REPORT & RECOMMENDATION
BERNARDO P. VELASCO, Magistrate Judge.
Pending before the Court is the Government's Motion for Summary Judgment (Doc. 11) ("MSJ"). For the following reasons, the Magistrate Judge recommends that the District Court grant the Government's Motion.
I FACTUAL & PROCEDURAL BACKGROUND
On July 27, 2012, the Government filed the instant action pursuant to 8 U.S.C. §1451(a) seeking to revoke and set aside the order admitting Defendant to United States citizenship and to cancel Defendant's Certificate of Naturalization issued in the name of Alejandro Seaman. (Doc. 1, ¶1). Attached to the Complaint is the affidavit, with supporting exhibits, of Sarah Rockelmann, Special Agent of U.S. Immigration and Customs Enforcement, Department of Homeland Security. (Exh. A). The Complaint advances two counts alleging that Defendant unlawfully procured his naturalization. They are that: (1) he committed an unlawful act that precluded him from establishing good moral character (Count 1); and he concealed the material fact that he had been arrested and indicted for unlawful acts (Count 2).
The record reflects that service was returned executed on Defendant on August 22, 2012. (Doc. 6). The record also reflects that Defendant has not filed an Answer or otherwise appeared in this action. The Government certifies that a copy of the pending MSJ was mailed to Defendant on February 8, 2013. (MSJ, p. 3). The response time for Government's motion has expired. See LRCiv. 56.1(d), Rules of Practice of the U.S. District Court for the District of Arizona. To date Defendant has not filed a notice of appearance or any other document in this action.
The United States Supreme Court "has long recognized the plain fact that to deprive a person of his American citizenship is an extraordinarily severe penalty." Klapprott v. United States, 335 U.S. 601, 612 (1949). "[B]ecause of the grave consequences incident to denaturalization proceedings, [the Supreme Court has] held that a burden rests on the Government to prove its charges in such cases by clear, unequivocal and convincing evidence which does not leave the issue in doubt." Id. ( citing Schneiderman v. United States, 320 U.S. 118, 158 (1943). In Klapprott, the Supreme Court found a strong indication in the denaturalization statutes that Congress did not intend to authorize courts automatically to deprive people of their citizenship for failure to appear. Id. at 388. In setting aside a default judgment entered in a denaturalization proceeding, the Court held that the courts should not "deprive a person of his citizenship until the Government first offers proof of its charges sufficient to satisfy the burden imposed on it, even in cases where the defendant has made a default in appearance." Id. at 612-13.
In light of Klapprott, the Government has filed the instant MSJ instead of seeking default judgment. (MSJ, p. 2 n.1).
A. Statement of Facts
On August 7, 2007, Defendant, who was born in Mexico and had been admitted to the United States and granted lawful permanent resident status in 1994, filed an Application for Naturalization ("Application"), Form N-400, with the U.S. Citizenship and Immigration Services ("USCIS") office in Tucson, Arizona. (Complaint, Exh. A, ¶III, & internal exhs. 2D; MSJ, Exhs. A, D) On August 20, 2008, Defendant was interviewed by a USCIS examiner concerning his Application. (MSJ, Exh. E). Thereafter, on September 25, 2008, while Defendant's Application was pending with USCIS, Defendant was arrested in Tucson, Arizona for Possession of Marijuana for Sale and Transportation/Sale of Marijuana. (MSJ, Exh. F). After his Application was approved, on October 17, 2008, Defendant was indicted in the Superior Court for the State of Arizona, County of Pima, for Possession of Marijuana for Sale, a state felony violation. (MSJ, Exh. G). On October 23, 2008, when Defendant appeared before the U.S. District Court for the District of Arizona for his Naturalization Oath Ceremony, he indicated on Form N-445, Notice of Naturalization Oath Ceremony, which he submitted that same day to U.S. Citizen and Immigration Services, that after the date he was first interviewed on his Application, he had not been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic violations. (MSJ, Exh. H). On October 23, 2008, Defendant was administered the oath of citizenship and admitted as a United States citizen. (MSJ, Exh. I). On December 18, 2008, Defendant, pursuant to a plea agreement, pled guilty in State court to Solicitation to Possess Marijuana for Sale, a class six felony in violation of A.R.S. §§13-1002, 13-3405, was convicted of same, and sentenced to probation for a period of two years. (MSJ, Exhs. J-K).
The Government alleges in Count One of its Complaint that Defendant unlawfully procured his naturalization because he committed an unlawful act that precluded Defendant from establishing the requisite good moral character. According to the Government, Petitioner was required to establish that he was and continued to be a person of good moral character from 5 years before he filed his Application until October 23, 2008, the date he became a naturalized United States Citizen. (Complaint, ¶21 ( citing 8 U.S.C. §1427(a)). The Government alleges that Defendant could not establish he was a person of good moral character on September 25, 2008 because he committed an unlawful act that adversely reflected upon his moral character during the statutory period, and thus illegally procured his naturalization.
In Count Two, the Government alleges that Defendant unlawfully procured his naturalization because he concealed the material fact that he had been arrested and indicted for unlawful acts. According to the Government, Defendant's misrepresentation and concealment of his criminal history in Form N-445 was material to determining his eligibility for naturalization because such history would have precluded him from establishing the requisite of good moral character for naturalization. ( Id. at ¶¶28-31).
B. Summary Judgment Standard
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with ...