Hajro v. Barrett, C 10–1772 MEJ.

• Decision Date: 21 March 2012
• Docket Number: No. C 10–1772 MEJ.,C 10–1772 MEJ.
• Citation: 849 F.Supp.2d 945
• Parties: Mirsad HAJRO, Petitioner/Plaintiff, v. Robin BARRETT, San Francisco Field Office Director; United States Citizenship and Immigration Services, Defendants.
• Court: U.S. District Court — Eastern District of California

849 F.Supp.2d 945

Mirsad HAJRO, Petitioner/Plaintiff,

v.Robin BARRETT, San Francisco Field Office Director; United States Citizenship and Immigration Services, Defendants.

No. C 10–1772 MEJ.

United States District Court, N.D. California.

March 21, 2012.

Kip Evan Steinberg, Eric Walter Rathhaus, Law Offices of Kip Evan Steinberg, San Rafael, CA, for Petitioner/Plaintiff.

Ila Casy Deiss, Melanie Lea Proctor, United States Attorney's Office, San Francisco, CA, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL

MARIA–ELENA JAMES, United States Chief Magistrate Judge.

I. INTRODUCTION

Plaintiff Mirsad Hajro initiated this action on April 23, 2010, by filing a Petition pursuant to 8 U.S.C. § 1421(c) seeking de novo review of the United States Citizenship and Immigration Services' (“USCIS”) denial of his Form N–400 Application for Naturalization. Dkt. No. 1. On January 12, 2010, USCIS denied Plaintiff's naturalization application on the ground that Plaintiff gave false testimony with the intent to obtain an immigration benefit and consequently lacked the good moral character required for naturalization. Certified Record of Proceeding (“ROP”), J. Trial Ex. 1 at 1–8. On October 7, 2010, the Government moved for summary judgment on Plaintiff's Petition. Dkt. No. 14. The Court subsequently denied the Government's Motion, holding that triable issues of fact existed on the issues of whether Petitioner gave false testimony and whether he made any statement with the intent to deceive the government to obtain an immigration benefit, making summary judgment improper. Dkt. No. 27. The Court therefore set this case for a bench trial, which it conducted on November 2, 2011. Following trial, the Court took this matter under submission and granted the parties leave to submit closing arguments and revised proposed findings of fact and conclusions of law. Dkt. Nos. 47, 48, 49, 54. Having carefully considered the testimony at trial, the administrative record, the parties' written arguments, and the controlling legal authorities, the Court now makes the following findings of fact and conclusions of law and GRANTS Plaintiff's Petition.

II. FINDINGS OF FACT

A. Plaintiff's Background

1. Plaintiff was born in January 1975, in Sarajevo, Bosnia and Herzegovina. ROP 167; Trial Transcript (“Tr.”) at 16:15–18, Dkt. No. 56.

2. Plaintiff is Bosnian and Muslim. Tr. 16:15–20.

3. The Bosnian war begin in May 1992. Tr. 21:10–11.

4. In May 1992, at the age of 17, Plaintiff became involved in Teritorijalna Odbrana, or Territorial Defense, which conducted civil patrols of neighborhoods during the early stages of the Bosnian war. Tr. 23:13–24:19, 25:17–19, 32:22–23.

5. Plaintiff participated in the patrols for approximately two to four months beginning in May 1992. Tr. 29:1–3, 32:16–17.

6. The civil patrols were not part of the Bosnian army. Tr. 24:24–25.

7. Although some participants in the civil patrols carried weapons, there was no weapon assigned to Plaintiff as part of the civil patrol. Tr. 26:23–25, 27:1–23.

8. Plaintiff testified that he did carry his father's pistol during his participation in the Territorial Defense patrols, which was shared with other members of the patrol. Tr. 28:7–12.

9. During the latter part of his participation in the civil patrols, Plaintiff carried an AK–47 that belonged to other participants in the patrol. Tr. 30:12–31:5. Plaintiff testified that he carried the weapon on a “couple of occasions,” for periods of ten to thirty minutes. Tr. 31:1–5. Plaintiff never fired the AK–47 and did not receive training on use of the weapon. Tr. 31:6–9.

10. In September 1994, Plaintiff was drafted to serve in the Bosnian army. Tr. 33:14–18, 34:24–25.

11. Plaintiff was assigned to the communications branch of the Bosnian army. Tr. 33:24–34:3.

12. Plaintiff underwent training for approximately five to seven weeks. Tr. 33:19–34:8.

13. Plaintiff did not receive any weapons training. Tr. 34:17–18.

14. Plaintiff was assigned the position of a clerk typist. Tr. 37:5–9. In this capacity, he was not assigned a weapon and did not carry a weapon. Tr. 38:7–10.

15. Plaintiff's service in the Bosnian army ended in December 1995. Tr. 35:1–3.

16. Prior to his arrival in the United States, Plaintiff spoke limited English. Tr. 20:7–24, 43:16–17, 44:3–10.

17. Plaintiff met his wife, Jennifer A. Gilbert (now, Jennifer Hajro), who is an American citizen, at some point in 1996 or 1997, while he was attending the University of Saarland in Saarbrucken, Germany. Tr. 43:3–23.

18. In June 1999, Plaintiff applied for a K–1 Nonimmigrant Fiancé Visa. ROP 168.

19. The K–1 Visa was issued on August 10, 1999. ROP 168.

20. On September 7, 1999, Plaintiff entered the United States as the K–1 fiancé of Jennifer Gilbert. Tr. 45:23–25, 45:9–25; ROP 126, 168.

21. On November 2, 1999, Plaintiff married Jennifer Gilbert. ROP 130.

22. After Plaintiff came to the United States, he enrolled in adult English language classes. Tr. 46:18–23, 48:18–23, 49:1–18.

23. In 2000, Plaintiff enrolled in Boise State University. Tr. 50:15–16. Among the courses Plaintiff took were an English 101/composition course and a communications course. Tr. 50:15–51:18.

24. In May 2006, Plaintiff earned a degree in electrical engineering from Boise State University. Tr. 51:23–52:52:3.

B. Plaintiff's November 1999 Form I–485 Application and Interview

25. In October 1999, with some assistance of a co-worker, Plaintiff completed a Form I–485 Application to Register Permanent Residence or Adjust Status (“Form I–485 Application”), seeking to change his status to that of a permanent lawful resident. ROP 126–129; Tr. 55:4–18. Plaintiff signed the Form I–485 Application on October 11, 1999, and filed it on November 1, 1999. ROP 126; Tr. 56:1–8.

26. Part 3 of the Form I–485 Application addresses “Processing Information.” ROP 127. Question C under Part 3 asks the applicant to:

List your present and past membership in or affiliation with every political organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday. Include any foreign military service in this part. If none, write “none”. Include the name of the organization, location, dates of membership from and to, and the nature of the organization.

ROP 127.

27. In response to the question 3.C, Plaintiff wrote “None.” ROP 127.

28. Plaintiff credibly testified that he was not attempting to hide his service in the Bosnian Army or deceive the Government by answering “none” to question 3.C. Tr. 58:18–59:10. Rather, Plaintiff credibly testified that he interpreted question 3.C of the Form I–485 Application's reference to “foreign military service,” as asking if he had ever served in the United States Army outside the United States. Tr. 57:23–58:14. Plaintiff testified that this was an incorrect interpretation of the question. Tr. 58:15–17.

29. On November 13, 2000, Marie Atkinson, an Immigration and Naturalization Services ¹ adjudications officer, interviewed Plaintiff and his wife regarding the Form I–485 Application. ROP 126–29; Tr. 59:11–23.

30. Plaintiff credibly testified that during the November 13, 2000 interview, Ms. Atkinson did not ask if he had been in any foreign military service or in the Bosnian military. Tr. 60:9–14.

31. Jennifer Hajro also credibly testified that she did not recall the INS officer asking about Plaintiff's foreign military service during the interview. Tr. 134:17–19, 135:8–9.

32. As discussed below, another former adjudications officer (Amber Shrestha) testified that it was standard practice for adjudications officers to make tick marks in red ink next to questions on adjustment of status applications to denote that the officer asked the question. Tr. 156:11–13.

33. Reviewing Ms. Atkinson's notations on Plaintiff's I–485 Application, there is no tick mark next to question 3.C indicating that Ms. Atkinson asked the question during the interview. ROP 127.

34. On November 13, 2000, INS approved Plaintiff's Form I–485 Application and he became a lawful permanent resident. ROP at 126.

C. Plaintiff's 2003 N–4000 Application for Naturalization and Interview

35. On November 6, 2003, Plaintiff filed an N–400 Application for Naturalization (“the 2003 N–400 Application” or “first N–400 Application”) with USCIS. ROP 102–111; Tr. 62:13–63:9.

36. Plaintiff testified that because he was in school and working part time, his wife completed the N–400 Application for him. Tr. 63:13–64:25, 65:3–7, 135:16–136:4.

37. Part 10 of the N–400 Application sets forth “Additional Questions,” with subpart B addressing “Affiliations.” ROP 108. Subpart B, question 8a asks:

Have you EVER been a member of or associated with any organization, association, fund, foundation, party, club, society, or similar group in the United States or any other place?

ROP 108.

38. The Application then contains a blank chart for the applicant to list the “Name of Group.” ROP 108.

39. On Plaintiff's 2003 N–400 Application, the “no” box was checked in response to question 8a. ROP 108; Tr. 24–25.

40. Under the “Name of Group,” “N/A” was written. ROP 108; Tr. 67:1–3.

41. Part 10, subpart D of the N–400 Application is entitled “Good Moral Character.” ROP 109. Question 23 under subpart D reads:

Have you EVER given false or misleading information to any U.S. governmental official while applying for any immigration benefit or to prevent deportation, exclusion, or removal?

ROP 109.

42. On Plaintiff's 2003 N–400 Application, in response to question 23, the “no” box was checked. ROP 109; Tr. 68:20–69:7.

43. Question 24 under subpart D states:

Have you EVER lied to any U.S. governmental official to gain entry or admission into the United States?

ROP. 109.

44. On Plaintiff's 2003 N–400 Application, in response to question 24, the “no” box was checked. ROP 109; Tr. 68:20–69:7.

45. Part 6 of the N–400 Application is entitled, “Information About Your Residence and...