Asrat v. Barr

399 F.Supp.3d 505

Tamrat ASRAT, Plaintiff,

v.William BARR, Attorney General of the United States, et al., Defendants.

Case No. 1:18-cv-1453

United States District Court, E.D. Virginia, Alexandria Division.

Signed August 13, 2019

Steffanie Jones Lewis, The International Business Law Firm PC, Washington, DC, for Plaintiff.

Dennis Carl Barghaan, Jr., Elizabeth Anne Spavins, United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

Plaintiff, a national and citizen of Ethiopia, brings this action pursuant to 8 U.S.C. § 1421(c), challenging the United States Citizenship and Immigration Service's ("USCIS") denial of his naturalization application. Specifically, plaintiff contends the denial was improper because USCIS erroneously concluded that plaintiff was never lawfully admitted for permanent residence in the United States. In response, defendants argue that USCIS was correct to conclude that plaintiff was never lawfully admitted for permanent residence and that plaintiff's application fails for the additional reason that plaintiff cannot establish that he is a person of good moral character.

At issue in this matter are the parties' cross-motions for summary judgment. The motions have been fully briefed and argued and are thus ripe for disposition. For the reasons that follow, defendants' motion for summary judgment must be granted and plaintiff's motion for summary judgment must be denied.

I.

Summary judgment is appropriate only where there are no genuine disputes of material fact. Rule 56, Fed. R. Civ. P. Accordingly, the material record facts as to which no genuine dispute exists must first be identified. The following undisputed material facts are derived from the parties' respective lists of undisputed material facts.

• Plaintiff is a national and citizen of Ethiopia.

• On September 6, 2002, plaintiff filed an application for asylum (Form I-589) in the United States. In the application, plaintiff represented that he first entered the United States on September 1, 2001 by unlawfully crossing the Mexican-American border without inspection near San Diego, California. Plaintiff sought asylum on the basis of his alleged political opinion and membership in a particular social group in Ethiopia, the Ethiopian Democratic Party ("EDP").

• On May 29, 2003, Immigration and Naturalization Service ("INS") officials interviewed plaintiff regarding his asylum application. After the interview, INS officials rejected the application based on their conclusion that plaintiff had filed his asylum application more than one year after entering the United States.¹

• On June 10, 2003, INS filed with the Immigration Court and issued to plaintiff a Notice to Appear, which charged plaintiff with removal on the ground that he was present in the United States without having been admitted or paroled and commenced removal proceedings against plaintiff in the Immigration Court located in Baltimore, Maryland ("the Immigration Court").

• On May 9, 2005, Immigration Judge Dufresne issued an oral decision and written order denying plaintiff's asylum application as untimely and thus barred. In addition, the Immigration Judge ordered plaintiff removed from the United States to Ethiopia.

• On June 8, 2005, plaintiff filed a motion to reopen his removal proceedings. The Immigration Judge granted the motion and set a hearing for March 21, 2006 to address the merits of plaintiff's asylum application.

• On March 21, 2006, after hearing testimony from plaintiff and other witnesses, Immigration Judge Dufresne issued a detailed oral decision² denying plaintiff's asylum application on two grounds. First, the Immigration Judge affirmed her prior conclusion that plaintiff filed his asylum application beyond the one-year statutory limitations period, which rendered the application time-barred. Second, the Immigration Judge denied plaintiff's asylum application on the merits, finding (i) that plaintiff had not adduced sufficient credible evidence that he would be subject to persecution in Ethiopia and (ii) that plaintiff had knowingly filed a frivolous asylum application.³ Accordingly, the Immigration Judge ordered plaintiff removed to Ethiopia.

• On March 31, 2006, plaintiff noticed an appeal of the Immigration Judge's removal order to the Board of Immigration Appeals ("BIA").

• On November 1, 2006, plaintiff married a United States citizen named Dejene Madhanit Metaferia. On December 7, 2006, Metaferia filed a Petition for Alien Relative (Form I-130) with USCIS on plaintiff's behalf, seeking to have plaintiff classified as her spouse for immigration purposes.⁴ USCIS approved Metaferia's petition on April 30, 2008.

• On August 19, 2008, plaintiff transmitted an application to adjust his status to lawful permanent resident (Form I-485) to USCIS based on the approval of Metaferia's alien relative petition.⁵ Plaintiff also filed a motion with the BIA, requesting that his removal proceedings be remanded to the Immigration Court in light of the approval of Metaferia's alien relative petition. The BIA granted plaintiff's motion, and on November 25, 2008, plaintiff filed his adjustment application in the Immigration Court. Importantly, the BIA did not address or adjudicate the Immigration Court's frivolousness finding on appeal.

• On January 27, 2009, Immigration Judge Dufresne held a hearing in plaintiff's remanded removal proceedings. The Immigration Judge continued the hearing and stated that further proceedings in Immigration Court would focus on whether the application for adjustment of status should be denied based on Judge Dufresne's previous finding that plaintiff had knowingly filed a frivolous asylum application, which

• On September 21, 2011, the Immigration Court, through another Immigration Judge, denied plaintiff's adjustment of status application. Specifically, the Immigration Judge held:

IT IS HEREBY ORDERED that the application for adjustment of status is denied inasmuch as the previous order of Judge Dufresne finding that the application for asylum filed by [plaintiff] was one in which he knowingly filed a frivolous application. That being the case, the Court cannot approve an application for adjustment because the finding of knowingly filing a frivolous claim for asylum would bar [plaintiff] forever from getting any kind of visa.

AR947–48.⁶ The Immigration Judge also ordered plaintiff removed to Ethiopia.

• Plaintiff noticed a timely appeal of the Immigration Judge's September 21, 2011 order to the BIA.

• On December 18, 2012, while plaintiff's second BIA appeal remained pending, USCIS transmitted to plaintiff a Notice of Action (Form I-797) indicating that his application for adjustment of status had been approved. This notice was transmitted even though (i) plaintiff remained in removal proceedings at the time and (ii) an Immigration Judge had denied plaintiff's application for adjustment of status based on Immigration Judge Dufresne's frivolousness finding. USCIS also transmitted to plaintiff a "permanent resident card" (Form I-551), which stated that plaintiff had been a permanent resident of the United States since September 21, 2011—the exact date on which the Immigration Court denied plaintiff's application for adjustment of status.

• Plaintiff then filed a motion for voluntary dismissal of his pending BIA appeal, which the BIA granted on January 31, 2013.⁷

• On July 18, 2016, plaintiff filed an application to become a naturalized citizen of the United States (Form N-400). The application required plaintiff to answer a series of questions, including: "34. Have you ever been ordered removed, excluded, or deported from the United States" and "35. Have you ever been placed in removal, exclusion, or deportation proceedings." Plaintiff answered "No" to both questions 34 and 35. Plaintiff signed the application, certifying under penalty of perjury under the laws of the United States of America that his application was true and correct.

• USCIS interviewed plaintiff on his naturalization application on February 23, 2017. At the interview, plaintiff again signed the application in the presence of USCIS Officer Minah Loo, "certify[ing] under penalty of perjury under the laws of the United States of America that [plaintiff] know[s] that the contents of this Form N-400, Application for Naturalization, subscribed by me ... are true and correct." AR1434. In addition, after placing plaintiff under oath, Officer Loo asked plaintiff to confirm orally certain written answers that he provided in his application, including questions 34 and 35. Plaintiff orally confirmed his response of "No" to both questions 34 and 35. Both answers were false.

• On March 3, 2017, USCIS issued a detailed decision denying plaintiff's application for naturalization.

? The USCIS decision recounted the procedural history of plaintiff's removal proceedings. In pertinent part, USCIS noted that (i) in March 2006, an Immigration Judge ordered that plaintiff be removed to Ethiopia and found that plaintiff knowingly filed a frivolous asylum application after proper notice of the consequences of doing so and (ii) in September 2011, an Immigration Judge denied plaintiff's application for adjustment of status and held that the Immigration Court could not approve an application for adjustment of status because the finding that plaintiff knowingly filed a frivolous asylum application barred plaintiff forever from obtaining any kind of visa.

? USCIS concluded that "despite the clear language in the order of the Immigration Judge, a USCIS error resulted in the production of your Permanent Resident Card without an approved adjustment of status application." AR1408–09. Based on this conclusion, USCIS held that plaintiff was ineligible for naturalization because he "never obtained lawful permanent resident status." ARM 10. Instead, USCIS explained, plaintiff's adjustment application "was denied by an Immigration Judge on September 21, 2011,"

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