United States v. Khan

UNITED STATES OF AMERICA, Plaintiff, v. PARVEZ MANZOOR KHAN, A/K/A MOHAMMAD AKHTAR, A/K/A JAWEED KHAN, Defendant.

NO. 3:17-cv-965-J-PDB

United States District Court Middle District of Florida Jacksonville Division

February 21, 2019

Order

The United States seeks denaturalization of Parvez Manzoor Khan, bringing three causes of action under 8 U.S.C. § 1451(a), Doc. 1, supported by an affidavit of good cause, Doc. 1-1. Khan raises affirmative defenses of laches, estoppel, and waiver due to asserted undue delay in bringing the lawsuit.¹ Doc. 10 at 4. Before the Court are cross-motions for summary judgment. Docs. 20, 30. The case is scheduled for a nonjury trial to begin April 2, 2019. Doc. 38.

I. Asserted Facts

The government submits parts of Khan's Alien Files (A-Files) or Certificate Files (C-Files), Docs. 20-1-20-19, 20-21; a declaration of Lisa Pellechia, an officer with United States Citizenship and Immigration Services (USCIS), Doc. 20-20; a deposition of Eduardo Reveles, an officer with United States Customs and Border Protection (CBP), Doc. 20-22; a deposition of Xiomara Flores, an officer with USCIS (formerly with CBP), Doc. 20-23; a deposition of Sarah Wescott, a manager with CBP (formerly an officer with CBP), Doc. 20-24; fingerprint cards, Docs. 20-25-20-27; a fingerprint comparison report, Doc. 20-28; and a stipulation of fact, Doc. 20-29.

Khan submits parts of his A-Files,² Doc. 25; an affidavit by him, Doc. 24;³ an affidavit by his brother, Suhail Khan, Doc. 23; California Bar records concerning attorney Howard George Johnson, Doc. 26; a United States Department of Justice (DOJ) press release, Doc. 27; and a report by the United States Department of Homeland Security (DHS), Office of Inspector General (OIG), Doc. 28.

The following asserted facts are from the parties' submissions and Khan's admissions through the answer, Doc. 10, to the complaint, Doc. 1.

A. Entry, Asylum Request, and Exclusion

1. In his affidavit, Khan states his real name is Parvez Manzoor Khan, his family name is Khan, and he was born in 1957.⁴ Doc. 24 ¶¶ 11, 22, 48.

2. On December 7, 1991, Khan arrived in Los Angeles, California, aboard Korean Airlines Flight KE002. Doc. 1 ¶ 8; Doc. 10 ¶ 8; Doc. 20-1; Doc. 24 ¶ 4; Doc. 25 at 36.

3. Khan's Form I-94 (Arrival Record) provides his name is Mohammad Akhtar and his birthyear is 1958.⁵ Doc. 20-1; Doc. 25 at 36.

4. Khan presented a Pakistani passport bearing a United States B-2 (tourism) visa. Doc. 1 ¶ 9; Doc. 10 ¶ 9; Doc. 20-2; Doc. 25 at 4, 43, 45-51, 54, 65, 67.

5. Immigration officers determined the passport had been altered. Doc. 1 ¶ 10; Doc. 10 ¶ 10; Doc. 20-2; Doc. 25 at 4, 43, 54, 65. According to a memorandum prepared at the time:

The photograph on page 03 was substituted into the passport that the subject presented for inspection. The wet seal located on the page runs under the photo and is of uneven dimension, the inside line is smaller than the line outside the picture. The signature of the issuing officer on the subject's picture was tampered with and a different ink was used which is easily detected when compared to the original signature on the cover page and page 32. On page 19 the maceration "PHOTOGRAPH ATTACHED FOREIGN SERVICE UNITED STATES OF AMERICA" which is placed from the photo onto the page has no similarities and are not uniformed [sic].

Doc. 20-2 (emphasis in original); Doc. 25 at 4, 43, 54, 65 (emphasis in original).

6. The memorandum provides Khan speaks Punjabi and explains, "No statement was taken from subject due to the subject[']s inability to speak and understand sufficient English, and the lack of a translator." Doc. 20-2; Doc. 25 at 4, 43, 54, 65.

7. Another memorandum prepared at the time repeats that Khan speaks Punjabi. Doc. 25 at 5, 61.

8. In his affidavit, Khan observes Hindi and Punjabi are languages spoken in India. Doc. 24 ¶ 10.

9. In their affidavits, Khan and Suhail Khan state when Khan arrived in the United States, he could not speak, read, or write in English and needed an interpreter and translator in Urdu, Pakistan's official language and Khan's native language. Doc. 23 ¶ 7; Doc. 24 ¶¶ 4, 6, 9.

10. In his affidavit, Khan states Suhail Khan "knows [Khan's] English was very bad when [he] first time to the US [sic]." Doc. 24 ¶ 31.

11. In his affidavit, Khan states immigration officers did not interview him because they had no Urdu interpreter or translator. Doc. 24 ¶ 5.

12. On the day of his arrival, Khan was personally served with a Form I-122 (Notice to Applicant Detained for Hearing Before Immigration Judge), which initiated exclusion proceedings against him. Doc. 1 ¶ 11; Doc. 10 ¶ 11; Doc. 20-3; Doc. 25 at 52-53, 63-64.

13. The notice provides, "You do not appear to me to be clearly and beyond a doubt entitled to enter the United States as you may come within the exclusion provisions of Section[s] 212(a)(5)(A)(i); 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act[.]"⁶ Doc. 20-3 at 2; Doc. 25 at 52, 63.

14. The notice continues, "Therefore you are detained under the provisions of Section 235(b) ... for a hearing before [an] Immigration Judge to determine whether or not you are entitled to enter the United States or whether you shall be excluded and deported." Doc. 20-3 at 2; Doc. 25 at 52, 63.

15. Khan was detained and "transported in custody for exclusion proceeding[s] in [the] Los Angeles District Office." Doc. 20-2; Doc. 25 at 4, 6, 43, 44, 54-55, 65-66.

16. Khan was fingerprinted under the name Mohammad Akhtar. Doc. 20-25; Doc. 25 at 7-9.

17. In his affidavit, Khan states the following about his detention:

a. He was detained for a month in a jail cell with at least eight others who were from India and did not speak Urdu. Doc. 24 ¶¶ 8, 12.

b. While in a cell, he met attorney Howard George Johnson, who was there helping others. Doc. 24 ¶ 13.c. To help him communicate with Johnson, a detainee offered to translate as best he could from English to Hindi or Punjabi. Doc. 24 ¶ 14.

d. He (Khan) paid Johnson to be his attorney to interact with immigration authorities. Doc. 24 ¶ 15.

e. A detainee provided his (Khan's) personal information to Johnson so Johnson could help him (Khan). Doc. 24 ¶ 16.

f. He has a hard time remembering everything from 25 years ago but remembers giving Johnson his full name, Parvez Manzoor Khan. Doc. 24 ¶¶ 20, 48.

18. On December 22, 1991, Johnson submitted a Form G-28 (Notice of Entry of Appearance as Attorney or Representative) providing he would be representing Suhail Khan in the matter of "Jaweed Khan a/k/a Mohammad Akhtar." Doc. 25 at 17-18, 20-21.

19. On December 23, 1991, Khan, through Johnson, submitted a Form I-589 (Request for Asylum in the United States) seeking political asylum. Doc. 1 ¶ 12; Doc. 10 ¶ 12; Doc. 20-4; Doc. 25 at 10-13.

20. The I-589:

a. is under the name Jaweed Khan, Doc. 20-4 at 2; Doc. 25 at 10;

b. provides as "all other names used at any time" only the name Mohammad Akhtar, Doc. 20-4 at 2; Doc. 25 at 10;

c. provides the birthyear 1958,⁷ Doc. 20-4 at 2; Doc. 25 at 10;d. provides, "Punjabi, Urdu," as "Languages spoken," Doc. 20-4 at 2; Doc. 25 at 10;

e. provides a Miami 33126 address as his "Address in United States,"⁸ Doc. 20-4 at 2; Doc. 25 at 10;

f. provides Lahore, Pakistan, as his "Address abroad prior to coming to the United States,"⁹ Doc. 20-4 at 2; Doc. 25 at 10;

g. provides December 7, 1991, as his last arrival in the United States, Doc. 20-4 at 2; Doc. 25 at 10;

h. provides Los Angeles as his place of last arrival, Doc. 20-4 at 2; Doc. 25 at 10;

i. leaves blank boxes indicating he arrived as a "Visitor," "Student," "Stowaway," or "Crewman," and checks a box indicating he arrived as an "Other (Specify)" and specifies, "Deferred Inspection," Doc. 20-4 at 2; Doc. 25 at 10;

j. identifies Suhail Khan in Miami as a relative in the United States other than an immediate family member, Doc. 20-4 at 3; Doc. 25 at 11; and

k. provides he was an active worker for a movement and political organization and was imprisoned for two years due to political activities, Doc. 20-4 at 6-9.

21. Khan signed the I-589 under penalty of perjury, declaring "that the ... [information] and all accompanying documents are true and correct to the best of my knowledge and belief." Doc. 20-4 at 5; Doc. 25 at 13.

22. Khan signed the I-589, "Mohammad Akhtar":

/s/_________

(Signature of Applicant)

Doc. 20-4 at 5; Doc. 25 at 13.

23. In his affidavit, Khan states Johnson told him to sign the I-589 with the name Mohammad Akhtar. Doc. 24 ¶ 18; Doc. 20-4 at 5; Doc. 25 at 13.

24. An attachment to the I-589 provides, "Applicant's Name: Jaweed Khan." Doc. 20-4 at 6.

25. The last paragraph of the attachment provides, in typewritten font, "I certify under penalty of perjury that the above is true and correct, and that [sic] has been read to me in my native language. Signed at San Pedro, California on December 16, 1991. Jaweed Khan[,] Declarant." Doc. 20-4 at 9.

26. With the I-589, Khan submitted a Form G-325A (Biographic Information). Doc. 20-5; Doc. 25 at 14.

27. The G-325A:

a. is under the name Jaweed Khan and provides as "all other names used" only the name Mohammad Akhtar, Doc. 20-5; Doc. 25 at 14;

b. provides the birthyear 1958,¹⁰ Doc. 20-5; Doc. 25 at 14;c. provides, "Lahore, Punbjab [sic], Pakistan," as his city and country of birth, Doc. 20-5; Doc. 25 at 14;

d. provides his father's name is Ahmad Khan Manzoor and his mother's name is Rehana Begum, Doc. 20-5; Doc. 25 at 14; and

e. provides his residency is "INS Custody," Doc. 20-5; Doc. 25 at 14.

28. In his affidavit, Khan states the following about the I-589 and G-325A:

a. The G-325 has his and his mother's name wrong. Doc. 24 ¶ 47.

b. "[His] mother's name on the G-325A is misspelled. It is Razia Begum, not Rehana Begum. Again, since [he] could not read or speak English at the time the G-325 was prepared on December 17, 1991, [he] could not check it for spelling or typographical errors." Doc. 24 ¶ 49.

c. He does not know why the name is incorrect. Doc. 24 ¶ 21. He has a

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