United States of America v. Singh

Filing 15

MEMORANDUM OPINION & ORDER: 1) Defendant's motion to dismiss 6 be, and is hereby, GRANTED IN PART and DENIED IN PART; 2) Count I of the Complaint is dismissed WITH PREJUDICE; 3) Defendant shall file an Answer to the Complaint within (14) days after entry of this order; and 4)Thereafter, the parties shall have ninety (90) days within which to engage in discovery, which shall be completed no later than June 26, 2019. Signed by Judge William O. Bertelsman on 3/14/2019.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:18-cv-85 (WOB-CJS)
UNITED STATES OF AMERICA

VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

KARNAIL SINGH

DEFENDANT

The United States brings this action under 8 U.S.C. § 1451(a) to revoke
Defendant Karnail Singh’s citizenship, alleging that Singh illegally procured his
naturalization by inter alia, concealing his use of two identities and his prior
immigration history. The Complaint sets forth five “counts,” or rather five separate
grounds for revoking Singh’s certificate of naturalization:
Count I:

Singh was Not Lawfully Admitted for Permanent Residence due
to Fraud or Willful Misrepresentation.

Count II:

Singh was Not Lawfully Admitted for Permanent Residence
Because the Immigration and Naturalization Service Lacked
Jurisdiction to Adjust his Status.

Count III:

Singh Lacked the Requisite Good Moral Character for
Naturalization by Virtue of Having Committed Unlawful Acts.

Count IV:

Singh Lacked the Requisite Good Moral Character for
Naturalization by Virtue of Having Provided False Testimony.

Count V:

Singh Procured his Citizenship by Concealment of a Material
Fact or Willful Misrepresentation.

United States v. Karnail Singh
1

This matter comes before the Court on Defendant Singh’s motion to dismiss.
(Doc. 6). The Court dispenses with oral argument because the materials before it
adequately present the facts and legal contentions, and argument would not aid the
decisional process. Accordingly, the matter is ripe for disposition.
For the reasons that follow, the Court will grant the motion in part and deny
it in part. The Court will only dismiss Count I.
FACTUAL AND PROCEDURAL BACKGROUND
A.

First Asylum Application and Deportation Order

On approximately January 21, 1992, Defendant Singh submitted a Form I-589
asylum application (“First Asylum Application”) to the Immigration and
Naturalization Service (“INS”).1 (Doc. 1, ¶ 7). The application was submitted under
the name KARNAIL SINGH DHILLON and stated that he was born in January 1963
in India and that he last entered the United States in Los Angeles, California on
December 28, 1990. Id. at ¶¶ 7–8. As part of the application process, Singh was
fingerprinted and then signed the application, certifying that the application and
accompanying documents were true and correct. Id. at ¶¶ 9–10. In connection with
1

On March 1, 2003, INS was dissolved and many of its relevant functions were
transferred to the Department of Homeland Security (“DHS”) and its sub-agencies,
including the United States Citizenship and Immigration Services (“USCIS”). See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 101, 451, 455, 471, 701, 110
Stat. 2135, 2142, 2195–96, 2200, 2205, 2218–19 (codified as amended at 6 U.S.C. §§
111, 271, 275, 291) and accompanying notes. Because several of the events at issue
here occurred prior to 2003, either INS or USCIS will be referred to where factually
appropriate.

United States v. Karnail Singh
2

his First Asylum Application, Singh submitted biographic information in Form G325, dated November 20, 1991 (“1991 Form G-325”) (Doc. 1-3). In that form, Singh
represented: (i) his name as KARNAIL SINGH DHILLON; (ii) he was born in
January 1963, in India; (iii) he had used no other names; and (iv) that GURMAIL
SINGH and JEET KAUR are his father and mother, respectively. (Doc. 1, ¶¶ 11–12).
On January 5, 1993, an INS officer interviewed Singh regarding his First
Asylum Application. Id. at ¶ 13. In the interview, Singh reaffirmed the truth of the
representations he provided in his First Asylum Application by again signing his
application, certifying that the application and all accompanying documents were
true and correct. Id. at ¶ 14. On September 29, 1993, INS denied Singh’s First Asylum
Application. Id. at ¶ 15. Singh subsequently filed an untimely letter of rebuttal and
attached a warrant for his arrest in India, indicating that he committed or is
suspected of having committed terrorist activity and murder in violation of the Indian
Penal Code. Id.
On December 7, 1993, INS initiated deportation proceedings against Singh and
issued a Form I-221, Order to Show Cause and Notice of Hearing (“OSC”). Id. at ¶ 16.
INS alleged Singh was deportable under 8 U.S.C. § 1252(a)(1)(B) because he entered
the United States without having been inspected and admitted or paroled. Id. INS
served the OSC on Defendant by certified mail on January 4, 1994. Id. Singh
personally appeared in immigration court. Id. at ¶ 17. Singh was then personally
served with a Notice of Hearing, stating the date and time of a third hearing. Id.

United States v. Karnail Singh
3

When Singh failed to appear, the immigration judge entered an order in abstentia on
January 25, 1995, ordering that Singh be deported to India. Id. Singh, however, did
not depart the United States between January 1995 and May 2002. Id. at ¶ 18.
B.

Second Asylum Application and Application for Permanent Residence

On July 20, 1994, Singh submitted a second Form I-589 asylum application
(“Second Asylum Application”) to INS, this time under the name KARNAIL SINGH.

Id. at ¶ 19. In the application, Singh represented that: (i) he was born in December
1968 in India; (ii) he was detained in jail without charges for a total of approximately
eleven months, beginning in January 1992; and (iii) he last entered the United States
at San Ysidro, California on May 5, 1994, after transiting through Mexico. Id. at ¶
20. Singh was fingerprinted and signed his Second Asylum Application, certifying
that the application and all accompanying documents were true and correct. Id. at ¶¶
21–22.
In connection with his Second Asylum Application, Singh submitted biographic
information in a second Form G-325A, dated July 11, 1994 (“1994 Form G-325A”)
(Doc. 1-4), in which he represented: (i) his name as KARNAIL SINGH; (ii) he was
born in December 1968, in India; (iii) that TARSEM SINGH and TARA KAUR are
his father and mother, respectively; and (iv) that he had used no other names, given
that he left blank the question requesting that he provide “All Other Names Used.”

Id. at ¶¶ 25–26.
On September 21, 1995, Christine Smith, on behalf of Singh and representing

United States v. Karnail Singh
4

herself as Singh’s wife, filed a Form I-130 petition (“Visa Petition”). Id. at ¶ 28.
KARNAIL SINGH was listed as the visa beneficiary. Id. In the petition, Smith
represented: (i) that Singh was born in December 1968, in India; (ii) his last arrival
in the United States was without inspection on May 5, 1994; and (iii) that Singh had
never been under immigration proceedings, including exclusion, deportation,
rescission, or judicial proceedings. Id. at ¶ 29. In connection with the petition, Singh
submitted biographic information in a third Form G-325A, dated September 21, 1995
(“1995 Form G-325A”), in which he represented: (i) his name as KARNAIL SINGH:
(ii) he was born in December 1968, in India; (iii) TARSEM SINGH and TARA KAUR
are his father and mother, respectively; and (iv) that with respect to “All Other Names
Used,” there were “None.” Id. at ¶¶ 30–31.
On May 30, 1996, Singh submitted a Form I-485 application to register for
permanent residence or adjust his status (“Adjustment Application”) (Doc. 1-5), under
the name KARNAIL SINGH. (Doc. 1, ¶ 33). In the application, Singh stated: (i) that
he was born in December 1968, in India, and last arrived in the United States on May
5, 1994; (ii) the first name of his father and mother, respectively, is TARSEM and
TARA; (iii) he had never been arrested, cited, charged, indicted, fined, or imprisoned
for breaking or violating any law, or ordinance, excluding traffic violations; (iv) he
had never been deported from the United States or removed from the United States
at government expense or excluded within the past year and was not currently in
exclusion or deportation proceedings; and (v) that he had never, by fraud or willful

United States v. Karnail Singh
5

misrepresentation of a material fact, sought to procure, or procured, a visa, other
documentation, entry into the United States, or any other immigration benefit. Id. at
¶¶ 33–34; (Doc. 1-5).
On May 5, 1996, Singh signed his Adjustment Application, certifying that the
application and evidence submitted with it was true and correct. (Doc. 1, ¶ 35). In
connection with his Adjustment Application, Singh submitted biographical
information in a fourth Form G-325A, dated May 5, 1996 (“1996 Form G-325A”). In
form Singh represented: (i) his name as KARNAIL SINGH; (ii) he was born in
December 1968, in India; and (iii) that TARSEM SINGH and TARA KAUR are his
father and mother, respectively. Singh left blank the question requesting that he
provide “All Other Names Used.” Id. at ¶¶ 37–38.
On March 11, 1997, an INS officer interviewed Singh regarding his Adjustment
Application. Id. at ¶ 40. During the interview, Singh indicated that the police in India
jailed him for eleven months in 1992 and 1993, without a court hearing, for possession
of firearms. Id. at ¶ 41. Singh also reiterated his application responses in the
negative; specifically: he was not currently in deportation proceedings and he had
never sought to procure an immigration benefit by fraud or willful misrepresentation
of a material fact. Id. Singh then signed his Adjustment Application a second time,
affirming that any changes he made to the application in the course of the interview
were based on sworn testimony. Id. at ¶ 42.
On May 9, 2002, INS approved Singh’s Adjustment Application. Id. at ¶ 45.

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6

Sing then sent a letter to USCIS on April 16, 2003, requesting to withdraw his Second
Asylum Application. Id. at ¶ 46. On April 22, 2003, USCIS withdrew Singh’s Second
Asylum application. Id.
C.

Naturalization Proceedings

On July 7, 2008, Singh filed a Form N-400 application for naturalization
(“Naturalization Application”) (Doc. 1-6), under the name KARNAIL SINGH,
claiming he was born in December 1968. Id. at ¶ 47. Several questions in the
application are relevant to the allegations in this matter.
First, in Part 1, question C of the application states, “If you have ever used
other names, provide them below.” Singh wrote in “None.” Id. at ¶ 48. Second, in Part
10(D), question 15 asks, “Have you ever committed a crime or offense for which you
were not arrested?” Id. at ¶ 51 (emphasis in original). Singh marked the box for “No.”

Id. Next, in Part 10(D), question 23 inquires: “Have you ever given false or misleading
information to any U.S. government official while applying for any immigration
benefit or to prevent deportation, exclusion or removal?” (emphasis in original). Id. at
¶ 54. Again, Singh marked the box for “No.” Id. Then, in Part 10(D), question 24 asks:
“Have you ever lied to any U.S. government official to gain entry or admission into
the United States?” Id. at ¶ 59 (emphasis in original). Singh again marked the box
for “No.” Id. Lastly, in Part 10E, question 27 inquires: “Have you ever been ordered
to be removed, excluded or deported from the United States?” Id. at ¶ 62 (emphasis
in original). Singh marked the box for “No.” Id.

United States v. Karnail Singh
7

On about June 30, 2008, Singh signed his Naturalization Application under
penalty of perjury, thereby certifying that his application and the evidence submitted
with it were true and correct. Id. at ¶ 65.
On October 16, 2008, Singh appeared before a USCIS officer and was placed
under oath for an interview concerning the information Singh provided in his
Naturalization Application. Id. at ¶ 66. When the officer asked Singh to verify Part
10(D), question 15, Singh orally responded in the negative, thereby testifying under
oath that he had never committed a crime or offense for which he had not been
arrested. Id. at ¶ 67.
Five corrections, however, were made to Singh’s Naturalization Application
during the interview,2 and at the conclusion Singh again signed the application,
thereby certifying under penalty of perjury that the information provided in the
application (as revised), as well as any evidence submitted in support of the
application, was true and correct to the best of Singh’s knowledge and belief. Id. at ¶
70. That same day, USCIS approved Singh’s Naturalization Application. Id. at ¶ 71.
Thereafter, on January 15, 2009, Singh was administered the oath of
allegiance,

2

granted

United

States

citizenship,

and

issued

Certificate

of

The following five corrections to Singh’s Naturalization Application are numbered 1
through 5 in the application, (Doc. 1-6 at 11): (1) Singh is divorced, id. at 3; (2) Singh
traveled to India for three weeks in August 2008, id. at 5; (3) Singh divorced Smith
in August 2008, id.; (4) Singh was cited for driving under the influence (“DUI”) but
was not jailed, id. at 9; and (5) Sing was arrested in India for political reasons. Id.

United States v. Karnail Singh
8

Naturalization No. 31891035. Id. at ¶ 72.
D.

Federal Criminal Charges and Guilty Plea

On June 16, 2013, Singh was crossing the Ambassador Bridge in Detroit,
Michigan, and presented his passport card to United States Customs and Border
Protection (“CBP”) officers in order to gain entry into the United States. The name on
the passport card was KARNA1L SINGH, and the date of birth was listed as
December 1968. See (Doc. 1-2 at 4, 19). In speaking with the CBP officers, Singh
stated that he had never used any other names or spelling variations of his name; nor
had he ever used any other dates of birth. Id. at 19.
Based on these events, Singh was charged on August 16, 2013, in a two-count
indictment with: (1) knowingly using a passport unlawfully obtained or otherwise
procured by fraud or means of a false claim or statement, in violation of 18 U.S.C. §
1546(a); and (2) knowingly and willfully making false, fictitious, and fraudulent
material statements in a matter within the jurisdiction of the executive branch of the
United States (i.e., Singh’s conversation with CBP officers), in violation of 18 U.S.C.
§ 1001(a)(2). Id. at 18–19; (Doc. 1, ¶ 73).
On January 23, 2014, Singh entered into a Plea Agreement, in which the
government agreed to dismiss Count II (making a false material statement), and
Singh agreed to plead guilty to Count I (use of a fraudulently obtained passport).
(Doc. 1, ¶ 74); (Doc. 1-2, Plea Agreement at 1, 7).
The factual basis for the guilty plea, to which Singh agreed, establishes that

United States v. Karnail Singh
9

(1) under the name KARNAIL SINGH DHILLON (born in January 1963), he applied
for asylum in 1991, he was denied asylum, ordered deported, and failed to appear for
deportation as ordered; and (2) under the name KARNAIL SINGH (born in December
1968), he applied for asylum a second time in 1994, applied for his status to be
adjusted to that of a permanent resident as the spouse of a United States citizen,
failed to disclose on his Adjustment Application that he had previously applied for
and been denied immigration benefits under another identity, was granted
permanent resident status as a result of such fraud, withdrew his Second Asylum
Application, and ultimately applied for and obtained naturalization as a United
States citizen. (Doc. 1, ¶ 75); (Doc. 1-2 at 2–3).
On May 30, 2014, based on the Plea Agreement, the district court found Singh
guilty of violating 18 U.S.C. § 1546(a), dismissed Count I on the government’s motion,
and sentenced Singh to 12 months’ probation. (Doc. 1, ¶ 76); (Doc. 1-2 at 21–23).
Seeking to now revoke Singh’s naturalization, the Government filed this action
on May 18, 2018. Attached to the Complaint, as required by 8 U.S.C. § 1451(a) to
show good cause for the action, is the affidavit of Heather Wylde, Immigration
Services Officer with USCIS. (Doc. 1-1).
LEGAL STANDARD
The Federal Rules of Civil Procedure require that pleadings, including
complaints, contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a

United States v. Karnail Singh
10

complaint must contain enough facts “to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A complaint may be attacked for failure “to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). Even though a “complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
When considering a Rule 12(b)(6) motion to dismiss, “all factual allegations in
the complaint must be presumed to be true” and the court must draw all “reasonable
inferences” in favor of the non-moving party. Total Benefits Planning Agency, Inc. v.

Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation
omitted); Erickson v. Pardus, 551 U.S. 89, 94 (2007). To that end, a court must judge
the sufficiency of a complaint under a two-pronged approach: (1) disregard all “legal
conclusions” and “conclusory statements”; and (2) determine whether the remaining
“well-pleaded factual allegations,” accepted as true, “plausibly give rise to entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678–81 (2009).
Accordingly, “only a complaint that states a plausible claim for relief survives
a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A claim
becomes plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct

United States v. Karnail Singh
11

alleged.” Id. at 678. That is, the plaintiff's “[f]actual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at
555 (internal citations omitted). If, from the well-pleaded facts, the court cannot “infer
more than the mere possibility of misconduct, the complaint has alleged—but has not
‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.
R. Civ. P. 8(a)(2)).
ANALYSIS
I.

Legal Framework
Although Singh’s motion to dismiss does not challenge whether the

Government has satisfied the statutory requirements for revoking his citizenship, the
Complaint is best understood against the backdrop of the relevant law concerning
both naturalization and denaturalization.
A.

Naturalization Requirements and the Denaturalization Statute

Along the path to U.S. citizenship “there must be strict compliance with all the
congressionally imposed prerequisites.” Fedorenko v. United States, 449 U.S. 490,
506 (1981); see also 8 U.S.C. § 1429 (“[N]o person shall be naturalized unless he has
been lawfully admitted to the United States for permanent residence in accordance
with all applicable provisions of [the Immigration and Nationality] Act,” 8 U.S.C. §§
1101 et seq. (“INA”)). The prerequisites for naturalization are set forth in 8 U.S.C. §
1427, which provides in relevant part that:

United States v. Karnail Singh
12

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 . . .
8 U.S.C. § 1427(a) (emphasis added). “Failure to comply with any of these conditions
renders the certificate of citizenship ‘illegally procured,’ and naturalization that is
unlawfully procured can be set aside.” Fedorenko, 449 U.S. at 506 (citing 8 U.S.C. §
1451 (a)); United States v. Kalymon, 541 F.3d 624, 627 (6th Cir. 2008).
A person may be denaturalized by a civil denaturalization order issued in
federal court pursuant to 8 U.S.C. § 1451(a), (f).3 Section 1451(a), in fact, imposes a
duty on the government to seek such an order by suing “for the purpose of revoking
and setting aside [an] order admitting [a] person to citizenship and cancelling the
certificate of naturalization” if the naturalization order or certificate was (1) “illegally
procured” or (2) “procured by concealment of a material fact or by willful
misrepresentation.” 8 U.S.C. § 1451(a); Kungys v. United States, 485 U.S. 759, 767
(1988). With respect to the second basis for revocation, the Supreme Court has
explained that:
“[T]he provision plainly contains four independent requirements: [1] the
naturalized citizen must have misrepresented or concealed some fact,
3

This action does not involve the criminal counterpart for denaturalization, 18 U.S.C.
§ 1425(a), under which a conviction results in the individual’s naturalization being
automatically revoked. Maslenjak v. United States,137 S. Ct. 1918, 1923 (2017).

United States v. Karnail Singh
13

[2] the misrepresentation or concealment must have been willful, [3] the
fact must have been material, and [4] the naturalized citizen must have
procured citizenship as a result of the misrepresentation or
concealment.”

United States v. Ahmed, 735 F. App’x 863, 866 (6th Cir. 2018) (quoting Kungys, 485
U.S. at 767).
In an action to revoke the citizenship of a naturalized citizen, the government
bears the burden of proving that revocation of citizenship is justified by “clear,
unequivocal, and convincing” evidence that does “not leave the issue in doubt.”

Ahmed, 735 F. App’x at 866 (quoting Schneiderman v. United States, 320 U.S. 118,
125 (1943)).4 “[O]nce a district court determines that the Government has met its
burden of proving that a naturalized citizen obtained his citizenship illegally or by
willful misrepresentation, it has no discretion to excuse the conduct” or “refrain from
entering a judgment of denaturalization.” See, e.g., Federenko, 449 U.S. at 517; INS

v. Pangilinan, 486 U.S. 875, 883–84 (1988); United States v. Al-Banna, No. 05-4287,
2006 WL 3203745, at *2 (6th Cir. Nov. 7, 2006).5
In this particular case, the thrust of the Government’s complaint is that Singh:
(i) willfully, (ii) misrepresented or concealed numerous facts, (iii) that were material,
and (iv) therefore Sing procured his citizenship illegally or by misrepresentation or

4

“This burden is substantially identical with that required in criminal cases—proof
beyond a reasonable doubt.” Klapprott v. United States, 335 U.S. 601, 612 (1949).

5

The Court notes that because this is a civil denaturalization proceeding, there is no
right to a jury trial. E.g., Luria v. United States, 231 U.S. 9, 17, 27–28 (1913).

United States v. Karnail Singh
14

concealment. (Doc. 1, ¶¶ 96–97, 100, 109, 119, 125, 132–136). In particular, it is
alleged in Count V that, in the naturalization proceedings alone, Singh
misrepresented the following information:
•

his use of other names;

•

his provision of false or misleading information to a United States
government official while applying for an immigration benefit;

•

his representations he made in support of his naturalization application
that—as compared to previous applications and forms—cannot
simultaneously be true;

•

that an immigration judge previously had ordered Singh deported; and

•

that Singh concealed and willfully misrepresented at his naturalization
interview the fact that he had committed a crime for which he had not been
arrested, (i.e., his violation of 18 U.S.C. § 1001(a) by virtue of the materially
false information he provided to the government in his First and Second
Asylum Applications, in several Forms G-325A, and in his Adjustment
Application).

(Doc. 1, ¶¶ 132–33).
In addition, the Government alleges in Counts I, III, and IV that in light of
Singh’s misrepresentations throughout his immigration history, Singh was
naturalized without having satisfied prerequisites one and three. Cf. 8 U.S.C. §
1427(a)(1), (3). In these Counts, the Government’s basis for revoking Singh’s
naturalization is twofold. First, Singh was allegedly not “lawfully admitted for
permanent residence . . . for at least five years.” Id.; see (Doc. 1 at 18–20). And second,
the Government avers that Sing did not possess the requisite “good moral character”
in order to be naturalized. 8 U.S.C. § 1427(a)(3); (Doc. 1 at 21–24). The Court will

United States v. Karnail Singh
15

address the two requirements in turn.6
1. The “Lawfully Admitted for Permanent Residence” Requirement
Section 1427(a)(1) of the INA requires an applicant for naturalization to have
been “lawfully admitted for permanent residence” and thereafter resided
continuously in the United States for the statutory period of at least five years
immediately prior to filing the naturalization application. “Lawfully admitted for
permanent residence” is defined as “the status of having been lawfully accorded the
privilege of residing permanently in the United States as an immigrant in accordance
with the immigration laws . . .” 8 U.S.C. § 1101(a)(20). Because this definition is
ambiguous (and all but completely unhelpful), the Sixth Circuit in Turfah v. United

States Citizenship & Immigration Servs., 845 F.3d 668 (6th Cir. 2017) joined other
circuit courts of appeals and adopted the Board of Immigration Appeals’ (“BIA”)
interpretation of the lawful-admission requirement, as stated in In re Koloamatangi,
23 I. & N. Dec. 548 (BIA 2003). Turfah, 845 F.3d at 672.
As the Sixth Circuit explained, “lawful admission requires ‘compliance with
substantive legal requirements, not mere procedural regularity” such that, for
example, “where [lawful permanent resident] status ha[s] been granted in violation

6

Singh does not challenge whether the allegations meet the legal standards for the
four elements of denaturalization stated in Kungys. Therefore, the Court will not
scrutinize whether the Complaint satisfies each element, and accordingly Count V
will remain viable.

United States v. Karnail Singh
16

of the underlying substantive immigration laws” the individual has not “lawfully”
been admitted for permanent residence. Id. (quoting Koloamatangi, 23 I. & N. Dec. at
550).
Thus, in broad terms, an alien is considered to have been “not lawfully
admitted if they obtained their [lawful permanent resident] status through ‘fraud, or
had otherwise not been entitled to it.’” Id. (quoting Koloamatangi, 23 I. & N. Dec. at
550). The phrase “‘had otherwise not been entitled to it’ . . . means that an alien is
not lawfully admitted if he gains [lawful permanent resident] status due to a mistake
by the government—even if the alien did not commit any fraud in obtaining that
status.” Id. (citations omitted). The allegations in Counts I and II concern the lawfuladmission requirement.
i. Count I
In Count I, the Government asserts that Singh failed to meet the lawfuladmission requirement for naturalization under 8 U.S.C. §§ 1429 and 1427(a)(1)
because his permanent resident status was granted only as a result of willful and
material misrepresentations made in his Adjustment Application and other
documents leading up to his Adjustment Application that—when compared to his
previous deportation proceedings and to representations Singh made in his First
Asylum Application and in the 1991 Form G-325A submitted in connection with it—
cannot simultaneously be true.
These misrepresentations included: (i) Singh’s use of two different names and

United States v. Karnail Singh
17

dates of birth; (ii) his failure to indicate his own use of other names; (iii) the different
names Singh provided for both his father and mother; (iv) his misrepresentation
about the fact that he was in deportation proceedings at the time of his status
adjustment; and (v) his failure to truthfully respond that he had in fact sought to
procure an immigration benefit by fraud or willful misrepresentation of a material
fact. (Doc. 1, ¶¶ 95–98).
As a matter of law, the Government cannot prevail on Count I. The Supreme
Court rejected the same claim the Government makes here when it held that “the
‘concealment or misrepresentation’ clause of § 1451(a) . . . is limited to falsehoods or
deceptions in the naturalization proceeding.” Kungys, 485 U.S. at 773–74 (emphasis
added)

(“[W]e

are

unpersuaded

by

the

Government’s

argument

that

a

misrepresentation in the visa proceeding ‘procures’ the naturalization because it
obtains United States residence, which in turn is a prerequisite to naturalization”
under 8 U.S.C. § 1429.). The allegations in Count I concern misrepresentations before
the naturalization proceedings. Thus, as in Kungys, so too here—the Government
cannot prevail on Count I. Accordingly, Count I is dismissed with prejudice.
ii. Count II
Next, Count II alleges that Singh was not lawfully admitted for permanent
residence because the immigration judge that ordered Singh deported in 1995
retained exclusive jurisdiction to review any application to alter Singh’s immigration
status, and therefore INS lacked jurisdiction to review and grant Singh’s Adjustment

United States v. Karnail Singh
18

Application, which was submitted on May 30, 1996. (Doc. 1, ¶¶ 104–108).
Setting aside Singh’s argument that the immigration court lacked jurisdiction,
which the Court will address below, the law supports the Government’s claim in
Count II. See 8 C.F.R. § 1245.2, 245.2(a)(1).7 Even though, in part, Singh may have
gained lawful permanent status “due to a mistake by the government,” the Court
concludes at the pleading stage that the Government’s factual allegations show that
Singh was “not lawfully admitted” insofar as it is plausible that INS erroneously
granted Singh’s Adjustment Application. See Turfah, 845 F.3d at 672 (citations
omitted). Therefore, the Court will not dismiss Count II.
2. The “Good Moral Character” Requirement
In Counts III & IV, the Government alleges that Singh was ineligible for
naturalization at the time it was granted because he lacked the requisite “good moral
character” for naturalization under 8 U.S.C. § 1427(a)(3). Subsection (a)(3) requires
that an applicant continue to be “a person of good moral character” during the
statutory period beginning five years prior to the date when the applicant files their

7

The INA, or, more specifically 8 U.S.C. §§ 1229a(a)(1), 1229(a)(1), does not explain
when or how jurisdiction vests with the immigration judge. “Because Congress did
not address that question, the agency had some discretion in fashioning a set of
jurisdictional requirements.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 313 (6th
Cir. 2018). As relevant here, the agency’s regulations establish that “In the case of
any alien who has been placed in deportation proceedings or in removal proceedings
(other than as an arriving alien), the immigration judge hearing the proceeding has
exclusive jurisdiction to adjudicate any application for adjustment of status the
alien may file.” 8 C.F.R § 1245.2(a).

United States v. Karnail Singh
19

naturalization application until the oath of allegiance is administered. Id. §
1427(a)(3); 8 C.F.R. § 316.10(a). Here, Singh filed his Naturalization Application on
July 7, 2008. (Doc. 1, ¶ 47). Thus, Singh was required to maintain a status of “good
moral character” from July 7, 2003, until January 15, 2009, when Sing was
administered the oath of allegiance. Id. at ¶¶ 72, 111, 121.
Congress enumerated several classes of conduct that constitute a per se bar on
an applicant demonstrating “good moral character.” 8 U.S.C. § 1101(f). The relevant
example here is “giv[ing] false testimony for the purpose of obtaining” immigration
or naturalization benefits. Id. § 1101(f)(6); see also 8 C.F.R. § 316.10(b) (specifying
other instances in which an applicant “shall be found to lack good moral character”).
There are, however, three limitations in applying § 1101(f)(6). “First,
‘testimony’ is limited to oral statements made under oath.” Kungys, 485 U.S. at 780
(emphasis added); Djokic v. Sessions, 683 F. App’x 385, 389 (6th Cir. 2017). “Second, §
1101(f)(6) applies to only those misrepresentations made with the subjective intent of
obtaining immigration benefits.” Kungys, 485 U.S. at 780. Third, in contrast to §
1451(a), “the false testimony provisions of § 1101(f)(6) do not apply to ‘concealments.’”

Id. at 781. But, unlike § 1451(a), which requires that the misrepresented fact be
“material,” § 1101(f)(6) does not contain a materiality requirement for “false
testimony.” Kungys, 485 U.S. at 780.
Thus, as the Supreme Court held, at the end of the day an individual will be
deemed “to be of bad moral character on account of having given false testimony if he

United States v. Karnail Singh
20

has told even the most immaterial of lies with the subjective intent of obtaining
immigration or naturalization benefits.” Id.; Djokic, 683 F. App’x at 389. Id. §
1101(f)(6).
i. Count III
In Count III, the Government asserts that Singh lacked good moral character
based on violations of various federal criminal statutes. (Doc. 1, ¶¶ 113–116).
Specifically, the Government alleges that during Singh’s immigration and
naturalization proceedings, Singh violated: 18 U.S.C. § 1546(a);8 18 U.S.C. § 1001(a);9
and 18 U.S.C. § 1621(1),10 when he subscribed as true the contents of his
Naturalization Application (which allegedly contained false information) by signing
and submitting it under penalty of perjury on both July 7, 2008, and at the conclusion

8

18 U.S.C. § 1546(a) makes it a crime to inter alia (i) “knowingly” state “under oath”
or “subscribe[] as true, any false statement with respect to a material fact in any
application” or other immigration document, or (ii) “knowingly present[] any such
application, affidavit, or other document which contains any such false statement .
. .”

9

18 U.S.C. § 1001(a) imposes criminal sanctions on anyone who “knowingly and
willfully” (1) “falsifies” or “conceals” any “material fact”; (2) “makes any materially
false, fictitious, or fraudulent statement or representation”; or (3) “makes or uses
any false writing or document knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry . . .”

10

18 U.S.C. § 1621(1) establishes the crime of perjury as the act of any person “having
taken an oath before a competent” officer “that he will testify . . . or certify truly,
or that any written testimony, . . . or certificate by him subscribed, is true,” who
then “willfully and contrary to such oath states or subscribes any material matter
which he does not believe to be true . . .”

United States v. Karnail Singh
21

of the naturalization interview on October 16, 2008. (Doc. 1, ¶¶ 113–115). These
allegations fall within one or more of the “built-in limitations” of 8 U.S.C. § 1101(f)(6)
for “false testimony.” Kungys, 485 U.S. at 780–81.
Notwithstanding, in Count III, the Government seemingly relies on the “catchall” provision in 8 U.S.C. § 1101(f), which establishes that “[t]he fact that any person
is not within any of the enumerated classes shall not preclude a finding that for other
reasons such person is or was not of good moral character.” See also 8 C.F.R. §
316.10(b)(3)(iii) (“[An] applicant shall be found to lack good moral character if [they]
. . . [c]ommitted unlawful acts that adversely reflect upon the applicant’s moral
character . . .”); (Doc. 1, ¶¶ 82–83, 112, 116).
In light of the allegations in Count III, the Government has sufficiently pled
that Singh lacked the requisite good moral character during the statutory period due
to “acts that adversely reflect upon” his moral character (i.e., the commission of
federal crimes involving moral turpitude). Singh does not contend otherwise.
Therefore, if later proven by “clear, unequivocal, and convincing” evidence, Kungys,
485 U.S. at 781, this would render Singh’s “certificate of citizenship ‘illegally
procured,’” and his naturalization would have to be revoked pursuant to 8 U.S.C. §
1427(a)(3). Fedorenko, 449 U.S. at 506. Accordingly, Count III stands.
ii. Count IV
In Count IV, the Government alleges Singh lacked good moral character
because during his naturalization interview on October 16, 2008, and while under

United States v. Karnail Singh
22

oath, he “testified that he had never committed a crime or offense for which he was
not arrested.” (Doc. 1, ¶ 124). In fact, Singh had previously violated 18 U.S.C. §
1001(a) by virtue of having provided materially false information to the government
in his First and Second Asylum Applications, his Adjustment Application, and
multiple Forms G-325A. (Doc. 1, ¶ 125).
These allegations, accepted as true, state a plausibly claim because a false oral
statement made during an interview with an official authorized “to administer oaths”
and “to take testimony concerning any matter . . . affecting” naturalization qualifies
as false testimony. United States v. Haroon, 874 F.3d 479, 483 (6th Cir. 2017)
(quoting 8 U.S.C. § 1446(b)); Kungys, 485 U.S. at 780.
II.

Singh’s Motion to Dismiss
In challenging the sufficiency of the Complaint, Singh does not contest the

substantive merits. Instead, he makes two tangential arguments. First, he argues the
government is barred from bringing this action because the Plea Agreement he
entered into with federal prosecutors in the Eastern District of Michigan guaranteed
that he would not face adverse immigration consequences “absent additional” or
“future” criminal charges. (Doc. 6 at 4–5, 8–7).
Second, Singh interprets the Supreme Court’s recent decision in Pereira v.

Sessions, 138 S. Ct. 2105 (2018) to mean that the immigration court that ordered him
deported lacked jurisdiction to do so because the order to show cause (“OSC”) was
missing the date, time, and place of the hearing, (Doc. 10 at 2–4; (Doc. 14 at 9–13),

United States v. Karnail Singh
23

and therefore “the entire basis” for the Government’s complaint lacks any merit. (Doc.
at 12). The Court is unpersuaded.
A.

The Plea Agreement Does Not Bar This Action.

“Plea agreements are contractual in nature, so we use traditional contract law
principles in interpreting and enforcing them.” United States v. Bowman, 634 F.3d
357, 361 (6th Cir. 2011) (quoting United States v. Harris, 473 F.3d 222, 225 (6th Cir.
2006)). The interpretation and “construction of a plea agreement presents a question
of law” for the court to decide. United States v. Fitch, 282 F.3d 364, 366 (6th Cir.
2002). To that end, a court “must give effect to the intent of the parties as expressed
by the plain language in the plea agreement.” United States v. Beals, 698 F.3d 248,
256 (6th Cir. 2012).
But because there exist constitutional implications beyond that which is
present in the context of a run-of-the-mill contract, the government, as the drafter of
the agreement, is held “to a greater degree of responsibility than the defendant . . .
for imprecisions or ambiguities in the plea agreement.” Bowman, 634 F.3d at 361
(quoting Harris, 473 F.3d at 225). Thus, a court must “interpret ambiguities in plea
agreements against the government.” United States v. Black, 652 F. App’x 376, 380
(6th Cir. 2016).
Ambiguity exists in the agreement “if it is capable of more than one reasonable
interpretation.” Id. (citations and internal quotations omitted). At the end of the day,
however, the driving force “in interpreting a plea agreement is not the parties’ actual

United States v. Karnail Singh
24

understanding of the terms of the agreement; instead, an agreement must be
construed as a reasonable person would interpret its words.” See, e.g., United States

v. Moncivais, 492 F.3d 652, 663 (6th Cir. 2007) (emphasis added); United States v.
Cook, 607 F. App’x 497, 500 (6th Cir. 2015). If the government has breached a plea
agreement, the appropriate remedy may be to either order specific performance or
allow the defendant “to withdraw his plea.” Puckett v. United States, 556 U.S. 129,
137 (2009); United States v. Butler, 297 F.3d 505, 514 (6th Cir. 2002).
First, the Plea Agreement is not ambiguous. The disputed provision in Singh’s
agreement, under the heading “Immigration Consequences of Guilty Plea,” in full
reads:
Defendant acknowledges that he is a native of India and a naturalized
citizen of the United States. Defendant’s plea to this offense will not
necessarily result in immigration consequences, but, in conjunction with
possible future criminal charges, his guilty plea in this case may affect
or even foreclose his eligibility to remain in this country. Defendant has
discussed these matters with his attorney in this case, but he expressly
agrees that his decision to plead guilty is in no way conditioned upon or
affected by the advice he has been given regarding any potential
immigration consequences of his conviction(s). Defendant further agrees
that because his decision to plead guilty in this case is wholly
independent of the immigration consequences of a conviction, defendant
agrees that he will not seek to challenge his guilty plea in any later
proceeding via collateral attack on any basis relating to his immigration
status or lack thereof in this country.
(Doc. 1-2 at 6–7).
Nothing in this paragraph precludes the Government from bringing this
action. In fact, the provision explicitly provides that Singh’s “decision to plead guilty

United States v. Karnail Singh
25

in [the Eastern District of Michigan] case is wholly independent of the immigration
consequences of a conviction.” Singh was thereby put on notice that a conviction as a
result of his guilty plea could inevitably lead to adverse immigration consequences.
It is irrelevant what “Singh understood” the agreement to mean, (Doc. 6 at 9), because
“the parties’ actual understanding of the terms of the agreement” has no bearing on
its interpretation, and “instead, an agreement must be construed as a reasonable

person would interpret its words.” See, e.g., Moncivais, 492 F.3d at 663. Therefore,
the Plea Agreement does not bar this action.
To avoid this conclusion, Singh conveniently focuses solely on the second
sentence in the above-quoted provision of the Plea Agreement. But Singh
misinterprets that sentence. It does not “guarantee” that an adverse immigration
proceeding will never be brought against him. The second sentence simply states that
Singh’s guilty plea as to the offense charged at the time “will not necessarily result
in immigration consequences.”
And the second half of the sentence does not lead to a different result. The
phrase—“but, in conjunction with possible future criminal charges, his guilty plea in
[the Eastern District of Michigan] may affect or even foreclose his eligibility to remain
in this country”—merely offers one set of circumstances in which Singh’s eligibility
to remain in this country might change (i.e., in the event that Singh becomes subject
to other criminal charges). Thus, Singh’s Plea Agreement permits the government to
revoke Singh’s citizenship, even absent additional criminal charges.

United States v. Karnail Singh
26

Nonetheless, Singh argues that the agreement provides “unequivocally” that
“‘absent future criminal charges,’ his ability to remain in the United States will not
be affected.” (Doc. 6 at 8) (emphasis added). The word “absent,” however, appears
nowhere in the above-cited language. But even if the agreement were interpreted to
require that Singh be subject to criminal charges in addition to those initially brought
on August 16, 2013, as Singh urges, that requirement would be met here.
As detailed above, the Government alleges in Counts III and IV that Singh
violated 18 U.S.C. §§ 1001(a), 1546(a), and § 1621(1) during the course of his
naturalization proceedings, which occurred after Singh entered into the Plea
Agreement, by virtue of providing false testimony in his interview with a USCIS
officer and affirming the truth of the representations in his Naturalization
Application.
Second, even construing the above passage in Singh’s favor and against the
Government, the provision, at best, would preclude an action that alters Singh’s
“eligibility to remain in this country.” The instant action, however, is not an action to
remove Singh from the country. Here, the Government merely requests an order from
this Court revoking Singh’s status as a naturalized citizen. Singh’s argument is thus
unavailing because he misunderstands the nature of this lawsuit.
Finally, it is well established that a plea agreement must be interpreted “as a
whole.” Black, 652 F. App’x at 380 (quoting United States v. Randolph, 230 F.3d 243,
249 (6th Cir. 2000)). The death knell here is a separate provision in Singh’s Plea

United States v. Karnail Singh
27

Agreement. In paragraph 8, the Plea Agreement in plain terms provides that it “does
not bind any government agency except the United States Attorney’s Office for the

Eastern District of Michigan.” (Doc. 1-2 at 7) (emphasis added).
Although the Sixth Circuit has not directly weighed in on whether a United
States

Attorney

in

one

judicial

district

may

bind

another

in

a

plea

agreement, see United States v. Robison, 924 F.2d 612 (6th Cir. 1991), virtually every
other circuit court of appeals has. The consensus among these courts is that an
explicit, unambiguous territorial limitation on the binding nature of a plea agreement
should be enforced as written.11 Thus, even if the agreement unambiguously stated,

11

See, e.g., United States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998) (“When the
express terms of a plea agreement set forth promises by ‘the Government,’ we have
held that the ‘plea agreement binds only the office of the United States Attorney for
the district in which the plea is entered unless it affirmatively appears that the
agreement contemplates a broader restriction . . . (citation omitted)); United States
v. Gebbie, 294 F.3d 540, 549–50 (3d Cir. 2002) (holding that when a U.S. Attorney
uses “terms like ‘the United States’ and ‘the Government’ . . . in a plea agreement
for specific crimes, that attorney speaks for and binds all of his or her fellow United
States Attorneys with respect to those same crimes and those same defendants.”);
United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) (“Of course the
Government may—and quite readily can—‘agree’ through its agents that only
certain of its agents are to be obligated in particular respects, or that the
Government’s obligation is limited territorially or temporally, or that the
Government’s obligation is otherwise qualified.”); United States v. Van Thournout,
100 F.3d 590, 594 (8th Cir. 1996) (“Absent an express limitation, any promises
[regarding a plea agreement] made by an Assistant United States Attorney in one
district will bind an Assistant United States Attorney in another district.”); United
States v. Ingram, 979 F.2d 1179, 1185 (7th Cir. 1992) (enforcing plea agreement as
written where it was “unambiguous on its face” in that it “only bound the United
States Attorney’s Office for the District of Colorado”); United States v. Johnston,
199 F.3d 1015, 1021 (9th Cir. 1999) (holding that a plea agreement, stating that
“this agreement does not bind or obligate governmental entities other than the

United States v. Karnail Singh
28

which it does not—that under no circumstance will an action be brought against
Singh to revoke his Certificate of Naturalization—such a promise would be binding
only on federal prosecutors in the Eastern District of Michigan. Therefore, nothing
here bars the U.S. Attorney’s Office in this district from bringing the instant action.
In short, the Plea Agreement is not ambiguous. Despite Singh’s protestations,
there is only one reasonable interpretation of the Plea Agreement: A reasonable
person reading the Plea Agreement “as a whole” would understand that nothing in
the contractual language explicitly prohibits the U.S. Attorney’s Office for the
Eastern District of Kentucky from initiating this action.
B.

Pereira v. Sessions has No Impact on the Outcome of this Case.

Next, Singh contends that in the wake of Pereira v. Sessions, 138 S. Ct. 2105
(2018), jurisdiction never vested in the immigration court that ordered him deported
because the OSC (the predecessor to a Notice to Appear), issued on December 7, 1993
to initiate deportation proceedings against him, did not contain the date, time, and
place, (Doc. 10 at 2–3; Doc. 14 at 9), and he attaches a copy to his brief as support.
(Doc. 10-1). Thus, as a preliminary matter, Singh’s argument is premised on facts and
documents outside the pleadings.12 The Court need not decide whether the OSC is

United States’ Attorney’s Office for the Eastern District of Michigan,” was binding
only on that particular district); United States v. Crobarger, 158 F. App’x 100, 107
(10th Cir. 2005) (holding that an Assistant U.S. Attorney in the District of Colorado
“had no actual authority to bind the U.S. Attorney’s Office for the District of Utah
to file a Rule 35(b) motion on [defendant]’s behalf.”).
12

It is well settled that in ruling on a 12(b)(6) motion, the only materials a court may

United States v. Karnail Singh
29

properly before the Court, however, because Singh’s contentions have no footing in

Pereira v. Sessions.13
In Pereira, the Court was emphatically clear that it was addressing a “narrow
question”—“Does a ‘notice to appear’ that does not specify the ‘time and place at which
the proceedings will be held,’ as required by [8 U.S.C.] § 1229(a)(1)(G)(i), trigger the
stop-time rule?” 138 S. Ct. at 2113; id. at 2110. In an 8-1 decision, the Court answered
that question in the negative: “A putative notice to appear that fails to designate the
specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear
under section 1229(a),’ and so does not trigger the stop-time rule.” Id. at 2113–2114;

see id. at 2110.
Under 8 U.S.C. § 1229b(b), if a nonpermanent resident is subject to removal
proceedings and has inter alia accrued 10 years of continuous physical presence in

consider, without converting the motion into one for summary judgment, are “the
Complaint and any exhibits attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant’s motion to dismiss so long as
they are referred to in the Complaint and are central to the claims contained
therein.” See, e.g., Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008); Stein v.
hhgregg, Inc., 873 F.3d 523, 528 (6th Cir. 2017); Rondigo, L.L.C. v. Twp. of
Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011); Fed. R. Civ. P. 12(d). Singh’s 1993
OSC is not attached to the Complaint, but the Government does mention the same
OSC in the Complaint and the validity of the immigration court’s jurisdiction is
central to the Government’s claim in Count II. (Doc. 1, ¶¶ 16–17, 101–09).
13

In any event, even if Singh were correct, and he is not, his jurisdictional argument
only reaches the allegations in Count II, and the Government has stated numerous
other grounds for revoking Singh’s citizenship. Therefore, Singh’s jurisdictional
argument does not warrant dismissal of the entire Complaint.

United States v. Karnail Singh
30

the United States, the U.S. Attorney General has the discretion to “cancel removal”
and adjust the status of the individual. 8 U.S.C. § 1229b(b); Pereira, 138 S. Ct. at
2109–10. The “stop-time rule” at issue in Pereira dictates that “any period of . . .
continuous physical presence in the United States shall be deemed to end . . . when
the alien is served a notice to appear under section 1229(a) of this title.” Pereira, 138
S. Ct. at 2110, 2114 (quoting § 1229b(d)(1)(A)).
Thus, the rule serves the obvious purpose of “prevent[ing] noncitizens from
exploiting administrative delays to ‘buy time’ during which they accumulate periods
of continuous presence.” Id. at 1219. In holding that the stop-time rule is triggered
only if the government serves a noncitizen with a proper “notice to appear” that
contains the “time” and “place,” the Court sought to avoid “empower[ing] the
Government to trigger the stop-time rule merely by sending noncitizens a barebones
document labeled ‘Notice to Appear,’” id. at 2115, as the government admittedly had
done in “almost 100 percent” of the cases before Pereira was decided. Id. at 2111.
Therefore, Pereira stands for the proposition that if a noncitizen is served with

proper notice, that individual “stops” accruing “time” for purposes of meeting
eligibility requirements for a discretionary order canceling their removal. And later,
if that individual fails to appear, they “shall be ordered removed in abstentia.” Id.
(quoting 8 U.S.C. § 1229a(b)(5(A)). By contrast, if a noncitizen is not served with
proper notice, they continue to accrue time toward continuous presence in the
country. See id. at 2114. In that case, if there is a failure to appear, he or she may

United States v. Karnail Singh
31

move to rescind the removal order entered in abstentia. Id. at 2111.
Singh’s sweeping construction of Pereira is without merit. Nothing in Pereira’s
holding or dicta bars this action. Pereira made no mention of how or when jurisdiction
vests with an immigration court. Nor does Pereira say anything about whether or not
a deficient notice to appear deprives an immigration court of jurisdiction, voids a
deportation order entered in abstentia, and thereby precludes a court in a later
proceeding (such as this) from considering that an individual had, nonetheless,
misrepresented their involvement in deportation proceedings. E.g., (Doc. 1, ¶¶ 29, 34,
58, 62–64, 96). But that is exactly the interpretation that Singh urges this Court to
adopt. The Court will not accept that invitation.
Although Pereira was decided fairly recently, the Sixth Circuit has already had
occasion to reject an argument similar to the one Singh now advances. In Gomez-

Domingo v. Whitaker, No. 18-3547, 2019 U.S. App. LEXIS 491, at *1–2 (6th Cir. Jan.
7, 2019), the defendant argued “that jurisdiction never vested in the immigration
court pursuant to 8 C.F.R. § 1003.14(a) because her notice to appear failed to specify
the time of the hearing.” The argument was rejected because “jurisdiction vests with
the immigration court where . . . the mandatory information about the time of the
hearing is provided in a Notice of Hearing issued after the [notice to appear]” or OSC.

See id. (alterations in original) (quoting Hernandez-Perez v. Whitaker, 911 F.3d 305,
315 (6th Cir. 2018) (decided post-Pereira); 8 C.F.R. § 1003.14(a) (“Jurisdiction vests,
and proceedings before an Immigration Judge commence, when a charging document

United States v. Karnail Singh
32

is filed with the Immigration Court by the Service.”). “Charging document[s]” in
“proceedings initiated prior to April 1, 1997,” as in this case, “include an Order to
Show Cause, a Notice to Applicant for Admission Detained for Hearing before
Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by
Alien.” 8 C.F.R. § 1003.13. Regulations also require that the charging document
include certain information.14 But unlike the stop-time statute at issue in Pereira, the

14

8 C.F.R. § 1003.15(a)–(c) provides:
(a) In the Order to Show Cause, the Service shall provide the following
administrative information to the Executive Office for Immigration Review.
Omission of any of these items shall not provide the alien with any
substantive or procedural rights:
(1) The alien’s names and any known aliases;
(2) The alien’s address;
(3) The alien’s registration number, with any lead alien registration
number with which the alien is associated;
(4) The alien’s alleged nationality and citizenship;
(5) The language that the alien understands;
(b) The Order to Show Cause and Notice to Appear must also include the
following information:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to
have been violated;

United States v. Karnail Singh
33

regulation “does not mandate that the time and date of the initial hearing must be
included in that document . . . before jurisdiction will vest.” Hernandez-Perez, 911
F.3d at 314 (quoting In re Bermudez-Cota, 27 I. & N. Dec. 441, 445 (BIA 2018)).
In the instant case, it is alleged that an OSC was issued on December 7, 1993,
and was served on Singh on January 4, 1994. (Doc. 1, ¶ 16). That OSC, Singh
maintains, was deficient and is attached to his motion to dismiss. (Doc. 10-1). But
Singh allegedly appeared for an initial hearing and then was “served with a Notice of

(5) Notice that the alien may be represented, at no cost to the
government, by counsel or other representative authorized to appear
pursuant to 8 CFR 1292.1;
(6) The address of the Immigration Court where the Service will file the
Order to Show Cause and Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court
having administrative control over the Record of Proceeding of his or
her current address and telephone number and a statement that
failure to provide such information may result in an in absentia
hearing in accordance with § 1003.26.
(c) Contents of the Notice to Appear for Removal Proceedings. . . Failure to provide
any of these items shall not be construed as affording the alien any substantive
or procedural rights.
(1) The alien’s names and any known aliases;
(2) The alien’s address;
(3) The alien’s registration number, with any lead alien registration
number with which the alien is associated;
(4) The alien’s alleged nationality and citizenship; and
(5) The language that the alien understands.

United States v. Karnail Singh
34

Hearing indicating the date and time of a third hearing,” for which Singh “failed to
appear.” (Doc. 1, ¶ 17) (emphasis added). Singh does not contend that any of the
information required by 8 C.F.R. § 1003.15 was missing from the subsequent Notice
of Hearing.
As such, jurisdiction over Singh’s deportation proceeding vested in the
immigration court because “the mandatory information about the time of the hearing
[was] provided in a Notice of Hearing issued after the [OSC].” See Gomez-Domingo,
2019 U.S. App. LEXIS 491, at *1–2 (quoting Hernandez-Perez, 911 F.3d at 315).

Hernandez-Perez therefore controls, and the misrepresentations that Singh
allegedly made in response to immigration and naturalization application inquiries
remain pertinent in determining whether Singh lacked the requisite “good moral
character” for naturalization. E.g., (Doc. 1, ¶¶ 29, 34, 58, 62–64, 96). Accordingly, the
Court will not dismiss Count II.
For all these reasons, the Government has adequately alleged facts that
support the revocation of Singh’s naturalization on the grounds stated in Counts II–
V, and therefore, Singh’s motion to dismiss is DENIED IN PART.
IV.

CONCLUSION
Consistent with the accompanying Memorandum Opinion, and the Court being

advised,
IT IS ORDERED that:
(1) Defendant’s motion to dismiss (Doc. 6) be, and is hereby, GRANTED IN

United States v. Karnail Singh
35

PART and DENIED IN PART;
(2) Count I of the Complaint is dismissed WITH PREJUDICE;
(3) Defendant shall file an Answer to the Complaint within (14) days after
entry of this order; and
(4) Thereafter, the parties shall have ninety (90) days within which to engage
in discovery, which shall be completed no later than June 26, 2019.

This 14th day of March 2019.

United States v. Karnail Singh
36