Nyari v. Napolitano et al., No. 08-1406 (8th Cir. April 13, 2009)

SMITH, Melloy, Bowman

 

Nyari had entered as a Hungarian refugee, became an LPR and had filed successive applications to become a US citizen beginning in the late 80s.  His naturalization was held up because of allegations of sexual abuse made against Nyari by his ex-wife and then minor daughters.  As a result, the Department of Social Services (DSS) investigated the allegations, deemed the allegations “founded” and Nyari was listed in Virginia’s child abuse and neglect central registry.

 

No criminal charges were made against Nyari based on the sexual abuse allegations. Subsequently, Nyari’s daughters recanted their testimony about sexual abuse, stating they had been pressured as children to make them (Nyari had in fact received custody of his older daughter in 1992). 

 

In 2003, Nyari made a third application for naturalization, which was denied based on a lack of good moral character, tied to his registration in the Virginia registry.  Nyari appealed, submitting sworn statements by both daughters recanting any allegations of sexual abuse.  Nyari then filed a petitioner for review with the District Court pursuant to 8 USC § 1421(c).  On cross motions for summary judgment, the District Court granted the government’s motion, finding that Nyari was unable to establish his burden that he is a person of good moral character. The District Court did note that the record surrounding Nyari’s registration with the sexual abuse and neglect registry contained no facts as to the sexual abuse allegations but accounted the absence of any to Nyari’s failure to appear at that time and deemed his failure to appear the “equivalent of a ‘no contest.’”

 

On appeal, the 8th Circuit first noted that Nyari was not statutorily barred from establishing good moral character pursuant to 8 USC § 1427(a); 8 USC § 1101(f); 8 CFR § 316.10(b)(1)-(2), since the allegations were made more than 5 years preceding his application for naturalization.  The Court went on to note, however, that, 8 USC § 1427(e) permitted looking to acts outside of the statutory period required in determining an applicant’s good moral character.  See also 8 CFR § 316.10(a)(2). 

The Court also reviewed the District Court’s grant of summary judgment in the government’s favor, noting that the government, as the moving party, bore the burden of establishing the absence of a genuine issue of material fact and that it was entitled to the judgment as a matter of law.

 

The Court first looked to the weight both parties gave to Nyari’s inclusion in the registry, noting that Nyari’s name had been included as a result of administrative proceedings, not criminal in nature.  The District Court, the Court of Appeals noted, needed to engage in de novo review of the good moral character requirement, and engage in its own findings of fact rather than accept the findings of the Virginia DSS determination. No court, the Appeals Court noted, had ever relied on the conclusion of a civil administrative proceeding to support of finding of lack of good moral character.  The Appeals Court also noted that the “conduct” which led to Nyari’s inclusion in the registry did indeed occur more than 5 years before the application for naturalization and that his inclusion in the registry beyond the 5 years did not constitute “conduct” for purposes of 8 USC § 1427(a).

 

The Court also addressed the District Court’s conclusions around the fact that Nyari had failed to appear at the original administrative proceeding to challenge the sexual abuse allegations made against him, finding that the District Court’s conclusion that his failure to appear was the equivalent of a “no contest” plea in the criminal context. The Court noted that in a nolo contendere plea, the defendant specifically does not “expressly admit his guilty.”

 

As to the allegations of sexual abuse themselves, the Court noted that the District Court should have held a hearing to assess the credibility and weight of the recantations made by Nyari’s daughters and that it should not have dismissed these on a motion for summary judgment. 

 

Finally, the Court of Appeals held that the District Court did not err in denying Nyari’s own motion for summary judgment, opining that the District Court could still conclude that Nyari lacked good moral character.   While the Virginia DSS determination could not necessarily preclude a finding of good moral character, it did weigh against summary judgment in Nyari’s favor.

 

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