Hadi v. Duke et al
Filing
37
MEMORANDUM OPINION AND ORDER granting 24 Opposed MOTION for Summary Judgment . (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UN ITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GHASSM
April 12, 2019
David J. Bradley, Clerk
ADNAN HADl ,
Plaintiff,
KIRSTJEN NIELSEN , SECRETARY ,
U .S . DEPARTMENT OF HOMELAND
SECURITY and MARK SIEGL ,
FIELD OFFICE DIRECTOR , U .S .
CITIZENSHIP & IMMIGRATION
SERVICES ,
CIVIL ACTION NO . H -17-2370
Defendants .
MEMOKAHRUM OPINION AND ORD ER
Plaintiff Ghassan Adnan Hadi ('plaintiff' or uHadi' filed
'
'
')
this action on August
2017, against Kirstjen Nielsen, the
Secretary of the United States Department of Homeland Security , and
Mark Siegl, a Field Office Director for United States Citizenship &
Immigration Services (u
Defendants' seeking de novo review of his
')
denied application for naturalization . Pending before the court is
Defendants' Motion for Summary Judgment (' endants' MSJ') (
'Def
' Docket
Entry No. 24).
For the reasons explained below , Defendants' MSJ
will be granted .
1.
Factual and Procedural Backlround
Hadi applied for naturalization by subm itting a form N -400,
Application
for
Naturalization
C'
N-400'
$
to
United
States
Citizenship and Immigration Services I'USCIS' on November 22,
A
'I
2013, on the basis of hav ing been a Lawful Permanent Resident for
at least five years x
Hadi was interviewed by Immigration Service
Officer Nancy Kugler C'
ISO Kuglerr on August
')
Kugler placed
Hadi under oath
and
conducted
2014.
2
and
recorded
an
administrative hearing on his application .?
On January l3, 2015, USCIS denied Hadi's naturalization
app lication because he failed to demonstrate that he had been a
person of good moral character during the statutory period .4 USCIS
based this finding on false statements made by Hadi to ISO Kugler
during his naturalization interv iew . USCIS found that Hadi failed
to disclose that he had used several other names in the past .
USCIS also found that Hadi provided inconsistent testimony about
his (
and his family's) service
the Iraqi military and
connection to the Ba 'ath Party , which was affiliated with the
l
see USCIS File No. A212205201, Subject Ghassan Adnan Hadi
(nHadi's USCIS Fi1e' Exhibit A to Defendants' Appendix in Support
'),
of Motion for Summary Judgment CA
Defendants' Appendix' , Docket
o
Entry No. 25, pp . 230-39 (
The page numbers used to identify
documents in Hadi's USCIS File are the page numbers handwritten in
the bottom right-hand corner and not the page numbers listed on
CM/ECF.).
2See
Transcript
dated
August
25 ,
2014 ,
N -400
Hearing
(uTranscript of Hearing with ISO Kugler' , Exhibit B to Defendants'
o
Appendix, Docket Entry No . 25-1, p . 2 ln . 2-11 E
page and line
numbers correspond to the page and line numbers on the hearing
transcript and not the page numbers listed on CM/ECF.)
3See id . at 3 ln . 12 -21 .
4see Hadi's USCIS File , Exh ibit A to De fendants' Appendix ,
Docket Entry No . 25, pp . 62-66 .
totalitarian
regime
of
Saddam
determined that Hadi had given
imm igration
benefit' at
'
his
Hussein .s
Accordingly ,
Bfalse testimony
naturalization
USCIS
to obtain an
interv iew
and
was
therefore statutorily barred from being found to be a person of good
moral character. See 8 U . .
6
S C.
1l0l( (
f) 6) ('No person shall be
'
regarded as, or found to be , a person of good moral character who,
during the period for which good moral character is required to be
established is , or was--
one who has given false testimony for
the purpose of obtaining any benefits under this chapter .
Hadi filed a timely adm inistrative appeal in February of
2015 .7
On July
2015 , Hadi appeared before ISO Donna Jones
(%ISO Jones' for an interview in connection with his appeal. ISO
A
')
Jones placed
Hadi under
administrativ e hearing .8
oath
and
conducted
and
recorded an
The record ing of Hadi's interv iew with
ISO Jones ended abruptly while ISO Jones was still questioning
Hadi .g
On April 4, 2017, USCIS reaffirmed its January 15, 2015,
s
see id . at 66 .
6
See id .
7
See Hadi's USCIS File (
Form N-336 Request for a Hearing on a
Decision in Naturalization Proceedings), Exhibit A to Defendants'
Appendix , Docket Entry No . 25 , pp . 57-61 .
8
see
Transcript
dated
July
14 ,
2015 ,
N -336
Hearing
(u
Transcript of Hearing with ISO Jonesr , Exhibit C to Defendants'
o
Appendix, Docket Entry No. 25-1, p . 2 1n. 2 - p . 3 1n . 17 E
page and
line numbers correspond to the page and line numbers on the hearing
transcript, not the page numbers listed on CM/ECF).
g
see id . at 26 . The parties provide no exp lanation as to why
a complete transcrip t of Hadi's interview with ISO Jones is
unavailable . Becau se it is possib le that Hadi could have clarified
(
continued- .)
denial of Hadi's N -400 on the ground that Hadi failed to establish
that he was a person of good moral character x o
Hadi filed this action on August
2017, seeking de novo
review of his denied application for naturalization x l Defendants'
MSJ argues that Hadi 'cannot as a matter of 1aw establish that he
'
was and continues to be a person of good moral character during the
requisite period , and has otherwise failed to create a genuine
dispute of material fact as to whether he has met his burden of
demonstrating good moral character .' z
'l
II .
Slmmarv Judcm ent Standard
A
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law. Fed.
Civ.
56(
a)
Disputes about material facts are genuine uif the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party .'
'
Anderson v . Libertv Lobby , Inc w
2505 , 2510
gl- .
continued)
initially false statements made during his interview with ISO Jones
after the recording stopped , the court did not rely on false
statements made by Hadi to ISO Jones in determining whether Hadi
was statutorily barred from establishing that he is of good moral
character .
l see Hadi's USCIS File , Exhibit A to Defendants' Appendix ,
o
Docket Entry No . 25, pp . 2-6 .
l see
l
Plaintiff 's
Original
Complaint
for
Declaratory
Injunctive Relief, Docket Entry No . 1, pp . 1-2 .
l see Defendants ' MSJ , Docket Entry No . 24 , p . 1 .
2
and
(
1986). The moving party is entitled to judgment as a matter of
law if uthe nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof .'
'
Celotex Corp . v . Catrett , 106 S . Ct . 2548,
2552 (
1986)
A party moving for summary judgment '
'
must '
demonstrate the
absence of a genuine issue of material fact,' but need not neqate
the elements of the nonmovant's case .' Little v . Liguid A ir Corp .,
'
F.3d 1069, 1075 (
5th Cir. 1994) ( banc) (
en
per curiam ) (
quoting
Celotex,
Ct. at 2553).
uIf the moving party fails to meet
this initial burden , the motion must be denied , regardless of the
nonmovant's response v' Id . If the moving party meets this burden ,
'
Rule 56 ( requires the nonmovant to go beyond the pleadings and
c)
show
by
affidavits , depositions, answers
to
interrogatories,
admissions on file , or other admissible evidence that specific
facts exist over which there is a genuine issue for trial.
Id .
In review ing the ev idence uthe court must draw all reasonable
inferences in favor of the nonmoving party , and
may not make
cred ibility determinations or weigh the ev idence .'
'
Reeves v .
Sanderson Plumbing Products, Incw 120 S. Ct. 2097, 2110 (
2000).
The court resolves factual controversies in favor of the nonmovant,
'but only when there is an actual controversy , that is, when b0th
'
parties have submitted ev idence of contradictory facts .' Little,
'
F .3d at 1075 .
-
5-
111 .
Applicable Law
Under 8 U.S. . 5 1421 ( the district court reviews USCIS'S
C
c)
decision to deny a naturalization application de novo . Aparicio v .
Blakeway , 302 F.3d 437, 445 (
5th Cir . 2002).
satisfy
certain
An applicant for
naturalization
must
statu tory
and
regulatory
requirements .
See , e .q ., 8 U .S .C . 55 1101, 1427, 1429, 1430;
8 C .F .R . 55 310 , 312 , 316. The applicant for naturalization 'shall
'
bear the burden of establishing by a preponderance of the evidence
that he or she meets a11 of the requirements for naturalization .'
'
C. R.
F.
316 . b).
2(
Because citizenship once granted cannot
lightly be taken away , '
''doubts should be resolved in favor of the
United States and against the claimant .''
'
Berenyi v . District
Director . Imm igration and Naturalization Serv ice , 87 S . Ct . 666,
(
1967). When an applicant fails to show that he has met a11
statutory requirements for becoming a naturalized citizen , summary
judgment for the government may be appropriate. Chan v. Gantner,
464 F. 289, 295-96 ( Cir . 2006); see also Kariuki v . Tarango,
3d
2d
7O9 F.3d 495, 503 (
5th Cir. 2013) (
holding that a 'hearing de novo'
'
'
within the meaning
of the
INA
encompasses
review
on
summary
judgment under Federal Rule of Civil Procedure 56).
To be eligib le for naturalization under 8 U .S .C . 5 1440, an
applicant must demonstrate that he 'has been and still is a person
l
of good moral character' during the five years prior to the
'
submission of h is application for naturalization , and continuing
-
6-
throughout the naturalization process.
8 U. .
S C. 5 1427 (
a)
8 C. R . 55 316.10 ( (
F.
a) 1), ( (
a) 2). Certain statutory bars preclude
a finding of good moral character. See 8 U .
S.C. 5 110l (
f). One of
the statutory bars mandates that ul
nlo person shall be regarded as,
or found to be, a person of good moral character who, during the
period
for
which
good
established , is or was
moral
character
is
required
to
be
one who has given false testimony for
the purpose of obtaining any benefits under' the Immigration and
'
Nationality Act (UINA'
')
8 U. . .
S C
1101( 6)
f)(
'Testimony' is
'
'
limited to oral statements made under oath and does not include
other types of m isrepresentations or concealments, such as false
statements on documents or statements not made under oath . Kunqys
v . United States, 108 S. Ct. 1537, 1551 (
1988).
The false
information need not have been material to trigger the statutory
bar. Id . at 1552. For the statutory bar in 5 1l01(f)(6) to apply,
the dishonest statements need only be made with the subjective
intent of obtaining an imm igration benefit .
Even
if
an
applicant
is
not
Id .
statutorily
barred
from
demonstrating that he is a person of good moral character under
1l01(
f)
5 110l (
f) also contains a ucatch-all' provision :
'
u
The fact that any person is not within any of the (
statutorily
barredq classes shall not preclude a finding that for other reasons
such person is or was not of good moral character .'
'
1l01 (
f).
determining whether
an
8 U .S .C .
applicant meets the
requirement of the catch-all provision, the adjudicator must
-
7-
consider a11 of the petitioner's evidence on factors relevant to
the determination of good moral character . United States v . Danq ,
488
F.3d
1135,
1139
(
9th
determinations are made on
Cir.
a
2007).
Moral
character
ucase-by -case basis taking into
account the elements enumerated in this section and the standards
of the average citizen in the community of residence .'
'
8 C .F .R .
5 316. a) (
l0( 2).
IV . Analvsis
Defendants argue that they are entitled to summary judgment
because Hadi is statutorily barred from establishing that he is a
person of good moral character under 5 1101 ( 6). Alternatively,
f)(
Defendants argue that even
Hadi is not statutorily barred from
establishing good moral character, Hadi cannot meet his burden of
proof to demonstrate that he is of good moral character under
ï 1l01(
f)'s catch-all provision.
For summary judgment to be appropriate, Defendants must show
that there are no genuine disputes of material fact as to Hadi's
inability to demonstrate that he is of good moral character .
If
Defendants satisfy this in itial burden , Hadi must show through
admissible evidence that disputed fact issues remain . See Kariuki,
709 F. at 505 ( l
3d
u Elvidence of Kariuki's prior bad conduct was
relevant to ruling on his naturalization application , and Kariuki
needed to rebut it with sufficiently probative evidence of good
present conduct to survive summary judgment.o .
'
A.
False Testimony
Defendants
cite
two
categories
statutorily bar Hadi from
character:
false
prov ing that he
testimony
that
is of good moral
( Hadi failed to disclose a1l of his names in his
1)
interview with ISO Kugler , and
Hadi made false and m isleading
statements regarding h is and his family 's affiliation with the
Ba 'ath Party and the Iraqi military to ISOS Kugler and Jones .
Because Hadi bears the burden of proving that he is of good moral
character , Hadi bears the burden of showing that he did not testify
falsely . See Berenyi, 87 S.
at 671 (' I)t has been universally
%E
accepted that the burden is on the alien applicant
show his
eligibility for citizenship in every respect.')
'
Hadi's Names and A liases
The N-400 instructs :
prov ide them below .'
'l3
'If you have ever used other names ,
'
Hadi left this section blank .l
4
In his
naturalization interview , ISO Kugler asked Hadi if he had ever used
any name othe r than uGhassan Adnan Hadi ,' to which Hadi responded
'
'No / ma 'am .' 5
' '
,1
l See Hadi 's USCIS File , Exhibit
3
Docket Entry No . 25, p . 230 .
to Defendants ' Appendix ,
l see id. (
4
showing only ISO Kugler's handwritten notation from
Hadi's interview stating nnone used'
z).
l see Transcript of Hearing with ISO Kugler , Exhibit B
5
Defendants' Appendix , Docket Entry No . 25-1, p . 2 1n . 2-11 .
-
9-
The parties do not dispute that Hadi 's interview with ISO
Kugler constitutes 'testimony' under 5 110l ( 6)
'
'
f)(
Defendants
argue that this testimony was false because Hadi had used other
names . When Hadi app lied for refugee status , he submitted forms to
USCIS in which he represented that in addition to using the name
uGhassan Adnan Hadiy' he also used several other names , including :
'
Gassan Adnan ; Ghassan Adman Hadi; Ghassan Adnan Hadi Tofan A 1
Fayadh; and Gassan Al Fayadh x6 Hadi argues that the testimony he
gave to ISO Kugler was not false because the various names cited by
Defendants are merely other forms of his Arab ic name . Hadi argues
that any misinterpretation or failure to disclose the other names
in the interview was not the result of intentional deception and
that he did not omit the names w ith the intent of obtaining an
imm igration benefit .l
7
In order for 5 1101 ( (6)'s statutory bar to apply, Hadi must
f)
have denied using another name with the subjective intent to obtain
an immigration benefit . There is no evidence that Hadi's response
to ISO Kugler 's question about his 'other names' was made with the
ï
'
requisite intent . Defendants do not argue that knowledge of Hadi 's
l6
See Hadi 's USCIS File , Exhibit A to Defendants ' Appendix ,
Docket Entry No . 25-1 , p . 300 .
UHadi also argues that he had already disclosed the prior
forms of his name to USCIS during other parts of the immigration
process . However , this is not relevant to the inquiry of whether
he gave false testimony at his interv iew w ith ISO Kugler . Section
1101( 6) is not concerned with the substance of the false
f)(
testimony , but rather the fact that the applicant gave false
testimony .
other names would have impacted his application for naturalization .
On the record before the court it is plausible that Hadi 's answer
was
the
result
an
misrepresentation .
oversight
instead
of
an
intentional
The court therefore finds that Hadi is not
statutorily barred from
establishing good moral character for
neglecting to disclose his other names because genuine issues of
fact remain as to whether Hadi did so with the intent to obtain an
immigration benefit .
Affiliation
M ilitarv
With
Ba 'ath
Political
Party
and
Iragi
Defendants argue that because Hadi's statements regarding his
affiliation with the Ba 'ath Party are contradictory , some of his
statements
must
necessarily
be
false .
Defendants
rely
on
inconsistencies between Hadi's written subm issions to USCIS and his
testimony before ISOs Kugler and Jones to show that he testified
falsely . However , false statements made in written submissions are
not lfalse testimony' within the meaning of 5 1l01( ( -- Hadi is
'
'
f) 6)
only statutorily barred under 5 1101( ( if a statement he made to
f) 6)
ISO Kugler or ISO Jones under oath is false .
Inconsistencies
between Hadi's oral and written testimony alone , therefore, are not
sufficient to warrant app lication of the statutory bar .
Only a
false oral statement under oath will give rise to the statutory bar .
Defendants argue that Hadi provided false testimony because of
the conflicting nature of some statements made by Hadi during his
naturalization interviews .
While some of the statements made by
Hadi to ISOs Kugler and Jones are contradictory , Hadi timely
-
11 -
corrected
his
responses
to
some
of
their
inqu iries .
Ruiz-Del-cid v . Holder, 765 F.3d 635, 64l
(u
According
to
the
BIA's
longstanding
See
(
6th Cir. 2014)
interpretation
of
( 1101( 6)'s false testimony exclusion), applicants who gave
5
f)(
false testimony but corrected their testimony voluntarily and prior
to exposure or threat of imminent exposure may still be persons of
good moral character.' (
') citing Matter of M- , 9 1. & N . Dec. 118,
119 (
BIA 1960)). For example, ISO Kugler asked Hadi whether he had
ever served in the Iraqi military , and Hadi rep lied 'No , ma 'am .'l8
'
'
Later in the interview , Hadi corrected that he served in the Iraqi
military xg Contradictions such as this that Hadi timely corrected
cannot support the application of 5 1101 ( 6)'s statutory bar .
f)(
However , Hadi made at least one false statement to ISO Kugler
in his naturalization interv iew that he failed to correct .
Kugler asked Hadi whether he had
'ever been
'
ISO
a member of or
associated in any way w ith any organization , association , fund ,
foundation ,
party ,
club ,
society ,
or
similar
group
the
United States or any other p1ace .' 0 Hadi responded 'No , ma 'am .'2l
'2
'
'
While Hadi mentioned later in the interview that he believed the
l
8see Transcript of Hearing with ISO Kugler , Exhibit B
Defendants' Appendix , Docket Entry No . 25-1, p . 29 ln . 16-17 .
1
9see id . at 30 ln . 6-8 .
2 see id . at 19 ln . 15-19.
0
2l
see id . at 19 ln .
-
12 -
Ba'ath Party to be responsible for h is father 's death ,2 he never
2
acknowledged h is own membership in that organization . USCIS cited
Hadi's failure to disclose his affiliation with the Ba'ath Party to
ISO Kugler in its Decision as
basis for deny ing his application
for naturalization .
z3
When Hadi denied being affiliated with a 'party' despite his
l
'
prior
involvement
testimony .
with
the
Ba'ath
Party ,
he
provided
false
In light of the Un ited States' interest in carefully
examining applicants affiliated with Saddam Hussein 's regime , it is
reasonable to conclude that Hadi was aware that his affiliation
with the Ba'ath Party could negatively affect his app lication for
naturalization .
He therefore had an interest in downplay ing his
involvement with the Ba 'ath Party .
Hadi provides no explanation
for his failure to disclose th is information to ISO Kugler . While
Hadi prov ided detail on his membership and involvement with the
Barath Party in previous app lications submitted to USCIS and in his
later interv iew w ith ISO Jones, he did not disclose h is affiliation
with the Ba 'ath Party during his application for naturalization
until after his N-400 was rejected by USCIS.
is not relevant
that USCIS may have been aware of Hadi's affiliation with the
Ba'ath Party -- 5 1101 ( ( is concerned not with the substance of
f) 6)
2
2see id . at 29
14-15 .
2
3See Hadi's USCIS File , Exhibit A to Defendants' Appendix ,
Docket Entry No . 25-1 , pp . 69-70 .
-
13 -
false testimony , but the fact that an applicant provided false
testimony .
Only one false statement under oath with the intent to obtain
an
immigration
benefit
is
required
5 1101( 6)'s statutory bar.
f)(
for
the
application
Because Hadi provided
of
false
testimony to ISO Kugler with the intent to obtain the benefit of
naturalization , Hadi is statutorily barred from demonstrating that
he is of good moral character .
B.
Section l10l (
f)'s Catch-All Provision
Defendants
argue
that
even
if
the
statutory
bar
1l01( 6) is inapplicable, Hadi is still unable to meet his
f)(
burden of proof to show that he is of good moral character .
Defendants argue that Hadi engaged in a pattern of dishonest
behavior
warranting
a
finding
that he
is not
of good moral
character under 5 1101 (
f)'s catch-all provision. In his Response,
Hadi argues that he has always been honest about his relationship
with the Ba 'ath Party .
Examples found in Hadi's USCIS file ,
however , demonstrate otherwise .
Hadi's USCIS file contains several conflicting statements .
is impossible for all of the statements made by Hadi in connection
with his applications for refugee status , lawful permanent resident
status, and naturalization to be true . For example , when asked by
-
14 -
ISO Jones if he attended Ba zath Party meetings, Hadi first stated
uNo , no meetings, ma 'am .' 1
f2
Later in the same interv iew , Hadi
admitted that he attended one meeting per month .
25
When apply ing
for refugee status , Hadi admitted that he was a member of the
Ba'ath Party but stated that he did not attend any meetingsx6
During an interview in conjunction with his refugee status
application in 2008, however , Hadi said b0th that he uattended
weekly meetings' and attended meetings neither once or twice a
'
month .'
'27 In response to an interrogatory in Connection With this
action , Hadi stated that he nattended meetings every one or two
weeks .'
'28 Hadi's USCIS file contains other sim ilar conflicts, most
relating to his affiliation w ith the Ba 'ath Party and the Iraqi
mi1itary .29 Hadi's form N -400 also contains false statements . For
2 See Transcript of Hearing with ISO Jones, Exh ibit C
4
Defendants' Append ix , Docket Entry No . 25-1, p . 25 ln . l5 .
2 see id . at 26 ln .
5
2see Hadi's USCIS File (
6
Form 1-590, Registration for
Classification as Refugee), Exhibit A to Defendants' Appendix,
Docket Entry No . 25-1 , pp . 287, 290 .
2 see Hadi's USCIS File , Exhibit A to Defendants' Appendix ,
7
Docket Entry No . 25-1, pp . 431-32 .
2 see Responses to Interrogatories, Exhibit D to Defendants'
8
Appendix , Docket Entry No . 25-1, pp . 10-11 .
Mcompare Hadi 's USCIS File, Exhibit A to Defendants ' Appendix ,
Docket Entry No . 25-1, p . 290 (
stating that Hadi said he was
classified as a uSupporter ,' the first level of membership in the
'
Ba'ath Party), with Responses to Interrogatories, Exhibit D to
Defendants' Appendix, pp . 10-11 (
Hadi claimed he was the second
(
continued- .)
-
15 -
example,
Hadi
denied
association , fund
being
a
member
of
any
'organization ,
'
foundation , party , club , society or similar
group ,' despite his involvement in the Ba 'ath Party .30 Hadi also
'
failed to disclose previously used nam es .3l
Hadi bears the burden of proving that he is currently (
and has
been for the statutory period) a person of good moral character.
Hadi has failed to raise a genuine dispute of material fact as to
whether he is a person of good moral character under 5 11O1 (
f).
V.
Conclusion & Order
Hadi is statutorily barred from satisfy ing his burden of proof
to show that he is of good moral character because he provided
false testimony with the subjective intent of obtaining an
immigration benefit .
In addition , regardless of whether Hadi is
statutorily barred from establishing that he is of good moral
character under 5 1101( 6), the totality of the evidence shows
f)(
that Hadi will not be able to satisfy his burden to prove that he
z
gt...
continued)
level of u
Nasir' in the Ba'ath Party).
'
3
0see Hadi's USCIS File , Exhibit A to Defendants' Appendix ,
Docket Entry No . 25-1 , p . 236.
Hcompare id . (
Form G-325C) at 300 (
listing aliases Gassan
Adnan; Ghassan Adman Hadi ; Ghassan Adnan Hadi Tofan A l Fayadh ; and
Gassan A1 Fayadh), with id. at 230 (
claiming no additional names).
-
16-
is of good moral character under 5 1101 (
f). Defendants' Motion for
Summary Judgment (
Docket Entry No. 24) is therefore GRANTED .
SIGNED at Houston , Texas, on this 12th day of April , 2019.
2* SIM LAKE
UNITED STATES D ISTRICT JUDGE
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