CARLOS MURGUIA, District Judge.
Plaintiff United States of America brought this denaturalization action, seeking to revoke and set aside defendant Afaq Ahmed Malik's citizenship and cancel his Certificate of Naturalization. The court conducted a bench trial in October 2018. The parties later submitted proposed findings of fact and conclusions of law. The court has now reviewed all of the briefing, as well as the evidence in the case, and issues the following findings of fact and conclusions of law.
As will be demonstrated below, the overriding issue with plaintiff's case is a lack of reliable, clear, unequivocal, and convincing evidence about what happened during defendant's immigration-related interviews and what information was material to the interviewers. Defendant has conceded that his various immigration forms contained incorrect information (actually, no information) about his prior marriage and children. But what was discussed in interviews about those forms is not clear from the record. Simply put, plaintiff did not meet its high burden of showing that (1) defendant was not divorced when he married a United States citizen in 2000; (2) defendant withheld information about his ex-wife and children with the intent to gain an immigration benefit; and (3) that the adjudicators would have made different decisions had they known about plaintiff's ex-wife and children. The government must meet a high burden of proof for the court to set aside a grant of citizenship. That burden has not been not met here.
The government may seek denaturalization when a naturalized citizen either: (1) illegally procured naturalization; or (2) procured naturalization by concealment of material facts or by willful misrepresentation. 8 U.S.C. § 1451(a). To prevail under the first option, the government must show that the individual was statutorily ineligible to naturalize when he did so. See Federenko v. United States, 449 U.S. 490, 506 (1981). The second way the government may prevail is by showing that the individual procured naturalization by either concealment or misrepresentation, if the concealment or misrepresentation was willful, and if the fact at issue was material. Kungys v. United States, 485 U.S. 759, 767 (1988) (citing Federenko, 440 U.S. at 507, n.28). The government must "prove its charges in such cases by clear, unequivocal and convincing evidence which does not leave the issue in doubt." Klapprott v. United States, 335 U.S. 601, 612 (1949). When a court determines that the government has met its burden, it has no discretion to excuse the conduct. Federenko, 449 U.S. at 517. A judgment of denaturalization is required.
The court cannot set aside a grant of citizenship "upon a bare preponderance of evidence which leaves the issue in doubt.'" Schneiderman v. United States, 320 U.S. 118, 125 (1943). The evidence must be "unequivocal," meaning "proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases." Addington v. Texas, 441 U.S. 418, 432 (1979). "[W]hen the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness" the courts must "scrutinize the record with the utmost care." Nowak v. United States, 356 U.S. 660, 663 (1958); see Maisenberg v. United States, 356 U.S. 670, 673 (expressing grave doubts about the reliability of testimony about "events of many years before" of a "highly equivocal nature").
United States citizenship is illegally procured when the naturalized citizen failed to comply with any congressionally-imposed prerequisite for naturalization. See Fedorenko, 449 U.S. at 506. To be naturalized, an applicant must have been lawfully admitted to the United States for permanent residence. See 8 U.S.C. § 1429. To have been "lawfully admitted for permanent residence," an applicant must show that he has been "lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws. . . ." Id. § 1101(a)(20). An immigrant who, at the time of application for admission, is not in possession of a valid unexpired visa, reentry permit, or other valid entry document is inadmissible. Id. § 1182(a)(7)(A)(i).
Moreover, an applicant is inadmissible if he seeks to procure a visa, other documentation, or admission into the United States by fraud or by willfully misrepresenting a material fact. Id. § 1182(a)(6)(C)(i). A misrepresentation is "willful" if it was "deliberate and voluntary." See United States v. Hirani, 824 F.3d 741, 749 (8th Cir. 2016). Deliberate and voluntary requires only knowledge of the falsity of the representation and does not require an intent to deceive. Id.
Defendant sought to become a lawful permanent resident based on his marriage to McIntosh, a United States citizen. But plaintiff claims that at the time defendant filed his I-485, defendant remained married to Kaneez Fatima in Pakistan. According to plaintiff, defendant's subsequent marriage to McIntosh was therefore invalid and could not lawfully confer any immigration status. The court disagrees.
The evidence in the case supports a factual finding defendant lawfully divorced Fatima in 2000. To be certain, plaintiff has failed to prove by clear and convincing evidence that defendant did not divorce Fatima in 2000. As noted above, the court finds credible Fatima's testimony that she and defendant were divorced. The court also finds credible the testimony of defendant's brother, Ishfaq Malik, who stated that he was a witness at the divorce, that it did in fact occur, and that he obtained the divorce records from the local Union Council in 2014. The court does not give significant weight to Bazil and Long's testimony suggesting that records were forged or inaccurate. In 2016, after questions were raised about whether the Union Council in Pakistan had maintained an accurate record of the divorce, including its register book, Ishfaq Malik obtained a judgment in the Court of Shahrukh Arjumand confirming that the 2000 divorce was lawfully entered.
The court finds that defendant was divorced in 2000, and therefore his marriage to McIntosh was valid and capable of conferring permanent resident status.
Plaintiff next argues that defendant procured his lawful permanent residence through fraud and willful misrepresentation of material facts by representing on his I-485 application and during his adjustment of status interview that he did not have an ex-wife or children. The problem with this argument is that plaintiff has not shown that the omissions were material to defendant's application.
The standard for materiality in denaturalization cases is high, requiring a two-part showing. See Maslenjak v. United States, 137 S.Ct. 1918, 1929 (2017) (considering materiality in the criminal context). First, the government must show that the misrepresented fact was relevant enough to a naturalization criterion that it would have prompted reasonable officials, seeking only evidence about citizenship qualifications, to undertake further investigation. Id. Second, if the government can meet that first showing, it then must prove that such an investigation would have borne disqualifying fruit. Id. The "clear, unequivocal, and convincing" standard applies in the materiality context, as well. So Yen Lee v. INS, No. 94-9508, 1994 WL 651990, at *2 (10th Cir. Nov. 18, 1994).
Courts have consistently held that failing to reveal a prior spouse on one's immigration forms is not material unless the existence of the prior spouse would have made the applicant ineligible for the benefit. See United States v. Alferahin, 433 F.3d 1148, 1152 (9th Cir. 2006). Failing to list a prior spouse on an immigration form is not material where "the visa would have been processed no differently if USCIS knew about a prior spouse." Id.
McIntosh testified credibly at trial that her marriage to defendant was not a sham marriage, but was instead based on love. In his deposition, defendant testified consistently. No contrary evidence was presented. As in Alferahin, defendant's failure to list his ex-wife and children on his forms was not material because that information did not affect whether defendant's marriage to McIntosh was bona fide and sincere. Id.
Furthermore, having an ex-wife and children would not have made defendant ineligible for adjustment of status. And ultimately, having an ex-wife by itself does not make one ineligible for naturalization. Omitting a spouse and children from a naturalization form would only make a difference if that prior marriage was not terminated. But the court has determined here that defendant's prior marriage had been terminated before defendant married McIntosh. Defendant was therefore eligible for both adjustment of status and naturalization.
Plaintiff has failed to show by clear, unequivocal, and convincing evidence that the omissions on his immigration forms were material.
A naturalization applicant must meet a "good moral character" requirement. 8 U.S.C. § 1427(a)(3). An applicant is statutorily barred from showing that he is a person of good moral character if he has given false testimony, under oath, for the purpose of receiving an immigration benefit. Id. § 1101(f)(6). The required statutory period for good moral character, when the applicant's naturalization application is based upon his marriage to a United States citizen, is three years. See id. § 1430(a). This includes the period between the examination and the administration of the oath of allegiance. 8 C.F.R. § 316.10(a)(1). Here, defendant must demonstrate "good moral character" between April 5, 2001, and the date he took the oath of citizenship—January 15, 2009.
The false testimony bar to good moral character applies "to only those misrepresentations made with the subjective intent of obtaining immigration benefits." Kungys, 485 U.S. at 780. An applicant's "[w]illful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, [are] not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character." Id. Plaintiff must prove both the existence of false sworn testimony and the applicant's "subjective intent" by clear, convincing, and unequivocal evidence. Id.; United States v. Hovsepian, 422 F.3d 883, 887-89 (9th Cir. 2005) (en banc).
Plaintiff has failed to prove false testimony was given because there is no reliable record of what testimony was given at any of defendant's interviews. It is possible to prove false testimony when an officer testifies about what her red check marks meant. But where an officer only testifies about her "general practice" years before, that evidence cannot prove false testimony was given. See Hajro v. Barrett, 849 F.Supp.2d 945, 958-63 (N.D. Cal. 2012). In this case, plaintiff failed to prove what the red check marks meant on any of the forms, because the officers did not follow USCIS policy. Plaintiff has failed to prove defendant gave false testimony at either interview. Id.
As noted above, fear of embarrassment or of angering one's spouse is not the "subjective intent" required for 8 U.S.C. § 1101(f)(6) to apply, because it is not the intent to gain an immigration benefit. See, e.g., Chan v. INS, No. 00 MISC 243(FB), 2001 WL 521706, at *8 (E.D.N.Y. May 11, 2001) (holding that the failure to disclose a spouse lacked the requisite subjective intent of offering false testimony to obtain an immigration benefit). Where an applicant failed to reveal facts because he would be embarrassed for his wife to find out, that type of omission cannot prove he intended to gain an immigration benefit by doing so. See Lopez-Scavone v. INS, 21 F. App'x 599, 602 (9th Cir. 2001) (finding misrepresentation was immaterial where "Lopez-Scavone repeatedly testified that writing the bad checks was wrong and that he recognized that it was, and that he hadn't even told his wife about the details at the time" and "[t]his testimony reveals that he was embarrassed about the writing of the checks, particularly about describing the details in the presence of his wife").
Plaintiff did not call defendant as a witness at trial and offered no evidence of what defendant's intent was in any of the purported false testimony or omissions on his forms. This lack of evidence is contrasted with several facts that suggest that any omission was (1) because defendant had not told McIntosh that he had an ex-wife and children, so he did not want to mark it on the paper; (2) because McIntosh completed the paperwork and did not know about the ex-wife and children; (3) because defendant did not speak or read English well and did not understand the question; or (4) because defendant did not review the paperwork before signing. The court has accepted that plaintiff married McIntosh for love, which works against an inference that he was solely motivated to secure naturalization. To be certain, plaintiff has not shown by clear and convincing evidence that defendant intended to gain an immigration benefit by omitting information about his ex-wife and children.
To revoke citizenship based on willful misrepresentation and concealment, the evidence must demonstrate that (1) the 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. Plaintiff has not established all four of these elements.
The first element is the only element of the four that is clearly and unequivocally met here. Defendant misrepresented or concealed the fact that he had an ex-wife and children in Pakistan. Whether these misrepresentations or concealments were willful is a closer question, however. Under the Immigration and Nationality Act, "[p]roof of an intent to deceive is not required; rather, knowledge of the falsity of the representation is sufficient." See Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997) (citations omitted). Defendant was well aware that he had an ex-wife and children. What is less clear is whether he was aware that he represented otherwise. Defendant may not have completed the paperwork himself, and it is possible he was not asked questions about the issue during his interviews.
Even if the court assumes that defendant willfully misrepresented, however, plaintiff has not shown that the facts were material or that defendant procured citizenship because he lied. There is no evidence in the record that defendant would have been denied naturalization if he disclosed his prior marriage or children. A misrepresentation or concealment is material if the misrepresentation would have had the "natural tendency to influence" the naturalization decision. See Kungys, 485 U.S. at 771-72; see also So Yen Lee, 1994 WL 651990, at *1. As the court has already determined above, any misrepresentations or concealments by defendant were not material to his application. Importantly here, plaintiff did not present any testimony from Elaine Howlett—the decision-maker—to show that she would have denied defendant's naturalization had he disclosed his ex-wife and children. Jacobs made no recommendation after her interview, and did not speak with Howlett about the case. The court is left with no credible evidence to show that the decision would have been influenced by disclosure of defendant's former spouse and children.
Finally, plaintiff has not shown "procurement." To determine whether defendant procured his naturalization based on the misrepresentations and concealment, the court asks whether it is "fair to infer that the citizen was actually ineligible" for naturalization. See United States v. Latchin, 554 F.3d 709, 714 (7th Cir. 2009); United States v. Mensah, 737 F.3d 789, 809 (1st Cir. 2013). Such inference in this case is not fair because defendant has demonstrated that he was divorced before marrying McIntosh. He has shown that his marriage with McIntosh was bona fide. Plaintiff has not offered reliable or credible evidence that defendant lied under oath during interviews. And plaintiff has not submitted any other reason or evidence that defendant would have been ineligible for naturalization. On this factual basis, the court cannot conclude that defendant procured citizenship based on concealment of material facts and willful misrepresentation.
The case is closed.
