United States of America v. Phattey

Filing 29

ORDER denying 23 Motion for Summary Judgment; granting 25 Motion for Summary Judgment. Signed by Judge John W. Sedwick on 9/12/18. (GMM, CHAMBERS STAFF)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ALASKA 8 9 10 11 United States of America, 12 Plaintiff, 13 14 15 vs. Phoday Baba Phattey, a/k/a Foday Fatty, 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) 3:17-cv-247 JWS ORDER AND OPINION [Re: Motions at docs. 23 and 25] 18 19 20 21 I. MOTIONS PRESENTED At docket 23 defendant Phoday Baba Phattey, a/k/a Foday Fatty (“Fatty”), moves for summary judgment. The motion is supported by a memorandum at docket 24. At 22 23 docket 25 the United States of America (“the United States”) opposes the motion and 24 cross moves for summary judgment. At docket 26, Fatty opposes the United States’ 25 motion and replies in support of his motion. The United States replies at docket 27. 26 Oral argument was not requested and would not assist the court. 27 28 1 2 II. BACKGROUND The United States seeks to denaturalize Fatty pursuant to 8 U.S.C. § 1451(a). 3 The United States contends that Phoday Baba Phattey and Foday Fatty are the same 4 5 person. To support this assertion, the United States relies on com parison of 6 fingerprints obtained from Phattey and from Fatty. The comparison shows that Phattey 7 and Fatty are the same person.1 Rather than admitting or denying allegations in the 8 Complaint that Phattey and Fatty are the same person, in his Answer Fatty invokes his 9 10 11 12 Fifth Amendment privilege against self incrimination. In his motion papers, Fatty concedes that invocation of the privilege permits drawing negative inferences.2 Fatty’s position in the litigation relies on the application of a statute of limitation, not on the 13 proposition that Phattey and Fatty are different individuals. The court concludes on the 14 basis of the fingerprint comparison and the negative inference that may be drawn from 15 the invocation of the Fifth Amendment that Phattey and Fatty are the same person. 16 The record before the court shows that in September of 1995 Fatty (using that 17 18 name) entered the United States in New York. He presented a passport issued by The 19 Gambia and a non-immigrant United States visa giving a birth date in 1969. Fatty 20 sought asylum and withholding of deportation by filing a Form I-589 with the INS. 21 Eventually, his effort to obtain asylum was denied An immigration court granted Fatty’s 22 request for voluntary departure, ordering him to depart by July 4, 1996. Fatty did not 23 24 25 26 1 27 2 28 Doc. 25-2. Doc. 26 at p. 4. -2- 1 2 3 voluntarily depart, and the government’s efforts to find and deport him were unsuccessful. In September of 1996 Fatty (using the name Phattey) submitted Form I-589 to 4 5 the INS seeking asylum and withholding of deportation. On that Form I-589 Fatty 6 represented that his name was Phoday Baba Phattey, that he was born in 1968, and 7 that he was a national of Mauritania who had last arrived in the United States in Miami. 8 This time Fatty was successful in obtaining asylum. An immigration judge granted his 9 application in September of 1997. 10 In November of 2004 Fatty (using the Phattey name) submitted a Form I-485 to 11 12 USCIS to register as a permanent resident or adjust status. In support he subm itted a 13 Form G-235A setting out biographical information. On that form Fatty stated that he 14 was born in 1968 in Mauritania and that he had nev er used any other name. 15 16 Fatty (using the Phattey name) submitted a Form N-400 Application for Citizenship in April of 2010. On that form Fatty repeated that he was born in Mauritania 17 18 19 in 1968. He left blank the space for listing other names he had used. His response to the inquiry whether he had ever given false or misleading information to any U.S. official 20 while applying for any immigration benefit was “No.”3 Question 24 on the N-400 Form 21 asked, “Have you ever lied to any U.S. government official to gain entry or admission 22 into the United States?” Fatty answered “No.”4 Fatty also responded in the negative to 23 the question asking if he had ever been ordered to be removed or deported. Fatty 24 25 26 3 27 4 28 Doc. 25 at p. 9. Id. -3- 1 2 3 signed the Form N-400 indicating under penalty of perjury that his application was true and correct. Fatty was interviewed about his citizenship application on July 27, 2010. At that 4 5 time he again averred that his N-400 application was true and correct. 5 His application 6 for citizenship was then approved. He took the citizenship oath on August 20, 2010, 7 and was issued a naturalization certificate on that date. 6 8 9 III. STANDARD OF REVIEW A. Motions for Summary Judgment 10 11 12 Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”7 The 13 materiality requirement ensures that “[o]nly disputes over facts that might affect the 14 outcome of the suit under the governing law will properly preclude the entry of summary 15 judgment.”8 Ultimately, “summary judgment will not lie if the . . . evidence is such that a 16 reasonable jury could return a verdict for the nonmoving party.”9 However, summary 17 18 judgment is mandated “against a party who fails to make a showing sufficient to 19 establish the existence of an element essential to that party’s case, and on which that 20 party will bear the burden of proof at trial.”10 21 5 22 23 24 25 Id. at p. 10. 6 Doc. 25-18, p. 2, Certificate No. 32456261. 7 Fed. R. Civ. P. 56(a). 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 26 9 27 10 28 Id. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). -4- 1 2 3 The moving party has the burden of showing that there is no genuine dispute as to any material fact.11 Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that 4 5 summary judgment is warranted; it need only point out the lack of any genuine dispute 6 as to material fact.12 Once the moving party has met this burden, the nonmoving party 7 must set forth evidence of specific facts showing the existence of a genuine issue for 8 trial.13 All evidence presented by the non-movant must be believed for purposes of 9 10 summary judgment and all justifiable inferences must be drawn in favor of the non-movant.14 However, the non-moving party may not rest upon mere allegations or 11 12 denials, but must show that there is sufficient evidence supporting the claimed factual 13 dispute to require a fact-finder to resolve the parties’ differing versions of the truth at 14 trial.15 15 B. Revocation of Citizenship 16 The burden of proof applicable to the motion at docket 25 is very high. The 17 18 19 Supreme Court has held: [T]he Government “carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship.” The evidence justifying revocation of 20 21 22 23 24 25 11 Id. at 323. 12 Id. at 323-25. 13 Anderson, 477 U.S. at 248-49. 26 14 27 15 28 Id. at 255. Id. at 248-49. -5- 1 2 citizenship must be “‘clear, unequivocal and convincing’” and not leave “‘the issue in doubt.’”16 IV. DISCUSSION 3 4 5 6 Section 1451(a) of Title 8 provides for the institution of proceedings to revoke and set aside orders admitting a person as a naturalized citizen and to cancel that person’s certificate of citizenship when such were “illegally procured or were procured 7 8 9 by concealment of a material fact or by willful misrepresentation.” The United States’ evidence is clear, unequivocal, and convincing. The evidence does not leave the issue 10 in doubt. The evidence laid out in Section II above demonstrates that Fatty procured 11 citizenship illegally because, as a person who had not been lawfully admitted to 12 permanent residence, he was not eligible to apply for citizenship.17 Furthermore, Fatty 13 procured citizenship by concealing and willfully misrepresenting material facts. It 14 15 16 follows that his citizenship should be revoked unless the action to revoke is untimely. The pending motion turns on what, if any, statute of limitation applies to litigation 17 seeking to revoke a naturalized citizen’s citizenship pursuant to 8 U.S.C. § 1451(a). 18 Fatty relies on 28 U.S.C. § 2462 which states that, except as Congress may have 19 otherwise provided, “an action, suit or proceeding for the enforcement of any civil fine, 20 penalty, or forfeiture, pecuniary or otherwise shall not be entertained unless 21 22 commenced within five years from the date when the claim first accrued.” 23 24 25 26 16 27 17 28 Fedorenko v. United States, 449 U.S. 490, 505 (1981) (internal citations omitted). 8 U.S.C. §§ 1427 (a) and 1429. -6- 1 2 3 While the statute of limitation issue Fatty raises here was not addressed in Kunghys v. United States,18 it is to be noted that there the Supreme Court approved a revocation sought 28 years after citizenship was granted.19 There are also circuit court 4 5 decisions approving revocation long after citizenship was granted.20 More directly to 6 the issue being litigated here, the Second Circuit has held that an earlier statute 7 authorizing revocation of citizenship (like § 1451(a)) “contains no provision for 8 limitations, nor is there any other federal statute applicable to the case.” 21 9 For Fatty to successfully rely on § 2462, the court would need to hold that 10 revocation of citizenship is punitive in nature. In John Oluf Johannessen v. United 11 12 States,22 the government sued to cancel a certificate of citizenship on the ground that it 13 was fraudulently and illegally procured. The government brought the action pursuant 14 to a predecessor to §1451(a) enacted on June 29, 1906. Johannessen contended that 15 because that law was enacted after he received his certificate of citizenship, its use to 16 reach back in time to cancel his certificate would violate the Constitution. He made 17 18 19 20 several arguments, each dismissed by the Court as lacking in merit. Of particular importance to the issue before this court the Supreme Court disposed of his argument that the statute violated the Constitution’s prohibition on ex post facto laws because the 21 18 22 485 U.S.759 (1988) 19 23 24 25 The United States’ briefing incorrectly states that the period was 34 years, apparently because the United States measured the period from the time citizenship was granted to the time the Supreme Court ultimately decided the case.. 20 E.g., United States v. Szehinskyj, 277 F.3d 331 (3rd Cir. 2002) (41 years). 26 21 27 22 28 United States v. Costello, 275 F.2d 355, 356 (2nd Cir. 1960). 225 U.S. 227 (1912). -7- 1 2 3 law, “imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges.”23 4 5 Fatty argues that under two principles discussed in Kokesh v. Securities and 6 Exchange Commission,24 this court should find that § 1451(a) is punitive in nature, thus 7 making the five-year limitation period provided by § 2642 applicable. In Kokesh the 8 Court was required to determine whether an SEC enforcement action seeking 9 disgorgement was punitive in nature, thereby making § 2642 applicable. The Court 10 held that because disgorgement may require payment of amounts in excess of 11 12 compensatory damages, it imposes a penalty. In reaching that conclusion, the Court 13 wrote: “First, whether a sanction represents a penalty turns in part on ‘whether the 14 wrong sought to redress is a wrong to the public, or a wrong to the individual.’”25 This 15 point is not helpful here. The discussion in the case cited by Kokesh involved an 16 observation taken from the common law that private wrongs are not criminal in nature, 17 18 19 20 21 while public wrongs are often considered criminal in nature. That does not provide insight into whether any particular public wrong is criminal in nature. Relying on the second principle in Kokesh, Fatty argues that “a sanction is a penalty if it is objectively punitive.26 What the Court actually said was that “a sanction 22 23 24 25 23 225 U.S. at 242. 24 137 S. Ct. 1635 (June 5, 2017). 26 25 27 26 28 137 S. Ct. at 1638 (quoting Huntington v. Attrill, 146 U.S. 657, 668 (1892). Docket 24 at p. 5. -8- 1 operates as a penalty if it sought ‘for the purpose of punishment, and to deter others 2 from offending in like manner’ rather that to compensate victims.”27 The purpose of 3 revoking citizenship is quite obviously to take back something that was not deserved in 4 5 the first place. The purpose is not to punish, but rather to resto re the status quo. 6 Revoking one person’s citizenship might deter others from attempting to obtain 7 citizenship unlawfully. However, that does not make deterrence the purpose of 8 revocation. The purpose of a court awarding damages for medical malpractice is to 9 compensate the victim, although the court’s award might deter other physicians from 10 engaging in the same or similar behavior. 11 12 Fatty argues that if his citizenship is revoked he will be subject to possible 13 penalties for the wrongful actions in which he engaged to procure his citizenship. That 14 may be so, but even if it is, it is not this revocation action which would impose penalties. 15 Penalties could be imposed only through institution of a criminal prosecution. 16 Guided by Johannessen and Costello, and the case law approving revocations 17 18 19 many years after the grant of citizenship, this court concludes that 28 U.S.C. § 2642 does not apply to actions brought under 8 U.S.C. § 1451(a). 20 21 22 23 24 25 26 27 28 27 137 S. Ct. at 1638 (citation omitted) (emphasis added). -9- 1 2 V. CONCLUSION For the reasons above, the motion at docket 23 is DENIED, and the motion at 3 docket 25 is GRANTED. 4 5 DATED this12th day of September 2018. 6 7 8 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-

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