Ampe v. Johnson , 157 F. Supp. 3d 1 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOUCACE AMPE,
Petitioner,
v.
Civil Action No. 14-717 (RDM)
JEH JOHNSON, Secretary, Department of
Homeland Security, et al.,
Respondents.
MEMORANDUM OPINION
Loucace Ampe petitioned this court under 8 U.S.C. § 1421(c) to review the denial of her
application for naturalization by Defendant United States Citizenship and Immigration Services
(“USCIS”). As relevant here, to qualify for naturalization under the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1101 et seq., an applicant must have “been lawfully admitted to the
United States for permanent residence,” 8 U.S.C. §§ 1427, 1429, and must be “of good moral
character,” id. at § 1427(a). 1 Petitioner obtained lawful permanent resident (“LPR”) status
roughly seven years before applying for naturalization, premising her LPR application on her
marriage to Idriss Martin Sy, himself already an LPR. When she applied and completed an
interview for LPR status, however, she failed to disclose that she had two children with another
man while still married to Sy. When she later applied for naturalization, her written application
revealed that she was no longer married to Sy but did not disclose that she had since remarried
1
For ease of reference, the Court cites to the U.S. Code throughout and does not use citations to
the INA.
her children’s father, who was in the United States illegally. She later disclosed this fact during
her naturalization interview.
According to the government, this history precludes Petitioner from naturalizing for three
reasons. First, the government argues that Petitioner was not “lawfully admitted to the United
States for permanent residence” under 8 U.S.C. § 1427 and § 1429 because her permanent
residence application sought “to procure” an immigration “benefit” either “by fraud or willfully
misrepresenting a material fact,” which would render her inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i). Second, the government argues that even in the absence of an intent to
mislead, Petitioner was not “lawfully admitted” because her failure to disclose the fact that she
had two children with another man “shut off a line of inquiry” that might have led USCIS to
question the bona fides of her marriage to Sy and thus might have led to the denial of her LPR
application. Finally, the government argues that Petitioner also lacks the “good moral character”
required to naturalize under 8 U.S.C. § 1427(a) because she purportedly lied to USCIS by failing
to disclose her children in the course of her adjustment to permanent residence status and also
because she initially failed to disclose that she had remarried when she filed for naturalization.
Petitioner disputes each of these contentions.
In the typical case challenging an administrative decision, the merits of the parties’
respective positions would be analyzed through the lens of agency deference, and the Court
would merely need to decide whether the agency’s decision was reasonable and supported by
substantial evidence. The dispute, moreover, would likely be resolved on the administrative
record and the parties’ cross-motions for summary judgment. The INA, however, requires a
court to apply a more searching standard when considering the denial of an application for
naturalization. In place of the typical, deferential standards, the INA requires that a court
2
exercise de novo review and “make its own findings of fact and conclusions of law.” 8 U.S.C.
§ 1421(c).
Now before the Court is the government’s motion to dismiss or, in the alternative, for
summary judgment, which argues that there are no disputed issues of material fact and that it is
entitled to prevail as a matter of law on each of the three stated grounds for denying Petitioner’s
application. See Dkt. 11. The Court concludes that it must consult “matters outside the
pleadings” to decide this motion, and so it will treat the motion as one for summary judgment.
See Fed. R. Civ. P. 12(d). Looking to the merits, the Court holds that the record developed to
date is inadequate for it to conclude, without a factual hearing, that Petitioner committed fraud or
willful misrepresentation for the purpose of obtaining an immigration benefit. The Court further
concludes that the government’s second argument—that Petitioner was inadmissible because her
misstatement, even if non-fraudulent, was material to her application—misstates the relevant
legal standard because it is relevant only if the government has already shown that Petitioner
acted fraudulently or willfully. The Court thus concludes that the materiality of any
misrepresentation in an LPR application is not an independent basis to deny a Naturalization
application. Finally, the Court concludes that there remain genuine disputes of material fact as to
whether Petitioner has demonstrated good moral character. The government’s motion for
summary judgment is accordingly DENIED.
I. BACKGROUND
Petitioner Loucace Ampe, a native and citizen of the Ivory Coast, married Sy, a lawful
permanent resident of the United States, on January 12, 1998. Dkt. 1-1 at 16. Sy later filed
Form I-130 Petition for Alien Relative on Petitioner’s behalf to sponsor her for an immigrant
visa. See Dkt. 15-3 at 2. That petition was approved on July 24, 1998. Dkt. 1-1 at 16. Five
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years later, and eight months after giving birth to her first child, Petitioner applied for LPR
status. Dkt. 11-5 at 3. The application form—Form I-485, Application to Register Permanent
Residence or Adjust Status (“LPR Form”)—instructed Petitioner to “list your present
husband/wife, all your sons and daughters (if you have none, write ‘none’. If additional space is
needed, use separate paper).” Id. In response to that instruction Petitioner listed Sy but did not
list any children or write “none”; she simply left the remaining spaces blank. Id. After she
submitted the form, but before a USCIS officer interviewed her in connection with it, Petitioner
gave birth to a second child. Dkt. 1-1 at 16. At her LPR interview on June 23, 2005,
approximately three months after the birth of her second child, Petitioner again failed to disclose
her children to the USCIS officer, and she confirmed the answers she had submitted on the LPR
Form. Id. Petitioner was granted LPR status on September 15, 2005. Dkt. 1 at 2 (Petition for
Rev. ¶ 4).
Petitioner applied for citizenship on March 19, 2012. Dkt. 1-1 at 16. She represented
that she was eligible for naturalization because she had lived in the country for at least five years
as an LPR. Dkt. 11-2 at 2. On the N-400 application form (“Naturalization Form”), she
provided complete information about her two children and accurately stated that she had
divorced Sy, but she did not disclose that she had since married a different man—Joseph N’Da,
the father of both of her children. See Dkt. 11-2 at 3, 5 (listing marital status as “divorced,”
indicating that she had been married only once, and not listing a “current spouse”). During her
subsequent citizenship interview on June 12, 2012, Petitioner indicated to a USCIS officer that
both of her children were born during her marriage to Sy but were fathered by N’Da. Dkt. 1-1 at
15; Dkt. 11-3 at 1. She also revealed that she was now married to N’Da. See Dkt. 15-2 at 2
(Ampe Aff. ¶ 2).
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USCIS denied Petitioner’s application for naturalization on June 14, 2012. See Dkt. 1-1
at 15–17. It concluded that Petitioner was ineligible for naturalization because she had not been
“lawfully admitted to the United States for permanent residence in accordance with all applicable
provisions” of the INA, as required under 8 U.S.C. § 1429, because she had “willfully
misrepresented a material fact” in applying for LPR status, in violation of 8 U.S.C.
1182(a)(6)(C)(i). Dkt. 1-1 at 17. The agency based its decision on the fact that Petitioner had
not disclosed her first child on her LPR Form or mentioned either child during her LPR
interview, and it concluded that such an omission was material because it called into question the
bona fides of her marriage to Sy. Id. Petitioner sought a hearing on that decision. Dkt. 11-4 at
2–3. In her request for a hearing, she explained that her failure to disclose the existence of her
children was “due simply to a misunderstanding of the application itself and not a willful
misrepresentation,” and took issue with USCIS’s attempt to question the bona fides of her
marriage to Sy. Dkt. 11-4 at 3. She also submitted a sworn statement explaining that she did not
list her current husband, Joseph N’Da, on her original application for citizenship because “[h]e is
a[n] overstay I did not want to put in the application.” Id. at 5. Following the hearing, USCIS
reaffirmed the denial of her application on November 21, 2013. Dkt. 1-1 at 2.
Petitioner sought review of USCIS’s seemingly final decision with this Court on April 3,
2014. See Dkt. 1. The government moved for and was granted an extension of time to answer
until October 20, 2014, in light of USCIS’s representation that it was “taking a fresh look at
[Ampe’s] application.” Dkt. 6 at 1–2; August 19, 2014 Minute Order. USCIS subsequently
interviewed Petitioner a second time, see Dkt. 9 at 1, purportedly to “resolve the case without
further litigation,” see Dkt. 11 at 11. On October 6, 2014, USCIS reaffirmed the denial, but
rather than further addressing its prior findings, the agency added a new, independent rationale
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for its finding: In addition to affirming its original conclusion that Petitioner had not been
lawfully admitted as an LPR, USCIS found that she did not meet the “good moral character”
requirement for naturalization set forth in 8 U.S.C. § 1427(a)(3) because of her alleged
misrepresentations and because she had allegedly attempted to “conceal, harbor, or shield from
detection” an illegally present alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), when she did
not list N’Da on her naturalization application. Id. at 5–7. After USCIS issued its decision, the
government moved to dismiss or, in the alternative, for summary judgment in this case. Dkts.
11, 12.
The government’s motion is now before the Court. After considering the parties’ briefs,
the Court convened a teleconference with the parties to pose several questions about the pending
motion, see Dkt. 19 (Hearing Tr. of Sept. 11, 2015), and then convened a further teleconference
to allow the parties to address the Court’s questions, see Dkt. 20 (Hearing Tr. of Sept. 17, 2015).
II. STANDARD OF REVIEW
This Court reviews an application for naturalization de novo and makes “its own findings
of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de
novo on the application.” 8 U.S.C. § 1421(c). “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.”
Nagahi v. INS, 219 F.3d 1166, 1169 (10th Cir. 2000). Indeed, de novo review of a denial of a
naturalization application “is in stark contrast to the appeal process for orders of deportation and
petitions for asylum, in which federal courts accord the Attorney General great deference.”
O’Sullivan v. USCIS, 453 F.3d 809, 811 (7th Cir. 2006). The Court does not defer to any of
USCIS’s findings or conclusions in reviewing an application for naturalization. “[T]he burden is
on the alien applicant,” however, “to show [her] eligibility for citizenship in every respect,” and
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any “doubts should be resolved in favor of the United States and against the claimant.” Berenyi
v. Dist. Dir., INS, 385 U.S. 630, 637 (1967) (internal quotation marks omitted).
Although 8 U.S.C. § 1421(c) mandates that the reviewing court “shall, at the request of
the petitioner, conduct a hearing de novo on the application,” federal courts have declined to
interpret the provision as requiring an evidentiary hearing where there is no genuine dispute as to
any material facts, see Chan v. Gantner, 464 F.3d 289, 295–96 (2d Cir. 2006) (holding that the
mere use of the word “hearing” in the statute “does not mandate an evidentiary hearing be
held”); see also Beleshi v. Holder, No. 12-11681, 2014 WL 4638359, at *4 (E.D. Mich. Sept. 16,
2014). The Court agrees that, in the absence of a factual dispute, there would be no reason to
hold a hearing and, accordingly, the government’s motion for summary judgment is properly
before the Court. The Court will grant such a motion only if the pleadings and any declarations
or other evidence show 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). “A genuine issue of material fact
exists if the evidence, viewed in a light most favorable to the nonmoving party, could support a
reasonable jury’s verdict for the non-moving party.” Brooks v. Grundmann, 748 F.3d 1273,
1276 (D.C. Cir. 2014) (internal citation and quotation marks omitted). Thus, although Petitioner
bears the ultimate burden of persuasion to show that she is eligible for citizenship, Berenyi, 385
U.S. at 637, at the summary judgment stage the burden is on the government to show that
Petitioner will not be able to make that showing as a matter of law.
III. DISCUSSION
The government argues that Petitioner is ineligible for citizenship for three reasons.
First, it contends that Petitioner was not “lawfully admitted” as a permanent resident because she
obtained an immigration benefit—her LPR status—through either “fraud or willful
7
misrepresentation.” See 8 U.S.C. 1182(a)(6)(C)(i). Next, it argues that Petitioner was not
“lawfully admitted . . . in accordance with all applicable provisions of” the INA, id. § 1429, even
if she did not intentionally mislead USCIS because inaccuracies in her LPR application were
material since they shut off a relevant line of inquiry. And finally, the government maintains that
even if Petitioner was “lawfully admitted,” she is barred from naturalization because she has
failed to demonstrate “good moral character.” See id. § 1427(a).
A. Disputed Material Facts Exist as to Whether Petitioner Was Inadmissible
The government suggests in its opening brief, and more clearly states in its reply, that
Petitioner’s LPR status was not lawfully obtained—and therefore she is ineligible for
naturalization—for two separate but related reasons. First, the government argues that Petitioner
fraudulently or intentionally misrepresented a material fact when she did not disclose on her LPR
Form that she had a child and did not tell her LPR interviewer that she had two children.
Second, the government argues she is inadmissible because she “shut off a line of inquiry” when
she made the same misstatement, regardless of whether she did so intentionally. See Dkt. 11 at
20–32; Dkt. 16 at 9–15. As explained below, however, the government’s effort to treat these
points as independent grounds to deny Petitioner’s application for citizenship rests on a
misunderstanding of the law. The government can only prevail based on its second contention—
that Petitioner’s misstatements were material because they cut off a line of inquiry—if it is also
correct in its first contention—that Petitioner made willful misrepresentations to obtain an
immigration benefit. The Court concludes that the government’s first contention implicates
disputed issues of material fact, and is thus not suited for summary judgment. This necessarily
thwarts the second contention as well.
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1. Legal Framework
The INA provides that, except as specified, “no person shall be naturalized unless he has
been lawfully admitted to the United States for permanent residence in accordance with all
applicable provisions of [the INA].” 8 U.S.C. § 1429. The government does not seek to revoke
Petitioner’s LPR status, nor could it in light of the expiration of the five-year statutory limitation
on rescission of adjustment of status. See 8 U.S.C. § 1256(a). It asserts instead that the relevant
question is whether Petitioner’s adjustment to LPR status was “procedurally and substantively
proper.” Dkt. 11 at 16. Under this view, Petitioner’s factual status as an LPR is not dispositive
as to whether she was “lawfully admitted . . . in accordance with all applicable provisions of [the
INA].” 8 U.S.C. § 1429. The Court agrees that this is the controlling standard.
Congress defined the phrase “lawfully admitted for permanent residence,” which appears
in several operative provisions of the INA, to mean “the status of having been lawfully accorded
the privilege of residing permanently in the United States as an immigrant in accordance with the
immigration laws.” 8 U.S.C. § 1101(a)(20). More than thirty years ago, the Fifth Circuit
declined to adopt a “narrow reading of the term ‘lawfully admitted,’” and instead construed the
phrase to require not only “procedural regularity,” but also “compliance with substantive legal
requirements.” Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983). 2 Three years later, the
Court of Appeals for the Ninth Circuit followed suit, holding that an immigrant who concealed a
prior drug conviction at the time he adjusted to LPR status was not “lawfully admitted” within
the meaning of 8 U.S.C. § 1101(a)(2). Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986). The
2
Although the petitioner in Longstaff was treated as excludable based on his sexual preference,
that basis for exclusion was dropped from the INA in 1990. See Pub. L. No. 101-649, Sec.
601(a), 104 Stat. 4978, 5067 (1990).
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Ninth Circuit reached this conclusion, moreover, even though five years had passed since the
applicant had adjusted to LPR status, and he was thus no longer at risk of rescission of that
status. Id. at 754. In 2003, the Board of Immigration Appeals (“BIA”) adopted this view of the
law and expressly endorsed Longstaff and Monet. See Matter of Koloamatangi, 23 I. & N. Dec.
548 (BIA 2003). As the BIA explained, “the term ‘lawfully admitted for permanent residence’
[does] not apply to aliens who [have] obtained their permanent resident status by fraud or [were]
otherwise not . . . entitled to it.” Id.
A BIA interpretation of the INA is generally entitled to deference under Chevron U.S.A.,
Inc. v. NRDC, 467 U.S. 837 (1984), because the BIA’s decisions “give[] ambiguous statutory
terms ‘concrete meaning through a process of case-by-case adjudication.’” INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999) (citation omitted). The fact that the statute granting this Court
jurisdiction to review a naturalization hearing requires the Court to “make its own findings of
fact and conclusions of law,” 8 U.S.C. § 1421(c), however, raises the question whether Congress
has withdrawn whatever delegation of interpretative authority might otherwise be inferred under
the Chevron framework.
For two reasons, the Court concludes that the BIA’s reading of the definition of “lawfully
admitted” is nonetheless entitled to Chevron deference. First and most significantly, the
Supreme Court has held that de novo review is compatible with Chevron deference, explaining
that “[d]e novo proceedings presume a foundation of law,” and “[d]eference can be given to” an
agency’s longstanding construction of its governing statute “without impairing the authority of
the court to make factual determinations, and to apply those determinations to the law, de novo.”
United States v. Haggar Apparel Co., 526 U.S. 380, 391 (1999). Second, this conclusion applies
with particular force in this context, where the phrase at issue appears in the general definitional
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section of the INA and appears in other provisions that do not call for de novo review. It is
unlikely that Congress required a district court reviewing a naturalization determination under 8
U.S.C. § 1421(c) to ignore the BIA’s interpretation of the phrase but intended courts exercising
judicial review under other provisions of the INA to defer to the BIA’s interpretation of the exact
same phrase.
Since the BIA’s decision in Matter of Koloamatangi, every circuit to have considered the
issue has agreed that to demonstrate that she was “lawfully admitted for permanent residence,”
an applicant “must do more than simply show that she was granted LPR status; she must further
demonstrate that the grant of that status was ‘in substantive compliance with the immigration
laws.’” Injeti v. USCIS, 737 F.3d 311, 316 & n.2 (4th Cir. 2013) (collecting cases); Walker v.
Holder, 589 F.3d 12, 20 (1st Cir. 2009) (noting that the Second, Fifth, Eighth, Ninth, and
Eleventh Circuits have reached the same conclusion when interpreting the same phrase in
different sections of the INA). Although some courts have concluded that this interpretation
flows unambiguously from the plain language of the INA, most have simply deferred to the
BIA’s interpretation of the statute under Chevron. See, e.g., Injeti, 737 F.3d at 315–16; De Le
Rosa v. DHS, 489 F.3d 551, 554–55 (2d Cir. 2007); Arellano-Garcia v. Gonzales, 429 F.3d
1183, 1186–87 (8th Cir. 2005). The Court agrees with the majority of the Courts of Appeals that
the statutory definition is ambiguous and that the BIA’s interpretation—set out in Matter of
Koloamatangi and its progeny—is reasonable.
The government, accordingly, is entitled to prevail if it can show that there is no genuine
dispute of material fact that Petitioner was inadmissible when she applied for LPR status. If so,
she was never “lawfully admitted to the United States . . . in accordance with all applicable
provisions of [the INA]” and is therefore ineligible for naturalization. 8 U.S.C. § 1429.
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This, then, leads to the core of the issue. For the government to show that Petitioner’s
LPR status was substantively defective, it must point to some substantive defect at the time she
received it. In addition to the substantive requirements for adjusting to LPR status, see 8 U.S.C.
§ 1255, Congress has also identified a variety of reasons why an applicant may be ineligible to
adjust that status, see id. § 1182. The only defect with Petitioner’s LPR status that the
government has relied upon in its brief—and, indeed, the only one on which USCIS relied upon
below—is that Petitioner was purportedly inadmissible under § 1182(a)(6)(C)(i). See Dkt. 11 at
22; Dkt. 1-1 at 2–4; Dkt. 11-6 at 2, 5–6. That provision states that “any alien who, by fraud or
willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has
procured) . . . admission into the United States . . . under this chapter is inadmissible.”
An applicant runs afoul of 8 U.S.C. § 1182(a)(6)(C)(i) if three conditions are satisfied.
First, the applicant must have the necessary state of mind. Section 1182(a)(6)(C)(i) does not
render an alien inadmissible if she makes an innocent mistake on her LPR Form. In this case,
that means the government must show that Petitioner intended to deceive when she wrote that
she had no children on her LPR Form or when she failed to disclose that she had two children
during her LPR interview. Second, the misrepresentation must be material. The Court will
address the meaning of materiality in more depth below. For present purposes, it is sufficient to
note that materiality is an element of § 1182(a)(6)(C)(i). Third and finally, § 1182(a)(6)(C)(i)
requires the government to show that any fraudulent or willful misrepresentation of a material
fact was done for the purpose of “procur[ing] . . . a visa, other documentation, or admission into
the United States or other benefit provided under [the INA].” It is not enough to show just that
Petitioner intentionally misled USCIS officials and that her misstatements were material. The
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government must also show why she lied, and that reason must be that she was seeking to obtain
an immigration benefit.
As explained below, the government has failed to show the absence of a genuine dispute
of material fact as to each of these.
2. Fraud or Willful Misrepresentation
The intent element of § 1182(a)(6)(C)(i) requires the government to show that
Petitioner’s failure to disclose her children constituted either “fraud” or “willful
misrepresentation.” Fraud “consist[s] of false representations of a material fact made with
knowledge of its falsity and with intent to deceive the other party.” Matter of G–G–, 7 I. & N.
Dec. 161, 164 (BIA 1956) (emphasis added); see also United States v. Kiefer, 228 F.2d 448, 449
(D.C. Cir. 1955). A misrepresentation is only “willful” if it “involves conscious wrong or evil
purpose . . . or at least inexcusable carelessness,” and is an even “stronger” requirement than
“voluntary or intentional.” See Willful, Black’s Law Dictionary (10th ed. 2014); see also Am.
Surety Co. of N.Y. v. Sullivan, 7 F.2d 605, 606 (2nd Cir. 1925) (L. Hand, J.) (“[T]he word
‘willful’ . . . means no more than that the person charged with the duty knows what he is
doing.”). Thus, “willful misrepresentation” requires, at the very least, knowledge of the falsity
of the representation, much like fraud. A person cannot consciously misrepresent something if
she does not even know she is making a misrepresentation. Accordingly, the government is
entitled to summary judgment on this basis only if it can demonstrate that there is no genuine
dispute of material fact that Petitioner made those misrepresentations with the requisite state of
mind. It has not done so.
As an initial matter, the government suggests that “[a] finding of substantive irregularity
for fraud or misrepresentation does not require a showing of an “‘intent’ to deceive by fraud’ or
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willfulness.” Dkt. 11 at 21 (quoting Walker, 589 F.3d at 20). The Court will explain in the next
section why a material misrepresentation, standing alone absent any scienter, does not constitute
a substantive defect that renders an LPR applicant inadmissible. But to the extent that the
government is suggesting that it can show Petitioner committed fraud or willful
misrepresentation without showing that she acted fraudulently or willfully, the Court rejects that
contention as inconsistent with the plain meaning of the statute and widely accepted usage.
Nor has the government shown that Petitioner indisputably acted with the requisite intent.
The relevant text of the LPR Form instructs applicants to “list your present husband/wife, all
your sons and daughters.” Dkt. 11-5 at 3. Petitioner has proffered a sworn affidavit averring that
she misunderstood the directions on the form as asking whether she had children with her then-
current spouse, Sy. Dkt. 1-1 at 8–9 (Ampe Aff. at ¶¶ 5–6, 8). The government repeatedly asserts
that the form was clear, see Dkt. 11 at 25–26, 32, and that there were “no limiting instructions,”
suggesting that the form was asking only about children with Petitioner’s then-current spouse, id.
at 25. The government also asserts that it would make “no sense to limit this [question] to
children of the current or petitioning spouse when USCIS seeks to gain information that would
either validate or call into question the bona fides of the marriage to a petitioning spouse.” Id. at
25–26. It offers no additional evidence, however, to show that Petitioner acted with the requisite
state of mind. In essence, the government’s argument is that the clarity of the form refutes any
plausible contention that her mistake was unintentional.
Although Petitioner’s asserted reading of the LPR Form may not be the most natural, the
Court cannot conclude that there is no genuine dispute of material fact respecting her state of
mind. The government fails to address the source of Petitioner’s asserted confusion. The word
“your” is both singular and plural, see Your, Merriam-Webster Dictionary, http://beta.merriam-
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webster.com/dictionary/your (last visited Jan. 19, 2016). Since the phrase “all your sons and
daughters” immediately followed the phrase “list your present husband/wife,” it is at least
possible that Petitioner read the word “your” preceding “sons and daughters” as a plural
reference to both her and her spouse. Even if Petitioner’s purported reading of the question is
unusual, it is not so blatantly at odds with the language of the question as to foreclose any
genuine issue of material fact regarding her state of mind.
Petitioner’s contention also finds some support in the fact that she answered truthfully
when confronted on the Naturalization Form with the arguably less ambiguous inquiry: “How
many sons or daughters have you had?” See Dkt. 11-3 at 1. As for her failure to disclose her
children during her LPR interview, the government has failed to provide any evidence that would
shed light on that interview, such as a transcript or a declaration from her interviewer. If, for
instance, the interviewer asked Petitioner, “Do you have any children?” and she answered, “No,”
that might suggest willful misrepresentation. If, on the other hand, the interviewer asked, “Is
everything you wrote on your LPR Form true and accurate?” and she said, “Yes,” that might add
little to the issues as currently framed. Without any evidence concerning the interview, however,
the Court can only speculate as to what occurred.
For present purposes, the Court need not decide whether Petitioner’s explanation for
failing to list her child on the form or to disclose her children during her LPR interview is
persuasive. Her asserted confusion is at least plausible, and thus determining whether she
intentionally misrepresented a material fact or merely misunderstood what was being asked turns
on her credibility. Credibility determinations, however, are inapt for summary judgment. See,
e.g., United States v. Project on Gov’t Oversight, 454 F.3d 306, 313 (D.C. Cir. 2006) (“On
summary judgment . . . the court must view the evidence in the light most favorable to the
15
nonmoving party and must not assess witness credibility.” (internal quotation marks omitted));
Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 865 F.2d 320, 326 n.8 (D.C. Cir.
1989) (“[T]he need to assess the credibility of witnesses is precisely what places this dispute
outside the proper realm of summary judgment.”). Because the government has not shown that
Petitioner indisputably committed fraud or willful misrepresentation, it is not entitled to
summary judgment on the basis that Petitioner was inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i).
3. Materiality
The inquiry into whether the government is entitled to summary judgment on the ground
that Petitioner was inadmissible at the time she received LPR status—and therefore she was
never “lawfully admitted” into the United States as necessary for naturalization—properly ends
here. As explained above, the only statute the government has ever cited that would have
rendered Petitioner inadmissible is 8 U.S.C. § 1182(a)(6)(C)(i). That statute requires that the
Court make a finding about Petitioner’s state of mind, and that question is both disputed and ill-
suited for resolution on summary judgment. Thus, in the ordinary course, it would be
unnecessary to consider whether the government has satisfied the other elements of
§ 1182(a)(6)(C)(i).
The government argues, however, that even if Petitioner did not intentionally
misrepresented facts, she was still not “lawfully admitted to the United States for permanent
residence in accordance with all applicable provisions of” the INA under 8 U.S.C. § 1429—and
is therefore ineligible for naturalization—because the government’s decision to grant her LPR
status was based on materially incomplete information. See Dkt. 11 at 19–32; Dkt. 16 at 9–14.
The government’s theory is that Petitioner shut off a reasonable line of inquiry that might have
16
led USCIS to discover a basis for concluding that her marriage to Sy was not bona fide, and that,
accordingly, she was not entitled to adjust her status. As explained below, there are two
difficulties with this argument.
a. A Material Misrepresentation Is Not a Standalone Substantive Defect
All parties agree that Petitioner is ineligible for naturalization unless she was “lawfully
admitted to the United States for permanent residence in accordance with all applicable
provisions of [the INA].” 8 U.S.C. § 1429. The parties further agree that Petitioner was not
“lawfully admitted” if she was inadmissible at the time she applied for LPR status. The
government has not, however, identified a statute or regulation that would render an LPR
applicant inadmissible based on a material but unintentional misrepresentation in her application.
Instead, the government relies on a number of appellate decisions as support for its contention
that a material misrepresentation—without any fault on Petitioner’s behalf—is sufficient to
establish inadmissibility. See Dkt. 11 at 21 n.16 (citing Walker, 589 F.3d at 19; De La Rosa v.
U.S. Dep’t of Homeland Sec., 489 F.3d 551, 554 (2d Cir. 2007) (per curiam); Savoury v. U.S.
Att’y Gen., 449 F.3d 1307, 1317 (11th Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183,
1186 (8th Cir. 2005); Longstaff, 716 F.2d at 1451; Matter of Wong, 14 I. & N. Dec. 12 (BIA
1972)); see also Dkt. 11 at 23. None of these cases support the government’s position.
The government first relies on Walker v. Holder, 589 F.3d 20 (1st Cir. 2009), for the
sweeping proposition that “a finding of substantive irregularity for fraud or misrepresentation
does not require a showing of intent to deceive by fraud or willfulness.” Dkt. 11 at 21 (internal
quotation marks omitted). That assertion, however, is far more than the First Circuit’s analysis
in that case can bear. Walker involved man who claimed derivative citizenship under 8 U.S.C.
§ 1431(a) based on his mother’s status as a citizen. 589 F.3d at 15–16. Under that provision, the
17
child of a citizen is entitled to derivative citizenship if, among other things, “[t]he child is
residing in the United States . . . pursuant to a lawful admission for permanent residence.” 8
U.S.C. § 1431(a)(3) (emphasis added). Walker had been admitted into the United States based
on the false assertion that his grandmother was his mother. Id. at 16–17. Walker argued that he
had not made any willful misrepresentation in violation of 8 U.S.C. § 1182(a)(6)(C)(i), but the
BIA and the First Circuit both concluded that his culpability was not at issue because he was
inadmissible under a separate provision, 8 U.S.C. § 1182(a)(7)(A)(i)(I), which “does not require
intent to deceive.” Walker, 589 F.3d at 20 (quoting and agreeing with the BIA’s decision
below). That separate provision rendered inadmissible any immigrant who did not hold a valid
visa at the time of entry. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Walker fell into this category
because he was admitted as the child of an LPR based upon a petition filed by his grandmother,
not his mother. Walker, 589 F.3d at 17–21. He was thus never lawfully admitted because he did
not satisfy one of the requirements necessary for LPR status—he was not the child of an LPR at
the time of entry. See 8 U.S.C. § 1255(a), id. § 1153.
The other cases the government cites presented similar circumstances. In each one of
them, the applicants were inadmissible because there was a substantive defect—defined by
statute—with their LPR statuses, not because they had misrepresented a material fact. See
Savoury, 449 F.3d at 1312–13, 1317 (holding that the petitioner was not “lawfully admitted”
because he had violated a law “relating to a controlled substance,” which made him inadmissible
under 8 U.S.C. § 1182(a)(2)(A)(i)(II)); De La Rosa, 489 F.3d at 553–55 (holding the petitioner
was not lawfully admitted because she gained her LPR status under the amnesty provision of the
Immigration Reform and Control Act of 1986, which required her to enter the United States
before 1982 when, in fact, she had entered the country sometime after that); Arellano-Garcia,
18
429 F.3d at 1185–86 (affirming the BIA’s decision that the petitioner had never been lawfully
admitted “as a result of his 1988 drug trafficking conviction”); Longstaff, 716 F.2d at 1440–43
(holding that the petitioner was not lawfully admitted because he was an “alien[] afflicted with
psychopathic personality,” which made him inadmissible under 8 U.S.C. § 1182(a)(4) (1976));
Wong, 14 I. & N. Dec. at 13–14 (holding that a mother and her children were inadmissible
because the visa upon which their admissibility was premised required them—under since-
repealed 8 U.S.C. § 1153(a)(9)—to enter the United States accompanied by a legal immigrant
when, in fact, they had not so entered).
In contrast to these cases, the government has failed to identify any statute or regulation
that would render Petitioner’s LPR status substantively defective beyond the contention that she
fraudulently or willfully misled the government in violation of 8 U.S.C. § 1182(a)(6)(C)(i). The
government has never asserted, for example, that Petitioner failed to meet the various
requirements for LPR status provided in 8 U.S.C. § 1255. Absent undisputed evidence that
Petitioner violated § 1182(a)(6)(C)(i) or was inadmissible under some other statutory or
regulatory provision, or that she did not satisfy one of the requirements for LPR status in § 1255,
the government’s mere assertion that Petitioner’s misstatement was material is not germane to
whether she was “lawfully admitted” when she gained LPR status.
The government does identify one case that comes closer to supporting its position. In
Injeti, the Fourth Circuit held that a woman was inadmissible when she admittedly made a
misstatement on her LPR Form but claimed it was her attorney’s mistake. See Injeti, 737 F.3d at
316. Central to the government’s argument here, the Fourth Circuit held that “it [was not]
necessary for the district court to determine whether Injeti’s misrepresentation was fraudulent or
willful.” Id. at 317. The court’s holding, however, did not turn on an application of 8 U.S.C.
19
§ 1182(a)(6)(C)(i), as the government asserts here, but on 8 U.S.C. § 1255, which provides the
Attorney General authority to grant an LPR application “at his discretion and under such
regulations as he may prescribe.” See id. at 318 (quoting 8 U.S.C. § 1255 (emphasis in Injeti)).
The Fourth Circuit further explained that one such regulation provides that “[b]y signing the
[LPR Form], the applicant . . . certifies under penalty of perjury that the benefit request, and all
evidence submitted with it, either at the time of filing or thereafter, is true and correct.” Id. at
318 (quoting 8 C.F.R. § 103.2(a)(2)). In the Fourth Circuit’s view, Injeti’s LPR application was
substantively defective—and thus she was not “lawfully admitted” for the purposes of
naturalization—because her misstatement meant that the information on her LPR Form was not
true and correct. Id. This, in turn, meant that she had not satisfied the requirements of 8 C.F.R.
§ 103.2(a)(2), which is a “regulation[] . . . prescribe[d]” by the Attorney General, 8 U.S.C.
§ 1255. Injeti’s failure to satisfy this regulatory requirement, the Fourth Circuit reasoned, left
her ineligible to adjust her status under 8 U.S.C. § 1255.
Here, in contrast, the government has not argued that Petitioner’s application was
substantively defective for any reason other than alleged fraud or willful misrepresentation under
§ 1182(a)(6)(C)(i). It notes the role 8 C.F.R. § 103.2(a)(2) played in Injeti, Dkt. 11 at 31–32, but
it never alleges that Petitioner ran afoul of that regulation here or otherwise suggests that she
violated 8 U.S.C. § 1255. Even in a case where the Court’s review is de novo, the Court will not
consider at summary judgment an argument that the moving party has not presented. See, e.g.,
New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (per curiam); Shands Jacksonville Med. Ctr. v.
Burwell, No. 14-1477, 2015 WL 5579653, at *15 n.7 (D.D.C. Sept. 21, 2015). But in any event,
the Court is not convinced by the rationale articulated in Injeti. The regulation invoked in Injeti
provides that all applications must be signed and that by signing, the applicant “certifies under
20
penalty of perjury that the benefit request, and all evidence submitted with it, either at the time of
filing or thereafter, is true and correct.” 8 C.F.R. § 103.2(a)(2). It is black letter law, however,
that perjury requires intent. See, e.g., 18 U.S.C. § 1621 (defining perjury as reaching only those
who “willfully” lie under oath or penalty of perjury); Perjury, Black’s Law Dictionary (10th ed.
2014). The regulation the Fourth Circuit relied on thus does not impose the “absolute” duty that
court supposed, covering even innocent mistakes.
Interpreting 8 C.F.R. § 103.2(a)(2) and 8 U.S.C. § 1255 as Fourth Circuit did, moreover,
would effectively read the scienter requirement out of 8 U.S.C. § 1182(a)(C)(6)(i), since the
Injeti court’s interpretation would subsume all misstatements on applications for immigration
benefits without requiring any scienter. The same is also presumably true for the materiality
requirement in 8 U.S.C. § 1182(a)(6)(C)(i), given the breadth of the Fourth Circuit’s rationale.
That is, if the “perjury” referred to in 8 C.F.R. § 103.2(a)(2) does not carry an intent requirement,
then there is no reason it should import a materiality requirement either. Thus, taken to its
logical conclusion, the Fourth Circuit’s rationale would seem to require USCIS to deny an
application for citizenship where an applicant made a concededly innocent and immaterial
mistake on an LPR application submitted years—or even decades—earlier. The regulatory
language, which is directed at the “signature” requirement for all benefit requests, is far too thin
a reed to support such an extreme result.
The Fourth Circuit’s decision in Injeti not only strains the legislative and regulatory
language and structure, but it is also difficult to reconcile with Castaneda-Gonzalez v. INS, 564
F.2d 417 (D.C. Cir. 1977). There, the D.C. Circuit considered whether the authority to revoke an
immigrant’s “labor certificate” based on a factual inaccuracy with the application rested with the
Immigration and Naturalization Service (“INS”) or the Secretary of Labor. The Court concluded
21
the latter, id. at 423–25, and then considered the government’s argument that this would prevent
the INS from deporting someone with a factual flaw in their application absent a showing of
fraud or willfulness under 8 U.S.C. § 1182(a)(19) (1970)—an inadmissibility provision identical
to § 1182(a)(6)(C)(i) for all relevant purposes, id. at 425. Specifically, the INS argued that
exclusive reliance on the statutory provision would mean that “where a misrepresentation is not
willful, the Attorney General will be prevented from deporting [an alien] even though if the true
facts had been known the labor certificate would never have been issued.” Id. (alteration in
original) (internal quotation marks omitted). The D.C. Circuit recognized that this was a correct
statement but disagreed with the INS’s argument that this result was untenable. To the contrary,
the Court noted that “Congress explicitly chose to require the government to prove willfulness
when seeking to deport an alien for misrepresenting facts in applying for entry documents.” Id.
The Court further explained that it would not allow the INS “to circumvent this congressionally-
imposed burden of proof” by finding an alien deportable for an innocent mistake on her
application. Id. The same logic applies here. Congress has determined that an applicant for
adjustment to LPR status is inadmissible if she fraudulently or willfully misrepresents a material
fact. See 8 U.S.C. § 1182(a)(6)(C)(i). The Court will not allow USCIS to circumvent that statute
and find Petitioner inadmissible absent a showing that she acted fraudulently or willfully.
In sum, the government seems to assume that any defect in Petitioner’s LPR Form, absent
a showing of an intent to mislead or even knowledge of the mistake, would render her
inadmissible. That is incorrect. Congress has prescribed the grounds upon which a Court may
find a substantive defect in an adjustment to LPR status, and a misstatement is only disqualifying
if it is intentional and material. See 8 U.S.C. § 1182(a)(6)(C)(i). The government has not relied
on any other statute that would render Petitioner’s LPR status substantively defective and has not
22
shown that she had the scienter that § 1182(a)(6)(C)(i) requires. Accordingly, the government’s
argument fails.
b. The Government Overstates the Test for Materiality
The Court further concludes that, even if a material misstatement could constitute an
independent defect in Petitioner’s LPR status, there remains a genuine dispute of material fact
that precludes summary judgment on this theory. Whether an omission or affirmative
misrepresentation is material is a question of law. Kungys v. United States, 485 U.S. 759, 772
(1988). That legal determination, however, must be made in the context of a developed factual
record. Under the immigration laws, as in other settings, the test for materiality turns on whether
the fact at issue “has a natural tendency to influence, or was capable of influencing, the decisions
of the [government agency].” Id. at 770 (internal quotation marks omitted). This does not mean
that the omission or misrepresentation “would more likely than not have produced an erroneous
decision, or even that it would more likely than not have triggered an investigation.” Id. at 771
(emphasis in original). The Attorney General has further explained:
A misrepresentation made in connection with an application for visa or other
documents, or with entry into the United States, is material if either (1) the alien is
excludable on the true facts, or (2) the misrepresentation tends to shut off a line of
inquiry which is relevant to the alien’s eligibility and which might well have
resulted in a proper determination that he be excluded.
Matter of S– and B–C–, 9 I. & N. Dec. 436, 447 (A.G. 1961). Applying this standard, the
government argues that Petitioner’s failure to disclose that she had two children fathered by a
man other than her husband is material because it “shut off a line of inquiry” into whether her
marriage to Sy was a sham. Dkt. 11 at 25–26.
Petitioner disagrees. She argues that USCIS fully investigated the bona fides of her
marriage back in 1998 when Sy filled out the I-130 Petition for an Alien Relative. See Dkt. 15 at
23
6. It was approximately five years later that she had her first child with N’Da, and nearly seven
years had passed between when USCIS approved the I-130 Petition based on her marriage to Sy
and when she failed to disclose her children. Petitioner argues that USCIS was no longer
interested in the bona fides of her marriage by the time she filled out the LPR Form and then had
her LPR interview and her omissions were immaterial.
Neither party has it quite right. Petitioner is incorrect that the bona fides of her marriage
were no longer at issue at the time she applied for LPR status. As the government notes, the
“Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient
cause, revoke the approval of any petition approved by him” under 8 U.S.C. § 1154, including an
I-130 Petition for an Alien Relative. 8 U.S.C. § 1155. Because the basis for Petitioner’s
application for LPR status was her I-130 approval, the government maintained both an interest in
the merits of that application and the authority to revisit the bona fides of Petitioner’s marriage to
Sy. To be sure, having two children with N’Da, five and seven years after her marriage to Sy,
does not show that her marriage to Sy was a sham. But, by the same token, the bona fides of that
marriage were not resolved once and for all with the approval of Sy’s I-130 Petition for Alien
Relative in 1998. Having learned for the first time that Petitioner had two children with another
man while purportedly married to Sy, USCIS might reasonably have inquired, for example,
whether Petitioner lived with Sy or N’Da and, if she lived with N’Da, when and why she stopped
living with Sy.
At the same time, the government overstates the sweep of the test for materiality.
Petitioner’s misrepresentation is material so long as it “tend[ed] to shut off a line of inquiry
which [was] relevant to the alien’s eligibility and which might well have resulted in a proper
determination that [s]he be excluded.” S– and B–C–, 9 I. & N. Dec. at 447 (emphasis added).
24
As the Court reads the Attorney General’s interpretation of “material,” a misrepresentation only
satisfies the test if there is some reasonable possibility that the applicant would have been denied
admissibility. As the Attorney General explained in Matter of S– and B–C–, the test asks, “[I]f a
relevant line of inquiry has been cut off, might that inquiry have resulted in a proper
determination that the alien be excluded?” Id. at 449. If the answer to this question is “no,” then
the misrepresentation is immaterial. Id. In the Attorney General’s own words: “[W]here the
government officials have made an adequate investigation after the misrepresentation became
known, or have had reasonable opportunity to do so, an unrefuted showing of eligibility by the
alien may be highly persuasive that the misrepresentation was not material.” Id.
Against this backdrop, the Court concludes that the legal question of materiality cannot
be resolved in the present factual vacuum. Although the Court agrees with the government that
the bona fides of Petitioner’s marriage to Sy remain relevant, there still remains the question
whether Petitioner can make an “unrefuted showing” that her marriage was not a sham. The
Court, accordingly, concludes that it cannot resolve the question of materiality without a more
complete factual record.
4. The Government Has Not Shown that Petitioner Had The Necessary Purpose
Finally, the government’s motion fails for a third reason: It has not shown the absence of
a genuine dispute of material fact about whether Petitioner had the purpose that 8 U.S.C.
§ 1182(a)(6)(C)(i) requires—that she lied “to procure . . . a visa, other documentation, or
admission into the United States.” There is nothing in the existing record that indicates why
Petitioner omitted any mention of her child on the LPR Form or her children during her
interview, and the government makes no effort to support its factual contention that Petitioner’s
omissions were motivated by a desire to gain admission.
25
Even if the government had proffered some evidence of this purpose, the Supreme Court
has held that an applicant’s purpose in the immigration context “must be resolved by the trier of
fact.” Kungys, 485 U.S. at 782 (opinion of Scalia, J.); see also id. at 780–81 (majority opinion).
The required showing may often follow from proof that an applicant lied with an intent to
defraud or mislead; in many contexts, the most likely explanation for why someone would
intentionally misrepresent a material fact on their application for admission may be that they
thought that fact would be harmful to their admission. But it is not the only possible explanation.
Because 8 U.S.C. § 1182(a)(6)(C)(i) includes the element of purpose, and because subjective
motivation is a question of fact, see id., the Court once again cannot find for the government in
the absence of uncontested record evidence supporting its position. See Fed. R. Civ. P. 56.
B. Good Moral Character
As recounted above, USCIS supplemented its denial of Petitioner’s naturalization
application after she had already filed her petition for review with this Court. The agency’s
initial decision rejected her application only because she was not “lawfully admitted” when she
gained LPR status, but its supplemental decision determined that she was also ineligible for
naturalization because she lacked “good moral character,” as required under the INA and the
governing regulations, see 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10(a). See Dkt. 11-6 at 7. The
government now asserts that Petitioner’s alleged lack of good moral character provides an
alternative basis to deny her petition for review. See Dkt. 11 at 32–34.
As an initial matter, Petitioner argues that USCIS abused its discretion by purporting to
supplement its decision after she had already filed suit in this Court, particularly since all of the
26
relevant information was already before USCIS when it rendered its original determination. 3
Dkt. 15 at 3. The government did not respond to Petitioner’s argument in its reply brief, nor has
it identified a source of authority that allows it to reopen a final administrative decision after an
applicant has petitioned for judicial review. On the other hand, Petitioner has not addressed
whether the administrative record limits the arguments that the government may make in a de
novo proceeding under 8 U.S.C. § 1421(c). Because the Court concludes that the government is
not entitled to summary judgment on the grounds that Petitioner lacks “good moral character,” it
need not resolve this issue at this time.
In addition to the requirement that an applicant for citizenship demonstrate that she has
been “lawfully admitted for permanent residence” in the United States for five years before
naturalizing, the law also requires that applicants be “of good moral character” for the five years
preceding their application as well as for the period of time following the filing of the
application. 8 U.S.C. § 1427(a). The governing regulations further provide that “the applicant
for naturalization bears the burden of demonstrating that, during the statutorily prescribed period,
he or she has been and continues to be a person of good moral character.” 8 C.F.R.
§ 316.10(a)(1). The “good moral character” requirement must be evaluated “on a case-by-case
basis, taking into account the elements enumerated in [the statute and regulations] and the
standards of the average citizen in the community of residence.” Id. § 316.10(a)(2). Assessing
an individual’s moral character is, at least at times, a fact-intensive exercise. See Application of
3
After USCIS reaffirmed its decision to deny Petitioner’s application for naturalization, she
submitted an affidavit to this Court explaining why she believed her actions did not belie her
good moral character. Dkt. 15-2 at 2. Because that affidavit was submitted after USCIS
reaffirmed its decision, it could not possibly have provided a new predicate for the agency’s
decision.
27
Murra, 178 F.2d 670, 677 (7th Cir. 1949) (“We suppose what constitutes ‘good moral character,’
as contemplated by the Naturalization Act, cannot be determined in any precise fashion; in fact,
it is evident from a reading of the cases . . . that it is a matter of opinion which varies quite
widely.”).
The regulation lists a number of categorical rules, which treat certain conduct or
background as disqualifying without exception. Thus, for instance, a court “shall” find that
anyone who has been “[c]onvicted of murder at any time” lacks good moral character. 8 C.F.R.
§ 316.10(b)(1)(i). The same is true for anyone who in the previous five years has been convicted
of most “crimes involving moral turpitude,” and for anyone who violated most laws “relating to
a controlled substance,” or who “has practice[d] . . . polygamy,” or, in the absence of a
conviction, anyone who admits to having committed the illegal acts otherwise covered by the
moral turpitude or controlled substance provisions, id. § 316.10(b)(2).
The regulation defining “good moral character” also contains a “catchall” provision, but
with an important caveat. It provides, in relevant part, that “[u]nless the applicant establishes
extenuating circumstances, the applicant shall be found to lack good moral character if, during
the statutory period, the applicant . . . [c]ommitted unlawful acts that adversely reflect upon the
applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do
not fall” within the regulation’s preceding categories. 8 C.F.R. § 316.10(b)(3) (emphasis added).
By its terms, this subsection of the regulation is not categorical. It instead offers a presumption,
but one which the applicant can rebut by “establish[ing] extenuating circumstances.” Id.
The government identifies three reasons why, in its view, Petitioner lacks good moral
character and is thus ineligible for naturalization. First, it argues that she “willfully omitted her
first child when she submitted her [LPR Form], even though the instructions were clear and she
28
knew she had had a child several months prior, who lived with her.” Dkt. 11 at 32. The
government notes that she made this misrepresentation under the penalty of perjury, implying
that that too may be grounds to deny her application. Id. As the Court has already explained,
however, there are genuine disputes of material fact about whether Petitioner’s
misrepresentations regarding her children were willful and whether she had the mental state
necessary to show that she committed perjury. If she lacked the required state of mind, then she
committed neither willful misrepresentation nor perjury, and thus she would not lack good moral
character on this basis. That argument is therefore insufficient to warrant summary judgment, at
least on the present record.
Second, the government argues that Petitioner also lacks good moral character because
she signed the Naturalization Form without mentioning her second husband, N’Da. Dkt. 11 at
33. The government broadly asserts that this omission “preclude[s] [Petitioner] from
establishing good moral character, and thus make[s] her ineligible to naturalize, under 8 C.F.R. §
316 and 8 U.S.C. § 1427(a).” Id. But the government’s opening brief does not specify which of
the provisions of 8 C.F.R. § 316 her false Naturalization Form allegedly triggers. Chapter 316 of
Title 8 of the Code of Federal Regulations broadly covers all “General Requirements for
Naturalization,” and even assuming the government is relying on § 316.10 specifically, that
provision provides myriad reasons an applicant may fail to demonstrate good moral character.
Moreover, as the Court has explained, some of these reasons categorically bar an applicant,
while the others permit an applicant to show extenuating circumstances. It is the government’s
burden at summary judgment to show that it “is entitled to judgment as a matter of law,” Fed. R.
Civ. P. 56(a), and without offering more specificity as to why it believes that Petitioner lacks
29
good moral character under the statute, the government has not met its burden. The government
has, accordingly, failed to justify its claim to summary judgment on that basis as well.
Finally, the government contends that Petitioner lacks good moral character under the
catchall provision, 8 C.F.R. § 316.10(b)(3), because she “attempted to conceal, harbor, or shield
from detection” an illegal alien in violation of 18 U.S.C. § 1324(a)(1)(A)(iii) when she did not
list N’Da on her Naturalization Form. Dkt. 11 at 34. This conduct, the government argues,
“reflect[s] her defiance of and unwillingness to comply with the law, as well as her propensity to
conceal facts from law enforcement officials and immigration authorities to protect herself and
others.” Id. The government further argues that Petitioner has not shown any extenuating
circumstances, and so she has failed to demonstrate good moral character under
§ 316.10(b)(3)(iii).
Even accepting the government’s assertion that Petitioner attempted to conceal her
husband’s illegal presence in the United States, that violation must be balanced against “the
standards of the average citizen in the community of residence,” id. § 316.10(a)(2), and the Court
must consider “extenuating circumstances,” id. § 316.10(b)(3). The Court has already explained
why it cannot yet determine whether Petitioner’s omissions on her LPR Form and during her
LPR interview were deliberate or were mistakes. For the same reasons, it cannot determine on
the present record whether the omission on her Naturalization Form was the most recent example
in a pattern of misconduct or a first-time misstep by someone who has spent nearly two decades
in this country. Similarly, the current record does not reveal precisely what occurred when
Petitioner corrected her misstatement on her Naturalization Form by revealing her husband
during her Naturalization interview. Cf. Murra, 178 F.2d at 678 (finding it relevant in good
moral character analysis that the applicant did “all in his power to rectify the wrong”). The
30
Court, accordingly, concludes that this fact-intensive inquiry requires a more complete record
and would benefit from a hearing that would permit Petitioner to tell her story but also subject
her to cross-examination. In any event, in light of the uncertain factual record, the Court
concludes that the government has not met its burden on summary judgment.
IV. CONCLUSION
As explained above, the Court concludes that there remain genuine disputes of material
fact as to whether Petitioner was “lawfully admitted” or lacked “good moral character” for
purposes of naturalization. The government’s motion for summary judgment is, accordingly,
DENIED without prejudice.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 20, 2016
31