United States Of America v. Drame
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT granting 28 Motion for Summary Judgment. Because Defendant has not established a genuine dispute of material fact and has not provided any factual support for his claimed defenses, I find that Defendan t Drame illegally procured his citizenship and procured his citizenship by concealment of material facts and by willful misrepresentation. Summary judgment is hereby granted on all counts in favor of the Government. Defendant Drame's citizens hip is hereby revoked, and the order admitting Drame to citizenship is set aside. Defendants Certificate of Naturalization, No. 35166807, is hereby cancelled, effective as of June 22, 2012, and Defendant is restrained from claiming any benefits , privileges, or advantages of United States citizenship in connection with his June 2012 naturalization. Defendant is instructed to surrender his certificate of naturalization, and any other indicia of citizenship that he may possess to the cou nsel for the U.S. Government within ten days of this order. Oral argument, currently scheduled for April 6, 2021, is hereby cancelled. The Clerk is instructed to enter judgment for the Government, and to terminate the open motion, ECF No. 28. SO ORDERED.. (Signed by Judge Alvin K. Hellerstein on 4/1/2021) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
ABOUBACAR DRAME a/k/a SOKO DARMAY, :
ALVIN K. HELLERSTEIN, U.S.D.J.:
18 Civ. 11480 (AKH)
Defendant Aboubacar Drame (“Defendant” or “Drame”), originally from Guinea, became
a naturalized citizen of the United States of America on June 22, 2012. On December 7, 2018,
the Government commenced this action to revoke Drame’s citizenship, alleging that Drame
misrepresented and concealed material facts and illegally procured his citizenship. ECF No. 1.
The Government now moves for summary judgment on all three counts. ECF No. 28. For the
reasons that follow, the Government’s motion for summary judgment is granted.
The undisputed facts are as follows. 1 Defendant Drame was born in Guinea in 1964. In
1995 or early 1996, Drame paid someone to smuggle him into the United States by boat. Depo.
In his opposition, Defendant admitted to the Government’s statement of material facts, “except for any assertions
of mental state of defendant or intent.” Opp. Br. 3, ECF No. 32. However, Defendant has not provided the Court
with a counterstatement of material facts to dispute the Government’s Statement of Material Facts, only a blanket
invitation to search Drame’s deposition transcript. Local Civil Rule 56.1 (c) states that “[e]ach numbered paragraph
in the statement of material facts set forth in the statement required to be served by the moving party will be deemed
to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph
in the statement required to be served by the opposing party.” Because Defendant failed to abide by the Local
Rules, the Government’s statement of facts is deemed admitted. See N.Y. State Teamsters Conf. Pension &
Retirement Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding strict application of local
rule deeming admitted facts uncontroverted by statements of opposing party supported by specific citations to record
Tr. 68, 70. In August 1996, after his arrival, Drame filed a Form I-589, Application for Asylum
and for Withholding of Deportation (“1996 I-589”) with the U.S. Immigration and Naturalization
Service (“INS”), using the name and biographical information of his half-brother, Soko Darmay.
Id. at 77. His application for asylum was prepared by persons claiming to be immigration
experts. In the application, Drame stated that his name was Soko Darmay, that he was born in
Liberia in 1960, that his parents were Karmo Darmey and Femata Darmay, that his wife was
Fatumata Koma, and that he had a fear of returning to Liberia, among other statements. Id. at
84-89. Drame signed the document under penalty of perjury under the name Soko Darmay.
Compl. Ex. B.
In September 1996, Drame appeared for an interview with an asylum officer, who
referred his case to immigration court because his “testimony at the asylum interview was not
credible on material points of [his] claim.” ECF No. 1-3. Deportation proceedings were then
commenced against Defendant, under the name Soko Darmay, on September 30, 1996. ECF No.
1-4. Defendant appeared before an immigration judge on January 31, 1997, during which he
testified under oath that his name was Soko Darmay, that he was from Liberia, and that he was
afraid to return to Liberia. Defendant admits that the testimony he gave was false, and that he
was coached on what to say by the people who helped prepare his asylum application. The
Immigration Judge denied Defendant’s application for asylum but granted his request for
voluntary departure. Drame appealed, but his appeal was dismissed on December 23, 1997, and
he was granted 30 days as of the date of the order to voluntarily depart the US. At some
evidence allegedly raising factual issue); Holtz v. Rockefeller, 258 F.3d 62, 73 (2d Cir. 2001) (“[W]e have affirmed
the grant of summary judgment on the basis of uncontested assertions in the moving party’s Local Rule 56.1
unknown point after his proceedings concluded, Drame departed the US and returned to Guinea
using another individual’s passport.
In March 2001, Drame again traveled from Guinea to the US; this time, using his cousin
Ibrahim Drame’s passport and visa. Drame filed a second Form 1-589 (“2001 I-589”) with INS
in September 2001. This time, he used his own biographical information and stated that he had a
fear of returning to Guinea. Drame stated in his application that he had never used other names,
that he had never been in deportation proceedings, and that he had never applied for asylum. He
signed the 2001 I-589 under penalty of perjury, stating that the information was true and
accurate. In October 2001, Drame appeared for an interview with an INS asylum interview,
during which he reaffirmed his answers on the asylum application. Drame’s was granted asylum
on August 30, 2002.
In 2004, Drame filed a Form I-485, Application to Register Permanent Residence or
Adjust Status (“I-485”). Drame reiterated the information included in his 2001 I-589. He also
stated that he had not “by fraud or willful misrepresentation of a material fact, ever sought to
procure, or procured, a visa, other documentation, entry into the United States or any
immigration benefit.” Drame signed the I-485 under penalty of perjury. On August 21, 2006,
Drame signed an affidavit, under penalty of perjury, which stated that “to the best of my
knowledge, I have never been placed under deportation or removal proceedings in the US.”
USCIS approved Drame’s I-485 application on September 20, 2006, and granted him permanent
resident status in the United States.
On February 13, 2012, Defendant filed a Form N-400, Application for Naturalization
(“N-400”), with USCIS, which he signed under penalty of perjury. He stated on the N-400 that
he had never used other names, had never given false or misleading information to any US
Government official while applying for any immigration benefit, and had never lied to any US
Government official to obtain entry or admission to the United States. He also stated that he had
never applied for any kind of relief from deportation. Drame attended an interview with a
USCIS officer on May 21, 2012 and confirmed his answers to the N-400 under oath. He then
signed a revised N-400 application which contained the aforementioned representations and
certified under penalty of perjury that his answers were true and correct. Drame was then
approved for naturalization on June 5, 2012. On June 22, 2012, Drame took the Oath of
Allegiance and became a naturalized citizen.
b. Procedural History
The Government filed this action on December 7, 2018, seeking an order setting aside the
order admitting Drame to citizenship, restraining Drame from claiming any rights or privileges in
connection with his naturalization, canceling his Certificate of Naturalization, and ordering the
surrender of his Certificate and any other indicia of U.S. citizenship to the U.S. Government.
Gov’t Br. 29, ECF No. 34. The complaint alleges three counts against Defendant. Count I
alleges that Drame was never lawfully admitted for permanent residence since he procured an
immigration benefit by fraud or willful misrepresentation and was therefore inadmissible. Id. at
13. Count II alleges that Defendant lacked the required good moral character to be admitted
because he gave false testimony during the statutory period. Id. at 19. Count III alleges that
Defendant obtained his U.S. Citizenship through willful misrepresentation and concealment of
material facts during the naturalization process. Id. at 22. The Government now seeks summary
judgment on all three counts; a finding in favor of the Government on any of the three counts
requires revocation of Defendant’s naturalization.
The Government argues that summary judgment is appropriate because Defendant’s own
admissions in his deposition show that he knew the statements on the various forms and the
answers he provided in his interviews with USCIS were false, but that Drame made them
anyway. Defendant concedes that he made misstatements and omissions at issue. However, he
argues that there is a genuine dispute of material fact as to whether the statements were knowing,
willful, or made with the intent to deceive. Defendant argues that he raised certain defenses in
his answer which negate Defendant’s culpability, namely: reliance on immigration experts as to
what answers to provide and what to withhold, duress and coercion due to fear of being sent back
to Guinea, and lack of knowledge of the contents of the written applications. Furthermore,
Defendant argues that under the equitable doctrine of laches, the government should be barred
from bringing this proceeding.
Summary judgment is appropriate only if there are no genuine issues of material fact,
entitling the moving party to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). Although “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment,” id. at
247–48, summary judgment is not warranted if a “reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. “A party asserting that a fact cannot be or is genuinely disputed
must support the assertion” by citing depositions, affidavits, stipulations, or other materials or by
showing “the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). Legal memoranda are not evidence and do not create issues of fact capable of
defeating an otherwise valid motion for summary judgment. Rexnord Holdings, Inc. v.
Bidermann, 21 F.3d 522, 526 (2d Cir. 1994).
If a party moves for final summary judgment, the responding party must raise in its
opposition to the motion any defense that would preclude final summary judgment. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Johnson v. Bd. of Regents of Univ. of Ga.,
263 F.3d 1234, 1264 (11th Cir. 2001); Harper v. Delaware Valley Broadcasters, Inc., 743
F.Supp. 1076, 1090–91 (D. Del. 1990) (explaining that the defendant bears the burden to adduce
evidence supporting affirmative defense). The court must “view the evidence in the light most
favorable to the party opposing summary judgment ... draw all reasonable inferences in favor of
that party, and ... eschew credibility assessments.” Amnesty Am. v. Town of West Hartford, 361
F.3d 113, 122 (2d Cir. 2004). The non-moving party may not rely on conclusory allegations or
unsubstantiated speculation to defeat the summary judgment motion. Scotto v. Almenas, 143
F.3d 105, 114 (2d Cir. 1998).
In a denaturalization proceeding, the government bears the “heavy burden” of providing
“clear, unequivocal, and convincing” evidence that citizenship should be revoked. Fedorenko v.
United States, 449 U.S. 490, 505 (1981). The government bears the burden of such a high
degree of proof in denaturalization proceedings because of the “importance of the right that is at
stake.” Id. at 505–06; Schneiderman v. United States, 320 U.S. 118, 122 (1943) (“[Citizenship]
once conferred should not be taken away without the clearest sort of justification and proof.”).
Thus, summary judgment for the government in a denaturalization proceeding is warranted if,
viewing the evidence in the light most favorable to the naturalized citizen, there is no genuine
issue of material fact as to whether clear, unequivocal, and convincing evidence supports
Under 8 U.S.C. § 1451(a), a court must revoke an order admitting an individual to citizenship
and cancel the individual’s certificate of naturalization if his or her naturalization was either (i)
illegally procured, or (ii) procured by concealment of a material fact or by willful
misrepresentation. Citizenship is “illegally procured” if it fails to comply with any of the
congressionally imposed prerequisites for acquisition of citizenship. See Fedorenko, 449 U.S. at
506, 517. The Government argues that Drame’s citizenship should be revoked under either
theory. These are addressed in turn.
a. Count I- Defendant Illegally Procured an Immigration Benefit by Fraud or Willful
Misrepresentation and Was Therefore Never Lawfully Admitted for Permanent
The Government first argues that Defendant was inadmissible for having procured an
immigration benefit by fraud or willful misrepresentation, and therefore was never lawfully
admitted for permanent residence. To qualify for naturalization, an applicant must have been
lawfully admitted to the US for permanent residence in accordance with all applicable
immigration laws. See 8 U.S.C. § 1427(a), 1429. “Lawfully admitted for permanent residence”
is defined as “that 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). Admission which does not comply with the
substantive legal requirements is not a lawful admission for permanent residence. See De La
Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d 551, 554-55 (2d Cir. 2007); 8 U.S.C. §
1159(b)(5). An alien who “by fraud of willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or admission into the
United States or other benefit under [the INA]” is inadmissible to the United States. 8 U.S.C. §
Denaturalization based on the concealment of a material fact or by willful
misrepresentation requires a finding that “ the naturalized citizen must have misrepresented or
concealed some fact,  the misrepresentation or concealment must have been willful,  the
fact must have been material, and  the naturalized citizen must have procured citizenship as a
result of the misrepresentation or concealment.” Kungys v. United States, 485 U.S. 759, 767
The undisputed facts show that Defendant was inadmissible to the United States.
Defendant concedes that he made misrepresentations about his identity on his 1996 asylum
application and concealed the facts related to those proceedings and his identity in his 2001
asylum application and his 2004 application to adjust his status. These misrepresentations were
willful, as they were “done intentionally and deliberately and . . . [were] not the result of an
innocent mistake, negligence, or inadvertence.” Emokah v. Mukasey, 523 F.3d 110, 116-117 (2d
Cir. 2008). Drame argues that he was unaware of the contents of the written application in 1996,
as he did not understand English at the time. Even so, Drame own admissions show that he
confirmed this false identity under oath at the asylum interview and at his immigration hearing in
front of the immigration judge. And, upon his return to the United States, he then procured an
adjustment of status, knowing that he previously had used his brother’s name and that he had
been in removal proceedings. He affirmatively misrepresented these facts on his second asylum
application, in his asylum interview, and on his I-485 in 2004, certifying this information under
penalty of perjury. I therefore find that Drame’s misrepresentations were willful.
I also find that Defendant’s misrepresentations and concealments were material. “A
misrepresented or concealed fact is “material” if it was “predictably capable of affecting,” that is,
had “a natural tendency to produce the conclusion that the applicant was qualified.” Kungys, 485
U.S. at 772. Such an influence can exist “if either (1) the alien is excludable on the true facts, or
(2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's
eligibility and which might well have resulted in a proper determination that he be excluded.”
Singh v. Thompson, 2016 WL 5791403, at *4 (D.N.J. Oct. 3, 2016); Monter v. Gonzales, 430
F.3d 546, 557 (2d Cir. 2005). Defendant concedes that the misrepresentations were material but
argues that there is a chance that the adjudicator may not have viewed this information as very
serious, or may have granted him asylum regardless. However, the Government need only prove
a tendency to influence the decision, not that the decision must actually have been different.
United States v. Stelmokas, 100 F.3d 302, 317 (3d Cir. 1996) (The government does not bear the
burden of “produc[ing] evidence from officials that if the truth had been told the officers would
have reached a different result”). Drame’s misrepresentations had the effect of shutting down a
line of questioning relevant to his eligibility. See Monter, 430 F.3d at 557. Had the Defendant
disclosed his past identity, or that he had been in removal proceedings and his claim for asylum
had been denied, it is reasonable to assume that such information would have influenced a
decisionmaker to investigate further into Drame’s background and to determine that he was not
suitable for admissibility. It therefore cannot be said that Defendant’s past immigration history
is immaterial to a decisionmaker deciding admissibility.
Finally, these misrepresentations were made for the purpose of procuring immigration
benefits. Citizenship is “procured” as a result of the concealment or misrepresentation if the
“misrepresentation results in the applicant's successful naturalization.” United States v. Rebelo,
646 F. Supp. 2d 682, 690 (D.N.J. 2009), aff'd, 394 Fed.Appx. 850 (3d Cir. 2010); see also
United States v. Hirani, 824 F.3d 741, 750 (8th Cir. 2016) (“An applicant ‘procures’
naturalization on the basis of a misrepresentation if there is a causal connection between the
misrepresentation and the acquisition of citizenship.”). “[A] person whose lies throw
investigators off a trail leading to disqualifying facts gets her citizenship by means of those
lies—no less than if she had denied the damning facts at the very end of the trail.” Maslenjak v.
United States, 137 S. Ct. 1918, 1929 (2017). Drame’s lies concealed facts that would have
disqualified him from gaining permanent residence status. He was granted asylum and his
permanent residence status, by virtue of the misrepresentations of his prior immigration history.
I therefore find that Defendant was inadmissible at the time he obtained lawful permanent
resident status, and the Government is entitled to summary judgment on Count I.
b. Count II- The Defendant Illegal Procured his Citizenship Because He Lacked the
Required Good Moral Character to Become A Naturalized Citizenship.
Next, the Government argues that because the Defendant gave false testimony, he lacked
the required good moral character to become a naturalized citizen. To be eligible for
naturalization, an applicant must establish a showing of good moral character for the relevant
statutory period, which runs from the five years immediately preceding the filing of his
naturalization application (N-400) and continues until the oath of allegiance is administered. See
8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10(a)(1). The Court must make a determination regarding
the applicant's moral character during the statutory period, but it “may take into consideration, as
a basis for its determination, the applicant's conduct and acts at any time prior to [the statutory
period].” 8 C.F.R. § 316.10(a)(2). An applicant is statutorily precluded from establishing good
moral character if, during the statutory period, he has given false testimony for the purpose of
obtaining an immigration benefit. See 8 U.S.C. § 1101(f)(6); 8 C.F.R. § 316.10(b)(2)(vi).
Section § 1101(f)(6) “denominates a person to be of bad moral character on account of having
given false testimony if he has told even the most immaterial of lies with the subjective intent of
obtaining immigration or naturalization benefits.” Kungys v. United States, 485 U.S. 759, 764
(1988). False statements are limited to oral statements made under oath. Id. at 781. A court
may infer “intent to falsify and deceive from the mere untruthful response to a question, the
clarity of which leaves little or no room for a reasonable explanation of misunderstanding.”
United States v. Profaci, 274 F.2d 289, 292 (2d Cir. 1960).
The undisputed facts establish that Defendant lacked the statutorily required good moral
character for naturalization because he made false statements during the statutory period.
Defendant testified that he had never given false or misleading information to any U.S.
Government official while applying for any immigration benefit or to prevent deportation,
exclusion, or removal, that he had never lied to a U.S. Government official to gain entry or
admission into the US, and that he had never applied for any kind of relief from removal,
exclusion, or deportation. Defendant admits that the statements he gave during his naturalization
interview were false, and that he knew the testimony he gave was false. These statements were
made to obtain an immigration benefit, namely, naturalization, as Drame made these statements
during the interview to determine his eligibility for naturalization. Defendant also admits that he
provided such testimony to avoid returning to Guinea. Because Drame provided false testimony
to obtain his naturalization, he was statutorily barred from showing that he had the required good
moral character for naturalization and was therefore ineligible for naturalization under 8 USC
1427(a)(3). I therefore grant summary judgment for the Government on Count II.
c. Defendant Obtained His U.S. Citizenship Through Willful Misrepresentation and
Concealment of Material Facts During the Naturalization Process
Finally, the Government argues that Drame made willful misrepresentations and
concealed material facts during the naturalization process. While similar to the illegal
procurement theory of Count I, the procurement of naturalization is a separate and independent
basis for denaturalization from whether alien illegally procured his permanent residence. As
previously mentioned, the Court must find four elements to establish willful misrepresentation or
concealment. See supra 8-9 (citing Kungys, 485 U.S. at 767).
Here, I find that the Defendant concealed and misrepresented material statements at the
naturalization stage. Defendant misrepresented the fact that he had not used other names in the
past, that he had provided false or misleading information to US Government officials in his
previous immigration filings, and that he had previously applied for relief from deportation on
his N-400. These misrepresentations are conclusively established by the signed N-400 itself
which certifies that the contents of the application are true and correct, see United States v.
Oddo, 314 F.2d 115, 117 (2d Cir. 1963), as well as Defendant’s own admissions that the N-400
contains various misrepresentations.
Furthermore, Drame’s misrepresentations were willful and not the product of mistake,
negligence, or inadvertence. Emokah, 523 F.3d at 116-17. “[A]pplicants are assumed to
understand the questions being asked of them on naturalization forms and reply accordingly.”
United States v. Gayle, 996 F. Supp. 2d 42, 55 (D. Conn. 2014). Drame admits that he signed
the application and certified under penalty of perjury that he knew the contents of his application
and that the information was true and correct. Moreover, after certifying his initial N-400,
Drame did so again in the presence of an immigration officer at his naturalization interview on
an N-400 which contained other revisions but included the same misrepresentations. Despite the
opportunity to correct such information, Drame chose again to certify the revised N-400. His
attestations constitute deliberate concealment of his immigration history and his prior false
statements. See United States v. Hirani, 824 F.3d 741, 749 (8th Cir. 2016) (finding willfulness
where applicant signed under penalty of perjury that he only had one name); Oddo, 314 F.2d at
117 (the District Court was “free to conclude [Defendant]’s act of signing his name to this form
constituted concealment of prior [criminal history]”).
I also find that Defendants’ misrepresentations were material, as it would have the natural
tendency to influence the decision of the adjudicator. Kungys, 485 US at 771-72. Drame’s
misrepresentations went to the heart of his claim for naturalization- his prior immigration history
and the representations that he made in process of obtaining lawful status in the United States.
Had Drame disclosed such information, a decisionmaker would have been aware that Drame was
not statutorily eligible for naturalization, and his past misrepresentations could certainly have
influenced the decisionmaker.
Finally, Defendant procured naturalization as a result of the misrepresentations and
concealments. See Kungys, 485 US at 767. Defendant swore that the information contained
within his N-400 was true and correct, that he had not used any other names, that he had never
given false information while applying for an immigration benefit, that he had never lied to gain
entry into the United States, and that he had never applied for relief from deportation. These
misrepresentations, if they had been disclosed, would have revealed to the decisionmaker that
Defendant was actually statutorily ineligible to naturalize on numerous grounds, including that
he was never lawfully admitted to permanent residence. See United States v. Latchin, 554 F.3d
709, 714 (7th Cir. 2009) (Courts consider whether it is “fair to infer that the citizen was actually
ineligible” for naturalization). Drame therefore secured his naturalization by concealing facts
and by willful misrepresentation, and the government is entitled to summary judgment on Count
Defendant argues that even if the government has satisfied its prima facie burden for
summary judgment, he should be entitled to present defenses of reliance on counsel and
duress/coercion at trial, which would negate his willfulness or intent to deceive the Government.
He also argues that he is entitled to the defense of laches. These arguments are unavailing.
Defendant first argues that he should be allowed to present the defense of laches, as this
proceeding came roughly six years after Drame’s naturalization. The Supreme Court has
explained that a “district court lacks equitable discretion to refrain from entering a judgment of
denaturalization against a naturalized citizen whose citizenship was procured illegally or by
willful misrepresentation of material facts.” Fedorenko, 449 U.S. at 517. Courts within this
district have questioned whether laches is applicable in denaturalization actions and have noted
that it would be “difficult for a defendant who had obtained his citizenship through fraud to
establish prejudice on the ground that he changed his position as a result of the Government's
delay in pursuing denaturalization.” See United States v. Lemos, No. 08 Civ. 11144 (KMW),
2010 WL 1192095, *2–3 (S.D.N.Y. Mar. 26, 2010) (explaining that the Supreme Court left open
the question of whether laches can bar a denaturalization action).
Even if the defense of laches was available in a denaturalization proceeding, Defendant
has not provided any evidence which would meet the standard. Laches requires proof of “(1)
lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party
asserting the defense.” Costello v. United States, 365 U.S. 265, 282 (1961). Defendant has not
provided any factual support which would show a lack of diligence by the government, or any
prejudice to himself from such lack of diligence. He only makes conclusory allegations that the
Government should have been able to discover Drame’s previous identity through his
fingerprints. I therefore find that defendant has failed to provide any evidence that would entitle
him to the defense of laches.
b. Reliance on Counsel
Defendant next argues that he lacked the requisite willfulness or intent because he relied
on the advice of counsel. Mot. 11. He notes that he repeatedly stated in his deposition that he
only followed the commands of the people who assisted him in the preparation of the
immigration documents. This argument also fails.
As an initial matter, the willfulness standard does not require an intent to deceive, only to
deliberately make the representation. See Singh v. Gatner, (citing Emokah v. Mukasey, 523 F.3d
110, 116-17 (2d Cir.2008) (“An act is done willfully if it is done intentionally and deliberately
and if it is not the result of innocent mistake, negligence or inadvertence.”); see also Forbes v.
I.N.S., 48 F.3d 439, 442 (9th Cir.1995) (explaining that in the context of the INA, “the
requirement ... of fraud or willful misrepresentation is satisfied by a finding that the
misrepresentation was deliberate and voluntary[;][p]roof of an intent to deceive is not required;
[r]ather, knowledge of the falsity of a representation is sufficient.”). Defendant does not claim
that the misrepresentations were the product of any such mistake.
Assuming, but not deciding, that the advice of counsel defense is available in the context
of a denaturalization proceeding, Drame has provided no information to meet the various
elements of the advice of counsel defense. In order to benefit from an advice of counsel defense,
a party must show that he “(1) honestly and in good faith sought the advice of counsel; (2) fully
and honestly la[id] all the facts before his counsel; and (3) in good faith and honestly follow[ed]
counsel’s advice, believe it to be correct and intending that his acts be lawful.” United States v.
Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012); see also Markowski v. SEC, 34 F.3d 99, 104-05
(2d Cir. 1994) (stating that the defendant must “show that he made complete disclosure to
counsel, sought advice as to the legality of his conduct, received advice that his conduct was
legal, and relied on that advice in good faith.”). Drame only provides conclusory statements that
those who were helping him prepare the application coached him on what to say. He does not
state what information he provided, when such advice occurred, or for which application the
advice was given.
More importantly, the Defendant has not and cannot cite any information to support the
fact that he acted in good faith and intended his acts to be lawful. Rather, Defendant’s
admissions show that he was counseled not to follow the law and to lie. Defendant claims he
was told by those who were preparing his forms that he would face immigration consequences
for providing truthful responses. Defendant feared that he would be deported to Guinea if he
acted in good faith and told the truth. He chose to provide false answers to avoid that outcome
and to repeatedly certify under penalty of perjury that the representations within his forms were
true and accurate. Drame cannot now seek to avoid the consequences of his own
misrepresentations by alleging that he thought he was acting lawfully. See Williamson v. United
States, 207 U.S. 425, 453 (1908) (“No man can willfully and knowingly violate the law and
excuse himself from the consequences thereof by pleading that he followed the advice of
counsel.”); see also Singh v. Gantner, No. 07 CIV. 772, 2008 WL 3152959, at *3 (S.D.N.Y.
Aug. 5, 2008) (finding that advice of counsel defense was unavailable where Defendant did not
deny that his false statements were deliberate and voluntary, only that he thought was permitted
to misrepresent despite signing application under penalty of perjury that the application was true
and correct). Thus, I find that Defendant is not entitled to the advice of counsel defense.
Finally, Defendant argues that there is a genuine dispute of fact, as his misrepresentations
were the product of duress or coercion. This argument also fails. As the Government notes, the
only claim of duress presented in Defendant’s answer relates only to his initial fraudulent
application in 1996 and his second application in 2001. See Answer 10-11. Any claim of duress
is therefore irrelevant to the Government’s arguments with respect to misrepresentations in
Drame’s I-485 application to adjust his status, the false testimony provided during this
naturalization interview, or the misrepresentations in his naturalization application.
Even if Defendant had asserted a defense of duress against all of his statements, and even
if the defense of duress is available in a denaturalization proceeding, Defendant has provided no
factual support for the claim of duress or coercion. In order to establish duress, a Defendant
must show: (1) threat of force directed at the time of the defendant’s conduct; (2) a threat
sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a
lack of a reasonable opportunity to escape harm other than by engaging in illegal activity. United
States v. Podlog, 35 F.3d 699, 704 (2d Cir. 1994). Defendant has not provided any factual
information to substantiate any of these elements. Instead, Defendant argues that he was afraid
that he would not be granted asylum and that he would have to return to Guinea. He provides no
information regarding any specific threat that would induce any fear of impending death or
injury, nor does he submit evidence that he had no reasonable opportunity to escape such harm.
Podlog, 35 F.3d at 704. That generalized fear, without more, cannot sustain a claim of duress.
The fear of returning to one’s country of origin is inherent in every asylum case, and allowing an
applicant seeking legal status in the United States by misrepresenting and concealing facts would
defeat the entire purpose of requiring truthful and accurate disclosures in their application. Thus,
Defendant has not met his burden of establishing that he is entitled to a defense of duress.
Because Defendant has not established a genuine dispute of material fact and has not
provided any factual support for his claimed defenses, I find that Defendant Drame illegally
procured his citizenship and procured his citizenship by concealment of material facts and by
willful misrepresentation. Summary judgment is hereby granted on all counts in favor of the
Government. Defendant Drame’s citizenship is hereby revoked, and the order admitting Drame
to citizenship is set aside. Defendant’s Certificate of Naturalization, No. 35166807, is hereby
cancelled, effective as of June 22, 2012, and Defendant is restrained from claiming any benefits,
privileges, or advantages of United States citizenship in connection with his June 2012
naturalization. Defendant is instructed to surrender his certificate of naturalization, and any
other indicia of citizenship that he may possess to the counsel for the U.S. Government within
ten days of this order. Oral argument, currently scheduled for April 6, 2021, is hereby cancelled.
The Clerk is instructed to enter judgment for the Government, and to terminate the open motion,
ECF No. 28.
April 1, 2021
New York, New York
/s/ Alvin K. Hellerstein
ALVIN K. HELLERSTEIN
United States District Judge
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