d at 662 (citation omitted). All told, Haciosmanoglu’s complaint inadequately
pleads extenuating circumstances.
4 Haciosmanoglu’s response brief attempts to proffer an additional extenuating circumstance,
contending that he played a “minimal role” in the offense. Doc. No. 11, p. 12. “However, it is
axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”
Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (citation
omitted). Thus, the Court cannot consider Haciosmanoglu’s belatedly raised extenuating
circumstance. Even if the Court could do so, neither the complaint nor the underlying record
supports an inference for a diminished role in the disorderly conduct offense.
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Because he accrued a conviction for an unextenuated criminal offense that adversely
reflects on his moral character during the statutory period, Haciosmanoglu has failed to plausibly
allege that the INA entitles him to naturalize. For the same reasons, the complaint cannot establish
that USCIS’s decision violated the APA as arbitrary, capricious, or contrary to law. See 5 U.S.C.
§ 706. The complaint is similarly insufficient to warrant a declaratory judgment.
IV. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
For the reasons above, the Defendants’ motion to dismiss (Doc. No. 9) is GRANTED. The
complaint is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 2nd day of July, 2021.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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