Al-Saadoon v. Holder et al

Filing 37

Findings of Fact, Conclusions of Law, and Order of Judgment. (Written Opinion). Signed by The Hon. Paul A. Magnuson on 10/21/2014. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Orwa Ali Al-Saadoon and Farok
Abdulmajid Hamod,

Case No. 12-cv-2949 (PAM/TNL)

Petitioners,
v.
Eric J. Holder, Jr., Janet Napolitano,
Alejandro Mayorkas, and Sharon V. Dooley,

FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND
ORDER OF JUDGMENT

Respondents.
___________________________________________________________
1.

This matter is before the Court on Farok Abdulmajid Hamod’s and Orwa

Ali Al-Saadoon’s requests for de novo review of the United States Citizenship and
Immigration Services’ denials of their naturalization applications. For the reasons that
follow, the Court affirms the denials.
FINDINGS OF FACT
2.

Hamod and Al-Saadoon are natives and citizens of Iraq. (Govt. Ex. 33.)

They are also married and have six children. (Govt. Ex. 32.)
3.

Hamod is an accomplished and respected Sheikh and Islamic scholar. He

serves the community by, among other things, leading religious ceremonies, offering
spiritual counseling, and publishing academic works.
4.

Al-Saadoon is a caring mother and wife.

5.

On August 11, 1998, Al-Amal School filed an I-129 Petition for

Nonimmigrant Worker on Hamod’s behalf. (Govt. Ex. 2.) Al-Amal School sought to
have Hamod provide it with religious worker services on a temporary basis. (Id.)

6.

On September 15, 1998, Immigration and Naturalization Service, the

predecessor to USCIS, granted the petition and approved a nonimmigrant visa for Hamod
that was valid from September 14, 1998 to September 5, 2001. (Govt. Ex. 2.)
7.

On June 23, 1999, Hamod entered the United States as a nonimmigrant

religious worker. (Govt. Ex. 5.)
8.

On August 6, 1999, Al-Amal School filed an I-360 Petition for Special

Immigrant Religious Worker on Hamod’s behalf. (Govt. Ex. 3.) Al-Amal School sought
to have Hamod provide it with religious worker services on a permanent basis. (Id.)
9.

On December 29, 1999, INS denied the petition because Al-Amal School

failed to establish that it was a 501(c)(3) tax-exempt organization and was therefore not
an organization qualified to file a visa petition for a religious worker. (Govt. Ex. 4, at 3.)
10.

On August 2, 2000, the Islamic Cultural Community Center filed an I-360

Petition for Special Immigrant Religious Worker on Hamod’s behalf. (Govt. Ex. 5.) The
ICCC sought to have Hamod serve as its Imam on a permanent basis. (Govt. Ex. 8, at 1.)
11.

In support of the petition, counsel for the ICCC submitted a letter dated

September 26, 2000, which enclosed a letter from the ICCC stating that Hamod had
“been working [there] in a religious capacity since he arrived in Minnesota in 1999.”
(Govt. Ex. 6.) Specifically, the enclosed letter from the ICCC, dated “Minneapolis [sic]
26, 2000,” states: “[Hamod] has been helping the ICCC in various capacities. Since his
arrival in the Twin Cities, [Hamod] has been . . . leading prayers . . . giving weekly
lectures . . . advising and counseling . . . conducting marriage ceremonies . . . [and]
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holding seminars . . . .” (Govt. Ex. 8, at 2-3.) The letter further states: “We are also
thankful to Al-Amal School for allowing [Hamod] provide his needed services to the
ICCC and the Muslim community.” (Id. at 3.)
12.

Hamod himself submitted a letter in support of the petition, also dated

“Minneapolis [sic] 26, 2000,” in which he wrote: “When I arrived in American in
6/24/1999, I devoted many of my efforts to serve the Muslim community in Minnesota.
In fact, since my arrival I lead Muslims in their daily prayers at various Mosques. I also
deliver Islamic lectures [and] participated, by invitation, in social and religious activities
with Muslims in Detroit, Chicago, and Los Angeles.” (Govt. Ex. 7, ¶ 9.)
13.

Finally, Al-Amal School submitted a letter, dated September 25, 2000, in

support of the petition. (Govt. Ex. 9.) The letter states: “Al-Amal School initially
employed [Hamod] as a religious teacher in June 1999 pursuant to an R-1 visa. He later
became the Religious Curriculum Director at the school.” (Id.) The letter goes on to
describe Hamod’s duties at Al-Amal School. (Id.) Those duties are different than the
duties the ICCC and Hamod detailed in their letters dated “Minneapolis [sic] 26, 2000.”
(Govt. Exs. 7-9.)
14.

On December 8, 2000, INS granted the petition and approved an immigrant

visa for Hamod. (Govt. Ex. 5.)
15.

On June 20, 2001, Hamod filed an I-485 Application to Adjust Status based

on his immigrant visa. (Govt. Ex. 10.) On June 21, 2001, Al-Saadoon, being Hamod’s
wife, also filed an I-485 Application to Adjust Status as a derivative beneficiary of
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Hamod’s immigrant visa. (Govt. Ex. 34.) They sought to become lawful permanent
residents. (Id.)
16.

In support of the applications, the ICCC submitted a letter dated June 20,

2001. (Govt. Ex. 11.) The letter states that the ICCC “offered Dr. Hamod a permanent
employment in the position of Imam at a salary of no less than $54,000 per year.” (Id.)
The letter further describes Hamod’s duties at the ICCC, which were substantially similar
to the duties described in the ICCC’s letter dated “Minneapolis [sic] 26, 2000.” (Govt.
Exs. 8, 11.)
17.

On August 21, 2002, INS granted the applications, and Hamod and Al-

Saadoon then adjusted to permanent residence status. (Govt. Exs. 10, 13, 34, 35.)
18.

On July 11, 2007, Hamod and Al-Saadoon each filed an N-400 Application

for Naturalization. (Govt. Exs. 14, 36.) With those applications, they sought to become
U.S. citizens. (Id.)
19.

In Part 6 of Hamod’s naturalization application, captioned “Information

About Your Residence and Employment,” subsection B asks: “Where have you
worked . . . during the last five years?” (Govt. Ex. 14, at 3.) Hamod responded that he
was employed at the ICCC from “7-15-2000” to the present. (Id.) He signed the
application “under penalty of perjury under the laws of the United States of America.”
(Id. at 10.)
20.

In response to a Request for Evidence by USCIS, Hamod submitted a letter

from the ICCC, dated April 20, 2009, which states: “This is to certify that Dr. Farok
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Hamod is working for The Islamic Cultural Community Center as president and Imam
for this organization since 2000 until now. Upon his request, we issued this letter.”
(Govt. Ex. 15.) Hamod also submitted a letter from the ICCC, dated June 22, 2010,
which states: “[Hamod] has been with the ICCC – Al Huda since 2000.” (Govt. Ex. 16.)
21.

On October 27, 2010, a USCIS officer interviewed Hamod in connection

with his naturalization application. (Govt. Ex. 18.) Hamod was represented by counsel
and an interpreter was provided. (Id. at 2:5-9; 3:12-17.) Hamod was sworn in and gave
oral testimony. (Id. at 3:21 to 4:1, 5:19-21.) The officer asked Hamod about his work at
the ICCC, and particularly: “How long have you been employed at the ICCC?” (Id. at
12:18.) He responded: “Since 2000.” (Id. at 12:19.)
22.

On November 22, 2010, USCIS denied Hamod’s naturalization application

because he lacked good moral character. (Govt. Ex. 19.)
23.

On July 27, 2010, a USCIS officer interviewed Al-Saadoon in connection

with her naturalization application. (Govt. Ex. 36.)
24.

On November 22, 2010, USCIS denied Al-Saadoon’s naturalization

application because she lacked good moral character. (Govt. Ex. 37.)
25.

On December 17, 2010, Hamod administratively appealed the denial of his

naturalization application. (Govt. Ex. 21.)
26.

On December 8, 2011, a USCIS officer interviewed Hamod in connection

with his administrative appeal. (Govt. Ex. 22.) Hamod was represented by counsel and
an interpreter was provided.

(Id. at 2:8-13.)
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Hamod was sworn in and gave oral

testimony. (Id. at 3:10-13, 5:8.) The officer asked Hamod when he started working for
the ICCC. (Id. at 11:14.) He responded: “2000.” (Id. at 11:15.) He later testified that he
began working at Al-Amal School in 1999 and was employed by them for “less than a
year,” at which time he started working for the ICCC. (Id. at 55:20 to 56:8.) He
reiterated that he started working for the ICCC in 2000. (Id. at 56:9-13.) He agreed that
when he entered the United States, “he had a visa to work at Al-Amal School . . . but then
[he] changed and [he] started working with ICCC.” (Id. at 62:13-18.) His counsel agreed
that Al-Amal School and the ICCC are two separate entities. (Id. at 66:5-7; 66:21-22;
67:2; 69:11.)
27.

On August 16, 2012, USCIS affirmed its denial of Hamod’s naturalization

application because he was not lawfully admitted to permanent residence status and
because he lacked good moral character. (Govt. Ex. 23.)
28.

On December 17, 2010, Al-Saadoon administratively appealed the denial of

her naturalization application. (Govt. Ex. 38.)
29.

On December 1, 2011, a USCIS officer interviewed Al-Saadoon in

connection with her administrative appeal. (Govt. Ex. 39.)
30.

On August 16, 2012, USCIS affirmed its denial of Al-Saadoon’s

naturalization application because she was not lawfully admitted to permanent residence
status given that she derived her immigration status from Hamod, who was not lawfully
admitted, and because she lacked good moral character. (Govt. Ex. 40.)

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31.

On November 26, 2012, Hamod and Al-Saadoon filed individual actions

for de novo review of USCIS’s denials of their naturalization applications. Because AlSaadoon’s eligibility to naturalize depends on Hamod’s, as she is a derivative beneficiary
of him and thus whether she was lawfully admitted for permanent residence status
depends on whether he was, the Court consolidated the two actions.
32.

On June 4, 2013, Hamod gave sworn testimony at his pretrial deposition in

this case. (Govt. Ex. 31.) He could not recall when he became involved with the ICCC
or how long he had been in the United States before he became involved with the ICCC.
(Id. at 23:5-11.) But he did testify that he had no reason to doubt his testimony during his
administrative appeal hearing that he had been employed at the ICCC since 2000. (Id. at
24:7-11.) And he testified that he was working as an Imam and preacher at the ICCC in
April 2000. (Id. at 25:23-25.) He did not recall whether he was still working for AlAmal School at that time. (Id. at 26:1-3.) He agreed that the ICCC and Al-Amal School
are two separate entities. (Id. at 32:4-14.) He also agreed that he “provided services” for
the ICCC during the period from September 14, 1998 to August 6, 2001. (Id. at 34:8-10.)
33.

On October 15 and 16, 2014, the Court held a hearing to review USCIS’s

denials of Hamod’s and Al-Saadoon’s naturalization applications.
CONCLUSIONS OF LAW
34.

When USCIS denies a naturalization application, the applicant may seek

judicial review of the denial under 8 U.S.C. § 1421(c).

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35.

Section 1421(c) permits the district court to conduct a de novo review of

USCIS’s denial of a naturalization application:
A person whose application for naturalization under this subchapter is
denied, after a hearing before an immigration officer under section 1447(a)
of this Title, may seek review of such denial before the United States
district court in the district in which such person resides. . . . Such review
shall be de novo, and the court shall make its own findings of fact and
conclusions of law and shall, at the request of the petitioner, conduct a
hearing de novo on the application.
8 U.S.C. § 1421(c).
36.

To be eligible for naturalization, an applicant must meet the following

requirements:
(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 and
during the five years immediately preceding the date of filing his
application has been physically present therein for periods totaling at least
half of that time, and who has resided within the State or within the district
of the Service in the United States in which the applicant filed the
application for at least three months;
(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, 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. § 1427(a).
37.

The applicant “bear[s] the burden of establishing by a preponderance of the

evidence that he or she meets all of the requirements for naturalization.” 8 C.F.R.
§ 316.2(b). As the Supreme Court has emphatically declared: “it has been universally
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accepted that the burden is on the alien applicant to show his eligibility for citizenship in
every respect.” INS v. Pangilinan, 486 U.S. 875, 886 (1988) (citation and quotation
marks omitted).
38.

The Supreme Court has also commanded that the applicant must strictly

comply with all of the statutory mandates to attain citizenship. See Fedorenko v. United
States, 449 U.S. 490, 506 (1981) (confirming that “there must be strict compliance with
all the congressionally imposed prerequisites to the acquisition of citizenship”); Berenyi
v. Dist. Dir., INS, 385 U.S. 630, 637 (1967) (instructing that “no alien has the slightest
right to naturalization unless all statutory requirements are complied with”). Indeed, the
Supreme Court has warned that “[a]n alien who seeks political rights as a member of this
Nation can rightfully obtain them only upon the terms and conditions specified by
Congress,” and “[c]ourts are without authority to sanction changes or modifications; their
duty is rigidly to enforce the legislative will in respect of a matter so vital to the public
welfare.” Fedorenko, 449 U.S. at 518 (citation and quotation marks omitted).
39.

As explained above, one of the requirements for naturalization is that the

applicant must have resided continuously within the United States for five years after
having been “lawfully admitted for permanent residence.” 8 U.S.C. § 1427(a)(1). 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).
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40.

An alien who was admitted as a nonimmigrant religious worker, 8 U.S.C.

§ 1101(a)(15)(R), and then adjusted his or her status to that of special immigrant religious
worker, 8 U.S.C. § 1101(a)(27)(C), may apply to be admitted for permanent residence
status. 8 U.S.C. §§ 1154(a)(1)(G), 1255(a).
41.

But an alien who “accepts unauthorized employment prior to filing an

application for adjustment of status . . . or who otherwise violated the terms of a
nonimmigrant visa” may not be admitted to permanent residence status.

8 U.S.C.

§ 1255(c).
42.

Expanding on what constitutes “unauthorized employment,” the regulations

in effect when Hamod was approved as a nonimmigrant religious worker provide that a
nonimmigrant religious worker may only work for the specific religious organization that
was authorized to engage his or her services.

See 8 C.F.R. §§ 214.2(r)(3)(ii)(E),

274a.12(b)(16) (providing that “the following classes of non-immigrant aliens are
authorized to be employed in the United States by the specific employer and subject to
the restrictions . . . indicated as a condition of their admission: . . . alien having a religious
occupation, pursuant to § 214.2(r) of this chapter”), 214.1(e) (1999) (providing that a
“nonimmigrant who is permitted to engage in employment may only engage in such
employment as has been authorized”).
43.

If a different religious organization wants to engage the nonimmigrant

religious worker’s services, the organization must file a new petition and obtain that
authorization.

See 8 C.F.R. § 214.2(r)(6) (1999) (providing that “[a] different or
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additional organizational unit of the religious denomination seeking to employ or engage
the services of a religious worker admitted under this section shall file a Form I-129 with
the appropriate fee”).

The different religious organization must file the petition

regardless of whether it seeks to formally employ or simply “engage the services” of the
nonimmigrant religious worker. Id.
44.

To constitute unauthorized employment, the services to the different

religious organization need not be compensated. See Camphill Software v. INS, 381
F.3d 143, 150 (3d Cir. 2004) (rejecting the argument that a “religious occupation” for
purposes of implementing religious-worker provisions under 8 U.S.C. § 1101(a) must be
a salaried position); 56 Fed. Reg. 66,965 (Dec. 27, 1991) (noting that in promulgating the
final version of 8 C.F.R. § 214.2(r), the agency stated that the rule had been “revised to
account more clearly for uncompensated volunteers, whose services are engaged but who
are not technically employees”).
45.

If the different religious organization does not file a new petition and the

nonimmigrant religious worker provides services to the organization, those services
constitute unauthorized employment and bar the applicant from being admitted to
permanent residence status. See id. (providing that “any unauthorized changes to a new
religious organization will constitute failure to maintain status”); 8 C.F.R. § 214.1(e)
(providing that a “nonimmigrant who is permitted to engage in employment may only
engage in such employment as has been authorized” and “[a]ny unauthorized
employment by a non-immigrant constitutes failure to maintain status”).
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46.

In sum, if a nonimmigrant religious worker provides paid or volunteer

services for a different religious organization than that authorized to engage his or her
services and the different religious organization does not file a new petition and obtain
authorization, those services constitute unauthorized employment and bar the applicant
from being admitted to permanent residence status. If the applicant was admitted, the
admission was unlawful and renders the applicant ineligible for naturalization.
47.

A derivative beneficiary, like a spouse, of an applicant for naturalization

shares the same immigration status as the primary beneficiary relative for purposes of his
or her naturalization application. 8 U.S.C. § 1153(d).
48.

The Court concludes that Hamod was unlawfully admitted to permanent

residence status because he engaged in unauthorized employment by working for the
ICCC when he was authorized to work only for Al-Amal School and because the ICCC
did not file a new petition and obtain authorization for that work.
49.

As found above, Hamod’s nonimmigrant visa authorized him to provide

religious worker services from September 14, 1998 to September 5, 2001 only for AlAmal School.

But the record plainly reflects that Hamod engaged in unauthorized

employment during part of that period for the ICCC. The ICCC is a different religious
organization than Al-Amal School. The following evidence shows that Hamod provided
religious worker services to the ICCC starting at least in early to mid-2000: the ICCC’s
and Hamod’s letters in support of the ICCC’s special-immigrant-religious-worker
petition, the ICCC’s letter in support of Hamod’s status-adjustment application, Hamod’s
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answers on his naturalization application, the ICCC’s two letters in support of Hamod’s
naturalization application, and Hamod’s sworn testimony during his naturalizationapplication and administrative-appeal interviews and his pretrial deposition.
50.

At trial, Hamod testified that all of the evidence showing that he provided

religious worker services for the ICCC starting in 2000 was “mistaken.” Given the
overwhelming evidence to the contrary—including Hamod’s own prior statements—the
Court does not find his testimony on this subject to be credible.
51.

Further, even if some of Hamod’s religious worker services to the ICCC

starting in 2000 were voluntary and not paid, which Hamod admits, the Court concludes
that, as discussed above, those services constitute unauthorized employment.
52.

Additionally, the ICCC did not previously file a new petition to authorize

that employment until August 2000 and did not obtain authorization until December
2000, several months after Hamod began providing religious worker services for the
ICCC.
53.

Once the Court has determined that an applicant does not qualify for

naturalization, it “has no discretion to ignore the defect and grant citizenship.”
Fedorenko, 449 U.S. at 517 (citation and quotation marks omitted).
54.

Because Hamod technically engaged in unauthorized employment while on

a nonimmigrant visa and thus was unlawfully admitted to permanent residence status, the
Court is bound to conclude that he is therefore ineligible for naturalization.

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55.

Having concluded that Hamod may not naturalize because he was

unlawfully admitted to permanent residence status, the Court need not and will not
address whether Hamod alternatively may not naturalize because he lacks good moral
character.
56.

Since Al-Saadoon was admitted to permanent residence status as a

derivative beneficiary of Hamod, she was unlawfully admitted and is likewise ineligible
for naturalization.
ORDER OF JUDGMENT
57.

Neither Hamod nor Al-Saadoon are eligible to naturalize because they were

not lawfully admitted to permanent residence status. Accordingly, IT IS HEREBY
ORDERED that USCIS’s denials of Hamod’s and Al-Saadoon’s naturalization
applications are AFFIRMED.

Dated: October 21, 2014

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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