Ngamfon v. U.S. Dep't of Homeland Sec., Case No. CV 17-183 DMG (JPRx)

• Decision Date: 17 October 2018
• Docket Number: Case No. CV 17-183 DMG (JPRx)
• Citation: 349 F.Supp.3d 975
• Court: U.S. District Court — Central District of California
• Parties: Nkwain William NGAMFON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

349 F.Supp.3d 975

Nkwain William NGAMFON, Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case No. CV 17-183 DMG (JPRx)

United States District Court, C.D. California.

Signed October 17, 2018

Matthew Ellsworth Roston, Roston Law Group, Beverly Hills, CA, for Plaintiff.

Troy D. Liggett, US Department of Justice Office of Immigration Litigation, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [46]

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants' United States Department of Homeland Security, et al.'s Motion for Summary Judgment ("MSJ"). [Doc. # 46.] For the reasons set forth below, the Court GRANTS the motion.

I.FACTUAL AND PROCEDURAL BACKGROUND

This suit stems from Plaintiff Nkwain William Ngamfon's unsuccessful 2013 application for naturalization as a U.S. citizen. In light of Defendants' reasons for denying Plaintiff's application, the Court must explore Plaintiff's lengthy and complicated family history.

Plaintiff was born in Cameroon in 1968. Ngamfon Decl. at ¶ 2. He learned English in high school. Defs.' SUF 3. Plaintiff's eldest child, Fichanfie Nkwain Ngamfon ("Fichanfie"), was born in Cameroon in 1990 and still resides there. Defs.' SUF 6. Carolyn Djai is Fichanfie's mother. Defs.' SUF 7. Plaintiff's second child, Ngamfon Nyohnufon Eshikim Nkwain ("Nyohnufon"), was born in 2001 in Cameroon and still resides there. Defs.' SUF 8. Made Ernestine Desiree is Nyohnufon's mother. Defs.' SUF 9. Plaintiff was never married to either Djai or Desiree. Defs.' SUF 14-19.

In 2003, Plaintiff applied for a B Visitor Visa to enter the United States. Defs.' SUF 34. He claimed in that application that he was married to Desiree. Defs.' SUF 35-36. Plaintiff stated in the application that he wanted to visit the United States to attend a conference in Spokane, Washington, where he would be meeting Nancy Herselius and staying at the Red Lion Hotel. Defs.' SUF 38. This application, like the rest of the applications described below, required Plaintiff to acknowledge by signature that his answers were true and correct and that making false or misleading statements may result in the permanent refusal of a visa or entry into the United States. Defs.' SUF 40. His application was denied and the reviewing consular officer noted that the documents he submitted in support of his application "appeared fake." Defs.' SUF 41.¹ Notwithstanding the officer's note, according to Defendant, the "records do not indicate the reason for the denial." MSJ at 5 n. 3.

Plaintiff applied a second time for a B Visitor Visa in 2005. Defs.' SUF 42. He stated again that Desiree was his wife. Defs.' SUF 43-44. The application also inquired into whether he had ever been refused a visa to the United States. Plaintiff answered "no." Defs.' SUF 45. The State Department issued the visa, and Plaintiff took a brief trip to the United States that year. Defs.' SUF 47.

Several things happened in 2006. First, Plaintiff married Nsa Odette Ekinyoh. Defs.' SUF 14. Within a week of their marriage, Plaintiff applied for an F Student Visa. Defs.' SUF 48; Pl.'s SUF 7. He stated in the application that he was "single, never married" and did not list a spouse. Defs.' SUF 49. When a consular official interviewed Plaintiff, however, he stated that he was engaged with one child. Defs.' SUF 54. He had two children at the time. Despite that omission and the arguable discrepancy as to his marital status, the United States consulate issued the student visa. Defs.' SUF 55. When Plaintiff arrived in the United States, he enrolled in classes to become a physician's assistant. Pl.'s SUF 9. Shortly after Plaintiff arrived in the United States, his marriage with Ekinyoh "faltered" and they became separated. Opp. at 6; Pl.'s SUF 7. He also applied around that time for a 2007 diversity visa. Defs.' SUF 56. In the application, he stated that he was married to Desiree, and had two children, Fichanfie and Nyohnufon. Defs.' SUF 57. The State Department issued him a lottery number, but denied him a visa. Defs.' SUF 56.

Plaintiff then applied in 2007 for the 2008 diversity lottery, and again received a lottery number. Defs.' SUF 59. In that application, Plaintiff answered he was single and answered "N/A" when asked to list the names, dates and places of birth, and addresses of his children. Defs.' SUF 63, 65. This time Plaintiff received a visa. Defs.' SUF 68. Shortly thereafter, he applied to adjust his status to permanent resident. Defs.' SUF 69. He stated that he was not married and had no children. Defs.' SUF 71. Plaintiff also submitted Form G-325A with his application, wherein he again answered that he was single. Defs.' SUF 79.

An immigration officer also interviewed Plaintiff in connection with this application. In that interview, Plaintiff corrected himself by stating he was married to Ekinyoh and submitting a revised application page stating the same and listing his children. Defs.' SUF 86, 87. The officer asked Plaintiff whether he had "by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the United States or any immigration benefit." Plaintiff answered "no." Defs.' SUF 88. Plaintiff's application was approved, and he became a permanent resident in 2008. Defs.' SUF 89.

In 2010, Plaintiff officially divorced Ekinyoh, Defs.' SUF 15, and had a third son, Nathan Ngamfon, with his former girlfriend Thelma Nkinen, Defs.' SUF 10, 11. Nathan is a United States citizen. Three years later, in 2013, Plaintiff applied for citizenship himself. Defs.' SUF 90. He stated in that application that he was "single, never married." Defs.' SUF 91. The application also asked whether Plaintiff had ever given false or misleading information to any government official, or ever lied to any government official, in connection with an application for an "immigration benefit." Defs.' SUF 97, 98. He answered "no." An immigration official interviewed him in connection with his application, and during that interview, Plaintiff corrected himself by stating he had been married once outside the United States, but maintained that he had never given false or misleading information to a government official. Defs.' SUF 102, 104, 106, 107.

Eighteen months later, in 2015, USCIS interviewed Plaintiff again, and Plaintiff submitted two sworn statements.² Defs.' SUF 112. In the first, he stated that he was married to Sui in 2000 and Ekinyoh in 2006.³ Defs.' SUF 118. USCIS denied Plaintiff's naturalization application in 2015 on the grounds that he made material misrepresentations in order to obtain immigration benefits and did not have the requisite good moral character for naturalization. Liggett Decl., ¶ 4, Ex. 22 at 4-5.

Plaintiff then filed an administrative appeal of the denial. Defs.' SUF 124. His paperwork associated with that appeal stated that he did not misrepresent his marital status in 2007 and 2008 because (1) Sui, who was in Cameroon, caused their marriage to be invalid, (2) he was never married to Desiree, and (3) he was never married to Ekinyoh. When almost two years had passed, and USCIS had still not responded to the appeal, Plaintiff filed the present action in January 2017, seeking a declaration by this Court that Plaintiff is eligible for naturalization. [Doc. # 1.] In May 2017, USCIS affirmed the denial of Plaintiff's application on the same grounds. Defs.' SUF 130.

In July 2017, Defendants issued Plaintiff a Notice to Appear in immigration court for removal proceedings. Defs.' SUF 131. The Notice charged Plaintiff as an "alien removable form the United States for procuring ... immigration benefit[s] by fraud of by willfully misrepresenting a material fact." Id. The Los Angeles Immigration Court found that Defendants "provided clear, convincing, and unequivocal evidence that Plaintiff was removeable as charged ... for seeking to procure immigrant visas and entry documents based on fraud and willful misrepresentation of material facts, namely his marital status, on his 2005 B visa." Defs.' SUF 133.

Plaintiff is currently married to Vickie Kolling, a United States citizen. Defs.' SUF 17. Plaintiff and Kolling have one daughter, Wrisy Ngamfon, and expect another child in December. Defs.' SUF 17; Pl.'s SUF 21. Plaintiff, now a board-certified physician's assistant, runs a wound-care practice and employs "numerous individuals." Pl.'s SUF 20. He has always paid his taxes and has never been arrested or convicted of a crime. Id.

II.LEGAL STANDARD

A. Standard of Review

A district court reviews a USCIS naturalization decision de novo. 8 U.S.C. § 1421(c). It makes it own findings of facts and conclusions of law—those made by USCIS do not bind the Court. Id. ; United States v. Hovsepian , 359 F.3d 1144, 1162 (9th Cir. 2004) ("the district court has the final word and does not defer to any of the [USCIS's] findings or conclusions"). The naturalization applicant bears the burden of showing by a preponderance of the evidence that he is eligible for citizenship. I.N.S. v. Pangilinan , 486 U.S. 875, 886, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ; Hovsepian , 359 F.3d at 1168.

B. Summary Judgment Standard

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Wash. Mut. Inc. v. United States , 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505.

The...