NOT PRECEDENTIAL 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SONAL SHAH,

Plaintiff,

v.

JOHN THOMPSON, Newark District 

Director, United States Citizenship and 

Immigration Services; UNITED STATES 

CITIZENSHIP AND IMMIGRATION 

SERVICES, 

Defendants.

Civ. No. 2:11-3082 (WJM)

OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Pursuant to the Immigration & Nationality Act of 1952, Sonal Shah (“Sonal”)

requests that this Court overturn a decision by the United States Citizenship and Immigrant 

Services (“UCIS”) denying her application for naturalization. This matter comes before 

the Court on Defendants’ motion for summary judgment and Sonal’s cross-motion for 

summary judgment. The motions both concern whether Sonal was lawfully admitted for 

permanent residence before she applied for naturalization. If she was not lawfully admitted 

as a permanent resident, the Court must uphold the decision denying her application for 

naturalization. Pursuant to FED. R. CIV. P. 78 no oral argument was heard. For the reasons 

set forth below, Defendants’ motion for summary judgment is GRANTED, and Sonal’s 

cross-motion for summary judgment is DENIED. Judgment will be entered in favor of 

Defendants. 

I. BACKGROUND

Except where otherwise noted, the following facts are undisputed. Sonal is a native 

and citizen of India, who current resides in Edison, New Jersey. (Complt. at ¶ 3). On June 

30, 1995, Sonal and her husband Sejal entered the United States on B-2 non-immigrant 

visas, which authorized them to remain in the country until December 29, 1995. (Def’s 

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Statement of Material Facts (SOMF) at ¶ 2). Despite being authorized to stay in the United 

States until only December 29, 1995, Sonal and Sejal remained in the country until they 

subsequently departed for Canada on November 26, 2000. (Def’s SOMF at ¶4). 

“Sometime in late 2000 or early 2001,” Sonal and Sejal decided to return the United States. 

(Def’s SOMF at ¶5). Sonal states that during this period, there was a policy known as the 

“Commonwealth Rule” in place for citizens of British Commonwealth countries, including 

India. (Plf’s SOMF at ¶4). Sonal further contends that under the Commonwealth Rule, 

she and her husband were entitled to reenter the United States from Canada without a valid 

United States visa. (Id.) However, when the couple first attempted reentry to the United 

States, they were denied by an officer who was “not familiar with the ‘Commonwealth 

Rule.’” (Id. at ¶5). The parties dispute the nature of this encounter at the border, but both 

agree that Sonal and Sejal were in Canada during this time period. Despite being denied

initially, Sonal and Sejal were eventually able to return to the United States. (Id. at ¶6). 

On or about July 1, 2001, Sonal filed an application to adjust her status to that of a 

permanent resident, which was supported by an approved visa petition filed by her thenemployer. (Def’s SOMF at ¶6). In connection with her application for adjustment, Sonal 

paid $1,000 for a waiver of inadmissibility under section 1255(i) (also known as a 245(i) 

waiver). Shortly after Sonal applied, Sejal also filed for an adjustment as the derivative 

beneficiary of Sonal’s application. (Def’s SOMF at ¶7). Sonal’s application for an 

adjustment included documents in her file “with respect to [her] departure from the United 

States [to Canada] while not in valid immigration status and her return to the United 

States.” (Plf’s SOMF at ¶7). Notwithstanding that fact, in May 2002 INS approved Sonal 

and Sejal’s applications for permanent residency. 

In May 2010, Sonal applied to naturalize as a United States citizen. (Def’s SOMF 

at ¶8).1

 On October 29, 2010, USCIS denied Sonal’s application for naturalization for two 

reasons: (1) Sonal was never lawfully admitted for permanent residence; and (2) Sonal 

demonstrated poor moral character when she answered “No” after initially being asked 

whether she had left the United States Between June 30, 1995 and May 24, 2002. (Def’s 

SOMF, Ex. 2). In February 2011, USCIS denied Sonal’s administrative appeal of the 

decision rejecting her naturalization application. (Def’s SOMF, Ex. 3).

Sonal filed the instant action in May of 2011. See ECF No. 1. In February 2012, 

Sonal moved for summary judgment on the issue of whether USCIS was correct in finding 

that Sonal lacked good moral character. Concluding that there was a genuine issue of 

material fact regarding whether Sonal lied during her naturalization interview, the Court 

denied the motion for summary judgment. ECF No. 14.

1 Sejal had previously applied for naturalization and became a United States citizen 

without incident. (Plf’s SOMF at ¶9). 

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Now both parties have moved for summary judgment on USCIS’ other basis for 

denying Sonal’s application for naturalization—namely, whether Sonal was lawfully 

admitted for permanent residence before submitting her application. If Sonal was not 

lawfully admitted for permanent residence, the Court must uphold the USCIS decision 

denying her application for naturalization. If she was lawfully admitted for permanent 

residence, the case must proceed on the issue of whether USCIS correctly determined that 

Sonal lacked good moral character. 

II. MOTIONS FOR SUMMARY JUDGMENT 

A. Legal Standard 

Federal Rule of Civil Procedure 56 provides for summary judgment “if the 

pleadings, the discovery [including, depositions, answers to interrogatories, and 

admissions on file] and disclosure materials on file, and any affidavits show that there is 

no genuine issue as to any material fact and that the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual 

dispute is genuine if a reasonable jury could find for the non-moving party, and is material 

if it will affect the outcome of the trial under governing substantive law. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and 

inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli 

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

Initially, the moving party has the burden of demonstrating the absence of a genuine 

issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this 

burden, the nonmoving party must identify, by affidavits or otherwise, specific facts 

showing that there is a genuine issue for trial. Id. The opposing party must do more than 

just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart 

Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary 

judgment, the nonmoving party must identify specific facts and affirmative evidence that 

contradict those offered by the moving party. Anderson, 477 U.S. at 256–57. 

An applicant seeking review of a naturalization denial bears the burden of 

establishing that he or she is entitled to naturalization. See Berenyi v. District Director, 

INS, 385 U.S. 630, 636-37 (1967). The applicant must demonstrate that he or she meets 

each statutory requirement for becoming a naturalized citizen. Id. at 637. Additionally, 

“there must be strict compliance with all the congressionally imposed prerequisites to the 

acquisition of citizenship.” Fedorenko v. United States, 449 U.S. 490, 506 (1981). 

B. Requirements for Naturalization

The requirements for naturalization are governed by federal statute. One 

requirement provides that “no person shall be naturalized unless he has been lawfully 

admitted to the United States for permanent residence in accordance with all applicable 

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provisions of this chapter.” 8 U.S.C. § 1429. Moreover, an individual is eligible for 

naturalization only if “immediately preceding the date of filing his application for 

naturalization[, he] has resided continuously, after being lawfully admitted for permanent 

residence, within the United States for at least five years....” 8 U.S.C. § 1427. 

To be “lawfully admitted for permanent residence” is to possess “the status of 

having been lawfully accorded the privilege of residing permanently in the United States 

as an immigrant in accordance with the immigrations laws, such status not having 

changed.” 8 U.S.C. § 1101(a)(20). Aliens who are successful in obtaining permanent 

resident status are not necessarily “lawfully admitted for permanent residence” as the term 

is defined in the immigration laws. This is because “[t]he term ‘lawfully’ denotes 

compliance with substantive legal requirements, not mere procedural regularity....” 

Gallimore v. Attorney General, 619 F.3d 216 (3d Cir. 2010) (quoting In re Longstaff, 716 

F.2d 1439, 1441 (5th Cir. 1983)). Interpreting Board of Immigration Appeals (BIA)

decisions, the Third Circuit has held that this principle applies not only where an applicant 

obtained permanent residence by fraud, but also where he or she had otherwise not been 

entitled to it. See Gallimore, 619 F.3d at 224-25 (citing In re Koloamatangi, 23 I. & N. 

Dec. 548, 551 (BIA 2003)). Therefore, an alien who obtains permanent residence through 

administrative oversight or other agency error is not lawfully admitted for permanent 

residence. See id; see also Savoury v. U.S. Atty. Gen., 449 F.3d 1307, 1317 (11th Cir. 2006) 

(“lawfully admitted” requirement applies with equal force to situations involving 

“administrative inadvertence or error.”) 

C. Sonal’s Application 

Defendants contend that USCIS properly denied Sonal’s application for 

naturalization because she was not lawfully admitted for permanent residence. Applying 

the principles laid out in the foregoing section, this Court agrees. An alien is not entitled 

to permanent legal residence if she was “unlawfully present in the United States for one 

year or more, and [] again seeks admission within 10 years of the date of such alien’s 

departure or removal from the United States.” 8 U.S.C. § 1182(a)(9)(B)(i)(II). An alien is 

“unlawfully present in the United States if the alien is present in the United States after the 

expiration of the period of stay authorized by the Attorney General or is present in the 

United States without being admitted or paroled.” 8 U.S.C. 1882(a)(9)(B)(ii). Moreover, 

a “departure” for the purposes of the statute includes both voluntary and involuntary exits 

from the United States. In re Lemus-Losa, 24 I. & N. Dec. 373, 376 (BIA 2007).

In this case, Sonal entered the United States on June 30, 1995 and was authorized 

to remain in the Country until December 29, 1995. (Def’s SOMF at ¶3). However, Sonal 

remained in the United States until she voluntarily left for Canada on November 26, 2000. 

Given these facts, it is indisputable that within 10 years of July 1, 2001 – the approximate 

date when Sonal applied for permanent residence – she departed the United States after 

being unlawfully present in the United States for more than one year. Therefore, despite 

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obtaining permanent resident status, Sonal did not meet the substantive legal requirements 

for being lawfully admitted as a permanent resident. See Gallimore, 619 F.3d at 224-25 

(“an alien whose status has been adjusted to lawful permanent resident but who is 

subsequently determined in an immigration proceeding to have originally been ineligible 

for that status has not been lawfully admitted for permanent residence” (quoting De La 

Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007))). Under the plain language of the 

immigration laws, she is consequently not eligible for naturalization. Sonal nonetheless 

contends that a number of factors preclude application of this rule to her case. The Court 

will now address these arguments. 

Sonal primarily relies on the BIA decision In re Ayala, 22 I. & N. Dec. 398 (BIA 

1998). The respondent in that case – who previously obtained permanent resident status –

sought to avoid deportation by obtaining a Section 212(h) waiver. Section 212(h) waivers, 

however, are not available to certain aliens who have “previously been admitted to the 

United States as [aliens] lawfully admitted for permanent residence.” INA § 212(h), 8 

U.S.C. § 1182(h). The respondent nonetheless argued that he was eligible for a waiver 

because he concealed criminal activity while applying for an adjustment and was therefore 

never lawfully admitted as a permanent resident. The BIA rejected this theory and 

concluded that the respondent was ineligible for a waiver. Sonal points to In re Ayala in 

support of her position that an alien can be lawfully admitted as a permanent resident even 

if he or she does not meet the substantive requirements for obtaining an adjustment. This 

argument must fail because Section 212(h) applies to all aliens who have “previously been 

admitted” as aliens lawfully admitted for permanent residence. As In re Ayala pointed out, 

the “previously been admitted” language – which is conspicuously absent from the 

naturalization statutes at issue here – indicates that Section 212(h) does not distinguish 

between aliens whose admission was lawful and those who obtained admission unlawfully; 

rather, its sole concern is whether an alien has been admitted, period. The same cannot be 

said for the naturalization statutes that govern the outcome of this matter, making Sonal’s 

reliance on In re Ayala misplaced. See Savoury v. U.S. Atty. Gen., 449 F.3d 1307, 1315 

(11th Cir. 2006) (“Ayala[] does not apply to [this] situation because it focused on whether 

the alien had ‘previously been admitted’ for permanent residence, not whether he had been 

‘lawfully admitted for permanent residence’”); In re Ayala, 22 I. & N. Dec. at 401.2

 

2 Sonal has filed a reply brief in support of her cross motion notwithstanding the fact that such 

submissions are not authorized by the Local Rules. The Court has nonetheless reviewed the case 

law offered in Sonal’s reply and concludes that In re Ayala is inapplicable here. Most notably, 

both Hanif v. U.S. Atty. Gen., 694 F.3d 479, 484 (3d Cir. 2012) and Lanier v. U.S. Atty. Gen., 631 

F.3d 1363 (11th Cir. 2011) stand for the unremarkable proposition that an alien who enters the 

country illegally and later obtains an adjustment has not been admitted to this country as an alien 

lawfully admitted for permanent residence. Those cases do not undermine the premise that an 

alien is lawfully admitted for permanent residence only if he or she meets the procedural and 

substantive requirements for an adjustment. 

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Sonal also contends that Garcia v. U.S. Atty. Gen., 553 F.3d 724 (2009) entitles her 

to a finding that she is eligible for naturalization. Garcia provides that the Government is 

not authorized to commence deportation proceedings against an alien or rescind that alien’s 

permanent resident status five years after the alien obtained an adjustment, even if that 

adjustment was obtained fraudulently.3

 It does not, however, disturb the well-settled 

principle that the “lawfully admitted for permanent residence” requirement is not met when 

an alien’s adjustment does not comply with the immigration laws. See Gallimore, 619 F.3d 

at 224-25 (citing In re Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003)). 

Sonal further argues that the adjuster who granted her permanent resident status may 

have determined that her departure from the United States did not pose an obstacle to lawful 

permanent resident status because Sonal applied for an adjustment with a 245(i) waiver. 

However, the BIA has reasonably concluded that a 245(i) waiver does not afford relief to 

an alien who is otherwise inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II). See LemusLosa, 24 I. & N. Dec. 373, 379-80 (BIA 2007) (finding that 245(i) does not cure 

inadmissibility under § 1882(a)(9)(B)(i)(II)); Cheruku v. U.S. Atty. Gen., 662 F3d 198 (3d 

Cir. 2011) (concluding that the BIA’s interpretation in Lemus-Losa is reasonable). Sonal 

similarly argues that the adjuster may have believed that she had the power to grant a 

waiver under 8 U.S.C. § 1182(a)(9)(B)(v), which permits the Attorney General to lawfully 

admit an alien for permanent residence if the alien, among other things, has a spouse who

is already lawfully admitted. Sonal tacitly concedes that this waiver was unavailable to her 

because her husband was her derivative beneficiary and thus could not have obtained 

permanent resident status before she did. Even if the adjuster had the mistaken view that 

the waiver was available to Sonal, agency error does not permit an exception to the rule 

that an alien is lawfully admitted for permanent residence only if she meets the substantive 

requirements for an adjustment. See e.g., Gallimore, 619 F.3d at 224; Savoury, 449 F.3d 

at 1316-1317.4

 

3 Defendants are not seeking to initiate deportation proceedings against Sonal or rescind her 

permanent resident status. 

4 This principle also defeats Sonal’s argument that her naturalization application should have 

been granted because Sejal’s application was approved without incident. 

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III. CONCLUSION 

Because Sonal was unlawfully present in the United States for one year or more and 

subsequently sought admission within 10 years of her departure to Canada, she was not 

“lawfully admitted for permanent legal residence” as defined in the immigration laws; and 

because Sonal was not “lawfully admitted for permanent legal residence,” she is not 

eligible for naturalization. Defendants’ motion for summary judgment is therefore 

GRANTED and Sonal’s cross-motion for summary judgment is DENIED. An appropriate 

order follows.

 /s/ William J. Martini 

 WILLIAM J. MARTINI, U.S.D.J.

Date: January 8th, 2015

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