DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE.
This is an action for denaturalization brought by Plaintiff, the United States of America ("Government"), against Defendant Delroy Anthony. Golding ("Golding") under 8 U.S.C. § 1451(a). The Government seeks an order revoking Golding's United States citizenship. On January 22, 2016, I held a bench trial at which time documentary and testimonial evidence were presented. An attorney from the Office of Immigration Litigation of the United States Department of Justice in Washington, D.C. appeared on behalf of the Government. Golding appeared pro se. Based on the testimonial and documentary evidence presented, the Court makes the following findings of fact and conclusions of law.
"[T]he right to acquire American citizenship is a precious one and ... once citizenship has been acquired, its loss can have severe and unsettling consequences." Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). As a result, the Government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). The Government must put forth evidence justifying revocation that is "clear, unequivocal, and convincing and not leave the issue in doubt." Fedorenko, 449 U.S. at 505, 101 S.Ct. 737 (internal quotations and citations omitted); see also Kungys v. United States, 485 U.S. 759, 776, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (requiring for the purposes of § 1451 that materiality be shown by "clear, unequivocal, and convincing evidence."). A less exacting standard "would be inconsistent with the important right that is at stake in a denaturalization proceeding." Fedorenko, 449 U.S. at 505-506, 101 S.Ct. 737.
The Immigration and Nationality Act provides for denaturalization of citizens whose citizenship orders and certificates of naturalization were either (1) "illegally procured" or (2) "procured by concealment of a material fact or by willful misrepresentation."
In Count I, the Government argues that Golding should be denaturalized because he illegally procured naturalization through unlawful admission for permanent residence. In Counts II and III, the Government argues that he should be denaturalized because he illegally procured naturalization as he did not have the requisite good moral character for the statutory period.
The Government argues Golding was not "lawfully admitted for permanent residence" under 8 U.S.C. § 1427(a). In order for an alien to be lawfully admitted for permanent residence, the alien must be "eligible to receive an immigrant visa and [be] admissible to the United States for permanent residence." 8 U.S.C. § 1255(a). The criteria which make an alien "ineligible to receive visas and ineligible to be admitted to the United States" are out-lined in 8 U.S.C. § 1182. Specifically, under 8 U.S.C. § 1182(a)(6)(C)(i), "[a]ny alien who, by fraud or 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 provided under this statute is inadmissible." (emphasis added).
The Government appears to allege two different theories of why Golding was not lawfully admitted for permanent residence. The first theory, advanced in the Complaint, is that Golding misrepresented his name and criminal history in order to gain "admission into the United States," in violation of 8 U.S.C. § 1182(a)(6)(C)(i). The second theory, advanced in summary judgment briefing and at trial, is that Golding misrepresented his name and criminal history at the time he applied for an adjustment of status to permanent residency in 1991, in order to procure "a benefit provided under" the immigration statute, in violation of 8 U.S.C. § 1182(a)(6)(C)(i).
The Government contends that Golding entered the United States in 1989 under the assumed name "Michael Genas" and failed to reveal his conviction in Jamaica in 1984 for unlawful wounding. (Complaint at ¶ 48). The Government contends these were misrepresentations of a material fact made by Golding in order to gain admission into the United States, in violation of 8 U.S.C. § 1182(a)(6)(C)(i). To prevail on this Count, the Government needs to show by clear, unequivocal, and convincing evidence that Golding willfully misrepresented his name and criminal history in order to gain admission into the United States. The Government has failed to do so.
For starters, Golding never applied for, nor was required to apply for, a visa for admittance into the United States. Two of the Government's witnesses, Lacelles Reece and Hugh Spafford, both testified that a visa was not required. Instead, the process by which Golding came into the United States as a laborer was administered by the Jamaican government. Golding testified that the Jamaican government gave him his ID card and Form I-94. Reece testified that the Jamaican government filled out the ID card and Form 1-94 for the men, based on answers given by the men. This was further supported by testimony of Hugh Spafford, a Miami-based INS inspector. Spafford testified that the Form I-94s for men in the Program were typewritten, when usually the general public's 1-94 were handwritten on the airplane. The Government presented no evidence that Golding willfully misrepresented his name and criminal history to obtain his ID card or Form I-94 from the Jamaican government. The Government presented no evidence that Golding provided the Jamaican government with any information regarding his name or criminal history. They further presented no evidence that he was asked to provide his name or criminal history. The Government presented no documentation whatsoever produced by Golding to the Jamaican or United States governments to obtain admission into the country.
Under § 1182(a)(6)(C)(i), the Government must show that Golding misrepresented a "material fact" in order to procure admission to the United States. In Fedorenko, the Supreme Court explained that — in evaluating a false statement under § 1182 — materiality "must be measured in the terms of [the false statement's] effect on the applicant's admissibility into this country." Fedorenko, 449 U.S. at 509, 101 S.Ct. 737.
There are two allegedly "false statements" or omissions from Golding's paperwork that must be evaluated for materiality. The first false statement is that Golding entered under the name "Michael Genas." A misrepresentation pertaining to identity is not per se material. Matter of NG, 17 I. & N. Dec. 536, 537 (B.I.A.1980). That Golding entered under an assumed name would only affect the inquiry in this case because it may have led to information regarding Golding's Jamaican conviction. For reasons discussed below, however, that information would have been unlikely to affect Golding's admissibility. Accordingly, the Government has not shown that Golding's use of the name "Michael Genas" was a material false statement.
The second omission is that Golding did not disclose his Jamaican conviction for unlawful wounding. While criminal convictions may affect an applicant's admissibility, see 8 U.S.C. § 1182(a)(2), Golding's conviction occurred when he was sixteen years old and he was only sentenced to probation. An exception to the inadmissibility provision for criminal conduct is provided if the alien "was under 18 years of age and the crime was committed ... more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States." 8 U.S.C. § 1182(a)(2)(A)(ii)(l.). According to the limited records from the Jamaican Court system, Golding was convicted on September 10, 1984. Then, on October 21, 1989, a little over five years later, Golding entered the United States. As discussed above, there is no evidence that Golding submitted any documentation or application to obtain his ID card or enter the United States under the Program. Accordingly, based on the only dates
Accordingly, the Government has failed to show by clear, unequivocal, and convincing evidence that Golding was inadmissible under § 1182 for failure to disclose his real name and Jamaican conviction when he entered the United States.
The Government's second theory is that Golding's failure to disclose his juvenile Jamaican conviction on his 1991 Application amounts to "willfully misrepresenting a material fact" to procure an immigration benefit, specifically, permanent residency, in violation of 8 U.S.C. § 1182(a)(6)(C).
Guidance on the meaning of a "materiality" in the context of misrepresentations for applications for permanent residency is found in the Supreme Court's decision in Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). In Kungys, Justice Scalia explains that the most common formulation of a material concealment or misrepresentation is something that "has a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed." Id. at 770, 108 S.Ct. 1537 (emphasis added) (internal quotations omitted). Justice Scalia goes on to examine the common use of the term "material" throughout federal statutes, explaining that "[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." Id. at 770, 108 S.Ct. 1537. Ultimately, the Supreme Court holds that the test of whether "concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the Immigration and Naturalization Service." Id. at 772, 108 S.Ct. 1537.
Although, the Kungys' Court addresses materiality under § 1451 and not § 1182(a)(6)(C),
The Government argued at trial that it is the "failure of the ability to investigate" that made Golding's omission material — but that is not the standard. The Government
In 1991, Golding's then-wife Nancy Golding disclosed that Golding had used the name "Michael Genas" on the Petition for Alien Relative form she filed on Golding's behalf. (Gov. Ex. 9). Golding also disclosed on the 1991 Application that he had previously entered the United States under the name "Michael Genas." (Gov. Ex. 10). Golding did not, however, check the box indicating he had ever "been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic regulations." (Gov. Ex. 10).
At trial, the Government presented testimony of Jorge Roig, the examiner who examined Golding's I-485 application in February 1991. Roig testified that if Golding had checked the box on his 1991 Application that he had "been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any Jaw or ordinance, including traffic regulations," Roig would have been required to do a follow-up inquiry into the conviction. Roig testified that he would have taken the additional step of getting information about the conviction from the Jamaican government. Roig did not, however, testify that his decision on Golding's application for permanent residence would have been affected by a proper disclosure. In fact, when asked I asked whether a juvenile conviction would not have barred admission if the conviction were over five years earlier, Roig agreed that it "would most likely be the case" that the juvenile conviction would not have mattered.
A further review of Golding's immigration history suggests Golding's disclosure of his Jamaican conviction would not have influenced the decision of INS in 1991. Although Golding did not disclose his Jamaican conviction on his 2001 Naturalization Application, at the 2008 trial, facts regarding his juvenile conviction were known to the Government and discussed. See Golding, No. 05-21095-CIV, 2009 WL 2222779, at *7-10. The Government did nothing after that time — until, perhaps, filing this action — to claim that Golding's permanent residency should be revoked as illegally procured.
In 2009, Golding filed another Form I-485 Application to Register Permanent Residence or Adjust Status, this time disclosing the Jamaican conviction, in an apparent attempt to correct his status in light of Judge Torres' decision. (Gov. Ex. 4). He attached to his 2009 Application an I-601 Waiver of Inadmissibility. (Gov. Ex. 5). On the 1-601 Waiver, Golding disclosed "fraud or misrepresentation" as the reason for inadmissibility. Despite the I-601 Waiver, USCIS denied his 2009 Application on August 18, 2010 because Golding was already a permanent resident — not because Golding was ineligible to be a permanent resident. (Connie Kaczor Testimony; Gov. Ex. 14). USCIS did not adjudicate the Waiver, and did nothing with the information
Furthermore, on November 17, 2010, Golding filed his naturalization application, which was approved in 2011. He disclosed on that application that he had previously used the name Michael Genas, that he had convictions — including the Jamaican conviction — and that he had previously misrepresented a fact to an immigration official. USCIS's approval of the 2010 Application is relevant to the inquiry of materiality of Golding's omission in the 1991 Application because it shows that a USCIS examiner, with knowledge of all of the information regarding Golding's juvenile Jamaican conviction, still made the decision to naturalize Golding.
Now, years later, the Government contends it was a mistake for Solea Wright, the immigration examiner who evaluated Golding's 2010 Application, to approve Golding for naturalization — and that the Court should not consider the fact that Golding was naturalized as evidence that he was lawfully admitted to permanent residency in 1991. At trial, Solea Wright admitted she had notice of Golding's criminal history when she affirmed the application. When Wright was asked what, upon later review, made her believe that she made a mistake, she had a hard time coming up with an answer. Even after looking through Golding's file, it was difficult for Wright to identify anything to explain why her decision to naturalize was in error. Wright ultimately said she believed the reason she should not have approved Golding to be naturalized was because Golding had held himself out to be a United States citizen prior to being naturalized. However, at trial the Government produced no evidence to support that Golding had ever held himself out to be a United States citizen prior to his naturalization.
The only place in the record to which it is eluded that Golding held himself out to be a United States citizen is in the 2004 administrative decision affirming the denial of Golding's 2001 Application for Naturalization. There, the adjudications officer, Michael Krawczyk, wrote that Golding filed a request for a review hearing "on the decision to deny [Golding's] application for Naturalization for unlawfully voting in a federal election." (Gov. Ex. 8). However, at trial, Krawczyk had no recollection of discussing with Golding whether he had ever voted in a presidential election or held himself out to be a citizen. Krawczyk testified that the only thing he discussed with Golding during the 2004 appeal process was Golding's criminal history. Krawczyk further testified that he did not recall why the paragraph about improperly voting in a presidential election was included in the report. The Government's attorney even admitted that was likely a bad "cut-and-paste job," or erroneous use of a template from another immigration appeal, that led to the paragraph about unlawful voting being included in the document.
In short, the only reason that Wright could provide for why her decision to naturalize Golding was an error is based on one paragraph in a decision — a paragraph both Krawczyk and the Government's attorney disavow. Notably, Wright did not say that her decision to naturalize was an error because of Golding's criminal history. Considering that Wright had all of the information about Golding's criminal history and it did not affect her decision to approve the application — and considering Wright could give no credible reason why she erred in approving the application — the Government has not shown that the
The Government has not shown by clear, unequivocal, and convincing evidence that Golding illegally procured citizenship by willfully misrepresenting a material fact to obtain permanent residence in 1991.
As to Count II and III, the Government alleges that Golding illegally procured his naturalization by giving false testimony at the 2008 Trial and in January 2007 during his deposition. Because of this allegedly false testimony, the Government contends that Golding cannot show that he had "good moral character" for the requisite time period.
Section 1427(a)(3) requires an applicant for naturalization to establish that he was a person of good moral character during the statutory period. 8 U.S.C. § 1427(a)(3). The statutory period is the five-year period before applying for naturalization until the moment the applicant takes the oath for naturalization. 8 U.S.C. § 1427(a). A person who provides false testimony "with the subjective intent of obtaining immigration or naturalization benefits" lacks good moral character under 8 U.S.C. § 1101(f)(6). Kungys, 485 U.S. at 803, 108 S.Ct. 1537.
The only evidence put forth by the Government as to Golding's allegedly false testimony are the transcripts of the 2007 deposition and 2008 Trial, and Magistrate Judge Torres' Findings of Fact and Conclusions of Law from the 2008 Trial.
However, despite this evidence, the Government has failed to prove by clear, unequivocal, and convincing evidence that Golding provided false testimony with the subjective intent of obtaining immigration or naturalization benefits. Testimony from this trial in January 2016 calls into doubt whether Golding had the subjective intent to provide false testimony — assuming it was false — in 2008.
Accordingly, the Government has failed to show by clear, unequivocal, and convincing evidence that Golding illegally procured naturalization because he lacked good moral character for the statutory period.
By virtue of becoming a naturalized United States citizen, an individual gains a wealth of advantages not available to a permanent resident. A citizen has the right to hold a United States passport and receive assistance from United States' Embassies and Consulates while abroad. A citizen has the ability to live or take long trips outside of the United States, and has the unquestioned right to return to the United States. A citizen faces security from removal or deportation from the United States and does not have to go through the process and cost to renew permanent residency status upon expiration. A citizen's children are automatically United States citizens by birth. Finally, a citizen gains important, fundamental rights — the right to vote in federal elections and the right to serve on juries.
It is because of this value placed on American citizenship that the Government must show "clear, unequivocal, and convincing evidence" justifying revocation in order to strip a naturalized American of his citizenship. The Government's evidence falls far short of its burden. The Government's theory of denaturalization has changed over the course of this case, presenting a moving target that is difficult to pin down. The Government has not been able to show — under any theory — that Golding illegally procured his naturalization. Golding has repeatedly disclosed that he used the name "Michael Genas" to enter the country, starting with his first application in 1991. And, although Golding may not have initially revealed his juvenile conviction, the Government was told at least twice about the conviction since Golding was a permanent resident, and it did not change the decision of any subsequent adjudication. The Government has not demonstrated that Golding was ineligible to become a naturalized citizen. Accordingly it is hereby
