Chaudhry v. Napolitano

• Decision Date: 26 October 2010
• Docket Number: No. CV–09–3097–LRS.,CV–09–3097–LRS.
• Citation: 749 F.Supp.2d 1184
• Parties: Muhammad Zahid CHAUDHRY, Plaintiff,v.Janet NAPOLITANO, et al., Defendants.
• Court: U.S. District Court — District of Washington

749 F.Supp.2d 1184

Muhammad Zahid CHAUDHRY, Plaintiff,

v.Janet NAPOLITANO, et al., Defendants.

No. CV–09–3097–LRS.

United States District Court, E.D. Washington.

Oct. 26, 2010.

Devin T. Theriot–Orr, Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for Plaintiff.Craig A. Defoe, United States Department of Justice, Washington, DC, Frank A. Wilson, U.S. Attorney's Office, Spokane, WA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LONNY R. SUKO, Chief Judge.

BEFORE THE COURT is Defendants' Motion for Summary Judgment, Ct. Rec. 14, filed August 10, 2010 and noted without oral argument on September 30, 2010.

I. FACTS

The following facts ¹ represent the Defendants' statement of material facts in support of Defendants' summary judgment motion.

Plaintiff, Muhammad Zahid Chaudhry, a native and citizen of Pakistan, was born in Lahore, Pakistan in 1973. Chaudhry graduated from the University of Punjab with a Bachelor of Science degree in math and physics. After graduation, in 1994, Chaudhry moved from Pakistan to Australia in order to attend the University of Wollongong. In March 1996, Chaudhry was working in Sydney as a taxi driver, when he picked up two passengers including an Australian citizen named Brad Ewen Hinsby. Hinsby apparently did not have enough cash to pay Chaudhry the fare, so he left his passport with Chaudhry as security for the unpaid fare. Chaudhry kept Hinsby's passport. Shortly thereafter, Chaudhry's employer fired him from his job as a taxi driver.

On March 20, 1996, Chaudhry entered a Medicare office in Sydney, and filled out and signed a request form for a Medicare card in the name of “Brad Ewen Hinsby.” Chaudhry listed his own address, “Post Office Box 236, Annandale,” on the form. When he submitted the form to a clerk, he produced Hinsby's passport and purported to be Hinsby. Later that day, at about 3:45 p.m., Chaudhry entered a Roads and Traffic Authority office in Sydney, and filled out and signed a New South Wales identification card application in the name “Brad Ewen Hinsby.” When asked for identification, Chaudhry produced Hinsby's passport and purported to be Hinsby. A photo of Chaudhry was taken for the new identification card, and a security camera captured Chaudhry leaving the office.

Later that day on March 20, 1996, at about 4:00 p.m., Chaudhry entered a bank and attempted to open a cashcard account in Hinsby's name. Chaudhry again produced Hinsby's passport and purported to by Hinsby. The bank teller noticed a discrepancy between Chaudhry and the passport photo. The bank manager thus denied the application, and the bank informed police of the matter. A security camera photographed Chaudhry at the bank.

Police interviewed Chaudhry on March 22, 1996, regarding his use of Hinsby's passport. Chaudhry had the passport in his possession at the time, but denied using it when he applied for the Medicare card, identification card, and cashcard on March 20. During the interview, police found an American Express (“AmEx”) card in the name of “Peter R. Hammond” in Chaudhry's wallet. Chaudhry claimed that he found the Hammond AmEx card in his taxi the previous night and intended to return it, but police determined that he had used it on 28 occasions to make food and taxi fare purchases totaling $851.30.

Sydney police investigated further and called Chaudhry for an interview on April 3, 1996, which he voluntarily attended. Police showed Chaudhry the Medicare form he had filled out, at which point Chaudhry stated that he “felt sick” and declined to answer further questions. Based on Chaudhry's use of Hinsby's passport and Hammond's AmEx card, the Sydney police arrested Chaudhry on April 3, 1996, and charged him with several fraud-related crimes.

On April 22, 1996, Chaudhry pleaded guilty to all of the charges against him based on his use of Hinsby's passport and Hammond's AmEx card. The resulting convictions and sentences were as follows:

(1) Use [of] false instruments—Crimes Act 1900, Section 300(2), 2 Charges—Resulting in a $100 fine and rising of the court;

(2) Make false instruments—Crimes Act 1900—Section 300(1), 2 Charges—Resulting in a $250 fine, a $50 charge for court costs, and a rising of the court;

(3) Use [of] passport issued to another person—Passports Act 1938, Section 9A(1)(c), 3 Charges—Resulting in a $100 fine and risings of the court;

(4) Goods in custody (GIC)—Crimes Act 1900, Section 527(c), 1 Charge—Resulting in a $100 fine; and

(5) Obtain financial advantage by deception—Crimes Act 1900, Section 104, 2 Charges (including one with 27 counts)—Resulting in a 2–year conditional release upon posting $1,000 bond and a rising of the court.

Chaudhry remained in Australia and eventually married an Australian citizen named Jane Waid on January 3, 1998. Chaudhry's marriage to Waid lasted less than two years; they divorced on December 21, 1999. Chaudhry had applied for a spousal visa in Australia based on his marriage to Waid, but the Department of Immigration and Multicultural Affairs (“DIMA”) denied that application on November 25, 1998. DIMA sent Chaudhry a “Decision Record,” which explained the basis for its denial of the spousal visa. The Decision Record noted that among the documents DIMA considered was a “POLICE REPORT DOCUMENTING APPLICANT'S FRAUDULENT USE OF AN AUSTRALIAN PASSPORT; HIS FRAUDULENT USE OF AN AMERICAN EXPRESS CARD.”

Chaudhry sought review of the November 25, 1998 decision denying his application for a spousal visa. His administrative appeal of that decision remained pending before the Migration Review Tribunal (“MRT”) until August 2000, at which time Chaudhry's appeal was denied as discussed further below.

While living in Australia, Chaudhry applied for United States nonimmigrant tourist visas on June 9, 1998 and July 15, 1999, by submitting DS–156 visa applications to the American Consulate in Sydney. The applications asked the following question: “Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar legal action?” In response to that question, Chaudhry failed to disclose his April 22, 1996 arrest and convictions in Australia. United States authorities granted the visas.

From 1998 through 2000, Chaudhry traveled to the United States on several occasions to visit his uncle, Alla Ditta (“Raza”) Chaudhry, who was working as a professor at Central Washington University. In August 2000, Chaudhry had been traveling outside of Australia, and on August 22, 2000, he arrived on an international flight from Singapore to Sydney. Chaudhry filled out an “Incoming Passenger Card,” falsely listing his name as “Zahid Mian” and his date of birth as September 15, 1974. Chaudhry attempted to re-enter Australia using an Australian passport in the name of “Zahid Mian,” which he had fraudulently obtained using a bogus birth certificate.

Upon his arrival on August 22, 2000, Australian authorities detained Chaudhry, cancelled and impounded the fraudulent passport, and transferred him to the Villawood Immigration Detention Center. The immigration authorities interviewed Chaudhry on August 23, 2000, at the detention center. During the interview, Chaudhry admitted to his true identity, and he admitted that he was a citizen of Pakistan. The Australian immigration authorities determined that when he sought to enter on August 22, 2000, Chaudhry had no valid visa for entry. On August 23, 2000, Chaudhry wrote a letter seeking to withdraw his visa application, and expressing his desire to leave Australia as soon as possible.

On August 28, 2000, the MRT issued a decision affirming the decision to deny Chaudhry a visa on the basis of his prior marriage to Jane Waid. The decision noted Chaudhry's prior “convictions for ‘fraudulent’ behaviour,” and stated that Chaudhry had attempted to explain those convictions in a letter from his agent dated April 17, 2000. The MRT mailed the August 28, 2000 decision, as well as an earlier notice that a decision had been made, to Chaudhry at the following address: Mr. Muhammad Zahid Chaudhry, PO Box 236, ANNANDALE NSW 2038. On or about August 30, 2000, Chaudhry left Australia. He briefly visited Pakistan prior to traveling to the United States on September 12, 2000.

On September 12, 2000, Chaudhry arrived in the United States on a tourist visa as a visitor for pleasure. After entering the United States, Chaudhry resided with his Uncle Raza in Yakima, Washington. Three days after Chaudhry entered the United States, on September 15, 2000, Raza filed articles of incorporation for “Shafy Corporation.” The Shafy Corporation application listed Chaudhry as both the contact person for the application and one of three incorporators.

At some point prior to December 2000, Chaudhry met Ann MacKenzie (“Ann”) at a restaurant in Yakima. On December 31, 2000, after having known each other for about two months, Chaudhry and Ann decided to marry. They married on January 25, 2001. On January 30, 2001, Ann filed an I–130 visa petition on Chaudhry's behalf, and the same day, Chaudhry filed an I–485 Adjustment of Status application. The I–485 application filled out by Chaudhry asked the question:

“Have you ever, in or outside the U.S.... been arrested, cited, charged, indicted, fined, or imprisoned, for breaking or violating any law or ordinance, excluding traffic violations?” Chaudhry checked the “No” box next to this question. Chaudhry signed the I–485 application under penalty of perjury. In conjunction with his I–485 application, Chaudhry signed and submitted a Biographic Information form (Form G–325A), which contained a box asking for “ALL OTHER NAMES USED (Including names by previous marriage).” Chaudhry left that box blank, except for an apparent slash mark. The form also asked for Chaudhry's employment history going back five years, but Chaudhry listed “NONE” as his employment from August 2000 to the “Present Time.”

On January 31, 2001, the former Immigration...