USA v. Abdlmouhaymen Al-Sibai

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication. Ronald Lee Gilman, John M. Rogers (Authoring), and Jeffrey S. Sutton, Circuit Judges.

Case: 14-1973

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0273n.06

FILED

No. 14-1973

Apr 14, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABDLMOUHAYMEN DRAK AL-SIBAI,
Defendant-Appellant.

BEFORE:

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

GILMAN, ROGERS, and SUTTON, Circuit Judges.

ROGERS, Circuit Judge. In this civil denaturalization case, Abdlmouhaymen Al-Sibai,
an immigrant from Syria, appeals the district court’s order of denaturalization. After a bench
trial, at which Al-Sibai did not appear or testify, the district court concluded that Al-Sibai had
illegally procured his citizenship through a sham marriage. Accordingly, the district court
ordered his certificate of citizenship revoked under 8 U.S.C. § 1451(a) and Al-Sibai appeals.
The former “wife,” along with three longtime friends of hers, testified that Al-Sibai paid her
$5,000 to marry him, and that she never acted in any way as a wife to him, except to learn
enough by cramming to deceive an Immigration and Naturalization Service (INS) adjudicator.
This was sufficiently clear, unequivocal, and convincing evidence to support Al-Sibai’s loss of
citizenship, and Al-Sibai’s various arguments to the contrary lack merit.

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No. 14-1973
United States of America v. Al-Sibai
Al-Sibai was born in Homs, Syria on March 23, 1959. In 1979, he came to the United
States on a student visa. Sometime in 1982, he met Cheryl Kankula, a United States citizen and
24-year-old single mother. In December 1982, a month before his student visa was due to
expire, Al-Sibai married Kankula. In January 1983, Kankula filed Form I-130, petition to
classify status of alien relative for issuance of an immigrant visa, and Al-Sibai filed Form I-485,
application to register permanent residence. After an interview with an INS examiner, the INS
granted Kankula’s I-130 petition and Al-Sibai’s I-485 application, giving Al-Sibai an immigrant
visa and lawful permanent resident status. Al-Sibai and Kankula were divorced on September
11, 1984. Less than two years later, Al-Sibai married Rida Atassi, a woman from Homs, Syria,
and the couple have since remained married. Al-Sibai was granted United States citizenship in
1989.
The United States filed a civil denaturalization complaint against Al-Sibai in 2013. The
three-count complaint alleged that: (1) Al-Sibai had illegally procured his United States
citizenship because he was never lawfully admitted for permanent residence; (2) he had illegally
procured his citizenship because he lacked the good moral character necessary for citizenship;
and (3) he had procured his citizenship by misrepresentation of a material fact and by
concealment of facts. All three counts were based on the Government’s allegation that AlSibai’s marriage to Kankula was a sham. Because demonstrating that the marriage was a sham
would, in the circumstances of this case, result in loss of citizenship, that fact had to be supported
by “clear, unequivocal, and convincing” evidence, and not leave “the issue in doubt.” Fedorenko
v. United States, 449 U.S. 490, 505 (1981). A bench trial was held, the district court applied an
adverse inference against Al-Sibai based on his failure to appear, and ruled in favor of the United
States on all three counts.

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A careful review of the record shows that the district court properly found by clear,
unequivocal, and convincing evidence that Al-Sibai’s marriage was a sham. The evidence of the
sham produced by the Government at trial was overwhelming. Three witnesses, including
Kankula, testified that Al-Sibai paid Kankula $5,000 to marry him. Kankula testified that she
and Al-Sibai agreed that their marriage was not going to be “real,” that they would not live
together, and that they would get divorced. Kankula testified that she and Al-Sibai were married
at a barber shop, that none of her family or friends was present for the ceremony, that there was
no wedding reception or honeymoon, and that she went home alone after the ceremony. Kankula
testified that she and Al-Sibai never lived together, that they did not have keys to each other’s
homes, and that they visited each other only to prepare for the INS interview. Kankula further
testified that she never wore a wedding band other than during the ceremony and at the INS
interview, that she never changed her name, and that after the ceremony she continued to date
other men. This testimony was largely corroborated by three of Kankula’s friends, Margaret
Boling, Lenore Harper, and Toni Heacox. Al-Sibai did not put on any witnesses. In attempting
to undermine the court’s finding, Al-Sibai points to inconsistencies in the testimony of Kankula
and her three friends. But the district court reasonably concluded that the women witnesses
testified to “the same material facts” and that the “minor discrepancies” in their testimony were
attributable to the 30-year passage of time since the occurrence of the events giving rise to the
trial.
Because there was more than sufficient evidence to establish that Al-Sibai’s marriage to
Kankula was a sham designed to evade immigration laws, the district court did not err in ruling
against Al-Sibai on the first count of the denaturalization complaint. Al-Sibai was not eligible to
receive an immigrant visa through his sham marriage, see 8 U.S.C. § 1154(c), and thus he

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entered the United States under an invalid visa. And “entry into the United States under an
invalid visa is a failure to comply with congressionally imposed statutory prerequisites to
citizenship which renders any certificate of citizenship revocable as illegally procured under
§ 1451(a).” United States v. Dailide, 227 F.3d 385, 390 (6th Cir. 2000). Because the district
court properly ruled for the United States on the first count of the complaint, it is unnecessary for
us to address the remaining two counts.
Finally, because there was overwhelming evidence that Al-Sibai’s marriage was a sham,
any error in the district court’s application of an adverse inference against Al-Sibai was
harmless. See Nw. Nat’l Cas. Co. v. Global Moving & Storage, Inc., 533 F.2d 320, 324 (6th Cir.
1976).
The judgment of the district court is affirmed.

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