United States v. Donkor

507 F.Supp.3d 423

UNITED STATES of America, Plaintiff,

v.Akwasi Awuah DONKOR, Defendant.

19-cv-07120 (AMD)

United States District Court, E.D. New York.

Signed December 15, 2020

Sheldon A. Smith, Layaliza K. Soloveichik, U.S. Attorney's Office for the Eastern District of NY, Brooklyn, NY, for Plaintiff.

Paul O'Dwyer, Law Office of Paul O'Dwyer, P.C., New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

On December 19, 2019, the government filed this action seeking to revoke the defendant's United States citizenship and cancel his Certificate of Naturalization pursuant to 8 U.S.C. § 1451(a). The government alleges that the defendant lied on his 2003 naturalization application—which was approved in 2004—resulting in "his procurement of naturalization by concealment of a material fact or by willful misrepresentation." Before the Court is the defendant's motion to dismiss the action as time-barred pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 9.) The government opposes the motion. (ECF No. 14.) For the reasons that follow, the defendant's motion is denied.

BACKGROUND¹

On February 27, 1991, the defendant entered the United States via John F. Kennedy International Airport under the name Emmanuel Owusu-Ansah. (ECF No. 1 ¶ 22.) He presented a photo-substituted Republic of Ghana passport and an altered B-1/B-2 nonimmigrant visitor visa to Immigration and Naturalization Service ("INS") officials, who referred him to secondary inspection. (Id. ¶¶ 23-24.) During secondary inspection, the defendant gave an affidavit to INS in which he stated that he feared returning to Ghana because he faced persecution as a Jehovah's Witness; "[t]he police in Ghana arrested worshippers in Defendant's church, because they did not want them worshipping." (Id. ¶¶ 25-26.) He also represented that he was born in May of 1955, was married to "Esther Aboagye," with whom he had two children, and that he had obtained his passport lawfully and through "proper authorities." (Id. ¶ 26.) INS fingerprinted the defendant and detained him pending a hearing before an immigration judge. (Id. ¶ 27.)

On March 12, 1991, the defendant, now represented by counsel, submitted another affidavit to INS in which he stated that his real name was Kwasi Awuah Kwarteng and that "Emmanuel Owusu-Ansah" was the name on the passport that he purchased for $1,500 from a man in Lagos, Nigeria. (ECF No. 1 ¶¶ 29-30.)

On April 2, 1991, INS released the defendant, and on May 2, 1991, he appeared with counsel before Immigration Judge John K. Speer. (ECF No. 1 ¶¶ 33-34.) During that hearing, the defendant advised Judge Speer that he would be seeking asylum and withholding of deportation; the judge set the next hearing for March 31, 1992. (Id. )

In May of 1991, the defendant filed Form I-589—Request for Asylum in the United States—under the name Emmanuel Owusu-Ansah. (ECF No. 1 ¶ 35.) He stated on his application that he also went by the name "Kwasi Awuah Kwarteng," that he was born in January of 1960 and had been married to "Ester Aboagyg [sic]" since 1978. (Id. ¶ 36.) He explained that he feared religious persecution in Ghana—that he had been arrested and beaten in December of 1990 for practicing his faith and had fled to Nigeria where he obtained travel documents to the United States. (Id. ) On March 13, 1992, Judge Speer denied the defendant's asylum application and ordered that he be excluded and deported. (Id. ¶ 39.) Judge Speer ruled that the evidence did not support a "well-founded fear" or "clear probability" of persecution if the defendant returned to Ghana. (Id. ¶ 40.) The defendant appealed this decision to the Board of Immigration Appeals, which dismissed his appeal on December 29, 1992, finalizing the deportation order. (Id. ¶¶ 41-42.) However, the defendant did not leave the United States. (Id. ¶ 43.)

On November 20, 1997, the defendant filed Form I-485—Application to Register Permanent Residence or Adjust Status ("Adjustment Application")—under the name "Awuah Donkor." (ECF No. 1 ¶ 44.) On this form, the defendant represented that he was born in 1959, had married to "Paulina Boadu" in 1995, had not been previously married, and that he had last entered the United States in 1996 without inspection. (Id. ¶ 45.) On July 29, 1998, the INS approved the defendant's Adjustment Application and granted him permanent residence status. (Id. ¶ 55.)

On May 2, 2003, the defendant filed Form N-400—Application for Naturalization—based on his status as a lawful permanent resident in the United States for at least five years. (ECF No. 1 ¶ 56.) On his naturalization application and during his in-person interview with United States Citizenship and Immigration Services ("USCIS") on July 27, 2004, the defendant represented, among other things, that he had "never been ordered to be removed, excluded, or deported from the United States," and had "never applied for any kind of relief from removal, exclusion, or deportation." (Id. ¶¶ 75-76.) On August 19, 2004, the USCIS approved the defendant's naturalization application, and on September 2, 2004, he took the Oath of Allegiance and became a United States citizen. (Id. ¶¶ 78-79.)

Almost sixteen years later, on March 29, 2019, the defendant admitted to USCIS that he had used a false identity when he applied for asylum in 1991, and that he never left the United States despite the 1992 deportation order. (ECF No. 1 ¶¶ 80-81.) He also admitted that he was married to Charlotte Boadu from 1984 to 1995, and that Ester Aboagye was an ex-girlfriend. (Id. ¶ 82.)

The government filed this action on December 19, 2019, alleging that the defendant illegally procured his naturalization by making willful misrepresentations on his application for permanent residence. (ECF No. 1 ¶¶ 95-107.) The government also alleges that the defendant demonstrated a lack of good moral character by giving false testimony, making false statements and committing perjury during immigration proceedings. (Id. ¶¶ 111, 119.) Specifically, the government claims that the defendant:

concealed and willfully misrepresented on his Naturalization Application and at his subsequent interview the following: his name and identity; whether he had previously married; whether he had ever been arrested, cited, or detained by any law enforcement officer (including INS and military officers) for any reason; whether he had ever been in jail or prison; whether he had ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal; whether he had ever lied to any U.S. government official to gain entry or admission into the United States; whether he had ever been ordered to be removed, excluded, or deported from the United States; and whether he had ever applied for any kind of relief from removal, exclusion, or deportation from the United States.

(Id. ¶ 125.) The government asserts that the defendant would have been ineligible for naturalization had his misrepresentations been known, and that pursuant to 8 U.S.C. § 1451(a), his citizenship was obtained unlawfully and must be revoked. (Id. ¶¶ 128-29.)

The defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the government's claims are time-barred by the five-year statute of limitations set forth in 28 U.S.C. § 2462 for civil actions to enforce "any civil fine, penalty, or forfeiture, pecuniary or otherwise." (ECF No. 10 at 15.)

STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Hogan v. Fischer , 738 F.3d 509, 514 (2d Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (internal quotation marks omitted). "Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint." Ellul v. Congregation of Christian Bros. , 774 F.3d 791, 798 n.12 (2d Cir. 2014) (citing Staehr v. Hartford Fin. Servs. Grp., Inc. , 547 F.3d 406, 425 (2d Cir. 2008) ).

DISCUSSION

"An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress."

United States v. Ginsberg , 243 U.S. 472, 474, 37 S.Ct. 422, 61 L.Ed. 853 (1917) ; see also United States v. Dhanoa , 402 F. Supp. 3d 296, 299 (D.S.C. 2019) (citing Fedorenko v. United States , 449 U.S. 490, 505-06, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ) ("An individual who seeks to obtain naturalized United States citizenship must comply with the statutory requirements for naturalization."). "Failure to comply with any of these conditions renders the certificate of citizenship ‘illegally procured,’ and naturalization that is unlawfully procured can be set aside." Fedorenko , 449 U.S. at 506, 101 S.Ct. 737 (quoting 8 U.S.C. § 1451(a) and collecting cases). Section 15 of the Naturalization Act of 1906 established the process by which the government can revoke a fraudulent or illegally procured certificate of citizenship. See Ginsberg , 243 U.S. at 474, 37 S.Ct. 422 (quoting § 15 of the Act of June 29, 1906, chap. 3592, 34 Stat. at L. 59). Congress replaced the 1906 Act with the Immigration and Nationality Act of 1952 (the INA), but retained substantially all the language of § 15 and included it in 8 U.S.C. § 1451(a). The statute does not contain a statute of limitations,...