BERYL A. HOWELL, Chief Judge.
On April 8, 2015, the government filed this action against defendant Khaled Elsayed Mohammad Abo al Dahab to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's Certificate of Naturalization, pursuant to 8 U.S.C. § 1451(a). Compl. ¶ 1, ECF No. 1. Due in part to alleged false statements and false testimony related to the defendant's applications for citizenship, the government seeks revocation of the defendant's naturalization and cancelation of his Certificate of Naturalization as both illegally procured and procured by willful misrepresentation or concealment of material facts. Id. ¶ 35 (citing 8 U.S.C. § 1451(a)). For the reasons stated below, the government's motion is granted.
The defendant is a native and citizen of Egypt, who entered the United States in 1986 on a nonimmigrant visitor visa. See Gov't Statement of Material Facts As To Which There Is No Genuine Dispute ("Gov't SMF") ¶ 1, ECF No. 12-1.
Almost one year later, in September 1990, the defendant filed an INS Form I-131, an Application for Issuance of Permit to Reenter the United States, in anticipation of travel abroad. Id. ¶ 8. In this application, signed under penalty of perjury, id. ¶ 9, the defendant provided a mailing address abroad in Cairo, Egypt, id. ¶ 8(d), indicated his absence from the United States would be for a period of sixteen weeks, id. ¶ 8(b), and said his reason for travelling was that he might have to donate a kidney to his mother, id. ¶ 8(e).
On July 19, 1991, approximately three months past the deadline, the defendant filed an INS Form I-752, an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions, due to his earlier divorce and remarriage. Id. ¶ 10. To excuse the untimeliness, the defendant claimed he was unable to file the application on time because he was in Pakistan donating a kidney to his mother, supporting this claim with a copy of his airline ticket to Pakistan along with a letter purportedly from his mother's doctor in Pakistan. Id. ¶¶ 11, 12. On March 9, 1992, the INS approved the defendant's request, removing the conditions on his permanent resident status. Id. ¶ 13.
On March 17, 1995, the defendant filed his first application for naturalization, having been a permanent resident for at least five years. Id. ¶ 14. In his application, signed under penalty of perjury, id. ¶ 15, the defendant claimed, among other things, that: (1) he resided in Reno, Nevada; (2) he had never left the United States since becoming a permanent resident in 1989; (3) he had been married only twice; (4) he had never falsely claimed to have been a United States citizen; and (5) "he had never given false testimony to obtain an immigration benefit," id. ¶ 14. Although INS scheduled two separate interviews for his application for naturalization, the defendant did not attend either interview, and INS subsequently denied his application as abandoned. Id. ¶ 16.
Over one year later, in October 1996, the defendant filed a second application for naturalization. Id. ¶ 17. In this application, also signed under penalty of perjury, id. ¶ 18, the defendant claimed that: (1) he resided in Sparks, Nevada; (2) his only absence from the United States since becoming a permanent resident was a trip to Egypt from May 1995 through November 1995 for an "emergency"; (3) he had been married only once; (4) he had never falsely
Later that month, INS conducted an interview of the defendant under oath. Id. ¶ 19. As part of the interview, an immigration officer asked the defendant to verify each of his answers on his second naturalization application.
On April 8, 2015, the government filed this action against the defendant to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's Certificate of Naturalization. Compl. ¶ 1. Over the past two years, the defendant, who the government alleges currently resides in Alexandria, Egypt, Gov't Mot. Substituted Service ("Gov't Mot. Subst. Serv."), Ex. 1, Decl. of Special Agent Rami Nimri ("Nimri Decl. II") ¶ 2, ECF No. 5-1, has not responded to any of the government's filings or this Court's orders. After customary means of service proved ineffective, on August 27, 2015, this Court granted the government's motion, under Rule 4(f)(3) of the Federal Rules of Civil Procedure, for substituted service of process, and authorized the government to serve process upon the defendant by means of email and Facebook message. See generally Mem. Op. and Order Granting in Part and Denying in Part Gov't Mot. Subst. Serv. ("Mem. Op. Subst. Serv."), ECF No. 6. The government verified that they did so. See Return of Service/Affidavit of Summons and Complaint Executed at 2, ECF No. 7. According to the Federal Bureau of Investigation ("FBI"), the defendant's Facebook page "shows he was active before receiving the Summons and after receiving the Summons" and that the defendant "posted several items on Facebook before and after receiving the Summons." Gov't Mot. Summ. J. ("Gov't MSJ"), Ex. 21, Internal FBI Document dated September 21, 2015, at 2, ECF No. 12-2.
Federal Rule of Civil Procedure Rule 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the "absence of a genuine issue of material fact" in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. ("Liberty Lobby"), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, appropriate inquiry is "whether, on the evidence so viewed, `a reasonable jury could return a verdict for the nonmoving party'" (quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505)).
"Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science." Estate of Parsons v. Palestinian Authority, 651 F.3d 118, 123 (D.C. Cir. 2011). This evaluation is guided by the related principles that "courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment," Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam), and "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor," id. at 1863 (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505 (alteration in original)). Courts must avoid making "credibility determinations or weigh[ing] the evidence," since "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Products,
Although a non-movant's silence in a denaturalization case does not mean a motion may be granted as conceded, Winston & Strawn, LLP v. McLean, 843 F.3d 503, 509 (D.C. Cir. 2016) (holding that under Rule 56(e) of the Federal Rules of Civil Procedure, summary judgment motions may not be granted as conceded); United States v. Alrasheedi, 953 F.Supp.2d 112, 114 (D.D.C. 2013) (concluding that the heightened burden of proof in denaturalization cases means that a motion for summary judgment may not be granted as conceded), Rule 56(e)(2) of the Federal Rules of Civil Procedure still permits courts to "consider [a] fact undisputed for purposes of" a motion for summary judgment, "[i]f a party . . . fails to properly address another party's assertion of fact," FED. R. CIV. P. 56(e). Accordingly, notwithstanding a non-movant's persistent refusal to respond to a motion for summary judgment, courts may accept as true any factual assertions submitted by the movant in support of its motion, unless the non-movant submits his or her own evidence showing the movant's assertions are untrue. See Winston & Strawn, LLP, 843 F.3d at 509; Neal, 963 F.2d at 456; FED. R. CIV. P. 56(e); LCvR 7(h).
A defendant may not "clog the wheels of justice by crossing the international border," Blackmer v. United States, 60 App.D.C. 141, 49 F.2d 523, 528 (D.C. Cir. 1931), and "power still resides in the court `to put the wheels of justice in motion," Burlingame v. Manchester, 44 App. D.C. 335, 338 (D.C. Cir. 1916) (internal quotation marks and citation omitted). Accordingly, though American citizenship is "no light trifle to be jeopardized," Afroyim v. Rusk, 387 U.S. 253, 267-68, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), it is not uncommon for courts to adjudicate motions for summary judgment in uncontested denaturalization cases, see, e.g., United States v. Georgieff, 100 F.Supp.3d 15, 18 (D.D.C. 2015); Alrasheedi, 953 F.Supp.2d at 112; United States v. Gayle, 996 F.Supp.2d 42, 47 (D. Conn. 2014). Although a motion for summary judgment may not be granted as conceded, see Winston & Strawn, LLP, 843 F.3d at 509; Alrasheedi, 953 F.Supp.2d at 113, a court may assume uncontested facts as admitted and then "enter summary judgment . . . if, after
"[O]nce 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) (citations omitted). Thus, "the Government `carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship,'" id. (quoting Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961)), and must provide "clear, unequivocal, and convincing" evidence justifying revocation, id. (quoting Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 S.Ct. 1796 (1943)). For this reason, the government cannot obtain judgment in a civil denaturalization action by default. Klapprott v. United States, 335 U.S. 601, 612-13, 69 S.Ct. 384, 93 S.Ct. 266 (1949) ("[C]ourts should not . . . deprive a person of his citizenship until the Government first offers proof of its charges sufficient to satisfy the burden imposed on it, even in cases where the defendant has made default in appearance."); see also Kungys v. United States, 485 U.S. 759, 791-92, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988).
At the same time, "[a]dmission to citizenship under the laws is not a right but a privilege, and, in order for an alien to avail himself of this privilege, he must comply with all the conditions imposed by the statute." United States v. De Francis, 60 App.D.C. 207, 50 F.2d 497, 498 (D.C. Cir. 1931); see also Schneiderman, 320 U.S. at 131, 63 S.Ct. 1333 ("[N]aturalization is a privilege, to be given or withheld on such conditions as Congress sees fit."). Accordingly, courts have held the government is entitled to summary judgment in denaturalization cases where it has met its high burden of proof, see, e.g., United States v. Hirani, 824 F.3d 741, 748 (8th Cir. 2016); United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012) ("[S]ummary judgment for the government in a denaturalization proceeding is warranted in narrow circumstances: 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 denaturalization."); United States v. Jean-Baptiste, 395 F.3d 1190, 1196 (11th Cir. 2005), United States v. Dailide, 227 F.3d 385, 389 (6th Cir. 2000); United States v. Koreh, 59 F.3d 431, 438-39 (3d Cir. 1995); United States v. Schmidt, 923 F.2d 1253, 1257 (7th Cir. 1991), even where the defendant has failed to appear, see, e.g., Georgieff, 100 F.Supp.3d at 19; Alrasheedi, 953 F.Supp.2d at 114; Gayle, 996 F.Supp.2d at 47; see also United States v. Moya, 118 Fed.Appx. 666, 668 (3d Cir. 2005) (upholding a district court's grant of an unopposed motion for summary judgment in a denaturalization case).
There are two grounds for revoking a naturalized person's citizenship: (1) if it was "illegally procured," or (2) if it was "procured by concealment of a material fact or by willful misrepresentation." 8
Citizenship is "illegally procured" if an applicant did not comply with any of the "congressionally imposed prerequisites to the acquisition of citizenship." Id. at 506, 101 S.Ct. 737. These prerequisites include that the applicant was "lawfully admitted to the United States for permanent residence," 8 U.S.C. § 1429, and that the applicant "has been and still is a person of good moral character" for a period that begins with the application for naturalization, and continues until the applicant takes the oath of allegiance. See 8 U.S.C. § 1427(a)(3). One fact precluding a finding of good moral character is if an applicant has "given false testimony for the purpose of obtaining any [immigration] benefits." 8 U.S.C. § 1101(f)(6).
Citizenship must also be revoked if it was procured as a result of an applicant's willful misrepresentation or concealment of a material fact. See Kungys, 485 U.S. at 767, 108 S.Ct. 1537; Alrasheedi, 953 F.Supp.2d at 115. This basis for revocation has the following elements: (1) a naturalized citizen misrepresented or concealed a fact; (2) the misrepresentation or concealment was willful; (3) the fact was material; and (4) the naturalized citizen procured citizenship as a result of the misrepresentation or concealment. Kungys, 485 U.S. at 767, 108 S.Ct. 1537. Willfulness requires only knowledge of the falsity of the statement. See Witter v. Immigration & Naturalization Serv., 113 F.3d 549, 554 (5th Cir. 1997) ("Proof of an intent to deceive is not required; rather, knowledge of the falsity of the representation is sufficient." (citations omitted)). A fact is material if it has "a natural tendency to influence the decisions of the [INS]." Kungys, 485 U.S. at 772, 108 S.Ct. 1537.
The government argues the defendant's citizenship and his Certificate of Naturalization must be revoked because it was both procured illegally and by the defendant's willful misrepresentation or concealment of material facts. In support, the government has provided evidence regarding three primary occasions on which the defendant provided the government with information: (1) his first naturalization application in 1995, (2) his second naturalization application in 1996, and (3) the defendant's October 1996 naturalization interview. The government has accompanied this information with documentation showing that the defendant made false statements on each of these occasions. Indeed, throughout the immigration process, the defendant provided untruthful information regarding (1) his travel history; (2) his marital history; and (3) whether he had ever claimed to be a United States citizen.
Second, the defendant's statements regarding his marital history on both his naturalization applications are false. See Def.'s First App. at 2; Def.'s Second App. at 2. By the time the defendant had filed his first application, the defendant had been married at least three times. Gov.'t MSJ, Exs. 2, 3, 8, 9. Thus, the defendant's statements on both applications, claiming he was married only once, are false. Further, when asked about his marriages in his immigration interview, the defendant did admit that he had incorrectly stated on the form that he had been married only once, but testified that he had been married only twice. Def.'s Second App. at 2 (showing immigration officer's annotation correcting the number of marriages from one to two). Thus, the defendant also gave false testimony regarding his marital history.
Third, the defendant stated in both applications that he had never claimed in writing, or in any other way, to be a United States citizen, see Def.'s First App. at 3; Def.'s Second App. at 3, which was also false. As the government shows, however, the defendant claimed on March 13, 1988 to be a United States citizen in an application for employment with the National Semiconductor Corporation.
The defendant's false testimony and statements on these three occasions establish by clear, unequivocal, and convincing—indeed, undisputed—evidence that the defendant procured his citizenship illegally. As noted, during his naturalization interviews, the defendant falsely testified about his travel and marital histories, and falsely verified that he had never claimed to be a United States citizen. Such false testimony precludes a finding of "good moral character." See 8 U.S.C. § 1101(f)(6) ("No person shall be regarded as, or found to be, a person of good moral character,
Further, the false statements on the defendant's naturalization applications and in his naturalization ceremony also require revocation of the defendant's citizenship as having been "procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a). Even if by "viewing the evidence in the light most favorable to the naturalized citizen," Arango, 670 F.3d at 992, it is assumed that the defendant may have forgotten about his 1988 job application to the National Semiconductor Corporation, the defendant must have known that his statements regarding his travel and marital histories were false. Cf. Georgieff, 100 F.Supp.3d at 21 (concluding a defendant "obviously knew to be false" his statements about "his marital status"). Thus, the misrepresentations were willful. See Witter, 113 F.3d at 554 (stating that "knowledge of the falsity of the representation is sufficient" to find willfulness (citations omitted)).
Each of these statements were also material because his answers would have had "a natural tendency to influence the decisions of the [INS]" with respect to his application. Kungys, 485 U.S. at 772, 108 S.Ct. 1537. First, the defendant's statements about his travel history were material because continuous residence in the United States is a requirement for naturalization. See 8 U.S.C. § 1427(a)(2); 8 C.F.R. § 316.5(c)(1) ("Absences from the United States—(i)for continuous periods of between six (6) months and one (1) year . . . shall disrupt" the continuous residence requirement). Second, with respect to the defendant's marital history, the government is entitled "to discover what possible legal obligations, liabilities, and relationships the applicant for citizenship may have contracted in the past" including "marriages or [a] marriage ceremony." United States v. Ali, 557 F.3d 715, 721-22 (6th Cir. 2009). Third, false claims of United States citizenship are clearly material as such claims may constitute crimes under United States law, see 18 U.S.C. § 911, precluding a finding of good moral character, see 8 U.S.C. § 1101(f)(3); 8 C.F.R. § 316.10(b)(3)(iii). Indeed, if the defendant was in violation of § 911, the defendant would have been inadmissible and therefore ineligible for permanent residence. See 8 U.S.C. § 1182(a)(6)(C)(ii) (aliens who have made false representations of United States citizenship are inadmissible); 8 U.S.C. 1429 (requiring lawful admission for permanent residence); see also id. § 1227(a)(1)(A) (aliens who make false representations of United States citizenship are subject to removal).
Accordingly, the government has proven by clear, unequivocal, and convincing evidence that the defendant willfully misrepresented or concealed material facts and procured citizenship as a result. See 8 U.S.C. § 1451(a); Kungys, 485 U.S. at 767-77, 108 S.Ct. 1537.
For the foregoing reasons, "after fully considering the merits of the" government's
An appropriate order accompanies this Memorandum Opinion.