Saleh v. Jaddou

Docket Number21wcv-10240 (PKC)
Decision Date01 September 2023
PartiesAMMAR ABDO SAEED SALEH, Petitioner, v. UR MENDOZA JADDOU, Director of U.S. CITIZENSHIP AND IMMIGRATION SERVICES; ALEJANDRO MAYORKAS, Secretary of the U.S. DEPARTMENT OF HOMELAND SECURITY, SUSAN QUINTANA, Field Office Director U.S. IMMIGRATION SERVICES,[1] Respondents.
CourtU.S. District Court — Southern District of New York
OPINION AND ORDER

P KEVIN CASTEL, UNITED STATES DISTRICT JUDGE

Ammar Abdo Saeed Saleh petitions this Court for judicial review of the denial of his application for naturalization. United States Citizenship and Immigration Services (“USCIS”) denied Saleh's application because it determined that Saleh lacked good moral character and that he was not a lawful permanent resident. The parties-Saleh petitioner, and three government officials with responsibility for enforcement of the immigration laws respondents-have each moved for summary judgment. The certified administrative record has been filed with the Court, and respondents have submitted declarations from two immigration officials who interviewed the petitioner. Saleh has not submitted any evidence of his own from outside the administrative record.

The Court will grant respondents' motion. Upon de novo review, the Court concludes that no reasonable factfinder could find that Saleh had proven his “good moral character,” as statutorily required.

BACKGROUND

Except as otherwise indicated, the following facts are drawn from the Certified Administrative Record (“CAR”) (ECF 21-1 through 21-33.) and the Certified Electronic Record from his administrative appeal (“CER”) (ECF 21-35 -36.).[2]

Saleh, a Yemeni citizen, married Najat Abdullah Al Shraei in Yemen on March 10, 1989. (CAR 43, 438.) On December 18, 1992, Saleh entered the United States on a visitor visa. (CAR 113.) After a few years living in separate countries, Saleh and Al Shraei divorced in 1994, with Saleh's brother acting as his representative in Yemen. (CAR 439.)

Saleh married his second wife, Tysha Suzette Brewton, a U.S. citizen, on August 4, 1995. (CAR 173.) The couple had one son, Walleed Saeed, born in January 1997. (CAR 159.) In July 1996, Brewton filed a Form I-130 Petition for Alien Relative on Saleh's behalf (CAR 944-51.), and Saleh filed his own Form I-485 adjustment-of-status application, (CAR 877-85.). Saleh indicated on his application that he had never previously been married. (CAR 883.)

In June 2000, Brewton withdrew her petition. (CAR 1082-84.) According to a letter from Brewton, Saleh had revealed to her that, at the time of their marriage, he had been married to another woman in his home country of Yemen, which Brewton understood to mean her marriage with Saleh was “void.” (CAR 1083-84.) As of June 2000, Brewton believed Saleh to be in Yemen living “with his wife and newborn.” (CAR 1084.) Her letter also accused Saleh of “continuously” submitting “phony documents” to the Immigration and Naturalization Service (“INS”), the predecessor to USCIS, and of using her address in New York rather than his own address in Ohio. (CAR 1083-84.) The couple divorced on January 2, 2002. (CAR 43, 726-28.)

On January 25, 2002, Brewton filed a new Form I-130, and Saleh filed a new I-485 application for status as a lawful permanent residence.[3] (CAR 814-1, 861-62.) In his application, Saleh identified Brewton as his spouse and stated he had only one child. (CAR 814, 816.) Five days later, on January 30, 2002, Brewton submitted another letter, this time requesting USCIS “stop all process” on the new I-130 petition because Saleh and she were “no longer married.” (CAR 997.) Brewton described that in late 2001 Saleh confessed that in 1999 he had married yet another woman in Yemen, Wayda Abdo, and that he had a child by Abdo. (CAR 997.) Brewton also claimed that Saleh had absconded with her own personal documents, and she warned of those documents being used “to act as if they are me” or being used “without my knowledge.” (CAR 997.) USCIS denied Saleh's second adjustment-of-status application on December 8, 2003. (CAR 811.)

The parties agree that at some point Saleh married Abdo in Yemen, though the exact dates of marriage and dissolution of the marriage are in dispute. As indicated above, during her own marriage to Saleh, Brewton expressed to immigration authorities her belief that Saleh was also married to Abdo at the same time. And as discussed below, Saleh himself-both during his third application for adjustment of status and in a naturalization interview-informed USCIS that he divorced Abdo on December 6, 2001, less than a month before he and Brewton were divorced. (CAR 113, 231, 334, 723-24.) But Saleh currently asserts that the original overlapping dates he provided stemmed from a transcription error and that he was instead married to Abdo from June 2002 to December 2003, wholly after the conclusion of his marriage to Brewton. (CAR 43.) Regardless of the correct dates of the marriage to Abdo, it is undisputed that Saleh had two children in Yemen with Abdo while married to Brewton: Amar, born May 27, 2000, and Aliah, born June 26, 2001. (CAR 160, 163.)

Saleh married a fourth woman, Belkis Garcia, a naturalized U.S. citizen, on June 30, 2005. (CAR 174.) On October 16, 2008, Garcia filed a Form I-130 on Saleh's behalf, and Saleh submitted his third I-485 adjustment-of-status application. (CAR 330-33, 713-14.) Garcia listed Saleh as having only one previous marriage, that to Brewton-no reference was made to his marriages to Abdo or Al Shraei. (CAR 713.) Significantly, in his own application, Saleh also indicated that he had only one child and one prior marriage. (CAR 331, 334-35.) In an interview on February 23, 2009, however, Saleh amended his application to include his marriage to Abdo. (CAR 330, 334.) He provided documentation from the Republic of Yemen showing that he divorced Abdo on December 6, 2001. (CAR 326, 334, 723-24.) He did not mention his two children by Abdo or his marriage to Al Shraei. (CAR 331, 334.) USCIS approved Saleh's application for permanent status on March 24, 2009. (CAR 113, 177.)

Saleh and Garcia divorced on July 13, 2012.[4] (CAR 79-82.) Three days later, on July 16, 2012, Saleh filed an N-400 application for naturalization based on his marriage to Garcia. (CAR 210-20, 234.) Unlike his 2008 application for adjustment of status, the N-400 application listed all three of his children; however, the application listed only three marriages, not four, omitting his marriage to Al Shraei. (CAR 214, 216, 231.) In response to the question, “Have you ever given false or misleading information to any U.S. Government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal,” he answered “No.” (CAR 218 (emphasis in the original).)

On February 25, 2013, Saleh sat for an interview in connection with his N-400. (CAR 234.) The interview proceeded under oath, and during the interview he affirmed that the information on his N-400, inclusive of any corrections made during the interview, was correct. See 8 C.F.R. § 335.2(c) (applicant to be questioned under oath or affirmation). (CAR 220.) His application contains hand-written checkmarks next to the questions where Saleh orally reconfirmed that he was “now married” to Belkis Garcia and that he had been living with her for the prior three years. (CAR 210, 214.) The interviewing officer states that the checkmarks indicate “that Mr. Saleh reaffirmed during the interview the answer he gave on his naturalization application.” (Declaration of Judith C. Carty (“Carty Dec.”) ¶ 6.) (ECF 24-1.) Saleh also stated in the interview that he was married to Abdo from January 20, 1999, through December 6, 2001. (CAR 231; Carty Dec. ¶¶ 8-9.) After the interview, USCIS requested additional evidence regarding the claim that Saleh had been married and living with Garcia for the prior three years. (CAR 177, 584.) Saleh did not respond to the request, and the application was denied on May 18, 2013. (CAR 176-78.)

Saleh married his fifth wife, Shawn Sanderson, on May 10, 2016. (CAR 127.) On October 25, 2016, Saleh filed his second N-400. (CAR 119, 121-40.) On his application he stated that he had been married four times and that he had three children. (CAR 127-31.) In response to the questions, “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” and “Have you EVER lied to any U.S. Government officials to gain entry or admission into the United States or to gain immigration benefits while in the United States?,” he answered “No.” (CAR 135 (emphasis in original).)

On May 10, 2018, Saleh sat for an interview in connection with this application, and he testified under oath that all the information contained in his application was true. (CAR 114, 139.) The application was initially approved on August 27, 2018, and his naturalization oath ceremony was scheduled for September 21, 2018. (CAR 121, 142.). On September 20, 2018, however, USCIS sent Saleh a notice that his oath ceremony had been cancelled “due to unforeseen circumstances.” (CAR 512.)

On January 2, 2019, USCIS moved to reopen his 2016 naturalization application, seeking additional information on Saleh's marital history and marital status. (CAR 119.) USCIS was concerned that while Saleh claimed four marriages on his N-400, he had only provided information about two of those spouses. (CAR 119.) In reviewing his administrative record- which included the overlapping dates he had previously given for his marriages to Brewton and Abdo-the agency determined that he had not been lawfully admitted for permanent residence. (CAR 119.) USCIS required Saleh to provide “marriage certificates for all four spouses and proof of termination of ALL [his]...

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