Hussein v. Barrett et al

Filing 93

ORDER re 67 USCA Order, 90 Brief filed by Sameh Hussein, 89 Brief filed by Robin Barrett, United States Citizenship and Immigration Services. Signed by Judge Jon S. Tigar on March 27, 2017. (wsn, COURT STAFF) (Filed on 3/27/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAMEH HUSSEIN, Plaintiff, 8 Re: ECF Nos. 67, 89, 90 ROBIN BARRETT, et al., Defendants. 11 United States District Court Northern District of California ORDER v. 9 10 Case No.11-cv-05317-JST 12 Sameh Hussein seeks de novo review of the denial of his application for naturalization filed 13 14 November 2, 2011, pursuant to 8 U.S.C. § 1421(c). This case is now before the Court on remand 15 from the Court of Appeals, which set aside this Court’s judgment and remanded for further 16 proceedings. ECF No. 67. Having considered the Court of Appeals’ opinion and the parties’ post- 17 remand briefing, the Court will deny the petition because Petitioner has failed to satisfy his burden 18 of establishing good moral character. 19 I. 20 BACKGROUND Following a trial on the merits, this Court denied Petitioner Sameh Hussein’s petition 21 seeking de novo review of the United States Citizenship and Immigration Services’ (“USCIS”) 22 denial of his naturalization application. ECF No. 63. The basis for this Court’s denial was its 23 conclusion that Mr. Hussein failed to satisfy the good moral character requirement. Id. The Court 24 found that Mr. Hussein lied under oath about his marital status during a custody proceeding in the 25 Sacramento Superior Court because he thought the misrepresentation would benefit him in that 26 dispute. Id. The Court also found that Mr. Hussein repeatedly lied to law enforcement officials 27 about his marital status for the same reason. Id. Based on these misrepresentations, the Court 28 concluded that Mr. Hussein had committed an unlawful act (perjury) that adversely reflected on 1 his moral character. Id. The Court also noted that Mr. Hussein had not submitted any evidence of 2 extenuating circumstances that would justify the perjury. Id. The Court of Appeals subsequently held that this Court erred in two respects: first, by 3 4 failing to make specific findings as to whether Mr. Hussein’s false statement to the Sacramento 5 Superior court was material to the custody proceedings, and second, by failing to consider all 6 relevant factors regarding Mr. Hussein’s moral character. ECF No. 67. With respect to the first 7 error, the Court of Appeals noted that Mr. Hussein’s false statement to the Sacramento Superior 8 Court could not be perjurious if it was not material to the custody proceeding. Id. With respect to 9 the second error, the Court of Appeals held that commission of an unlawful act under 8 C.F.R. § 316.10(b)(3)(iii) is not a per se bar to naturalization, and therefore this Court was required to 11 United States District Court Northern District of California 10 consider all evidence relevant to Mr. Hussein’s moral character, including any counterbalancing 12 factors. Id. The Court of Appeals vacated the order lie denying Mr. Hussein’s naturalization 13 application and remanded to this Court for further proceedings. Id. After remand to this Court, the parties agreed that no factual issues are in dispute and that 14 15 no additional discovery is needed. ECF No. 84. Each party submitted a post-trial brief and a reply 16 in which they addressed the remaining legal issues. ECF Nos. 89˗92. 17 II. 18 LEGAL STANDARD In order to become a naturalized citizen, an applicant must demonstrate that they satisfy 19 the statutory criteria of the Immigration and Naturalization Act, including the requirement that the 20 applicant “has been and still is a person of good moral character” during the statutorily defined 21 period of residency. 8 U.S.C. § 1427(a); United States v. Dang, 488 F.3d 1135, 1138–39 (9th Cir. 22 2007). The statutory period for good moral character begins five years before the naturalization 23 application is filed and continues until the applicant becomes a U.S. citizen. 8 U.S.C.A. § 24 1427(a)(3). An applicant “bear[s] the burden of establishing by a preponderance of the evidence 25 that he or she meets all of the requirements for naturalization.” United States v. Hovsepian, 359 26 F.3d 1144, 1168 (9th Cir. 2004) (quoting 8 C.F.R. § 316.2(b)). 27 Section 1101(f) governs the determination of good moral character. See 8 U.S.C. § 28 2 1 1101(f). The statute lists specific characteristics that preclude a finding of good moral character 2 and act as a per se bar to naturalization. 8 U.S.C. § 1101(f); Torres-Guzman v. INS, 804 F.2d 531, 3 533 (9th Cir. 1986). The statute also contains the following “catch-all” provision: “The fact that 4 any person is not within any of the foregoing classes shall not preclude a finding that for other 5 reasons such person is or was not of good moral character.” 8 U.S.C. § 1101(f); Dang, 488 F.3d at 6 1139. “If the person has not committed acts bringing them within the enumerated categories, and 7 instead, the question is whether the person meets the catch-all provision, the adjudicator must 8 consider all of the petitioners’ evidence on factors relevant to the determination of good moral 9 character.” ECF No. 67 (citing Torres-Guzman, 804 F.2d at 534) (explaining that the fact finder must “weigh and balance the favorable and unfavorable facts or factors, reasonably bearing on 11 United States District Court Northern District of California 10 character, that are presented in evidence”). Those factors include education, family background, 12 employment history, financial status, and lack of criminal record. Id. at 533. An agency regulation, Section 316.10, also offers “guidance to officials making moral 13 14 character determinations.” Dang, 488 F.3d at 1139; 8 C.F.R. § 316.10. That regulation provides 15 that moral character determinations are made “on a case-by-case basis taking into account the 16 elements enumerated in this section and the standards of the average citizen in the community of 17 residence.” Id. § 316.10(a)(2). That regulation further provides that, “[u]nless the applicant 18 establishes extenuating circumstances, the applicant shall be found to lack good moral character if, 19 during the statutory period, the applicant . . . [c]ommitted unlawful acts that adversely reflect upon 20 the applicant’s moral character . . . ” 8 C.F.R. § 316.10(b)(3). 21 III. ANALYSIS 22 On remand, the government argues that Mr. Hussein committed three unlawful acts during 23 the statutory period:1 (1) perjury and/or attempted perjury under California law; (2) making a false 24 25 26 27 28 1 Because Mr. Hussein filed his naturalization application on September 15, 2005, the statutory period began on September 15, 2000 and runs to the present day. 8 U.S.C.A. § 1427(a)(3). Mr. Hussein complains that USCIS unreasonably extended this statutory period through its own delay in processing his application, but he does not contest this calculation of the statutory period. ECF No. 90 at 8, n. 1. 3 1 statement to the police in violation of the Elk Grove Municipal Code; and (3) perjury under federal 2 law. ECF No. 91 at 22.2 The government also contends that each of these unlawful acts adversely 3 reflects adversely on Mr. Hussein’s moral character, that there are no extenuating circumstances 4 that lessen his guilt, and that positive factors related to Mr. Hussein’s moral character do not 5 outweigh these unlawful acts. Mr. Hussein responds that he did not commit any of these unlawful acts and/or that the 6 7 laws prohibiting the alleged conduct are unconstitutionally vague and overbroad. ECF No. 90 at 8 8˗23. Even if he did commit an unlawful act, he argues that “it is clearly explained by the 9 extenuating circumstances and does not adversely reflect on his moral character.” ECF No. 92 at 5. Mr. Hussein also contends that, “[a]fter considering the extenuating circumstances and 11 United States District Court Northern District of California 10 weighing them along with the positive factors in this case, it is clear that [he] has established that 12 he is a person of good moral character.” Id. The Court now addresses whether Mr. Hussein has committed any unlawful acts that 13 14 adversely reflect on his moral character, whether any extenuating circumstances mitigate Mr. 15 Hussein’s guilt for those unlawful acts, and whether favorable factors related to Mr. Hussein’s 16 moral character outweigh those unlawful acts. A. 17 Unlawful Acts 1. 18 Perjury and/or Attempted Perjury under California Law 19 First, the government argues that Mr. Hussein committed perjury and/or attempted perjury 20 under California law when he lied about his marital status in a sworn declaration submitted to the 21 Sacramento Superior Court during a custody dispute. ECF No. 89 at 8˗12. 22 2 23 24 25 26 27 The government raises several new theories regarding unlawful acts allegedly committed by Mr. Hussein that were not presented before this Court at trial or on appeal to the Ninth Circuit. However, Hussein does not raise a waiver argument, and the Court concludes that such an argument would fail. The Supreme Court has repeatedly noted its “judicial insistence on strict compliance with the statutory conditions precedent to naturalization,” and this Court’s “task is to assure compliance with the particular prerequisites to [naturalization].” Fedorenko v. United States, 449 U.S. 490, 506 (1981) (citing U.S. v. Ginsberg, 243 U.S. 472, 474˗475 (1917)). Accordingly, the Court considers all possibly unlawful acts, whether previously raised by the government or not. 28 4 1 “Under California law, the elements of perjury are: ‘a willful statement, under oath, of any 2 material matter which the witness knows to be false.’” Chein v. Shumsky, 373 F.3d 978, 983–84 3 (9th Cir. 2004) (quoting Cabe v. Sup. Ct., 63 Cal. App. 4th 732 (1998)); Cal. Penal Code § 118(a). 4 A statement is material if it “could probably have influenced the outcome of the proceedings.” 5 Chein, 373 F.3d at 984 (internal quotation marks omitted). “[W]hen applying the materiality test, 6 California law focuses not on whether, as a matter of historical fact, the false statement probably 7 did influence the outcome of the proceedings, but instead on whether the false statement, at the 8 time it was made, had the tendency to probably influence the outcome of the proceedings.” Id. 9 Attempted perjury is also a crime under California law. People v. Post, 94 Cal. App. 4th 467, 480–82 (2001). “An attempt to commit a crime is comprised of ‘two elements: a specific 11 United States District Court Northern District of California 10 intent to commit the crime, and a direct but ineffectual act done toward its commission.’” People 12 v. Medina, 41 Cal. 4th 685, 694 (2007) (quoting Cal. Penal Code § 21a). A defendant acts with 13 the requisite specific intent if he has “the intent to engage in the conduct and/or bring about the 14 consequences proscribed by the attempted crime.” People v. Toledo, 26 Cal. 4th 221, 230 (2001). 15 “Other than forming the requisite criminal intent, a defendant need not commit an element of the 16 underlying offense.” Id. A defendant is guilty of attempt if he “has the requisite criminal intent 17 but ‘elements of the substantive crime [are] lacking’ due to ‘circumstances unknown’ to him.” 18 People v. Rizo, 22 Cal. 4th 681, 685 (2000) (quoting People v. Rojas, 55 Cal.2d 252, 257–258 19 (1961)). 20 At trial, Mr. Hussein admitted that he submitted a declaration to the Sacramento Superior 21 Court in which he swore under penalty of perjury that he was married to Stacey Mabrey. Trial Tr. 22 at 91˗93. That statement was false because, as this Court previously found, Mr. Hussein and 23 Mabrey were never married. ECF No. 63 at 6. This Court also found “that it is more likely than 24 not that Petitioner knowingly misrepresented to the Sacramento Superior Court that he was 25 married to Mabrey because he perceived the misrepresentation would benefit him in his custody 26 dispute.” ECF No. 63 at 6. 27 The issue presently before this Court is whether Mr. Hussein’s false statement under oath 28 5 1 was material to the custody proceeding. The government argues that the statement was material 2 because it allowed the state court to presume that Mr. Hussein was the father of his children under 3 California Family Code § 7611(a). Under that statutory provision, a person is presumed to be the 4 parent of a child if he is or was married to the child’s mother and the child was born during the 5 marriage. Cal. Fam. Code § 7611(a). Mr. Hussein argues that the statement was not material 6 because his parentage was not disputed and his marital status was irrelevant to the child custody 7 proceeding, which turned on the best interests of the child. ECF No. 92 at 7˗8. 8 The Court concludes that Mr. Hussein did not commit perjury because the false statement about his marital status was not material to the custody proceeding. Although that statement 10 allowed Mr. Hussein to benefit from a presumption that he was the father, it was not likely to 11 United States District Court Northern District of California 9 influence the outcome of the proceedings because his parentage was not disputed and he could 12 have established parentage through other means. For example, as the government itself notes, Mr. 13 Hussein likely could have established his parentage under § 7611(d) because he received the 14 children into his home and openly held out the children as his own. ECF No. 89 at 9, n. 2; Cal. 15 Fam. Code § 7611(d). Alternatively, Mr. Hussein could have successfully established his 16 parentage through a voluntary declaration of paternity. See Cal. Fam. Code § 7573. Although Mr. 17 Hussein’s parentage was a necessary predicate determination, the outcome of the child custody 18 proceeding ultimately turned on the best interests of the children, and that determination was 19 unaffected by Mr. Hussein’s false statement about his marital status. See Cal. Fam. Code §§ 3040, 20 3011. Therefore, Mr. Hussein did not commit perjury. 21 Mr. Hussein did, however, commit attempted perjury. Even though his false statement was 22 not actually material to the custody proceeding, this Court has already found that Mr. Hussein 23 knowingly made the false statement “because he perceived the misrepresentation would benefit 24 him in his custody dispute.” ECF No. 63 at 6. That is, Mr. Hussein acted with the specific intent 25 to commit perjury and performed the very acts necessary to do so. It does not matter that Mr. 26 Hussein’s attempt was ineffectual in that it was unlikely to actually influence the custody 27 proceedings: “[A] defendant is guilty of an attempt where he has the specific intent to commit the 28 6 1 substantive offense and, under the circumstances as he reasonably sees them, does the acts 2 necessary to consummate the substantive offense.” People v. Wright, 105 Cal. App. 3d 329, 332 3 (Ct. App. 1980) (emphasis added). Nor does it matter that the element of materiality is missing. 4 Id.; see also Toledo, 26 Cal. 4th at 230. 5 The Court concludes that Mr. Hussein committed attempted perjury under California law. 6 7 2. Violation of the Elk Grove Municipal Code Next, the government argues that Mr. Hussein violated the Elk Grove Municipal Code 8 when he told a detective from the Elk Grove Police Department that Mabrey was his wife. ECF 9 No. 89 at 12. 10 Section 9.04.101 of the Elk Grove Municipal Code provides that “[i]t is unlawful for any United States District Court Northern District of California 11 person to knowingly falsify or conceal any fact, or make any false or fraudulent statement or 12 misrepresentation in any matter or proceeding within the jurisdiction of any department or agency 13 of the City.” Any person who knowingly violates this section is guilty of a misdemeanor. See id. 14 At trial, Mr. Hussein admitted that that he referred to Mabrey as his wife when talking to 15 Detective Ledbetter from the Elk Grove Police Department. Trial Tr., ECF No. 60 at 103. Again, 16 this statement was false because Mr. Hussein and Mabrey were never married. ECF No. 63 at 6. 17 This Court found that Mr. Hussein “misrepresented to law enforcement that he was married 18 because he desired to avoid embarrassment, and perhaps also because he thought it would help his 19 cause.” ECF No. 63 at 5. 20 Mr. Hussein nonetheless argues that he did not violate the Elk Grove Municipal Code 21 because his statement was not false, but rather “a commonly acceptable reference given their 22 relationship.” ECF No. 92 at 9. This argument fails. Even assuming that referring to Mabrey as 23 his wife conformed with community standards, this argument confuses the standard for the good 24 moral character determination with the elements of the underlying unlawful act. Although 25 community standards might bear on whether an unlawful act adversely reflects on the applicant’s 26 character, they do not help this Court determine whether Mr. Hussein violated this provision of the 27 Municipal Code in the first place. Section 9.04.101 says nothing about community standards; it 28 7 1 simply prohibits making false statements to City officials. Mr. Hussein testified, and this Court 2 subsequently found, that he was never married to Mabrey. Trial Tr. at 41, 181; ECF No. 63 at 6. 3 As a result, Mr. Hussein’s statement to the Elk Grove Police Department was false. 4 Mr. Hussein also argues that, even if this statement was false, it did not take place in the 5 context of a “matter or proceeding” within Elk Grove’s jurisdiction. ECF No. 90 at 16. That 6 argument also fails. Mr. Hussein admitted at trial that he contacted the Elk Grove Police 7 Department as part of his complaint against Mabrey to seek the return of the children from Qatar. 8 Trial Tr., ECF No. 60 at 101˗102. As a result, the false statement was made in the context of a 9 “matter or proceeding” within the jurisdiction of the Elk Grove Police Department, regardless of which government entity ultimately brought charges against Mabrey. See United States v. 11 United States District Court Northern District of California 10 Rodgers, 466 U.S. 475, 479 (1984) (holding that “[a] criminal investigation surely falls within the 12 meaning of ‘any matter’” as that phrase is used in 18 U.S.C. § 1001, a federal statute that prohibits 13 knowingly making a false statement “in any matter within the jurisdiction of the [United States]”). 14 Finally, Mr. Hussein argues that he cannot be held in violation of Section 9.04.101 because 15 it is unconstitutionally overbroad and void for vagueness. ECF No. 90 at 17˗20. Specifically, he 16 argues that the provision “criminalizes speech that is protected by the First Amendment” and 17 “does not provide adequate notice of the criminalized behavior” as required by the Due Process 18 Clause. ECF No. 90 at 17. Mr. Hussein does not argue that Section 9.04.101 is unconstitutional 19 as applied to his conduct; rather, he argues that it is “unconstitutional on its face.” Id. 20 Section 9.04.101 is not unconstitutionally overbroad. “[A] state statute should not be 21 deemed facially invalid unless it is not readily subject to a narrowing construction by the state 22 courts and its deterrent effect on legitimate expression is both real and substantial.” Erznoznik v. 23 City of Jacksonville, 422 U.S. 205, 216 (1975). In other words, Mr. Hussein must show that there 24 is “a realistic danger that the statute itself will significantly compromise recognized First 25 Amendment protections of parties not before the Court.” Members of City Council of City of Los 26 Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799˗801 (1984). He cannot do so because the 27 First Amendment does not protect knowingly making a false statement to authorities. See 28 8 1 Garrison v. State of La., 379 U.S. 64, 74˗75 (1964) (“[T]he knowingly false statement and the 2 false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”); 3 see also, e.g., Lefebvre v. Lefebvre, 199 Cal. App. 4th 696, 703˗706 (2011) (“Filing a false 4 criminal complaint is an illegal activity, not a constitutionally protected exercise of the right of 5 petition or free speech.”). 6 Nor is Section 9.04.101 void for vagueness. “To be struck down for vagueness, a statute 7 or regulation must fail ‘to give a person of ordinary intelligence fair notice that his contemplated 8 conduct’ is forbidden.” Ass’n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 9 937, 946 (9th Cir. 2013) (quoting Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir. 1981)). Because the Elk Grove ordinance does not involve First Amendment freedoms, as 11 United States District Court Northern District of California 10 explained above, Hussein’s challenge “must be examined in the light of the facts of the case at 12 hand.” Id. (quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)). Section 9.04.101 13 provides fair notice to a person of ordinary intelligence that Mr. Hussein’s conduct—i.e., 14 knowingly making a false statement to an Elk Grove police officer while lodging a criminal 15 complaint—is prohibited. It is notable that nearly identical language is found in a federal statute, 16 18 U.S.C. § 1001, and that statute has repeatedly survived constitutional challenges on vagueness 17 grounds. See 18 U.S.C. § 1001(a) (making it illegal to, “in any matter within the jurisdiction of 18 the executive, legislative, or judicial branch of the Government of the United States, knowingly 19 and willfully . . . make[] any materially false, fictitious, or fraudulent statement or 20 representation”); United States v. Matanky, 482 F.2d 1319, 1322 (9th Cir. 1973) (“[W]e find no 21 vagueness problems with section 1001, either as construed or as applied to this case.”); United 22 States v. Gibson, 409 F.3d 325, 334 (6th Cir. 2005) (holding that the language in 18 U.S.C. § 1001 23 is “not so indefinite as to be void for vagueness”). 24 The Court concludes that Mr. Hussein violated section 9.04.101 of the Elk Grove 25 Municipal Code. 26 3. 27 Perjury under Federal Law Finally, the government argues that Mr. Hussein committed perjury under federal law 28 9 1 when he falsely stated in his 2005 naturalization application that he had been living with his 2 United States citizen spouse, Debra Hawley, for the three years prior to his application. ECF No. 3 89 at 13˗15. 4 A person commits perjury under federal law if, “in any declaration, certificate, verification, 5 or statement under penalty of perjury,” he “willfully subscribes as true any material matter which 6 he does not believe to be true.” 18 U.S.C. § 1621(2). 7 In 2005, Mr. Hussein signed and submitted his naturalization application, certifying “under penalty of perjury under the laws of the United States of America, that this application, and the 9 evidence submitted with it, are all true and correct.” Joint Ex. 2, Part 11; Trial Tr., ECF No. 60 at 10 77˗79. In his application, Mr. Hussein asserted that he was eligible for naturalization based on his 11 United States District Court Northern District of California 8 marriage to a United States citizen. Joint Ex. 2, Part 2. To be eligible for naturalization on that 12 basis, the applicant must have “been living in marital union with the citizen spouse” during the 13 three years immediately preceding the date of filing his application. 8 U.S.C. § 1430(a). Mr. 14 Hussein checked Box B, which states, “I have been married to and living with the same U.S. 15 citizen for the last 3 years.” Joint Ex. 2, Part 2. Later in his application, Mr. Hussein identified 16 that U.S. citizen spouse as Debra Hawley. Id., Part 8. However, Mr. Hussein testified at trial that 17 he had stopped living with Hawley in 2003. Trial Tr., ECF No. 60 at 28˗30. Another witness, Mr. 18 Sherif Aziz, similarly testified that Mr. Hussein was separated from Hawley and living with 19 Stacey Mabrey as of December 2003. Id. at 133˗34. Therefore, based on his own undisputed 20 testimony, Mr. Hussein’s statement under penalty of perjury that he had been living with his U.S. 21 citizen spouse for the three years prior to his 2005 naturalization application was knowingly false. 22 Mr. Hussein responds that this false statement was not material to his naturalization 23 application because he would have qualified for naturalization on a ground independent of his 24 marriage to and cohabitation with Hawley—namely, his own legal permanent residence in the 25 United States for the preceding five-year period. ECF No. 90 at 21. In other words, Mr. Hussein 26 could have checked Box A, which states, “I have been a Lawful Permanent Resident of the United 27 States for at least 5 years,” and qualified for naturalization on that basis. Joint Ex. 2, Part 2. 28 10 1 The Court agrees that Mr. Hussein’s false statement about cohabiting with Hawley was not 2 material to his naturalization application, and therefore not perjurious. When Mr. Hussein applied 3 for naturalization in 2005, he had been a lawful permanent resident for more than five years and, 4 as a result, he was eligible for citizenship regardless of whether he was married to or cohabiting 5 with Hawley. See 8 U.S.C. § 1427. Moreover, Mr. Hussein did not even receive an interview 6 based on his 2005 application until 2010, and at that point the basis for his eligibility was changed 7 to reflect his divorce from Hawley. Joint Ex. 2, Part 2; Trial Tr., ECF No. 60 at 161˗64. The Court concludes that Mr. Hussein did not commit perjury in violation of 18 U.S.C. § 8 9 1621. *** 10 The Court concludes that Mr. Hussein committed attempted perjury under California law United States District Court Northern District of California 11 12 and violated Section 9.04.101 of the Elk Grove Municipal Code. This Court previously found that 13 Mr. Hussein intentionally made these false statements to government entities because he thought 14 that it would benefit him in the child custody dispute. ECF No. 63 at 5˗6. When evaluated from 15 the perspective of the average citizen in the community of residence, these unlawful acts adversely 16 reflect on Mr. Hussein’s moral character. 17 B. 18 Mr. Hussein argues that the following extenuating circumstances justify his unlawful acts: Extenuating Circumstances 19 (1) the reasons why Mr. Hussein began referring to Ms. Mabrey as his wife in the first instance; 20 (2) the fact that she went to Qatar with their three children for a few months and withheld their 21 custody from Qatar for years; and (3) the fact that a California judge found that it was in the best 22 interests of their three children that Mr. Hussein retain primary physical custody of them upon her 23 return from Qatar.3 ECF No. 90 at 24˗25. “The narrow ‘extenuating circumstances’ exception, applicable to having failed to support 24 25 26 27 28 3 Mr. Hussein also argues that he “checked the wrong box on his citizenship application because he was not represented by counsel when he filed it.” ECF No. 90 at 24. Because the Court concludes that this conduct did not constitute an unlawful act, it need not address potentially mitigating circumstances related to that conduct. 11 1 dependents or engaged in an extramarital affair, as well as to the commission of a crime . . . 2 focuses on circumstances during the statutory period that may ‘palliate or lessen’ an offender’s 3 guilt for an offense.” United States v. Teng Jiao Zhou, 815 F.3d 639, 644 (9th Cir. 2016) (quoting 4 United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011)). Extenuating circumstances are not “a 5 post-naturalization retrospective on the person, his achievements, or the unfortunate effect that 6 denaturalization will surely have.” Id. at 644. Rather, extenuating circumstances “must pertain to 7 the reasons showing lack of good character, including acts negating good character.” United 8 States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005). 9 The Court reaffirms its earlier conclusion that Mr. Hussein “has not submitted any evidence of extenuating circumstances for his misrepresentations.” ECF No. 63 at 9. Although 11 United States District Court Northern District of California 10 the fact that Mr. Hussein was eventually awarded physical custody of his children suggests that 12 denying his naturalization application will have an unfortunate effect on his family, that post-hoc 13 consideration in no way palliates or lessens his guilt for lying to both the Sacramento Superior 14 Court and an Elk Grove police detective. Nor does Mr. Hussein’s professed habit of referring to 15 Mabrey as his wife in social settings to avoid embarrassment in his religious community somehow 16 excuse his deliberate dishonesty with public officials and institutions. The fact that Mabrey had 17 taken the children to Qatar does not explain the unlawful acts, either, because nothing in the record 18 suggests that the police would have responded differently based on the marital status of the person 19 lodging the complaint. 20 21 The Court concludes that Mr. Hussein has failed to demonstrate extenuating circumstances. 22 C. 23 Because Mr. Hussein’s conduct does not fall within one of the per se bars, the Court must Other Relevant Considerations 24 consider any counterbalancing factors that bear on his moral character, including school record, 25 family background, employment history, financial status, and lack of criminal record. See Torres- 26 Guzman v. I.N.S, 533–34 (9th Cir. 1986). 27 Mr. Hussein has submitted evidence of counterbalancing factors. He has been living in the 28 12 1 United States for more than twenty years; he has a college degree in math and physics; and he has 2 been steadily employed. Trial Tr., ECF No. 60 at 15˗25. He has primary physical custody over 3 his three children, one of whom has Down’s Syndrome and a heart defect. Id. at 47˗50. In his 4 spare time, Mr. Hussein volunteers with the Boy Scouts and the Islamic Society of Santa Rosa. Id. 5 at 25˗27. He has never been arrested, and he has no criminal convictions. Id. at 128. 6 The Court weighs these factors against its prior finding that Mr. Hussein intentionally 7 made false statements to government entities because he thought that it would benefit him in the 8 child custody dispute; that he committed attempted perjury; and that he misrepresented the facts to 9 this Court in the hearing on the present petition, ECF No. 63 at 8. 10 Given his persistent refusal to act truthfully in dealing with law enforcement agencies and United States District Court Northern District of California 11 the courts, the Court concludes that Mr. Hussein has not met his burden to establish good moral 12 character. CONCLUSION 13 14 15 16 17 The Court denies the petition for de novo review of USCIS’s denial of the application for naturalization. IT IS SO ORDERED. Dated: March 27, 2017 18 19 20 ______________________________________ JON S. TIGAR United States District Judge 21 22 23 24 25 26 27 28 13

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