MARIA-ELENA JAMES, United States Chief Magistrate Judge.
Plaintiff Mirsad Hajro initiated this action on April 23, 2010, by filing a Petition pursuant to 8 U.S.C. § 1421(c) seeking de novo review of the United States Citizenship and Immigration Services' ("USCIS") denial of his Form N-400 Application for Naturalization. Dkt. No. 1. On January 12, 2010, USCIS denied Plaintiffs naturalization application on the ground that Plaintiff gave false testimony with the intent to obtain an immigration benefit and consequently lacked the good moral character required for naturalization. Certified Record of Proceeding ("ROP"), J. Trial Ex. 1 at 1-8. On October 7, 2010, the Government moved for summary judgment on Plaintiffs Petition. Dkt. No. 14. The Court subsequently denied the Government's Motion, holding that triable issues of fact existed on the issues of whether Petitioner gave false testimony and whether he made any statement with the intent to deceive the government to obtain an immigration benefit, making summary judgment improper. Dkt. No. 27. The Court therefore set this case for a bench trial, which it conducted on November 2, 2011. Following trial, the Court took this matter under submission and granted the parties leave to submit closing arguments and revised proposed findings of fact and conclusions of law. Dkt. Nos. 47, 48, 49, 54. Having carefully considered the testimony at trial, the administrative record, the parties' written arguments, and the controlling legal authorities, the Court now makes the following findings of fact and conclusions of law and
1. Plaintiff was born in January 1975, in Sarajevo, Bosnia and Herzegovina. ROP 167; Trial Transcript ("Tr.") at 16:15-18, Dkt. No. 56.
2. Plaintiff is Bosnian and Muslim. Tr. 16:15-20.
3. The Bosnian war begin in May 1992. Tr. 21:10-11.
4. In May 1992, at the age of 17, Plaintiff became involved in Teritorijalna Odbrana, or Territorial Defense, which conducted civil patrols of neighborhoods during the early stages of the Bosnian war. Tr. 23:13-24:19, 25:17-19, 32:22-23.
5. Plaintiff participated in the patrols for approximately two to four months beginning in May 1992. Tr. 29:1-3, 32:16-17.
6. The civil patrols were not part of the Bosnian army. Tr. 24:24-25.
7. Although some participants in the civil patrols carried weapons, there was no weapon assigned to Plaintiff as part of the civil patrol. Tr. 26:23-25, 27:1-23.
8. Plaintiff testified that he did carry his father's pistol during his participation in the Territorial Defense patrols, which was shared with other members of the patrol. Tr. 28:7-12.
9. During the latter part of his participation in the civil patrols, Plaintiff carried an AK-47 that belonged to other participants in the patrol. Tr. 30:12-31:5. Plaintiff testified that he carried the weapon on a "couple of occasions," for periods of ten to thirty minutes. Tr. 31:1-5. Plaintiff never fired the AK-47 and did not receive training on use of the weapon. Tr. 31:6-9.
11. Plaintiff was assigned to the communications branch of the Bosnian army. Tr. 33:24-34:3.
12. Plaintiff underwent training for approximately five to seven weeks. Tr. 33:19-34:8.
13. Plaintiff did not receive any weapons training. Tr. 34:17-18.
14. Plaintiff was assigned the position of a clerk typist. Tr. 37:5-9. In this capacity, he was not assigned a weapon and did not carry a weapon. Tr. 38:7-10.
15. Plaintiff's service in the Bosnian army ended in December 1995. Tr. 35:1-3.
16. Prior to his arrival in the United States, Plaintiff spoke limited English. Tr. 20:7-24, 43:16-17, 44:3-10.
17. Plaintiff met his wife, Jennifer A. Gilbert (now, Jennifer Hajro), who is an American citizen, at some point in 1996 or 1997, while he was attending the University of Saarland in Saarbrucken, Germany. Tr. 43:3-23.
18. In June 1999, Plaintiff applied for a K-1 Nonimmigrant Fiance Visa. ROP 168.
19. The K-1 Visa was issued on August 10, 1999. ROP 168.
20. On September 7, 1999, Plaintiff entered the United States as the K-1 fiancé of Jennifer Gilbert. Tr. 45:23-25, 45:9-25; ROP 126, 168.
21. On November 2, 1999, Plaintiff married Jennifer Gilbert. ROP 130.
22. After Plaintiff came to the United States, he enrolled in adult English language classes. Tr. 46:18-23, 48:18-23, 49:1-18.
23. In 2000, Plaintiff enrolled in Boise State University. Tr. 50:15-16. Among the courses Plaintiff took were an English 101/composition course and a communications course. Tr. 50:15-51:18.
24. In May 2006, Plaintiff earned a degree in electrical engineering from Boise State University. Tr. 51:23-52:52:3.
25. In October 1999, with some assistance of a co-worker, Plaintiff completed a Form I-485 Application to Register Permanent Residence or Adjust Status ("Form I-485 Application"), seeking to change his status to that of a permanent lawful resident. ROP 126-129; Tr. 55:4-18. Plaintiff signed the Form I-485 Application on October 11, 1999, and filed it on November 1, 1999. ROP 126; Tr. 56:1-8.
26. Part 3 of the Form I-485 Application addresses "Processing Information." ROP 127. Question C under Part 3 asks the applicant to:
27. In response to the question 3.C, Plaintiff wrote "None." ROP 127.
28. Plaintiff credibly testified that he was not attempting to hide his service in the Bosnian Army or deceive the Government by answering "none" to question 3.C. Tr. 58:18-59:10. Rather, Plaintiff credibly testified that he interpreted question 3.C of the Form I-485 Application's reference to "foreign military service," as asking if he had ever served in the United States Army outside the United States. Tr. 57:23-58:14. Plaintiff testified that this was an
29. On November 13, 2000, Marie Atkinson, an Immigration and Naturalization Services
30. Plaintiff credibly testified that during the November 13, 2000 interview, Ms. Atkinson did not ask if he had been in any foreign military service or in the Bosnian military. Tr. 60:9-14.
31. Jennifer Hajro also credibly testified that she did not recall the INS officer asking about Plaintiffs foreign military service during the interview. Tr. 134:17-19, 135:8-9.
32. As discussed below, another former adjudications officer (Amber Shrestha) testified that it was standard practice for adjudications officers to make tick marks in red ink next to questions on adjustment of status applications to denote that the officer asked the question. Tr. 156:11-13.
33. Reviewing Ms. Atkinson's notations on Plaintiff's I-485 Application, there is no tick mark next to question 3.C indicating that Ms. Atkinson asked the question during the interview. ROP 127.
34. On November 13, 2000, INS approved Plaintiffs Form I-485 Application and he became a lawful permanent resident. ROP at 126.
35. On November 6, 2003, Plaintiff filed an N-400 Application for Naturalization ("the 2003 N-400 Application" or "first N-400 Application") with USCIS. ROP 102-111; Tr. 62:13-63:9.
36. Plaintiff testified that because he was in school and working part time, his wife completed the N-400 Application for him. Tr. 63:13-64:25, 65:3-7, 135:16-136:4.
37. Part 10 of the N-400 Application sets forth "Additional Questions," with subpart B addressing "Affiliations." ROP 108. Subpart B, question 8a asks:
38. The Application then contains a blank chart for the applicant to list the "Name of Group." ROP 108.
39. On Plaintiffs 2003 N-400 Application, the "no" box was checked in response to question 8a. ROP 108; Tr. 24-25.
40. Under the "Name of Group," "N/A" was written. ROP 108; Tr. 67:1-3.
41. Part 10, subpart D of the N-400 Application is entitled "Good Moral Character." ROP 109. Question 23 under subpart D reads:
42. On Plaintiff's 2003 N-400 Application, in response to question 23, the "no" box was checked. ROP 109; Tr. 68:20-69:7.
43. Question 24 under subpart D states:
44. On Plaintiff's 2003 N-400 Application, in response to question 24, the "no" box was checked. ROP 109; Tr. 68:20-69:7.
45. Part 6 of the N-400 Application is entitled, "Information About Your Residence and Employment." ROP 104. Question B under Part 6 reads:
46. In response to question B under Part 6, Plaintiff indicated that he was a student at Boise State University, University of Saarland, and University of Sarajevo and listed the relevant dates he attended those schools. ROP 104.
47. Plaintiff testified that he did not list his service in the Bosnian military in response to question 6.B because it was outside of the five-year period addressed by question B. Tr. 66:3-13.
48. On March 4, 2004, a USCIS officer interviewed Plaintiff on his 2003 Form N-400 Application. ROP 102.
49. During the interview, Plaintiff orally amended his "no" response to Part 10, subpart B, question 8a, by stating that he was a member of the "Power Engineering Club, BSU." ROP 108.
50. At trial, Plaintiff testified that the amendment was necessary because after he filed the Application in November 2003, he joined that club. Tr. 67:15-21.
51. Based on the immigration officer's tick marks, Plaintiff orally affirmed his "no" responses to questions 23 and 24 during the interview. ROP 109.
52. On September 26, 2007, USCIS interviewed Plaintiff a second time on his 2003 N-400 Application. ROP 100; Tr. 73:11-14.
53. The interview was transcribed in a Record of Sworn Statement in Administration Proceedings, which Plaintiff reviewed and signed on September 26, 2007. ROP 112-21.
54. During this interview, the USCIS officer asked Plaintiff whether he served in the military during the Bosnian war. ROP 114. Plaintiff indicated that he had been drafted into the Bosnian Army during the Bosnian war in 1994 or 1995. ROP 114.
55. The immigration officer also asked Plaintiff whether he served in any territorial defense units before joining the army. ROP 114. Plaintiff responded, "Yes, but not because I want to, because I had to. We had to patrol the streets. I was a kid at that time, 17." ROP 114. Plaintiff testified that the units patrolled his neighborhood in Visoko. ROP 114.
56. When asked about the length of time the units patrolled, Plaintiff estimated that it was a period of three to five months, but indicated that he was unsure because over fifteen years had passed. ROP 114-15.
57. The immigration officer also asked Plaintiff if he was armed while patrolling. ROP 115. Plaintiff responded:
59. During the interview, Plaintiff disclosed that he engages in the Islamic practice of interacting with and encouraging other Muslims to be good examples, known as Tablighi Jamaat. ROP 117-18.
60. On October 9, 2007, USCIS denied Plaintiff's 2003 N-400 Application. ROP 100-01.
61. In its Form N-335 explanation of its decision, USCIS stated in relevant part:
62. On November 7, 2007, Plaintiff appealed the denial of his 2003 N-400 Application by filing a Form N-336 request for Hearing on Decision in Naturalization Proceedings. ROP 70-99.
63. On October 16, 2008, USCIS held a hearing on the appeal. ROP 76-83.
65. At trial, Plaintiff credibly testified that he did not previously mention that he had carried an AK-47 because he did not remember doing so before that time. Tr. 75:18-76:1. He also credibly testified that he was not attempting to hide that fact from the government, but rather voluntarily disclosed that fact to enable USCIS to "make the right decision." Tr. 75:21-76:6; 87:17-22.
66. At the October 16, 2008 hearing, when asked why he wrote "None" in response to question 3.C of his Form I-485 Application for adjustment of status, Plaintiff testified "I understood it meant `U.S. military service in foreign country.'" Ex. 6, ROP 81.
67. At the hearing, Plaintiff also testified that he was a member of or associated with the handball team at Boise State, the Muslim Student Association at Boise, and the Richmond Mosque. ROP 82.
68. On November 26, 2008, USCIS affirmed the denial of Plaintiff's 2003 N-400 Application. ROP 65-69.
69. On November 29, 2007, Plaintiff filed a second N-400 Application for Naturalization (the "2007 N-400 Application" or "second N-400 Application"). ROP 36-46.
70. In response to Part 10, subpart B, question 8a regarding "Affiliations," Plaintiff indicated that he was a member of or associated with "Boise State Team Handball Club," "Institute of Electrical and Electronics Engineers," and the "Islamic Center of Boise, Idaho." ROP 42; Tr. 92:13-22.
71. On his 2007 N-400 application, in response to Part 10, subpart D, question 23, asking whether Plaintiff had ever given false or misleading testimony to a U.S. government official while applying for any immigration benefit, Plaintiff checked the "no" box. ROP 43.
72. On his 2007 N-400 application, in response to Part 10, subpart D, question 24, asking whether Plaintiff had ever lied to any U.S. governmental official to gain entry or admission into the United States, Plaintiff checked the "no" box. ROP 43.
73. On January 13, 2009, a USCIS officer interviewed Plaintiff on his 2007 Form N-400 application. ROP 47-54; Ex. 8.
74. When asked why he testified at his September 26, 2007 interview that during his Territorial Defense patrols he carried "just one pistol for three of us," but at his appeal hearing on October 16, 2008, he stated that he shared a pistol in the beginning and later he carried an AK-47, Plaintiff testified:
75. During the interview, Plaintiff orally amended his response to his 2007 Form N-400 naturalization application Part 10, subpart B, question 8a, by stating that in addition to the groups he had previously listed, he was a member of or associated with the "Local Union Electrical Engineers," "Bosnian Army," "Territorial Defense," and "Power Engineering Club/ IEEE." ROP 42; Ex. 5; Tr. 92:23-93:18.
76. On January 13, 2009, Plaintiff also submitted a Record of Sworn Statement in
77. On March 31, 2009, USCIS denied Plaintiff's 2007 N-400 Application. ROP 31-35. In its decision, USCIS found that Plaintiff provided "mutually incompatible" testimony on September 26, 2007 and October 16, 2008 regarding the weaponry he carried during his activities in the Bosnian war and that he provided the testimony with the subjective intent to cover up or divert attention away from conduct he thought might jeopardize his entitlement to naturalize. ROP 33.
78. USCIS further found that Plaintiff had engaged in a pattern and practice of providing false testimony in order to obtain immigration benefits based on his alleged failure to disclose his service in the Bosnian military on his Form I-485 Application and during prior interviews with USCIS. ROP 33-34.
79. USCIS thus concluded that Plaintiff's "pattern and practice of providing false testimony in order to obtain immigration benefits precludes [Plaintiff] from establishing the good moral character required for naturalization." ROP 35.
80. On April 22, 2009, Plaintiff filed a Form N-336 Request for Hearing on Decision in Naturalization Proceedings, appealing the denial of his 2007 N-400 Application. See ROP 1.
81. In 2009, Amber Shrestha was a senior adjudications officer with USCIS in San Francisco. Tr. 153:5-154:1.
82. Ms. Shrestha interviewed Plaintiff on his appeal from the denial of his 2007 N-400 Application on October 22, 2009. ROP 1; Tr. 157:14-19, 159:5-7.
83. Ms. Shrestha testified that she questioned Plaintiff about his testimony in support of his Form I-485 adjustment of status application. Tr. 162:1-3. Specifically, Ms. Shrestha asked Plaintiff about his response of "None," to question 3.C about his former affiliation with clubs, groups, societies, and foreign military service. Tr. 162:4-11.
84. Ms. Shrestha testified that Plaintiff indicated he did not specifically recall whether he was asked that question during his interview on the Form I-485 Application and that he would have interpreted that as asking of he had served in the U.S. military outside of the United States. Tr. 16222-163:3. Ms. Shrestha testified that she did not find this explanation credible because Plaintiff did not present any credible evidence supporting his interpretation. Tr. 163:4-11.
85. She testified that his response of "None," was at issue because he had not disclosed that he served in the Bosnian military or the Territorial Defense group during his adjustment of status interview, thereby cutting off that line of question during the adjustment of status interview, but he later disclosed this during an interview on his N-400 Application. Tr. 163:12-164:4.
87. Ms. Shrestha also asked why there were contradictions between his March 4, 2004 interview on his 2003 N-400 Application, where he stated he was a member of or associated with the "Power Engineering Club, BSU," but later added the Territorial Defense. ROP 22. As recorded in Ms. Shrestha's notes, Plaintiff testified:
88. During the appeal hearing, Ms. Shrestha also asked Plaintiff about why he did not list his involvement in the Bosnian Army and Territorial Defense on his first N-400 Application in response to question 8a in Part 10.B regarding affiliations or identify them during his naturalization interview on March 3, 2004. ROP 3. Plaintiff gave the following explanation:
89. Ms. Shrestha further asked Plaintiff about his previous testimony on September 26, 2007, that he had carried a pistol during the Territorial Defense period and his subsequent testimony on October 16, 2008 that he had carried an AK-47. ROP 3. In response, Plaintiff testified as follows:
90. Plaintiff further explained:
91. As reflected in Ms. Shrestha's notes, with respect to his carrying an AK-47, Plaintiff also testified during the hearing:
92. Ms. Shrestha also asked Plaintiff about his "No" response to question 24 on his N-400 Application about whether he had ever lied to any U.S. government official to gain entry or admission to the United States.. ROP 24. Plaintiff responded: "According to USCIS I did lie, but my personal opinion was that I never lied. I always answered specifically when asked specifically and I had no reason to lie." ROP 24.
93. Similarly, Ms. Shrestha questioned Plaintiff about his "No" response to question 23, which asked whether he gave false or misleading information to any U.S. government official while applying for any immigration benefit. ROP 24. Plaintiff responded:
94. On January 12, 2010, USCIS issued its decision affirming the denial of Plaintiff's 2007 N-400 Application. ROP 1-8. Specifically, after reviewing Plaintiff's responses, USCIS concluded:
95. Ms. Shrestha testified that she drafted the January 12, 2010 decision, which was ultimately signed by her supervisor, Richard Valieka, who was the San Francisco field office director. ROP 1-8; Tr. 160:12-16, 161:4-9.
96. Ms. Shrestha did not include any discussion of Tablighi Jamaat in the final decision. Tr. 158:18-20.
97. At trial, Plaintiff credibly testified that Tablighi Jamaat, or the effort of Tabligh, is an Islamic religious practice that Muslims are expected to partake in as a duty of their Islamic faith. Tr. 77:12-78:10.
98. Plaintiff testified that Tablighi Jamaat involves talking with other Muslims about their shared faith and practices and sometimes involves traveling to other communities. Tr. 78:13-79:21.
99. Plaintiff testified that he practices Tablighi Jamaat. Tr. 78:11-12.
100. While practicing Tablighi Jamaat, Plaintiff traveled to India, Bangladesh, Germany, Bosnia, Canada, and throughout the United States. Tr. 79:22-80:1, 116:20-25.
101. Plaintiff testified that, while there are spiritual leaders in India who are scholars of Tablighi Jamaat, the practice does not have an organizational structure. Tr. 83:8-84:7.
102. Plaintiff credibly and convincingly testified that he did not list Tablighi Jamaat on his Form N-400 Applications in response to his membership or involvement in organizations or associations because he believed that it is a religious
103. Plaintiff disclosed his practice of Tablighi Jamaat during the interviews on the Form N-400 Applications. Tr. 85:10-23.
104. Ms. Shrestha testified about the process for adjudicating adjustment of status applications, which consisted of reviewing the application, calling the applicant in for an interview, questioning the applicant about the application, determining whether the applicant is eligible, and making a decision on the application. Tr. 154:19-24.
105. Ms. Shrestha testified that, in her experience, when conducting an adjudications interview of an adjustment application, she would not necessarily ask the applicant all of the questions in the application, but would just ask the most pertinent questions. Tr. 155:4-7, 156:6-10. She testified that she would indicate which questions she asked by putting a red tick mark next to the question that was asked. Tr. 156:11-13.
106. Ms. Shrestha testified that her process for adjudicating naturalization applications was essentially the same as her process for adjudicating adjustment of status applications. Tr. 156:17-23.
1. Pursuant to 8 U.S.C. § 1421(c), this Court is authorized to conduct a de novo review of Plaintiff's 2007 N-400 Application. Specifically, § 1421(c) provides:
2. "Accordingly, even if [USCIS] is allowed to make the initial decision on a naturalization application, the district court has the final word and does not defer to any of [USCIS's] findings or conclusions." United States v. Hovsepian ("Hovsepian I"), 359 F.3d 1144, 1162 (9th Cir.2004).
3. In order to be naturalized, an applicant bears the burden of establishing each of the statutory requirements by a preponderance of the evidence. Hovsepian I, 359 F.3d at 1168 (citing 8 C.F.R. § 316.2(b)).
4. To establish eligibility for naturalization, Plaintiff must demonstrate that he meets the requirements set forth at 8 U.S.C. § 1430(a), which applies to persons whose spouses are United States citizens. Section 1430(a) provides that Plaintiff must satisfy all the requirements of 8 U.S.C. § 1427(a), except paragraph (a)(1) of that section.
5. In this matter, the only statutory requirement in dispute is whether Plaintiff sufficiently established that he was a person of good moral character during the relevant three-year residency period. 8 U.S.C. §§ 1427(a)(3), 1430(a); 8 C.F.R. §§ 316.2(a)(7), 319(a)(7).
5. Thus, Plaintiff is responsible for proving that he has been and is a person "of good moral character, attached to the principles of the United States, and favorably disposed toward the good order and happiness of the United States." Hovsepian I, 359 F.3d at 1168 (citing 8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.2(a) (7)).
7. The Ninth Circuit has held that the issue of whether an applicant possesses
8. Although the Immigration and Naturalization Act does not define "good moral character," it does enumerate nine circumstances which preclude such a finding. 8 U.S.C. § 1101(f).
9. In particular, 8 U.S.C. § 1101(f)(6) states that "one who has given false testimony for the purpose of obtaining any benefits under this chapter" cannot be found to have the good moral character required for naturalization. See Kungys v. United States, 485 U.S. 759, 779, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988).
10. As the Supreme Court explained, § 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, 485 U.S. at 779-80, 108 S.Ct. 1537. Thus, the focus is on the applicant's intent when making the allegedly false statements, rather than on the materiality of the statements. Id. at 780, 108 S.Ct. 1537.
11. "Testimony" for purposes of 8 U.S.C. § 1101(f)(6) must be oral statements made under oath; "it does not include other types of misrepresentations or concealments, such as falsified documents or statements not made under oath." Id. at 780, 108 S.Ct. 1537.
12. In order to constitute false testimony, a statement must be intentionally made with the subjective intent to obtain an immigration benefit. Id.
13. The Ninth Circuit has recognized that, "[w]hether a person has the subjective intent to deceive in order to obtain immigration benefits is a question of fact." Hovsepian II, 422 F.3d at 887-88 (citing Kungys, 485 U.S. at 782, 108 S.Ct. 1537).
The central issue in this case is whether Plaintiff has met his burden of establishing each of the statutory requirements for naturalization by a preponderance of the evidence. The sole requirement in dispute is whether Plaintiff has sufficiently demonstrated that he was a person of good moral character during the three years preceding his 2007 N-400 Application. The Government asserts that Plaintiff cannot be regarded as a person of good moral character for naturalization purposes because he gave false testimony at least in part for the purpose of obtaining an immigration benefit and has demonstrated a pattern and practice of providing false testimony throughout the naturalization process. Defs.' Closing Statement, Dkt. No. 48 at 2. It therefore maintains that it properly denied Plaintiff's naturalization application and argues that the record evidence in this case, along with Plaintiff's testimony at trial, should compel the Court to reach the same determination.
Plaintiff, however, maintains that he satisfied all of the criteria required for naturalization, including the good moral character requirement. Pl.'s Closing Statement, Dkt. No. 49 at 10. He argues that the government had no basis to find that he provided false testimony at any point during the relevant period — or at any point beforehand — and thus had no basis to deny his N-400 Application.
After thoroughly reviewing the Record of Proceedings and carefully considering the evidence adduced during the hearing, the Court agrees with Plaintiff.
The Government first argues that when Plaintiff failed to disclose his service in the Bosnian army and the Territorial Defense in response to question 3.C of the Form I-485
The Court disagrees. The evidence adduced at trial demonstrated that at the time Plaintiff completed the Form I-485 Application, he had limited English language skills and interpreted the question as asking for service in the United States military abroad. It was this mistaken interpretation of "foreign military service" that formed the basis of Plaintiff's response to question 3.C. The Court finds Plaintiff's explanation reasonable and also finds no evidence that his failure to disclose his involvement in the Bosnian military and Territorial Defense was motivated by a intent to deceive the Government so that his adjustment of status application would be approved.
In the same vein, the Government charges that during the November 13, 2000 interview on his Form I-485 Application, Rose Marie Atkinson, the immigration officer who conducted the interview, asked question 3.C to Plaintiff — in its entirety — and Plaintiff orally affirmed his response of "None," thereby giving false testimony with the intent to obtain an immigration benefit. The record evidence, however, falls short of establishing this fact. The only notation made by Ms. Atkinson on Plaintiff's Form I-485 Application with respect to question 3.C is a circle around Plaintiff's response of "None." Notably, there is no tick mark next to question 3.C indicating that Ms. Atkinson actually read the question to Plaintiff. Further, Ms. Atkinson's interview was not recorded, so even if Ms. Atkinson posed question 3.C to Plaintiff, there is no evidence that she asked question 3.C in its entirety or, if only partially, that she specifically asked about foreign military service. Although the Record of Proceedings contains a declaration from Ms. Atkinson with statements about her standard practice for interviewing applicants for adjustment of status and statements about how she "would have" conducted the interview of Plaintiff, the Court is unpersuaded by this evidence. First, Ms. Atkinson prepared her declaration nearly eight years after the interview. Second, Ms. Atkinson did not appear at trial and Plaintiff never had the opportunity to question Ms. Atkinson about her recollection of the interview. Third, both Plaintiff and his wife credibly testified at trial that they do not remember Ms. Atkinson asking about foreign military service. Taking the foregoing evidence into consideration, the Court concludes that there is insufficient evidence that Plaintiff offered false testimony during his November 13, 2000 interview regarding his service in the Bosnian military with the intent to obtain an immigration benefit.
Next, the Government contends that Plaintiff gave false testimony regarding his participation in the Territorial Defense and the Bosnian army when he applied for naturalization. As an initial matter, the parties dispute whether question 8a under Part 10.B of Plaintiff's Form N-400 Application required Plaintiff to disclose military service. As stated above, this question reads: "Have you
Plaintiff, however, argues that the question only calls for disclosure of private organizations with memberships. He testified that because the Territorial Defense was an unorganized group of citizens and not a private organization, he did not list his participation in the Territorial Defense in response to this question. Similarly, Plaintiff testified that because he believed the Bosnian army to be a government institution, not a private organization, he did not list it in response to this question.
The Court agrees with Plaintiff that by its plain language, question 8a does not request disclosure of military service or other military groups. This construction is supported by the fact that question B under Part 6 specifically requests military service as part of the applicant's work history.
The Government also asserts that Plaintiff failed to disclose his membership in Tablighi Jamaat in response to question 8a. However, as indicated above, based upon Plaintiff's testimony, the Court finds that Tablighi Jamaat is an informal Muslim religious practice, not an organized entity akin to the types of formal groups identified in question 8a. Plaintiff's non-disclosure of his practice of Tablighi Jamaat in response to question 8a therefore was not false testimony. Furthermore, Plaintiff voluntarily disclosed his practice of Tablighi Jamaat during his naturalization interview on September 26, 2007. ROP 117-19. Plaintiff's disclosure of such information evinces an intention to provide the Government with all information necessary for it to make its decision on his Form N-400 Application, not an intention to hide information, as the Government advances.
Third, the Government contends that Plaintiff proffered false testimony about the type of weapons he carried when participating in the Territorial Defense. Specifically, the Government argues that Plaintiff's failure to disclose that he had carried an AK-47 along with a pistol when first asked what weapons he carried amounts to false testimony. However, Plaintiff credibly testified that it was only after the September 2007 interview that he remembered carrying an AK-47 while serving in the Territorial Defense. Plaintiff also credibly testified that, rather than omit this fact, he voluntarily disclosed that he carried an AK-47 at the subsequent naturalization interview because he wanted to be honest and provide the government with all the information he could recall. The Government's argument that Plaintiff proffered purportedly inconsistent statements about the weapons he carried in an effort to minimize his involvement in activities surrounding the Bosnian war and to further his naturalization application is unconvincing. At no point did Plaintiff deny carrying any weapons while participating in the Territorial Defense. To the contrary, Plaintiff was forthright about the fact that he carried a pistol and — after remembering that on a few occasions may have also handled an AK-47 — disclosed this fact as well. Plaintiff's disclosure of this information about the AK-47 demonstrates a willingness to provide the adjudications officer with a complete picture of the nature of his activity with the Territorial Defense, rather than an intention to evade an investigation into such involvement. Thus, the Court finds that Plaintiff's statements regarding the weapons he carried do not amount to false testimony and were not made with the intent to obtain an immigration benefit.
Finally, the Government contends that Plaintiff proffered false testimony with respect to questions 23 and 24 of his Form N-400 Application. As indicated above, Plaintiff answered "no" to questions 23 and 24 on both his 2003 N-400 Application and his 2007 N-400 Application. At his March 4, 2004 interview on the first N-400 Application, Plaintiff affirmed his answers of "no," to both questions. At the October 22, 2009 interview, he orally affirmed his responses and maintained that despite USCIS's determination that he lied and given false or misleading information to a government official, he never did. The Government contends that because Plaintiff had previously given false and misleading responses in his Form I-485 Application and his N-400 Application, Plaintiff's oral affirmation of his "no" response amounted to false testimony. However, as discussed above, because the
In sum, based on the record evidence and testimony at trial, the Court finds that Plaintiff did not provide false testimony in connection with his Form I-485 or N-400 Applications. In the instances where Plaintiff's responses were deficient, Plaintiff proffered reasonable, credible explanations for the omissions. Moreover, throughout the interview process, Plaintiff consistently volunteered information with the intention of providing USCIS with a full and complete picture of his background and affiliations to enable it to make its decision. The Court therefore finds that Plaintiff has met his burden of establishing that during the three years immediately preceding the date he filed his 2007 N-400 Application, he was a person of good moral character. Accordingly, having satisfied the statutory requirements for naturalization set forth in 8 U.S.C. § 1430(a), the Court holds that Plaintiff is eligible for naturalization.
The Court therefore
