United States v. Zazi

356 F.Supp.3d 1105

UNITED STATES of America, Plaintiff,

v.Mohammed Wali ZAZI, Defendant.

Civil Action No. 17-cv-00116-NRN

United States District Court, D. Colorado.

Signed November 30, 2018

Christopher W. Hollis, U.S. Department of Justice-DC-Immigration Litigation Office of Immigration Litigation, Washington, DC, for Plaintiff.

Jeffrey Dean Joseph, Aaron C. Hall, Joseph Law Firm, P.C., Aurora, CO, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. # 29)

N. Reid Neureiter, United States Magistrate Judge

This is an action to revoke United States citizenship pursuant to 8 U.S.C. § 1451(a).

This matter comes before the Court on Plaintiff United States of America's ("Government" or "United States") Motion for Judgment on the Pleadings (Dkt. # 29). The Court has reviewed the Motion, Defendant Mohammed Wali Zazi's ("Mr. Zazi") Opposition (Dkt. # 31), and Plaintiff's Reply in Support (Dkt. # 34). In addition, on September 25, 2018, the Court heard extensive oral argument on the Motion.¹ Pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 40.1(c), the Parties have voluntarily consented to the exercise of a United States Magistrate Judge for all purposes in this case (Dkt. # 11). For the reasons set forth below, the Court GRANTS the Government's Motion.

I. Background

The United States brought this action seeking to revoke the citizenship of Mr. Zazi. Mr. Zazi is a naturalized American citizen, originally from Afghanistan. According to the Government's Complaint, prior to naturalizing, Mr. Zazi committed multiple acts that rendered him ineligible for naturalization pursuant to 8 U.S.C. § 1427(a)(3), which requires a person seeking to obtain United States citizenship to show good moral character during the requisite five-year period preceding application for naturalization through the time of admission to citizenship.

Specifically, the Government alleges Mr. Zazi failed to comply with this statutory prerequisite for naturalization, rendering his certificate of naturalization "illegally procured," because he provided false statements and testimony on immigration benefits applications submitted to the United States and at interviews in support of these applications. The United States also asserts that Mr. Zazi committed crimes for which he had not been arrested or convicted at the time he provided representations and testimony in support of his citizenship application. According to the Government, each of these acts rendered Mr. Zazi ineligible to naturalize under 8 U.S.C. § 1427(a)(3). The United States thus brings this action, pursuant to 8 U.S.C. § 1451(a), to revoke and set aside the order admitting Mr. Zazi to citizenship, and to cancel his Certificate of Naturalization, No. 29824582.

A. Legal basis for revocation of citizenship.

8 U.S.C. § 1451(a) imposes a duty on the United States Attorney for the District of Colorado, upon affidavit showing good cause, to institute proceedings for the purpose of revoking or setting aside the order admitting a person to citizenship and cancelling the certificate of naturalization. Grounds for revocation and cancellation include that the order admitting the person to citizenship and certificate of naturalization "were illegally procured or were procured by concealment of a material fact or willful misrepresentation". 8 U.S.C. § 1451(a). Naturalization is illegally procured if an applicant does not meet any one of the congressionally imposed requirements for citizenship. Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ; 8 U.S.C. § 1427 (entitled "Requirements of naturalization," and which includes the requirement, under section 1427(a)(3), that "during all the periods referred to in this subsection [the applicant] has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.").

Courts universally recognize that "[t]he naturalization process, of course, rests on the assumption that accurate and truthful information is presented by those seeking to become citizens of the United States." United States v. Ciurinskas, 148 F.3d 729, 732 (7th Cir. 1998). Accordingly, "[w]hen naturalization is won by deceit, and material falsehoods are unmasked, the gift of naturalization may be revoked." Id.

Once U.S. citizenship has been conferred, revocation of that citizenship under 8 U.S.C. § 1451(a) requires clear, unequivocal, and convincing proof. Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). The Government bears the burden of such proof in denaturalization proceedings because of the "importance of the right that is at stake." Fedorenko, 449 U.S. at 505-06, 101 S.Ct. 737. But, once a district court determines "that the Government has met its burden of proving that a naturalized citizen has obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct," and must "enter[ ] a judgment of denaturalization." Id. at 517, 101 S.Ct. 737.

B. Undisputed Facts

The following facts, alleged in the Complaint and/or the Government's Motion (Dkt. # 29), or derived from documents of which I may take judicial notice, are not disputed by Mr. Zazi² :

1. Mr. Zazi originally was a native and citizen of Afghanistan (Dkt. # 20 at 2116).

2. Mr. Zazi filed an application for naturalization ("N-400") on or about June 25, 2006, with the Eastern Service Center of Citizenship and Immigration Services ("CIS"), an agency within the Department of Homeland Security ("OHS") (Dkt. # 1- 6 at 11; Dkt. 1-1 11/11).

3. Mr. Zazi was interviewed by an Adjudications Officer of CIS on May 1, 2007, to determine his eligibility for naturalization (id.).

4. Mr. Zazi's application was approved on October 2, 2007, based on his written application and his testimony at the naturalization interview (Dkt. # 1-6 at 1).

5. Mr. Zazi became a U.S. citizen on October 23, 2007, and was issued Certificate of Naturalization, No. 29824582 (Dkt. # 1-111111; Dkt. # 1-71113).

6. As an applicant for naturalization, Mr. Zazi was required to prove that he was, and continued to be, a person of "good moral character" from July 1, 2001, five years before he filed his application for naturalization, until he took the oath of allegiance on October 23, 2007.³

7. On July 15, 2011, a federal grand jury returned a one-count indictment charging Mr. Zazi with visa fraud in connection with the procurement of a visa for his nephew, in violation of 18 U.S.C. § 1546(a) (Dkt. # 1-2 at 2-6). The grand jury based its charge on Mr. Zazi's submission of a Form 1-130 Petition for Alien Relative on behalf of his nephew, Amanullah Zazi (Dkt. # 1-7). In the Form 1-130, Mr. Zazi falsely represented that his nephew was, in fact, his biological son (id. Part A. 1). He also specifically represented that his nephew was not his adopted son (id. Part A. 2).

8. On February 10, 2012, a judgment in the United States District Court for the Eastern District of New York was rendered against Mr. Zazi, upon his plea of guilty, for committing the offense of visa fraud, in violation of 18 U.S.C. § 1546(a) (Dkt. # 1-2 at 24-25).

9. Count One, paragraphs 8-11 of the indictment to which Mr. Zazi pied guilty (Dkt. # 1-2 at 4-5), alleges that in late December 2006/early January 2007, Mr. Zazi submitted a Form 1-130 Petition for Alien Relative (Dkt. # 1-7) knowing the petition falsely represented that his nephew was his biological son, and specifically stated his nephew was not related to him by adoption.

1a. According to the indictment, Mr. Zazi previously had caused to be filed a Refugee/Asylee Relative Petition on behalf of his nephew that also falsely represented his nephew was his biological son (Dkt. # 1-2 at 2), and that he also caused his attorney to file two affidavits in support of the Refugee/Asylee Relative Petition, in which two affiants attested they were friends of Mr. Zazi, and they had personal knowledge that Mr. Zazi's nephew was his biological son because they were present at his birth (id. at 2-3).

11. In pleading to the one-count indictment for visa fraud, Mr. Zazi admitted that, between 2006 and 2007, he submitted a Form 1-300 Petition for his nephew, Amanullah Zazi, to come to the United States (Dkt. # 1-2 at 20).

12. The colloquy between Mr. Zazi and the judge who accepted his guilty plea is as follows:

The Court: Tell me, briefly, what you did that makes you guilty.

The Defendant: Between 2006 and 2007, Amanullah, who as my nephew, he resided in Pakistan. I made an application for him to come to the United States. Amanullah was not my biological son and I told my attorney to mark it as my real son.

The Court: "Mark it," meaning the 1-1 30 petition?

The Defendant: I do not know the number of the application.

The Court: Am I correct in understanding that you instructed your attorney to falsely tell the Immigration authorities that Amanullah was your biological son?

The Defendant: Yes.

The Court: This seems obvious but we may as well make it explicit. You knew at the time that he wasn't your biological son, correct?

The Defendant: Yes. I knew that he was not my biological son.

The Court: I think that does it.

The Defendant: He was my nephew.

Transcript of Plea before the Hon. John Gleeson, United States District Judge, E.D.N.Y. October 21, 2011, United States v. Mohammed Zazi, No. 11-cr-00718-JG (Dkt. # 1-2 at 19-20).

13. Mr. Zazi made false statements to the Government in order to obtain an immigration benefit for his nephew, Amanullah Zazi.

14. Mr. Zazi committed the acts constituting this crime in or around December 2006 and January 2007, during the statutory period where he was required to demonstrate "good moral character" in connection with his application for naturalization, i.e., between July 1, 2001 and October 23, 2007.

15. On May 1, 2007, Mr. Zazi appeared before Adjudications Officer Florentina Preda for an interview

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