                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1406
                                  ___________

Gyorgy Nyari,                           *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of Minnesota.
Janet A. Napolitano, Secretary of       *
Department of Homeland Security;        *
Eric H. Holder, Jr., Attorney General; *
Michael Aytes, Acting Director,         *
United States Citizenship &             *
Immigration Services; Denise Frazier, *
District Director, United States        *
Citizenship & Immigration Services;     *
United States Citizenship and           *
                       1
Immigration Services,                   *
                                        *
             Appellees.                 *
                                   ___________

                            Submitted: November 11, 2008
                               Filed: April 13, 2009
                                ___________



      1
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of
Department of Homeland Security Janet A. Napolitano, is automatically substituted
for Michael Chertoff; Attorney General Eric H. Holder, Jr., is automatically
substituted for Michael B. Mukasey; and Acting Director, United States Citizenship
& Immigration Services Michael Aytes, is automatically substituted for Emilio
Gonzales, as Appellees.
Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       Gyorgy Nyari, a native of Hungary and a lawful permanent resident of the
United States, sought review of the denial of his application for naturalization in
district court. The court granted the government's motion for summary judgment on
the ground that Nyari failed to establish that he is a person of good moral character as
required by 8 U.S.C. § 1427(a). We reverse.

                                    I. Background
       Gyorgy Nyari immigrated from Hungary to Rochester, Minnesota, as a political
refugee in 1983 and became a lawful permanent resident of the United States that
year. Nyari's wife and two daughters accompanied him. Nyari and his wife divorced
in 1984, but Nyari moved back in with his ex-wife and their daughters in 1985. The
family subsequently relocated to Virginia Beach, Virginia, and the couple's
relationship again deteriorated in 1988.

      In November 1988, the Virginia Beach Department of Social Services (DSS)
commenced an investigation into the welfare of Nyari's daughters, then ages 11 and
8. According to Nyari, his ex-wife had accused him of sexually abusing their
daughters. Nyari's daughters also accused him of sexual abuse, but they have since
recanted and claimed that they were pressured into making the allegations when they
were children.

       In January 1989, DSS informed Nyari that it had deemed the sexual abuse
allegations "founded" and that his name would be listed in Virginia's child abuse and
neglect central registry. The disposition was upheld on appeal, and Nyari petitioned
for a hearing. But Nyari failed to appear at the hearing, and DSS deemed his appeal
abandoned. No criminal charges were brought against Nyari with respect to the sexual

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abuse allegations. Nyari was awarded custody of his older daughter in January 1992,
and they returned to Rochester the following June.

       Nyari first applied for naturalization in January 1989. The former Immigration
and Naturalization Service (INS) informed Nyari that it would recommend the denial
of his application because he was listed in Virginia's central registry. Nyari withdrew
his application. Nyari again applied for naturalization in September 1995. The INS
requested that Nyari provide evidence establishing that he was not listed in the central
registry, and, when Nyari failed to submit the requested information, the INS denied
his application.

       Nyari filed his current application for naturalization in March 2003. In April
2005, the Citizenship and Immigration Service (CIS) denied Nyari's application,
finding that he failed to demonstrate that he was a person of good moral character
because he was listed in the central registry. Nyari sought administrative review of the
denial of his application, filing a letter from his younger daughter dated October 1999
and sworn statements from both of his daughters recanting their prior allegations of
sexual abuse. The CIS sustained the denial of Nyari's application.

       Nyari filed a petition for review of the CIS's denial of his naturalization
application in district court pursuant to 8 U.S.C. § 1421(c), and he and the government
brought cross motions for summary judgment. In support of his motion for summary
judgment, Nyari submitted affidavits of his daughters in which they again recanted
their sexual abuse allegations. Nyari also submitted an affidavit in which he denied
sexually abusing his daughters and affidavits of a friend and a coworker attesting to
his good moral character.

      Granting the government's motion for summary judgment and denying Nyari's
motion for summary judgment, the district court dismissed Nyari's petition. The court
concluded that Nyari failed to meet his burden of establishing that he is a person of

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good moral character because he was listed in the central registry at the time he filed
his naturalization application.2 The court expressed concern that the record did not
reflect the underlying facts and circumstances on which DSS based its determination
that the sexual abuse allegations were founded. But, finding that this deficiency in the
record was largely due to Nyari's failure to appear at the DSS hearing in 1989, the
court deemed Nyari's failure to pursue his appeal to be "the equivalent of a 'no
contest.'"

                                    II. Discussion
      An applicant for naturalization "bear[s] the burden of establishing by a
preponderance of the evidence that he or she meets all of the requirements for
naturalization." 8 C.F.R. § 316.2(b); see also Berenyi v. Dist. Dir., INS, 385 U.S. 630,
637 (1967). Under 8 U.S.C. § 1427(a), an applicant for naturalization must meet the
following requirements:

      No person . . . shall be naturalized unless such applicant, (1) immediately
      preceding the date of filing his application for naturalization has resided
      continuously, after being lawfully admitted for permanent residence,
      within the United States for at least five years . . . , (2) has resided
      continuously within the United States from the date of the application up
      to the time of admission to citizenship, and (3) during all the periods
      referred to in this subsection has been and still is a person of good moral
      character, attached to the principles of the Constitution of the United
      States, and well disposed to the good order and happiness of the United
      States.

      Certain classes of individuals are barred from establishing the good moral
character requirement of § 1427(a), see id. § 1101(f); 8 C.F.R. § 316.10(b)(1)-(2), but
Nyari does not fall into one of these classes. His absence from one of the enumerated


      2
      The parties agree that Nyari's name was removed from the central registry in
October 2007.

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classes does "not preclude a finding that for other reasons [he] is or was not of good
moral character." 8 U.S.C. § 1101(f). An applicant's moral character is evaluated "on
a case-by-case basis taking into account . . . the standards of the average citizen in the
community of residence." 8 C.F.R. § 316.10(a)(2).

        The statutory period for assessing the moral character of a naturalization
applicant begins five years immediately preceding the date the application is filed. 8
U.S.C. § 1427(a). But 8 U.S.C. § 1427(e) provides that "the applicant's conduct and
acts at any time prior to that period" may be considered "[i]n determining whether the
applicant has sustained the burden of establishing good moral character." More
specifically, an applicant's "conduct and acts" prior to the statutory period may be
considered for purposes of the moral character determination "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." 8 C.F.R. § 316.10(a)(2).
Therefore, an applicant's conduct prior to the statutory period is relevant only to the
extent that it reflects on his or her moral character within the statutory period.

                    A. Government's Summary Judgment Motion
        We review the district court's grant of the government's motion for summary
judgment de novo, viewing the facts in the light most favorable to Nyari and drawing
all reasonable inferences in his favor. McPherson v. O'Reilly Auto., Inc., 491 F.3d 726,
730 (8th Cir. 2007). As the moving party, the government "bears the burden of
showing both the absence of a genuine issue of material fact and an entitlement to
judgment as a matter of law." Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 890 (8th
Cir. 2005).

                1. Inclusion of Nyari's Name in the Central Registry
       The parties dispute the import of the inclusion of Nyari's name in the central
registry, which was the primary basis for the district court's grant of summary

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judgment to the government. Under Virginia law, "[a]ny person who suspects that a
child is an abused or neglected child may make a complaint concerning such child"
to the Department of Social Services. Va. Code Ann. § 63.2-1510. "Founded"
complaints are maintained in the "central registry" of Virginia's child abuse and
neglect information system. Id. § 63.2-1514(B); 22 Va. Admin. Code § 40-700-10.

      The contents of the central registry are not open to the public, but "appropriate
disclosure may be made in accordance with Board regulations." Va. Code Ann.
§ 63.2-1515. The Virginia Court of Appeals has characterized the inclusion of a
person's name in the central registry as "an administrative remedy" and has stated that
the "administrative proceedings" before the Department of Social Services "are not
criminal in nature and are not intended to punish or rehabilitate the abuser." J.P. v.
Carter, 485 S.E.2d 162, 172 (Va. Ct. App. 1997). The central registry is distinct from
Virginia's Sex Offender and Crimes Against Minors Registry. See, e.g., Va. Code
Ann. § 9.1-900.

       Nyari's name was included in the central registry because DSS determined that
the allegations that Nyari had sexually abused his daughters were "founded." It was
on this basis that the district court concluded, as a matter of law, that Nyari was not
a person of good moral character for purposes of § 1427(a). But 8 U.S.C. § 1421(c)
requires a district court to subject a denial of a naturalization application to de novo
review, to "make its own findings of fact," and to "conduct a hearing" if requested by
the applicant. We are aware of no case law—and the government concedes that there
is none—in which a court reviewing a denial of a naturalization application has found
that the applicant was not a person of good moral character based on the outcome of
a civil administrative proceeding. The district court erred in giving preclusive effect
to the DSS determination. A founded sexual abuse allegation does not establish that
Nyari committed a sexual offense against his children.




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       Furthermore, as explained above, the statutory period for assessing the moral
character of a naturalization applicant begins five years immediately preceding the
date the application is filed. Id. § 1427(a). The district court emphasized that Nyari's
name was listed in the central registry when he applied for naturalization, but 8 C.F.R.
§ 316.10(a)(2) indicates that an applicant's "conduct" is the focus of the moral
character evaluation. Nyari's "conduct" for purposes of the good moral character
requirement consists of his actions underlying the sexual abuse allegations; Nyari's
listing in the central registry is not "conduct."

       Because the sexual abuse allegations arose more than 14 years prior to the filing
of Nyari's application, the determination of DSS may only be considered in evaluating
Nyari's moral character if Nyari's "conduct . . . 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 [Nyari's] present moral
character." Id. The district court erred in not considering whether either of those
requirements was met.

            2. Nyari's Failure To Appear at the Social Services Hearing
       Although the district court acknowledged that the record does not reflect the
underlying facts and circumstances on which the DSS's determination was based, it
found that this deficiency in the record was largely due to Nyari's failure to appear at
the DSS hearing in 1989. The court construed Nyari's failure to pursue his appeal to
be "the equivalent of a 'no contest.'" But a nolo contendere plea "is a 'plea by which
a defendant does not expressly admit his guilt, but nonetheless waives his right to a
trial and authorizes the court for purposes of the case to treat him as if he were
guilty.'" Rawls v. Mabry, 630 F.2d 654, 659–60 (8th Cir. 1980) (quoting North




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Carolina v. Alford, 400 U.S. 25, 35 (1970)). Because all of the DSS proceedings were
of a civil nature, the court's no contest analogy is inapposite.3

                        3. Recantations of Nyari's Daughters
      Nyari's inclusion in the central registry and his failure to appear at the DSS
hearing do not preclude him from demonstrating that he is a person of good moral
character. Additionally, in support of his appeal of the CIS's denial of his
naturalization application in 2005, Nyari submitted sworn statements from both of his
daughters in which they claimed that Nyari had never sexually abused them and that
they had been coerced into falsely accusing him. Nyari also submitted a letter from his
younger daughter, dated October 14, 1999, in which she denied that Nyari had
sexually abused her and claimed that she was pressured by social workers in her
school counselor's office into accusing Nyari. Nyari's younger daughter was 19 years
old when she wrote the letter and 25 years old when Nyari submitted the letter.

       In support of his motion for summary judgment, Nyari submitted affidavits
from his daughters in which they again recanted their prior allegations and explained
why they had lied when they were young children. Specifically, Nyari's daughters
stated that their parents had a very poor relationship at the time, that their mother lied
to a social worker about Nyari, and that they were called into a counselor's office at
school and pressured into claiming that Nyari had sexually abused them. They
emphasized in their affidavits that Nyari is a good father who has never sexually or


      3
        Furthermore, the record reflects that Nyari has attempted to obtain the record
of the sexual abuse investigation. In a letter dated October 25, 2003, Nyari authorized
DSS to release all information regarding its investigation as required by the INS. In
a subsequent letter to the INS that was carbon copied to Nyari, a DSS representative
stated that Nyari's record had been reviewed in order to provide the INS with the
"documentation necessary to complete [Nyari's] application for naturalization" and
that she was sending the INS certain documents from the record. She also instructed
the INS to contact her if further information was needed.

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                                            8
physically abused them. Nyari's own affidavit submitted in support of his motion for
summary judgment is consistent with his daughters' recantations.

       It is well established that courts should neither weigh evidence nor make
credibility determinations when ruling on a motion for summary judgment. See, e.g.,
Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). The district court
stated that "Nyari's delayed protestations of innocence and the subsequent recantations
by Nyari's daughters carry little weight" in light of his failure to contest DSS's
conclusion that the sexual abuse allegations were founded.

       Assessing evidentiary weight and credibility are not ordinarily consistent with
a ruling on a summary judgment motion. We have recognized that summary judgment
may be granted when "a party's sudden and unexplained revision of testimony creates
an issue of fact where none existed before," Wilson v. Westinghouse Elec. Corp., 838
F.2d 286, 289 (8th Cir. 1988), and when a party creates "sham issues" by
contradicting previous testimony, Camfield Tires, Inc. v. Michelin Tire Corp., 719
F.2d 1361, 1366 (8th Cir. 1983). But Nyari presented the district court with evidence
that his daughters long ago recanted their sexual abuse allegations and have
consistently explained that they made the accusations under pressure. Indeed, the
multiple recantations of Nyari's daughters are consistent with one another and set forth
a plausible justification for why they falsely accused Nyari when they were young
children. Their recantations create a genuine issue of material fact as to whether Nyari
sexually abused them.

      For the foregoing reasons, we hold that the district court erred in granting the
government's motion for summary judgment.

                    B. Nyari's Summary Judgment Motion
    Finally, Nyari argues that the district court erred in denying his motion for
summary judgment. A district court's denial of a summary judgment motion is

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generally not appealable. Ambrose v. Young, 474 F.3d 1070, 1074 (8th Cir. 2007). But
when an appeal from an order denying an appellant's motion for summary judgment
is raised with an appeal from an order granting an appellee's cross motion for
summary judgment, a court "may enter an order directing that summary judgment be
granted in favor of the appellant if the record presents no genuine issue of material
fact and the appellant is entitled to judgment as a matter of law." Hawkeye Nat'l Life
Ins. Co. v. AVIS Indus. Corp., 122 F.3d 490, 496 (8th Cir. 1997). On review of the
district court's denial of Nyari's summary judgment motion, we view the facts in the
light most favorable to the government and draw all reasonable inferences in the
government's favor. Mettler v. Whitledge, 165 F.3d 1197, 1200 (8th Cir. 1999).

       The DSS determination that the sexual abuse allegations against Nyari were
founded, while not sufficient to support summary judgment for the government, does
preclude granting summary judgment in Nyari's favor. The district court could find
that Nyari is not a person of good moral character if it determines that he sexually
abused his daughters and that his "conduct . . . 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 [his] present moral character."
8 C.F.R. § 316.10(a)(2). We hold that the district court did not err in denying Nyari's
motion for summary judgment.

                                 III. Conclusion
       Accordingly, we reverse the judgment of the district court and remand for
further proceedings.
                      ______________________________




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