Turfah v. United States Citizenship and Immigration Services

Filing 20

OPINION AND ORDER GRANTING RESPONDENTS 17 MOTION FOR SUMMARY JUDGMENT AND DENYING PETITIONERS 16 MOTION FOR SUMMARY JUDGMENT. Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KAMAL TURFAH,
Petitioner,
CASE NO. 2:15-cv-10371
v.
HON. MARIANNE O. BATTANI
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Respondent.
_______________________ __________/

OPINION AND ORDER GRANTING RESPONDENTS’
MOTION FOR SUMMARY JUDGMENT AND DENYING
PETITIONER’S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION
Presently before the Court are Petitioner Kamal Turfah’s Motion for Summary

Judgment (Doc. 16) and Respondents United States Citizenship and Immigration
Service and United States Department for Homeland Security’s Motion for Summary
Judgment (Doc. 17). The Court has reviewed all the relevant filings and finds that oral
argument will not aid in resolving this dispute. See E.D. Mich. L.R. 7.1(f)(2). For the
reasons that follow, the Court GRANTS Respondents’ motion and DENIES Petitioner’s
motion.
II.

STATEMENT OF FACTS
Petitioner Kamal Turfah is a citizen of Lebanon and has been residing in the

United States as a lawful permanent resident (“LPR”) for over twenty years. On
September 23, 1995, Petitioner, at the age of 19, was inspected and admitted into the
United States on a visa that was derivative of his father’s immigration visa. Petitioner

made no misrepresentation about his visa at the time of entry. Petitioner’s father, the
principal immigrant, was admitted to the United States on October 17, 1995, twenty-four
days after Petitioner’s admission.
On November 30, 2012, Petitioner filed an Application for Naturalization, Form N400, with United States Citizenship and Immigration Services (“USCIS”). (Doc. 11, Ex.
1). On April 29, 2014, USCIS denied Petitioner’s naturalization application on two
grounds: (1) Petitioner was not lawfully admitted as an LPR because he entered the
United States before his father; and (2) Petitioner did not possess the requisite good
moral character for failure to pay income taxes or accurately report income to the IRS.
(Doc. 11, Ex. 2). USCIS later dismissed the second ground that Petitioner lacks the
requisite good moral character but maintains that Petitioner remains ineligible for
naturalization on the first ground. (Doc. 11, p. 8 n.1).
On May 16, 2014, Petitioner timely sought an administrative review of the denial.
On December 29, 2014, USCIS issued the review decision affirming the denial. (Doc.
11, Ex. 3). With all administrative remedies exhausted, Petitioner filed the current suit in
this Court on January 28, 2015. The parties filed the instant cross motions for summary
judgment on October 16, 2015.
III.

STANDARD OF REVIEW
Petitioner filed his complaint in this matter after an administrative review that

affirmed the denial of his naturalization applications. Accordingly, he is entitled to seek
judicial review of the administrative review of denial. 8 U.S.C. § 1421(c). “Such review
shall be de novo, and the court shall make its own finding of fact and conclusions of law
and shall, at the request of the petitioner, conduct a hearing de novo on the application.”

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Id. It is proper to conduct this review within the context of a Rule 56 motion for
summary judgment. Lucaj v. Dedvukaj, 13 F. Supp. 3d 753, 764-65 (E.D. Mich. 2014).
Federal Rule of Civil Procedure 56(a) authorizes a court to grant summary
judgment if “the movant shows there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” There is no genuine issue of
material fact if there is no factual dispute that could affect the legal outcome on the
issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In the present case,
the parties agree that there is no factual dispute, and the only issue before the Court is
a question of law: whether Petitioner was “lawfully admitted” to the United States in
compliance with 8 U.S.C. §§ 1427 and 1429.
IV.

ANALYSIS
A. Requirements for Naturalization
Generally, a naturalization applicant must demonstrate, inter alia, good moral

character; the ability to read, write and speak English; a basic knowledge of United
States history and government; and five years of continuous residence in the United
States. See 8 U.S.C. § 1423(a), § 1427(a). Further, as an initial matter, “no 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 Naturalization Act].” 8 U.S.C. § 1429. “The term ‘lawfully admitted for permanent
residence’ means 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, such status not having changed.” 8 U.S.C. § 1101(a)(20). The burden is on the
person seeking naturalization to establish his or her eligibility. Berenyi v. District

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Director, Immigration & Naturalization Servs., 385 U.S. 630, 637 (1967); Sakarapanee
v. Dep’t of Homeland Sec., 616 F.3d 595, 597 (6th Cir. 2010). This burden requires the
applicant to prove, by a preponderance of evidence, that he or she meets all of the
requirements of naturalization and is thus eligible to become a citizen of the United
States. See 8 C.F.R. § 316.2(b).
An applicant who has successfully obtained permanent resident status is not
necessarily “lawfully admitted for permanent residence” as defined in the statute. See
De La Rosa v. United States Dep’t of Homeland Sec., 489 F.3d 551, 554 (2d Cir. 2007).
“[A]n alien whose status has been adjusted to lawful permanent resident but who is
subsequently determined in an immigration proceeding to have originally been ineligible
for that status has not been ‘lawfully admitted for permanent residence’ because the
‘alien is deemed, ab initio, never to have obtained lawful permanent resident status.’”
Id. To demonstrate lawful admission, a naturalization applicant must prove that he or
she has “complied with both the procedural and substantive legal requirements in place
at the time of admittance.” Beleshi v. Holder, No. 12-11681, 2014 WL 4638359, at *6
(E.D. Mich. Sept. 16, 2014); Lucaj v. Dedvukaj, 13 F. Supp. 3d 753, 766 (E.D. Mich.
2014). This is because “[t]he natural reading of ‘lawful’ connotes more than just
procedural regularity; it suggests that the substance of an action complied with the
governing law.” Walker v. Holder, 589 F.3d 12, 20 (1st Cir. 2009); De La Rosa, 489
F.3d at 554; Savoury v. United States Attorney Gen., 449 F.3d 1307, 1313 (11th Cir.
2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186-87 (8th Cir. 2005); Matter of
Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983).
B. The Present Case

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In the present case, USCIS contends that Petitioner was not “lawfully admitted
for permanent residence.” Specifically, Petitioner’s immigrant visa was derivative of his
father’s principal immigrant visa. As the child of a parent who is granted an immigrant
visa, he was entitled to the same status “if accompanying or following to join” the parent.
8 U.S.C. § 1153(d). The implementing regulation provides that “[a]n ‘accompanying’
relative may not precede the principal alien to the United States.” 22 C.F.R. §
40.1(a)(2). USCIS takes the position that, by entering the United States twenty-four
days before his father, Petitioner failed to comply with the relevant legal requirements.
It is indisputable that Petitioner’s admission to the United States was procedurally
defective. The statutory regulation unambiguously states that an accompanying relative
with a derivative visa may not precede the principal visa holder into the United States.
22 C.F.R. § 40.1(a)(2). Case law also makes clear that a relative with a derivative visa
may not precede the principal visa holder into the United States. See Matter of Khan,
14 I. & N. Dec. 122, 123 (B.I.A. 1972) (confirming that “[a]n accompanying relative may
not precede the principal alien to the United States” and finding that “the validity of
respondent’s immigrant visa depended on the continued immigrant status of his father,
the principal alien.”), aff’d sub nom. Santiago v. Immigration & Naturalization Serv., 526
F.2d 488, 490 (9th Cir. 1975) (rejecting petitioners’ argument that the statutory language
“accompanying or following to join” should be construed as encompassing “preceding,”
holding that “[t]he plain language of the statute is designed to assure that those aliens
who derive their preference cannot exercise their right to enter until the person from
whom they derive their preference has actually entered.”).

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First, Petitioner argues that both his father’s principal visa and his own derivative
visa were secured through valid means and not through fraud or misrepresentation.
Many of the cases involving government challenges to LPR status involve immigrants
who procured their admission to the United States through fraud or misrepresentation.
See, e.g., Gallimore v. Attorney Gen., 619 F.3d 216, 223 (3d Cir. 2010) (petitioner
obtained his LPR by misrepresenting his past criminal convictions); Shin v. Holder, 607
F.3d 1213, 1217 (9th Cir. 2010) (holding that innocent petitioners who obtained
derivative LPR status by virtue of their mother’s fraudulently-obtained principal LPR
status “were not substantively qualified for admission as LPRs.”). However, case law
has broadly held that any person who has been erroneously granted LPR status, for
whatever reason, has not been lawfully admitted for permanent residence. See, e.g.,
Walker, 589 F.3d at 19 (citing In re Koloamatangi, 23 I. & N. Dec. 548, 550 (B.I.A. 2003)
(“[T]he term ‘lawfully admitted for permanent residence’ did not apply to aliens who had
obtained their permanent resident status by fraud, or had otherwise not been entitled to
it.” (emphasis supplied))). Indeed, case law has also held that where, as here, LPR
status is obtained because of a negligent mistake made by the government, the
admitted alien cannot be deemed lawfully admitted for permanent residence. ArellanoGarcia, 429 F.3d at 1186. Though this outcome would penalize an individual for what
amounts to the government’s oversight, the Court is constrained to follow this
precedent.
Next, Petitioner urges the Court to follow Agarwal v. Napolitano, 663 F. Supp. 2d
528 (W.D. Tex. 2009). In Agarwal, the applicants filed suit for district court review of
their naturalization applications under 8 U.S.C. § 1447(b). Id. at 530, 532. The

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government argued that the applicants never properly obtained lawful permanent
resident status because they failed to pay an enhanced fee required under 8 U.S.C. §
1255(i). Id. at 537. First, the Court first noted the dissonance between the
government’s admission that the applicants had procured LPR status and its stance that
the applicants were not lawfully admitted for permanent residence. Id. at 538. Second,
the court determined that the government’s failure, for at least a decade, to provide the
applicants statutorily required notice of the deficient fees precluded it from relying on the
nonpayment as a barrier to naturalization. Id. 538-39. (“Should their position now be the
worse because the agency erroneously granted the petitions in 1997? That result
should not be permitted, as it would essentially gut the notice provision by allowing the
CIS to grant and then immediately rescind LPR status without providing the required
notice . . . .”). The court specifically reasoned that, “[h]ad the [LPR] applications simply
been denied [a decade earlier] for failure to pay the § 1255(i) enhanced fee,” the defect
would likely have been remedied through the proper mechanism. Id. Lastly, the Court
found that in order to revoke LPR status, the government must follow the formal
procedure for revocation or rescission – but that the five-year statute of limitations
precluded the government from revoking the applicants’ permanent resident status. Id.
at 539-40. Consequently, the court rejected USCIS’s argument and held that the
applicants’ failure to pay enhanced fee did not render applicants ineligible for
naturalization. Id. at 543.
Although the present case shares many factual similarities with Agarwal, the
Court is compelled to depart from the reasoning and outcome of that case. First, the
Court rejects the finding that tension exists between admitting that an individual was

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granted LPR status and challenging the lawfulness of that admission. There is nothing
inconsistent between the government’s position that Petitioner was mistakenly granted
LPR status and its position that Petitioner was not lawfully admitted to the United
States. Indeed, the overwhelming weight of authority relies on the notion that once an
alien’s original ineligibility for LPR status is determined, that alien “is deemed, ab initio,
never to have obtained lawful permanent resident status.” See Koloamatangi, 23 I. & N.
at 551. Second, the outcome of Agarwal was premised primarily on the fact that the
government had substantially prejudiced the applicants’ position by failing to fulfil its
statutory obligation to provide notice of the enhanced fee requirement. Here, there is no
indication that the government, though negligent, failed to abide by any statutory
obligations owed to Petitioner. Lastly, to the extent that Agarwal questions the
government’s ability to challenge LPR status without a formal rescission proceeding
after the five-year statute of limitations has expired, this analysis must be rejected. By
denying Petitioner’s application for naturalization because he was not lawfully admitted,
the government is not retroactively attempting to revoke Petitioner’s LPR status, as this
status was not granted in the first place. See Walker, 589 F.3d at 22. Accordingly, the
Court declines to follow Agarwal.
Finally, Petitioner argues that the present circumstances differ from the factual
scenarios confronted in other cases, such as Matter of Khan, involving derivative visa
holders preceding principal visa holders into the United States. In Matter of Khan, the
respondent, an alien child holding a visa derivative of his father’s principal visa,
preceded his father to the United States. 14 I. & N. Dec. at 123. The respondent’s
father died in Pakistan without ever entering the United States himself, and the

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respondent was unaware of the death until after being erroneously admitted as a
permanent resident. Id. The Board of Immigration Appeals (“BIA”) held, in part, that the
respondent’s LPR status was invalid, as “the validity of respondent’s immigrant visa
depended on the continued immigrant status of his father, the principal alien. Death
terminated the father’s immigrant status and thereby stripped respondent of his status.”
Id. at 124.
Petitioner seeks to distinguish the present case from Matter of Khan because his
father successfully and lawfully entered the United States. Indeed, this fact is material,
as the BIA distinguished such a case from Matter of Khan pursuant to a policy
memorandum promulgated by the Immigration and Naturalization Service. Matter of
Naulu, 19 I. & N. Dec. 351, 352-53 (B.I.A. 1986). In that decision, the BIA held:
The memorandum thus makes clear that the right of a derivative
beneficiary to permanent resident status is wholly dependent upon that of
the principal alien and may not be exercised unless and until the principal
alien becomes a permanent resident. However, once the principal alien
gains permanent residence, his spouse or child is not precluded as a
matter of law from adjusting status as a person "accompanying or
following to join" by reason of having physically preceded the principal
alien to this country as a nonimmigrant.
Id. at 353 (emphasis supplied). Accordingly, the fact that Petitioner preceded his father
into the United States does not preclude him from adjusting his status and becoming a
lawful permanent resident at this time. Plaintiff must therefore petition respondents for
an adjustment of status granting him LPR status, and the government may decide
whether it is appropriate to issue this status nunc pro tunc, or retroactively. Until
Petitioner is able to adjust his status, however, the Court – though far from
unsympathetic to Petitioner’s dilemma – is regrettably constrained to find that he is
ineligible for naturalization at the present time.
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V.

CONCLUSION
For the reasons stated, the Court GRANTS Respondents’ Motion for Summary

Judgment and DENIES Petitioner’s Motion for Summary Judgment.
IT IS SO ORDERED.

Date: January 29, 2016

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to
their respective email addresses or First Class U.S. mail to the non-ECF participants on January 29, 2016.

s/ Kay Doaks
Case Manager

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