Saleh v. United States Department of Justice et al
Filing
48
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Jane Triche Milazzo on 3/25/13.(ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MOHAMED MANA SALEH
CIVIL ACTION
VERSUS
NO: 12‐425
UNITED STATES DEPARTMENT
OF JUSTICE, ET AL.
SECTION: “H”(2)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
United States Citizenship and Immigration Services ("USCIS") denied Plaintiff Mohamed
Mana Saleh's application for naturalization (the “Instant Application”) on May 23, 2012. Plaintiff
petitioned this Court for review pursuant to 8 U.S.C. § 1421(c). The matter was tried before the
undersigned on March 11 and 12, 2013. Having considered the evidence admitted at trial, the
arguments of counsel, and the briefing submitted by the parties, the Court issues the following
Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
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FINDINGS OF FACT
From a preponderance of the evidence, the Court finds as follows:
Summary of Background:
1.
Plaintiff is a 39‐year‐old national and citizen of Yemen.
2.
Plaintiff was accorded lawful permanent residence status in the United States in 1989.
3.
On January 9, 1998, Plaintiff filed an Application for Naturalization, INS Form N‐400, with
the former Immigration and Naturalization Service ("INS").
4.
On July 19, 1999, the former INS denied the application.
5.
On August 9, 2002, Plaintiff filed a second Application for Naturalization, INS Form N‐400,
with the former INS.
6.
USCIS denied the application on February 8, 2011.1
7.
On February 12, 2010, Plaintiff filed the Instant Application.
8.
On February 8, 2011, USCIS issued a written decision denying the Instant Application. The
decision was originally dated January 11, 2011.
9.
Plaintiff administratively appealed the denial of his naturalization application by filing a
Form N‐336, Request for a Hearing on a Decision in Naturalization Proceedings, dated July
1
The second application for naturalization was never formally adjudicated. Thus, the denial of the
Instant Application also constituted a denial of the second application.
2
8, 2011.
10.
On March 27, 2012, Plaintiff appeared for a sworn N‐336 hearing before USCIS Officer
Sandra Peacock.
11.
On May 23, 2012, USCIS affirmed in writing its denial of the Instant Appication.
12.
On February 14, 2012, Plaintiff filed this claim for injunctive and mandamus relief.
Plaintiff's Admission into the United States:
13.
On June 8, 1988, Mohamed Mana Saleh filed a form I‐130, Petition for Alien Relative, on
behalf of Plaintiff, his son. This form lists Plaintiff's date of birth as "3/10/73."
14.
The former INS approved Mr. Saleh's form I‐130 on November 1, 1988.
15.
On April 29, 1989, Plaintiff filed an INS Form 230, Application for Immigrant Visa and Alien
Registration. His date of birth was inadvertently listed as "4/10/73."
16.
On September 11, 1989, Plaintiff's immigration status was adjusted by INS to that of a
lawful permanent resident. INS stamped Plaintiff's form DS 1‐551 with a form I‐551 stamp
and an immigration admission stamp.
17.
On September 11, 1989, Plaintiff was issued a form I‐551 Permanent Resident Card.
Plaintiff was issued the Alien Number A040‐060‐153.
The Instant Application for Naturalization
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18.
On April 19, 2010, Plaintiff filed the Instant Application.
19.
On September 13, 2010, Officer Randy Stebbins, a naturalization examiner with USCIS,
interviewed Plaintiff under oath regarding this application.
20.
Officer Stebbins asked Plaintiff whether he had knowingly committed any crime for which
he had not been arrested; whether he had ever been arrested, cited, or detained by any
law enforcement officer (including INS and military officers) for any reason; and whether
Plaintiff had ever given false or misleading information to a United States government
official while applying for any immigration benefit.
21.
Plaintiff orally affirmed that all information on the Instant Application was true and correct.
22.
During this same interview, Plaintiff executed two written, sworn statements. On the first
sworn statement, Plaintiff stated that he had never “been arrested, detained or questioned
by any police, military, or intelligence agencies.”
23.
On the second sworn statement, Plaintiff stated that he “first became aware of [his] duty
to register with the United States Selective Service System,” at the instant naturalization
interview.
24.
During his sworn N‐336 hearing before USCIS Officer Peacock, Plaintiff confirmed that he
understood the word "detained" to mean "stopped and questioned." When questioned
regarding his failure to report his detention at the airport in Jordan on the Instant
Application, Plaintiff admitted that he was, in fact, detained at John F. Kennedy
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International Airport ("JFK").2 Plaintiff testified that he did not disclose the detention and
seizure because he was not arrested.
25.
Plaintiff further testified during this hearing that he did not know what the Selective Service
was when he received materials regarding the naturalization process, and that he was
unaware of his obligation to register.
Plaintiff's Detention at JFK Airport on August 24, 1995
26.
On August 24, 1995, Plaintiff was detained at JFK as he attempted to board a Royal
Jordanian flight bound for Amman, Jordan. His final destination was Yemen.
27.
Plaintiff was stopped in the jet way by Special Agent William Wilson ("SA Wilson"), a
Customs Inspector who formed part of the Contraband Enforcement Team (CET).
28.
SA Wilson advised Plaintiff of the currency reporting requirements of 31 U.S.C. § 5311, et
seq. Plaintiff was informed that he was required to file a report with the United States
Government if he was transporting monetary instruments to a foreign country totaling in
excess of $10,000.00.
29.
SA Wilson provided Plaintiff with a form CB 503, which explained the currency reporting
requirements.
2
Officer Peacock inadvertently referred to the location of the airport in which Plaintiff was detained
as Jordan. Interestingly enough, Plaintiff immediately recognized Officer's Peacock's mistake and understood
that she was referencing his detention at JFK.
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30.
Plaintiff subsequently executed a written statement that he was transporting $2,900.
31.
SA Wilson searched Plaintiff and his carry‐on luggage and discovered $19,952 in U.S.
currency and $29,000 in negotiable bonds.
32.
Plaintiff was detained and transported by van to the CET office for further processing. The
CET office was located on the opposite end of the airport.
33.
The monetary instruments were confiscated at the CET office.
34.
The United States Attorney was contacted and declined to prosecute. Plaintiff was released
and allowed to keep $472 to continue his trip.
35.
Plaintiff subsequently filed suit against the United States and the confiscated funds were
returned.
Plaintiff's Registration for Selective Service
36.
Plaintiff stated in Part G of the Instant Application entitled "Selective Service Registration"
that he has not “lived in the United States at any time between his 18th and 26th birthdays
in any status except lawful nonimmigrant.” Part G instructs that all men who have lived in
the United States between the ages of 18 and 26 must register with the Selective Service
System before applying for naturalization.
37.
At trial, Plaintiff conceded that he lived in the United States between his 18th and 26th
birthdays yet failed to register for the Selective Service.
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38.
Plaintiff was informed of his obligation to register for Selective Service during his
naturalization interview in May, 1999.
Plaintiff's New York Conviction of August 3, 2005
39.
On August 3, 2005, officials with the New York State Department of Taxation and the New
York State Police observed several compact Discs and DVD recordings for sale at Anis Super
Deli.
40.
After confirming the discs were counterfeited, officers entered the store and confronted
Plaintiff.
41.
Plaintiff informed the officers that he owned Anis Super Deli and that he was responsible
for the sale of the counterfeit items.
42.
Plaintiff was subsequently arrested in Rochester, New York on charges of Trademark
counterfeiting in the Second Degree (a felony), and Failure to Disclose the Origin of a
Recording in the Second Degree (a misdemeanor).
43.
On October 31, 2005, Plaintiff pleaded guilty to a single count of Failure to Disclose the
Origin of a Recording. He was fined $1,200 and received no jail time. As a result of this
guilty plea, the other charges were dismissed.
CONCLUSIONS OF LAW
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1.
The Court has jurisdiction over this matter pursuant to 8 U.S.C. § 1421(c). Venue is proper
as a substantial part of the events or omissions giving rise to this matter occurred in the
Eastern District of Louisiana. 28 U.S.C. § 1391(e)(1).
2.
An applicant whose application for naturalization has been denied can seek judicial review
in a federal district court under 8 U.S.C. § 1421(c). Section 1421(c) provides that such
review shall be de novo and that the court shall make its own findings of fact and
conclusions of law. 8 U.S.C. § 1421(c). See further Aparicio v. Blakeway, 302 F.3d 437, 445
(5th Cir. 2002) ("Judicial review of naturalization denials is always available and is de novo,
and is not limited to any administrative record but rather may be on facts established in
and found by the district court de novo").
3.
Strict compliance with all prerequisites for the acquisition of citizenship is required.
Fedorenko v. United States, 449 U.S. 490, 522 (1981). A naturalization applicant bears the
burden of establishing eligibility. Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637 (1967). Thus,
all doubts are resolved "in favor of the United States and against the claimant." Berenyi,
385 U.S. at 637 (internal quotations and citations omitted).
4.
The applicant must carry his burden of proof by a preponderance of the evidence. See 8
C.F.R. § 316.2(b) ("The applicant shall bear the burden of establishing by a preponderance
of the evidence that he or she meets all of the requirements for naturalization"). Despite
the clear wording of this regulation, the Government argues in vain that Plaintiff must
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establish good moral character—a statutory prerequisite for naturalization—by clear and
convincing evidence. The out‐of‐Circuit authorities cited by the Government in support of
this proposition rely on Berenyi. In Berenyi, the Supreme Court unequivocally held that the
Government must prove its case by clear and convincing evidence "when it seeks to strip
a person of citizenship already acquired." Berenyi, 385 U.S. at 636. Significantly, the Court
did not address whether this standard applies to a naturalization applicant. See Hamdi v.
U.S.C.I.S., No. EDCV 10–894 VAP (DTBx), 2012 WL 632397, at *10 (C.D. Cal. Feb. 25, 2012)
(interpreting Berenyi). The cases cited by the Government are therefore unpersuasive,
particularly in light of the clear wording of 8 C.F.R. § 316.2(b), and the fact that no Fifth
Circuit case has been found in support of the Government's argument. This Court joins the
vast majority of courts to address the issue in holding that Plaintiff must prove all criteria
for naturalization by a preponderance of the evidence. See, e.g., Taylor v. United States
Attorney General, No. 11–35751, 2013 WL 223150, at *2 (9th Cir. Dec. 7, 2012); Oropeza
v. Napolitano, No. H–09–2604, 2010 WL 4878837, at *7 (S.D. Tex. Nov. 23, 2010);
Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 716 (E.D. Va. 2012); Hamdi, 2012 WL
632397, at *10.
5.
In order to be eligible for naturalization, an alien must establish that he or she:
a.
Is at least 18 years of age. 8 U.S.C. § 1445(b); 8 C.F.R. § 316.2(a)(1).
b.
Is a lawful permanent resident. 8 U.S.C. § 1429; 8 C.F.R. § 316.2(a)(2).
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c.
Has resided continuously within the United States for at least 5 years after obtaining
lawful permanent residence. 8 U.S.C. § 1427(a)(1); 8 C.F.R. § 316.2(a)(3).
d.
Has been physically present in the United States for at least 30 months of the 5
years preceding the date of filing the application for naturalization. 8 U.S.C. §
1427(a)(1); 8 C.F.R. § 316.2(a)(4).
e.
Has resided for at least 3 months in the state where the application for
naturalization was filed. 8 U.S.C. § 1421(a)(1); 8 C.F.R. § 316.2(a)(5).
f.
Has resided continuously within the United States from the date of application for
naturalization up to the time of admission to citizenship. 8 U.S.C. § 1427(a)(2); 8
C.F.R. § 316.2(a)(6).
g.
Has been a person of good moral character for the 5 years immediately preceding
the application for naturalization up to the time of admission for citizenship. 8
U.S.C. § 1426(a)(3); 8 C.F.R. § 316.2(a)(7).
h.
Has been attached to the principles of the Constitution of the United States and
well disposed to the good order and happiness of the United States. 8 U.S.C. §
1426(a)(3); 8 C.F.R. § 316.2(a)(7).
i.
Is willing "(A) to bear arms on behalf of the United States when required by the law,
or (B) to perform noncombatant service in the Armed Forces of the United States
when required by the law, or (C) to perform work of national importance under
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civilian direction when required by the law." 8 U.S.C. § 1448(a)(5)(A)–(C).
j.
Is not: barred as a subversive, 8 U.S.C. § § 1424, 1427(f), and 8 C.F.R. § 313; a
member of the communist party, 8 U.S.C. § 1424(a); a deserter during war time who
was convicted by court martial or civil court, 8 U.S.C. § 1425; an alien who has
removal proceedings pending against him/her or an outstanding and final order of
deportation, 8 U.S.C. § 1429; an alien who applied for and received relief from the
Selective Service System based on his or her alienage, 8 U.S.C. § 1426(a).
k.
Can demonstrate: an elementary level of reading, writing, and understanding of the
English language, 8 U.S.C. § 1423(a)(1), 8 C.F.R. § 312.1; knowledge and
understanding of the fundamentals of the history and government of the United
States. See 8 U.S.C. § 1423(a), 8 C.F.R. § 312.2.
6.
The parties have stipulated that Plaintiff can establish all statutory pre‐requisites for
naturalization except lawful permanent residence and good moral character. The Court
addresses each requirement in turn.
7.
An applicant is considered a lawful permanent resident if he or she has "been lawfully
accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed." 8 U.S.C. §
1101(a)(20). It is a long‐standing principle in the Fifth Circuit that an alien who acquires
permanent residence status through fraud, misrepresentation, or mistake is not, and never
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has been, a lawful permanent resident. See In re Longstaff, 716 F.3d 1439, 1141 (5th Cir.
1983) ("The term 'lawfully' denotes compliance with substantive legal requirements, not
mere procedural regularity."); Ramos–Torres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011)
("If, as a matter of law, [the alien] was not eligible to receive LPR status [when he acquired
it], then he could not, and therefore did not, lawfully acquire it") (emphasis and alterations
in original).
8.
The Court finds that Plaintiff has established lawful permanent residence status by a
preponderance of the evidence.
9.
The phrase "good moral character" is fleshed out in the Immigration and Nationality Act
("INA") and the regulations promulgated thereunder. Both the INA and the regulations
provide a list of acts that conclusively demonstrate a lack of good moral character. See 8
U.S.C. § 1101(f)(1)–(9); 8 C.F.R. § 316.10(b)(1)–(2). The regulation also provides that certain
other acts raise a rebuttable presumption against finding good moral character. See 8
C.F.R. § 316.109(b)(3)(i)–(ii). A "catch‐all" provision in the statutory scheme provides that
non‐enumerated acts or characteristics can, in the absence of extenuating circumstances,
demonstrate lack of good moral character. See 8 U.S.C. § 1101(f); 8 C.F.R. §
316.10(b)(3)(iii). Claims of good moral character are to be evaluated "on a case‐by‐case
basis taking into account the elements enumerated in [8 C.F.R. § 316.10] and the standards
of the average citizen in the community of residence." 8 C.F.R. § 316.10(a)(2). The Court
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may consider the applicant's conduct prior to the statutory period in order to determine
good moral character during the statutory period. Id.
10.
An applicant is precluded from establishing good moral character if he or she gives false
testimony with the subjective intent of obtaining immigration benefits, regardless of
whether the information provided was material. See 8 U.S.C. § 1101(f)(6); 8 C.F.R. §
316.10(b)(2)(vi); Kungys v. United States, 485 U.S. 759, 780 (1988). "Misrepresentations
made for other reasons like embarrassment, fear, or a desire for privacy do not meet this
requirement." Gonzalez–Maldonado v. Gonzalez, 487 F.3d 975, 977 (5th Cir. 2007) (citing
Kungys, 485 U.S. at 780). For purposes of the statutory scheme, "testimony" is limited to
oral statements made under oath. Kungys, 485 U.S. at 780. Thus, false assertions on a
written naturalization application do not constitute false testimony. Kariuki v. Tarango, No.
12–10174, 2013 WL 644469, at *8 (5th Cir. 2013) (citing Kungys, 485 U.S. at 780). In the
Fifth Circuit, however, "oral testimony before an immigration officer that the false
assertions contained within the written application are true does constitute false
testimony." Kariuki, 2013 WL 644469, at *8 (emphasis added) (citing Kungys, 485 U.S. at
780); see also Ansah v. Ashcroft, 88 F. App’x 687, 688 (5th Cir. 2004) (per curiam);
Noveron–Rodriguez v. Holder, 375 F. App’x 433, 435 (5th Cir. 2010) (per curiam).
11.
The Court finds that Plaintiff cannot establish good moral character by a preponderance of
the evidence. In response to the question on the Instant Application “[h]ave you ever been
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arrested, cited, or detained by any law enforcement officer (including USCIS or former INS
and military officers) for any reason[,]" Plaintiff checked "yes" and disclosed his arrest for
"Selling fake DVD's" in 2005. Plaintiff orally confirmed the answer to this question under
oath in his interview with Officer Stebbins. By failing to disclose his detention at JFK Airport
in 2005, Plaintiff provided false testimony in order to obtain an immigration benefit.
12.
There can be no doubt that Plaintiff was "detained" by a law enforcement officer at JFK
Airport on August 24, 1995. Plaintiff was stopped in the jet way before boarding his flight
and explained the reporting requirements of 31 U.S.C § 5311. After executing a written
statement, SA Wilson searched Plaintiff's person and carry‐on luggage. Plaintiff was
subsequently transported by van to a CET office on the opposite end of the airport.
13.
Having established that Plaintiff provided false testimony, the Court next inquires whether
that testimony was made with the subjective intent of obtaining immigration benefits.
Plaintiff testified that he believed his statements to be truthful, because he was never
"detained"—he felt free to leave at any time during the stop. Plaintiff also denied being
transported to the CET office following the search.
14.
Plaintiff's testimony is not credible for multiple reasons. First, Plaintiff shows a history of
mendacity when interacting with law enforcement. For example, when Plaintiff was
arrested in New York, he informed officers that he owned Anis Super Deli and was
responsible for the counterfeit items for sale. Plaintiff subsequently testified at trial that
14
neither of these statements was true.3 Additionally, Plaintiff has not registered for the
Selective Service and has repeatedly denied knowledge of the obligation to do so when
questioned by immigration officials. Yet the record reveals that Plaintiff was aware of his
obligation to register since at least May, 1999.
15.
Second, when confronted with difficult questions about past events, Plaintiff repeatedly
testified that he could not remember or does not know what happened. Plaintiff's chronic
inability to recall past events with clarity further undermines his testimony.
16.
Third, Plaintiff's testimony is directly contradicted by SA Williams' testimony, as well as the
narrative summary that was generated from SA Williams' written report.
17.
Were Plaintiff's false testimony considered to be immaterial, this Court may have been
more inclined to find that Plaintiff did not act with the requisite intent. See Kungys, 485
U.S. at 780–81 ("It will be relatively rare that the Government will be able to prove that a
misrepresentation that does not have the natural tendency to influence the decision
regarding immigration or naturalization benefits was nonetheless made with the subjective
intent of obtaining those benefits") (emphasis added). Conversely, when false testimony
forecloses a line of questioning into the applicant's past that could influence the decision
on his eligibility for naturalization, the most logical conclusion is that the statement was
3
The record is unclear as to whether Plaintiff actually owned Anis Super Deli. The Court need not
make a finding on this issue. Rather, the Court notes that Plaintiff's inconsistent statements further
underscore his lack of credibility as a witness.
15
made for the purpose of obtaining immigration benefits. See Kungys, 485 U.S. at 807 n.3
(White, J., dissenting) ("[I]t is quite clear that when misrepresentations of fact are made in
the process of applying for immigration and naturalization benefits, in a very real and
immediate sense those misrepresentations are made 'for the purpose of obtaining' such
benefits").
18.
Plaintiff's false testimony regarding his seizure at JFK undoubtedly prevented a line of
questioning that would have effected his eligibility to naturalize. Plaintiff can provide no
credible reason for failing to disclose this information, nor can this Court find any in the
record. Plaintiff's repeated non‐truths, non‐disclosures, and convenient lapses of memory
fully support the Government's argument that Plaintiff intentionally concealed his JFK
detention from immigration officials in order to obtain a favorable disposition on his
naturalization application. Consequently, Plaintiff is precluded from establishing the good
moral character required to naturalize.
19.
If any of the foregoing Findings of Fact constitute Conclusions of Law, they are adopted as
such. Likewise, if any of the foregoing Conclusions of Law constitute Findings of Fact, they
are adopted as such.
CONCLUSION
During the course of his efforts to acquire naturalized citizenship, Plaintiff has
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demonstrated a noticeable lack of candor. In his latest attempt to naturalize, Plaintiff provided
false testimony for the purpose of obtaining an immigration benefit. Since Plaintiff has not proven
himself to be a person of good moral character, he is ineligible for United States citizenship.
Therefore, the Instant Application is DISMISSED. Judgment will be entered in favor of the United
States.
The Court notes in passing that at some future time Plaintiff may renew his efforts to
achieve naturalized citizenship. If and when this occurs, Plaintiff is urged to be forthright and
truthful.
New Orleans, Louisiana, this 25th day of March, 2013.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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