Dinh v. USCIS ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAI DINH, No. 2:19-cv-01455-TLN-JDP 12 Petitioner, 13 v. ORDER 14 UNITED STATES CITIZENSHIP AND 15 IMMIGRATION SERVICES, 16 Respondent. 17 18 This matter is before the Court on Petitioner Lai Dinh’s (“Petitioner”) “Petition to Change 19 Birthdate of Naturalized Citizen Before 1990 . . . ,” which the Court construes as a Petition to 20 amend a court-issued Certificate of Naturalization. (ECF No. 1.) Also before the Court is 21 Petitioner’s Motion of the same title, which seeks relief identical to that requested in the Petition. 22 (ECF No. 5.) Both Petition and Motion are unopposed. For the reasons set forth below, 23 Petitioner’s Petition is GRANTED, and the Motion is DENIED as moot. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Petitioner seeks to change the date of birth as reflected on her Certificate of Naturalization 3 from April 13, 1962, to April 13, 1959, on the basis that the date indicated on her certificate is 4 incorrect. (ECF No. 1 at 1.) 5 As detailed in her sworn declaration, Petitioner’s original birth certificate issued by the 6 government of the Republic of Vietnam properly recorded her actual birth date, April 13, 1959. 7 (See ECF No. 1-2 at 1; ECF No. 5 at 2.) However, Petitioner lost the original certificate and was 8 issued a replacement in 1977, after the country’s communist party seized control of the 9 government. (See id.) Petitioner asserts the replacement birth certificate misreported her date of 10 birth as April 13, 1962. (Id.) 11 Petitioner claims she escaped Vietnam and fled to Thailand in 1980. (Id.) Petitioner’s 12 sister subsequently sponsored her for lawful permanent residence in the United States, and 13 Petitioner implies that she used a “report card” with the incorrect 1962 date of birth during this 14 process. (Id.) Petitioner continued to use this “report card” as proof of her date of birth during 15 her naturalization proceedings. (Id.) The U.S. District Court for the Eastern District of California 16 naturalized Petitioner in a ceremony that occurred on March 23, 1987.1 (ECF No. 1 at 7; ECF 17 No. 1-2 at 1; ECF No. 5 at 2.) Petitioner’s naturalization certificate currently reflects the 1962 18 date of birth. (ECF No. 1 at 7.) 19 Petitioner attests that her cousin in Vietnam discovered her original birth certificate along 20 with other family documents roughly four years before she commenced the instant proceedings. 21 (ECF No. 1-2 at 1; ECF No. 5 at 2.) That certificate indicates Petitioner was born on April 13, 22 1959. (ECF No. 1 at 4–5; ECF No. 5 at 5–6.) Thereafter, Petitioner submitted a “Form N-565” 23 (Application for Replacement Naturalization/Citizenship Document) to the United States 24 25 1 Petitioner has submitted a copy of a replacement naturalization certificate she obtained on September 10, 2018. (ECF No. 1 at 7.) That document certifies Petitioner “proved to the 26 satisfaction of the Director” of the United States Citizenship and Immigration Services she was “entitled to be admitted to citizenship” and notes that Petitioner took “the oath of allegiance in a 27 ceremony conducted by the U.S. District Court of the Eastern District of California at Sacramento 28 on March 23, 1987.” (Id.) The Court finds this document sufficiently establishes Petitioner was 1 Citizenship and Immigration Services (“USCIS”), requesting to change the date of birth currently 2 reflected on her naturalization certificate. (See ECF No. 1 at 1–3; ECF No. 5 at 1, 3–4.) 3 However, because Petitioner naturalized before a federal court prior to the amendment of the 4 Immigration and Nationality Act by the Immigration Act of 1990, USCIS instructed Petitioner to 5 obtain a court order from the court which presided over her naturalization. (See id.) Accordingly, 6 Petitioner initiated the instant action. 7 On July 30, 2019, Petitioner filed the instant “Petition to Change Birthdate . . .” (originally 8 styled as a civil Complaint) for an order legally changing the date of birth as reflected on her 9 naturalization certificate. (ECF No. 1.) On November 4, 2020, Petitioner filed her motion of the 10 same name, which appears substantially identical to the original Petition. (ECF No. 5.) Apart 11 from executing and returning the initial summons, USCIS has neither appeared in the case nor 12 presented any objection to the Petition or Motion. (See ECF No. 4.) 13 I. STANDARD OF LAW 14 In a petition to amend the date of birth on a Certificate of Naturalization, “[t]he petitioner 15 bears the burden of showing that the date on his or her certificate of naturalization is incorrect.” 16 Binh Quang Le v. U.S. Citizenship and Immigr. Services, Dist. Director, No. C11-01871 HRL, 17 2011 WL 3678909, at *2 (N.D. Cal. Aug. 22, 2011) (citing Kouanchao v. U.S. Citizenship and 18 Immigr. Services, 358 F. Supp. 2d 837, 838 (D. Minn. 2005). A court may grant amendment 19 “where [1] the petitioner has presented clear evidence of her true date of birth and [2] there are no 20 concerns that petitioner acted fraudulently in representing her date of birth in her initial 21 naturalization petition.” Bazouzi v. Johnson, No. 14-MC-80261-JST, 2015 WL 1968004, at *3 22 (N.D. Cal. May 1, 2015). “This test properly guards against fraud and ensures the accuracy of 23 any alterations, but [it] does not set an unduly burdensome standard for petitioners seeking to 24 navigate the already byzantine procedures that govern amendment of official documents.” Id. at 25 *4. 26 II. ANALYSIS 27 As an initial matter, the Court finds Petitioner’s Petition is properly before this Court 28 because the Eastern District of California originally issued Petitioner’s naturalization certificate 1 prior to the enactment of the Immigration Act of 1990. (See ECF No. 1 at 7); Matter of 2 Shrewsbury, 77 F.3d 490 (9th Cir. 1996) (holding federal courts have jurisdiction over a petition 3 to modify a court-issued certificate of naturalization if it was issued before the passage of the 4 Immigration Act of 1990); see also Collins v. U.S. Citizenship and Immigr. Services, 820 F.3d 5 1096, 1098–1100 (9th Cir. 2016) (same). Accordingly, the Court addresses Petitioner’s Petition 6 on the merits as to each of the two prongs identified in Bazouzi. Bazouzi, 2015 WL 1968004, at 7 *3. 8 A. Evidence of True Date of Birth 9 The Court finds Petitioner has provided sufficient evidence that the date of birth on her 10 naturalization certificate is incorrect and that she was born on April 13, 1959. Petitioner submits 11 a birth certificate issued by a court in Vietnam, along with a notarized English translation, which 12 she asserts is her original birth certificate and which lists her date of birth as April 13, 1959. 13 (ECF No. 1 at 4–5.) Petitioner additionally provides a declaration in which she avers that her 14 cousin in Vietnam discovered her original birth certificate years after she had escaped the 15 communist regime and fled to Thailand. (ECF No. 1-2 at 1); see Bazouzi, 2015 WL 1968004, at 16 *5–6 (original birth certificate with translation and declaration sufficient to establish correct 17 birthdate); In re Chehrazi, No. C 12-80110 WHA, 2012 WL 3026537, at *3 (N.D. Cal. Jul. 24, 18 2012) (crediting a translated birth certificate as reflecting the petitioner’s correct birthdate); see 19 also Thumajaree v. U.S. Citizenship and Immigr. Services, No. 3:13-MC-00436-HZ, 2014 WL 20 1309343, at *3 (D. Or. Mar. 30, 2014) (finding Thai birth certificate and college transcripts 21 constituted clear and convincing evidence of the petitioner’s true birthdate). The Court finds 22 Petitioner has made a sufficient showing that her birth certificate contains her true date of birth. 23 Further, Petitioner has provided facts casting doubt on the accuracy of the birthdate 24 currently listed on her naturalization certificate. In her sworn declaration, Petitioner asserts the 25 birthdate on her naturalization certificate was based on a replacement birth certificate she was 26 issued by the new government after the communist regime overtook Saigon, Vietnam. (See ECF 27 No. 1-2 at 1.) When she was issued this birth certificate, the clerk mistyped her birth year. (Id.) 28 The Court finds Petitioner’s explanation of the birthdate discrepancies is plausible. Finally, the 1 Court notes that USCIS did not previously deny Petitioner’s form N-565 request to amend, nor 2 has the agency opposed the Petition or Motion. Cf. Lashkariani v. U.S. Citizenship and Immigr. 3 Services, No. 3:11-cv-00733-ECR-WGC, 2012 WL 3615460, at *1–2, 4 (D. Nev. Aug. 21, 2012) 4 (granting petition to amend naturalization certificate based on sworn affidavit and authenticated 5 Iranian birth documents, even where USCIS had previously denied the petitioner’s request). 6 Based on the foregoing, the Court is satisfied that Petitioner has presented clear evidence that her 7 correct date of birth is April 13, 1959. 8 B. Absence of Fraud 9 The Court is also satisfied that the record does not reveal “any significant signs of 10 fraudulent activity on the part of Petitioner” or resulting prejudice to the government. In re Lee, 11 No. C 06-80150-MISC MJJ, 2007 WL 926501, at *3 (N.D. Cal. Mar. 26, 2007). Petitioner 12 maintains she was issued a second, erroneous birth certificate in 1977 after a regime change in 13 Vietnam. (See ECF No. 1-2 at 1.) The record implies the incorrect date of birth on this certificate 14 was repeated on a “report card,” which Petitioner later used during her naturalization proceedings. 15 (See id.) Furthermore, Petitioner avers that she believed her original birth certificate was lost 16 when she fled from Vietnam. (See id.) The Court finds no indication that Petitioner’s use of the 17 “report card” with the incorrect birthdate during her naturalization proceedings was a deliberate 18 falsehood. See Application of Levis, 46 F. Supp. 527, 527–29 (D. Md. 1942) (finding petitioner’s 19 knowing use of an inaccurate birth date during naturalization proceedings was not fraudulent 20 because, “[i]t was not unnatural for [the petitioner] to have assumed that verification of the exact 21 date of birth was difficult, if not impossible” after fleeing Lithuania following German occupation 22 in 1914). Rather, given Petitioner fled the communist party’s takeover of Vietnam and possessed 23 no documentation containing the correct date, it would have been reasonable for Petitioner to 24 assume confirmation of her exact birth date would have been difficult, if not impossible. See id. 25 Moreover, there is nothing in the record to suggest that Petitioner is attempting to commit fraud 26 or has any incentive to do so. See Kouanchao, 356 F. Supp. 2d at 839–40 (granting petitioner’s 27 motion to amend date of birth, despite petitioner’s knowing use of an incorrect Laotian birth 28 certificate during his naturalization proceedings, because “[petitioner’s] mistake was not made 1 | with an improper motive to mislead the United States Government and. . . changing the date on 2 | his Certificate of Naturalization will confer no undue benefit on [petitioner], nor will it prejudice 3 | the Government.”). 4 Additionally, there is nothing in the record that indicates any prejudice will result to the 5 | government if Petitioner’s Motion is granted. Notably, USCIS did not deny Petitioner’s initial 6 | application to amend her date of birth, nor has it opposed either the original Petition or 7 | Petitioner’s subsequent Motion, thus waiving any opposition. (See ECF No. 1 at 2-3.) In sum, 8 || the record does not reflect any circumstances amounting to “significant signs of fraudulent 9 | activity” that would warrant denial of Petitioner’s unopposed request. 10 III. CONCLUSION 11 For the foregoing reasons, the Petition to amend Petitioner’s Certificate of Naturalization 12 | is hereby GRANTED. (ECF No. 1.) Petitioner’s Motion seeking relief identical to that asserted 13 | in her Petition is DENIED as moot. (ECF No. 5.) 14 The United States Citizenship and Immigration Service shall issue an amended Certificate 15 | of Naturalization stating that Petitioner’s date of birth is April 13, 1959. 16 IT IS SO ORDERED. 17 | Dated: February 9, 2021 /) {i / 8 f | 19 wn Voix *0 Unived States District Judge 21 22 23 24 25 26 27 28