GERALD E. ROSEN, Chief Judge.
This matter is presently before the Court on the Motion filed by Valbona Lucaj and her husband, Sebastiano Quagliata, for summary judgment on their petition for review of the denial of their applications for naturalization. Respondents have filed an Opposition Brief, which the Court will treat as a cross-motion for summary judgment.
On January 18, 1997, Valbona Lucaj, a native of Albania, entered the United States using fraudulent documents.
Lucaj was interviewed for asylum status on May 6, 1997 by Asylum Officer Delores Filandro at the USCIS's New York Asylum Office. See Declaration of Patricia A. Menges, Director of the New York Asylum Office, ¶ 15. During the interview Lucaj made a number inconsistent statements. These statements were memorialized in an Assessment and Referral Memo [Respondents' Ex. A] prepared by AO Filandro for the referral of Lucaj's application to an Immigration Judge for placement of Lucaj into removal proceedings. See Menges Decl., ¶¶ 9-10. Notwithstanding the interviewing officer's credibility assessment and decision to refer Lucaj's application to the Immigration Judge, on May 20, 1997, Supervisory Asylum Officer John Shandorf changed the decision to refer Lucaj for removal to a "Recommended Approval," pending fingerprint results. Id., ¶ 18. When fingerprints cleared and indicated no known criminal or immigration-related offenses, SAO Shandorf entered a new final decision in the Refugee and Asylee Processing System ("RAPS") database, and on June 17, 1997, granted both Valbona Lucaj and her husband asylum.
Id. at 653.
Luigi Berishaj named 19 asylum applicants who paid him $2,000-$3,000 to obtain political asylum. See Defendants' Supp. Exhibits, 12/8/98 FBI 302, Dkt. #29-1, Pg. ID 242; 245. He stated that he "kept a portion of the money (either $500 or $1000) and gave the remainder to John Shandorf. Shandorf in turn arranged for political asylum to be granted to the [identified] individuals." Id. at 242. Berishaj specifically told the FBI that Valbona Lucaj was one of these applicants and that she paid $3,000 to obtain political asylum. Id. Berishaj also had Valbona Lucaj's name, address and phone number in his address book. Id., Pg. ID 246-247.
Berishaj subsequently pled guilty to paying bribes to Shandorf in exchange for granting the asylum applications of a number of Albanian applicants, in violation of 18 U.S.C. § 201(b)(1)(A). See, United States v. Berishaj, E.D.N.Y. No. 99-cr-00201.
Meanwhile, based on their grant of asylum, on June 4, 1998, Lucaj and Quagliata applied for lawful permanent resident ("LPR") status, as permitted by 8 U.S.C. § 1159(b), and they were granted an adjustment to LPR on April 17, 2003, made retroactively effective as of April 17, 2002.
Two years after being granted LPR status, on August 5, 2005, Petitioners received a "Notice of Intent to Terminate Asylum Status" ("NOIT") from the Department of Homeland Security ("DHS").
See United States v. Lucaj, E.D. Mich. No. 09-14716 ("Lucaj I"), Dkt. # 20-9.
The NOIT provided Plaintiffs 30-days notice to appear for an interview to respond to the adverse information. Lucaj appeared and was interviewed on September 7, 2005 in the Chicago Asylum Office of the USCIS. (Lucaj's husband did not appear.) After interviewing Lucaj, Asylum Officer Amanda Atkinson concluded that Lucaj was ineligible at the time she was granted asylum. See AO Atkinson's Memo to File, Petitioner's Ex. D. In relevant part, AO Atkinson's interview memo states as follows:
[Petitioners' Ex. D.]
While the issue of the termination of their asylum status was still unresolved, on May 5, 2007, Petitioners filed applications for naturalization. They were both interviewed on their naturalization applications on April 2, 2008 in Detroit. The interviews were conducted without the benefit of Petitioners' administrative files ("Afiles") which, at the time, were still in the Chicago Asylum Office. See Declaration of USCIS Senior Immigration Officer Ian Modelski, Lucaj I, Dkt. # 20-14. Although Petitioner Quagliata passed the history and government of his interview, his application was withheld pending receipt of his A-file. Id. Lucaj, however, failed the history and government portions on her first attempt; therefore, her interview was rescheduled for August 7, 2008. Id. She passed on her second attempt on August 7, 2008, and was accordingly, "recommended for approval," but because her A-file, like her husband's, was still in Chicago and, as a result, had not yet been reviewed, no final decision on her application was made. Id.
Meanwhile, while Petitioners were attempting to obtain naturalization through the Detroit USCIS office, on July 15, 2009, the Chicago Asylum Office terminated Petitioners' asylum status. See id., Dkt. # 19-3; 19-4. Petitioners were notified of the termination that same date. Id., Dkt. # 20-14. In this notice, the USCIS listed the reasons for its decision, including Lucaj's inconsistencies and lack of credibility in her September 2005 interview and fraud in Petitioners' procurement of asylum status. Id., Dkt. # 19-4. On the same date, Chicago Asylum Officer Amanda Perkett prepared Petitioners' files for forwarding to Detroit "for revocation of both individuals' LPR status and placement into removal proceedings thereafter based on the finding of fraud and resulting termination of their status in the United States." Id., Dkt. # 20-13. The files, were accordingly forwarded to Detroit with instructions to issue Petitioners a Notice to Appear in Removal Proceedings. Id.
However, before the Detroit office had the opportunity to issue the Removal Notice or adjudicate the pending naturalization applications, on December 3, 2009, Petitioners filed a lawsuit in this Court seeking a declaratory judgment to award them naturalization based on the USCIS's failure to make a determination on their applications within 120 days of their naturalization examination as provided under 8 U.S.C. § 1447(b). See Lucaj I, Dkt. # 1, Petition for Hearing on Naturalization Under 8 U.S.C. § 1447(b). It was during the pendency of this action, on February 8, 2010, that the USCIS rendered its decision denying Petitioners' naturalization, citing lack of good moral character arising out of the Petitioners' commission of fraud in obtaining asylum as the basis for its denial. In its decision, the USCIS stated, in relevant part:
Id., Dkt. # 11-3; 11-4.
On June 28, 2010, Petitioners were issued Notices to Appear ("NTAs") for Removal Proceedings. Based upon its February 2010 decision and the subsequent NTAs, the USCIS moved to dismiss Petitioners' 2009 action as moot. The Court, however, determined that, because no NTA was pending at the time that Petitioners filed their Complaint for a declaratory judgment on their naturalization, it had exclusive jurisdiction over Petitioners' naturalization applications. See Lucaj v. Dedvukaj, 749 F.Supp.2d 601, 613 (E.D.Mich.2010). Therefore, it determined that the USCIS's February 2010 decision denying Petitioners' naturalization applications had no effect, and held that the agency's decision should, at best, be treated as "tentative." Id. However, because, at the time of the hearing on the USCIS's motion to dismiss, Petitioners were already in removal proceedings, the Court recognized that it could not proceed to naturalize Petitioners. Id. Accordingly, the Court determined that the matter should be remanded to USCIS for proper adjudication of Petitioners' naturalization applications. Id. at 614.
Following this Court's remand, on March 23, 2011, Petitioners instituted another federal lawsuit, this time contesting the termination of their asylum status as arbitrary and capricious under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. See Lucaj v. Dedvukaj, E.D. Mich. No. 11-11172 ("Lucaj II"). However, six months later, on September 12, 2011, the parties stipulated to the dismissal of that case, without prejudice, so that Petitioners could focus on the adjudication of their naturalization applications. See id., Dkt. # 14.
On November 19, 2010, now vested with proper jurisdiction, the USCIS, denied Petitioners' naturalization applications. Petitioners requested review of their denied applications under 8 U.S.C. § 1447(a). On March 1, 2012, the USCIS Reviewing Officer affirmed the denial of both Petitioners' applications. On June 25, 2012, Petitioners then filed the instant action for judicial review pursuant to 8 U.S.C. § 1421(c).
USCIS Reviewing Officer Michael Klinger determined that Petitioner Lucaj failed to meet the requirements of good moral character based upon inconsistent testimony given in at least four interviews and the evidence contained in her file indicating that she had obtained asylum through fraud. Specifically, the Reviewing Officer noted the following:
Complaint, Ex. A, Dkt. # 1-2.
After weighing the foregoing evidence, the Field Office Director Klinger concluded:
Id.
As Quagliata's asylum status was obtained as a derivative of his wife's status, the Reviewing Officer also determined that fraud found in connection with Lucaj's asylum terminated Quagliata's asylum status, as well, and also rendered him ineligible for naturalization. See Quagliata v. Dedvukaj, E.D. Mich. No. 12-12781, Dkt. # 1-2.
Petitioners Lucaj and Quagliata filed their complaints in this matter after an immigration officer reviewed, and affirmed, the denial of their naturalization applications. Accordingly, they are entitled to seek judicial review of the reviewing officer's denials. 8 U.S.C. § 1421(c).
As the court observed in Hassan v. Dedvukaj, 2010 WL 199931 at *4 (E.D.Mich. Jan. 19, 2010), "This grant of authority is unusual in its scope — rarely does a district court review an agency decision de novo and make its own findings of fact." Id. (quoting Nagahi v. INS, 219 F.3d 1166, 1169 (10th Cir.2000)). Moreover, this Court's review "is not limited to any administrative record," and its decision "may be on facts established in and found by the district court de novo." Hassan, supra (quoting Aparicio v. Blakeway, 302 F.3d 437, 445 (5th Cir.2002)). Furthermore, it is proper to conduct this review within the context of a motion for summary judgment. Id. See also Chan v. Gantner, 464 F.3d 289, 295-96 (2d Cir. 2006) (rejecting an argument that § 1421(c) "implies a bench trial or evidentiary hearing" and thus precludes motions for summary judgment as a vehicle to obtain review of a denial decision); Abulkhair v. Bush, 413 Fed.Appx. 502, 508 n. 4
Summary judgment is proper if the moving party "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). As the Supreme Court has explained, "the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). Yet, the nonmoving party may not rely on mere allegations or denials, but must "cit[e] to particular parts of materials in the record" as establishing that one or more material facts are "genuinely disputed." Fed. R.Civ.P. 56(c)(1). Moreover, any supporting or opposing affidavits or declarations "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Finally, "the mere existence of a scintilla of evidence that supports the nonmoving party's claims is insufficient to defeat summary judgment." Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted). The Court will apply the foregoing standards in deciding the motions for summary judgment in this case.
After five years of continuous residence following lawful admission to permanent residence, an alien becomes eligible to apply for naturalization. 8 U.S.C. § 1427(a). A naturalization applicant must demonstrate, inter alia, good moral character; the ability to read, write and speak English; and a basic knowledge of United States history and government. See 8 U.S.C. § 1423(a), § 1427(a)(3). The applicant also has the burden of proving he was "lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1429.
The burden is on the person seeking naturalization to establish his or her eligibility. Berenyi v. District Director, Immigration & Naturalization Serv., 385 U.S. 630, 637, 87 S.Ct. 666, 671, 17 L.Ed.2d 656 (1967); Sakarapanee v. Department of Homeland Security, 616 F.3d 595, 597 (6th Cir.2010). This burden requires the applicant to prove, by a preponderance of the evidence, that he or she meets all of the requirements for naturalization and is thus eligible to become a citizen of the United States. See 8 C.F.R. § 316.2(b). Any doubts should be resolved in favor of the United States and against the applicant. Berenyi at 637, 87 S.Ct. at 671.
As an initial matter, to establish that they are eligible to naturalize, Petitioners have the burden of establishing
Petitioners argue that although the agency terminated their asylee status, their lawful permanent resident status remains untouched, and, therefore, they are entitled to be naturalized. However, Petitioners cannot meet their burden simply by showing that they have permanent resident status. "An alien who acquired permanent resident status through fraud or misrepresentation has never been `lawfully admitted for permanent residence.'" In re Koloamatangi, 23 I. & N. Dec. 548, 550, 2003 WL 77728 (BIA 2003).
In Koloamatangi, the respondent obtained permanent resident status in 1985 by virtue of his marriage to a United States citizen, which resulted in the birth of a child in this country in 1988. However, his marriage was bigamous, as he was married to a Tongan national at the same time that he obtained LPR status based on his marriage to a U.S. citizen. The BIA held that, although the respondent was facially and procedurally in lawful permanent resident status for more than the requisite number of years, he was never, in a legal sense, an alien "lawfully admitted for permanent residence," because his acquisition of that status was procured by fraud. Id. at 548-49.
Several circuits have relied on Koloamatangi's interpretation of "lawfully admitted for permanent residence" and have consistently held that to be "lawfully admitted for permanent residence" requires that the person have complied with the substantive legal requirements in place at the time he or she was admitted. See e.g., Matter of Longstaff, 716 F.2d 1439 (5th Cir.1983); De La Rosa v. U.S. Dep't of Homeland Sec., 489 F.3d 551(2d Cir.2007); Savoury v. U.S. Att'y General, 449 F.3d 1307, 1313 (11th Cir.2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir.2005). For example, in Longstaff, the court found the petitioner ineligible for naturalization even though he had originally entered the country under a proper visa and had been a permanent resident for 15 years, owned two reputable businesses in Texas, and had not been charged with any offenses other than traffic violations because he had engaged in homosexual activity prior to his entry in 1965, which was grounds for exclusion at that time.
Id. at 1441-42 (footnotes omitted).
Similarly, in De La Rosa, the Second Circuit held that the petitioner, whose later testimony showed that she did not meet the requirements of an amnesty program through which she had obtained permanent residence had not been lawfully admitted for permanent residence. 489 F.3d at 555. In Arellano-Garcia, the Eighth Circuit held that a person mistakenly granted permanent residence after unlawful reentry was not "lawfully admitted" despite the fact that there was no evidence that the alien committed fraud in obtaining that status. 429 F.3d at 1186. Similarly, in Savoury, the Eleventh Circuit held that the petitioner, who was inadmissible due to a criminal conviction that he had disclosed during his application process, had not been lawfully admitted for permanent residence because he had been granted permanent residence as the result of a government error. 449 F.3d at 1316-17.
In this case, Petitioners obtained their LPR status as asylees. However, there is ample evidence of record supporting the USCIS's conclusion — with which this Court agrees — that Petitioner Lucaj's asylum status (and hence, her husband's derivative asylum status, as well) was obtained through fraud. Specifically, evidence has been presented establishing that Petitioner Lucaj's application for asylum was one of the applications implicated in John Shandorf's bribery fraud scheme. Evidence presented during Shandorf's trial specifically showed that Valbona Lucaj was one of the asylum applicants who had paid a substantial sum of money for favorable consideration of her asylum application. Luigi Berishaj, one of Shandorf's co-conspirators who testified at his trial, specifically identified Lucaj as one of the asylum applicants who had paid him to facilitate favorable treatment of her application. Berishaj testified that he kept some of the money but gave most of it to Shandorf.
Respondents additionally have presented the sworn Declaration of Patricia A. Menges, Director of the USCIS's New York Asylum Office, who has worked in that office since 1995 and is familiar with Shandorf and the circumstances of his criminal case. Based on Ms. Menges's review of the evidence in this case and her familiarity with the policies and procedures
As the authorities discussed above demonstrate, Petitioners asserted specific lack of knowledge of Shandorf's fraudulent actions is of no import in the determination of whether Petitioners were "lawfully admitted for permanent residence." Substantial evidence has been presented showing that Lucaj's asylum status was obtained through fraud, and, Petitioners have not presented evidence showing otherwise.
Even if Petitioners are deemed to have been lawfully admitted, the record evidence establishes that they cannot satisfy the "moral character" requirement of § 1427(a)(3).
A naturalization applicant bears the burden of establishing, by a preponderance of the evidence, that he or she has been, and continues to be, "a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." Berenyi v. District Director, 385 U.S. at 637, 87 S.Ct. 666; 8 U.S.C. § 1427(a)(3). In determining whether the applicant has sustained this burden, the Court is not limited to the applicant's conduct during the five years preceding the filing of the application as with other requirements of § 1427(a)(3), but may also take into consideration as a basis for its determination, the applicant's conduct and acts at any time prior to that period. 8 U.S.C. § 1427(e).
While the INA does not define good moral character, it does provide a non-exhaustive list of instances in which a person is not to be regarded as having good moral character. See 8 U.S.C. § 1101(f); 8 C.F.R. 316.10(b). An applicant is deemed to lack good moral character if he or she has given false testimony for the purpose of obtaining an immigration benefit. 8 U.S.C. 1101(f)(6); 8 C.F.R. § 316.10(b)(1)(vi). Unless extenuating circumstances exist, the applicant also "shall also be found to lack good moral character if the applicant committed unlawful acts that adversely reflect upon the applicant's moral character," even if the applicant was not convicted or imprisoned for such acts. 8 C.F.R. § 316.10(b)(3)(iii).
With regard to false testimony, the subject matter of the false testimony is irrelevant, and it does not matter whether the false testimony was given to hide a fact that would actually disqualify an applicant from naturalization. 8 C.F.R. § 316.10(b)(2)(vi). Furthermore, false testimony is not rendered inconsequential due to its seemingly innocuous nature. Rather, any testimony given under oath that is false can be used to show that the petitioner lacked good moral character, no matter how trivial or inconsequential. See Kungys
A review of the evidence and the inconsistent — and sometimes conflicting — testimony Petitioners gave at various stages of the application process, demonstrates the correctness of the USCIS's conclusion that Petitioners provided false testimony in order to obtain an immigration benefit. For example, in her asylum application, Lucaj stated that she entered the United States through JFK airport with fraudulent documents. But, at her N-336 appeal interview, she stated that she entered the United States through Canada, remained in Michigan for one day, and then traveled to New York.
She also originally stated in her asylum interview that she married her husband in Italy on August 12, 1994 (as indicated on her marriage certificate) and remained in Italy with her husband until October 8, 1996 when she returned to Albania to visit her sick mother, but that she was immediately arrested when she got off a ferry from Italy to Albania. She said that she was the only person arrested because her name was on a list of people married to Italians and that she was thereafter held in jail for 15 days; then, two days, later she and her mother went back to Italy. She said she had been released from jail after her mother-in-law came and paid her jailers money.
Later in that same interview, however, Lucaj changed her story and said that she and her husband were married in Albania (she said she thought they got married in Tirana but were never given a marriage certificate) and that she stayed in Albania until January 1997 then departed for the United States. In her October 17, 2011 N-336 interview, she changed her story again and stated that she left Albania in 1993 to travel to Italy to get married then went back to Albania 11 months later. She also stated for the first time at her N-336 interview that she had been beaten and raped multiple times over the course of her detention in Albania but never told anybody because she did not want her husband to know.
The Court agrees with the USCIS Reviewing Officer that the inconsistency of Petitioner Lucaj's testimony given on three different occasions of such life changing events such as being married, travels to other countries, and being beaten and raped indicate a lack of truthfulness.
Petitioner Quagliata's testimony presents even further inconsistencies. Quagliata testified on October 17, 2011 that he was arrested in Albania while they were passing from city to city by train. When pressed, however, Quagliata could not remember the events surrounding his claimed arrest, not even the year or time of year when it happened. He further stated that after the arrest he was held for "maybe two days" but when pressed for a certain time stated it was only one day. Quagliata further stated that after the arrest, he went to his wife's family. When asked if his wife had also been detained he said, "yes, I think so," but could give no details. When asked whether his wife was home with her family already when he was released he said, "I don't know." Further, when asked how long they had remained in Albania after the release from jail, Quagliata stated he did not remember.
Lucaj was also questioned at her asylum termination interview about the circumstances surrounding her application for asylum. Lucaj stated at the termination interview that she verbally told her story to a man that she had met two or three times before, and he filled out the asylum application forms for her. At her N-336 hearing, Lucaj told the interviewing officer that she had met a woman through work
She also stated at the N-336 interview that when she appeared for original asylum interview, the same woman or her husband were supposed to translate for her but never showed up. She said she was then approached by a young man that offered his help and that this man was named "Smajlaj." She said Smajlaj translated for her and that she offered him $100 as compensation. However, at her asylum termination hearing on September 7, 2004, she stated that Smajlaj was a neighbor's friend and that she had brought him with her to the asylum interview.
The record evidence concerning Petitioner Lucaj demonstrates further prevarication with regard Lucaj's relationship with Luigi Berishaj, Shandorf's middleman co-conspirator. Though Lucaj stated several times that she did not know who Berishaj was and that she had never met him, in a letter she admitted signing that she sent to the Department of Homeland Security on July 27, 2009, she stated, "I knew nothing of the actions of ... Mr. Berishaj who I only met once and knew only as Louie." (Emphasis added). Though it appears from the complete text of the letter (i.e., the sophistication of the language and the citations to legal authority contained within it) that Petitioner likely did not draft the letter herself (apparently it was prepared by her lawyer), she admitted she signed it, and the drafter could only have obtained information that Lucaj had met Berishaj once and knew him as "Louie" from her.
Based upon the Court's de novo review of the above evidence and the record as whole — including the substantial evidence of record demonstrating that Petitioners' asylum status was obtained through fraud — the Court agrees with the conclusion of the USCIS that the Petitioners have not established good moral character by a preponderance of the evidence. Therefore, they have not carried their burden of establishing entitlement to naturalization.
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioners' Motion for Summary Judgment [
IT IS FURTHER ORDERED that Summary Judgment is hereby GRANTED in favor of Respondents. Accordingly,
IT IS FURTHER ORDERED that this case be DISMISSED in its entirety.
Let Judgment be entered accordingly.
8 C.F.R. § 208.24(c) provides,
Id.
8 U.S.C. § 1421(c).
