Saleh v. United States Citizenship & Immigration Servs.

Decision Date29 April 2022
Docket Number18-CV-1347F,18-CV-1348F
PartiesHIND SALEH, Petitioner, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent. AEAD FARHAN, Petitioner, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.
CourtU.S. District Court — Western District of New York

ANNE E. DOEBLER, ESQ.

Attorney for Petitioners

TRINI E. ROSS

UNITED STATES ATTORNEY

Attorney for Respondent

DANIEL BARRIE MOAR

Assistant United States Attorney, of Counsel

ADAM A. KHALIL

Assistant United States Attorney, of Counsel

DECISION AND ORDER

LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

JURISDICTION

On May 7, 2021, the parties to these actions consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (18-CV-1347F, Dkt. 55; 18-CV-1348F, Dkt. 47). The matter is presently before the court on Respondent's motions for summary judgment filed May 17, 2021 (18-CV-1347F, Dkt. 56; 18-CV-1348F, Dkt. 47).

BACKGROUND

On November 12, 2018, Petitioners Hind Saleh (Saleh) and Aead Farhan (Farhan) (together, Petitioners), a wife and husband then proceeding pro se, commenced these actions 18-CV-1347F (Saleh Action); 18-CV-1348F (Farhan Action), seeking de novo review of the denial of their respective applications for naturalization, pursuant to § 310(c) of the Immigration and Nationality Act (“INA” or the Act), 8 U.S.C. § 1421(c) (“INA Claim”), Saleh Action Petition ¶¶ 31-34; Farhan Action Petition ¶¶ 31-34, and under the Administrative Procedures Act (“APA”), 5 U.S.C §§ 701 et seq. (“APA Claim”) Saleh Action Petition ¶¶ 35-37; Farhan Action Petition ¶¶ 35-37. Petitioners named as Respondents then Attorney General William Barr, Acting Secretary of Homeland Security Chad Wolf, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, and Buffalo Field Office Director, USCIS Carmen M. Whalen (together, “Original Respondents). On August 6, 2020, Original Respondents moved to dismiss the Petitions (Saleh Action, Dkt. 33; Farhan Action, Dkt. 27) (motions to dismiss) for naming as respondents various federal officials instead of the United States Customs and Immigration Service (“USCIS”) as required by the relevant regulation, 8 C.F.R. § 336.9(b), as well as Petitioners' APA claims which did not provide for judicial review of Petitioners' naturalization applications which were reviewable in federal district court only pursuant to § 310(c) of the INA, 8 U.S.C. § 1421(c). In a Decision and Order filed February 18, 2021 (Saleh Action, Dkt. 54; Farhan Action, Dkt. 45), District Judge Elizabeth A. Wolford granted the motions to dismiss in both the Saleh and Farhan Actions, dismissing the APA claims and substituting USCIS as the sole respondent for the original respondents who were dismissed in both actions.

On May 17, 2021, Respondent filed in both actions the instant motions for summary judgment[1] (Saleh Action, Dkt. 56; Farhan Action, Dkt. 47), attaching the Declaration of Amanda Pike (Saleh Action, Dkt. 56-1; Farhan Action, Dkt. 47-1) (“Pike Declaration”), with exhibits A through F (Saleh Action, Dkts. 56-2 through 56-7; Farhan Action, Dkts. 47-2 through 47-7) (Pike Dec. Exh(s). __), the Declaration of Matthew Harlach (Saleh Action, Dkt. 56-8; Farhan Action, Dkt. 47-8) (“Harlach Declaration”) with exhibits 1 through 13 (Saleh Action, Dkts. 56-9 through 56-21; Farhan Action, Dkts. 47-9 through 47-21) (Harlach Dec. Exh(s). __), the Declaration of Assistant United States Attorney Daniel B. Moar (Saleh Action, Dkt. 56-22; Farhan Action, Dkt, 47-22) (“Moar Declaration”), with exhibits 14 through 18 (Saleh Action, Dkts. 56-23 through 56-27; Farhan Action, Dkts. 47-23 through 47-27), the Statement of Material Facts Required by Local Rule 56 (Saleh Action, Dkt. 56-28; Farhan Action, Dkt. 47-28) (Respondent's Statement of Facts”), and Respondent's Memorandum of Law in Support of Motion for Summary Judgment (Saleh Action, Dkt. 56-29; Farhan Action, Dkt. 47-29) (Respondent's Memorandum”). In opposition to Respondent's Motions, Petitioners[2]filed on August 20, 2021, Petitioner's Response to Respondent's Statement of Undisputed Facts (Saleh Action, Dkt. 67 at 1-6; Farhan Action, Dkt. 57 at 1-6) (Petitioners' Responding Statement of Facts”), attaching Petitioner's Response to Motion for Summary Judgment Statement of Facts (Saleh Action, Dkt. 67 at 7-13; Farhan Action, Dkt. 57 at 7-13) (Petitioners' Statement of Facts”), and Petitioner's Memorandum in Opposition to Respondent's Motion for Summary Judgment (Saleh Action, Dkt. 67 at 14-21; Farhan Action, Dkt. 57 at 14-21) (Petitioners' Response”), with exhibits A through E or F (Saleh Action, Dkts. 67-1 through 67-5; Farhan Action, Dkts. 57-1 through 57-6) (Petitioners' Exh(s). __). On September 20, 2021, Respondent filed Respondent's Reply Memorandum of Law in Further Support of Motion for Summary Judgment (Saleh Action, Dkt. 68; Farhan Action, Dkt. 58) (Respondent's Reply”). Oral argument was deemed unnecessary.

Based on the following, Respondent's Motions are GRANTED.

FACTS[3]

Petitioners Hind Saleh (Saleh) and Aead Fahran (Fahran) are natives of Iraq. In 1996, Fahran, then a teenager, was arrested in Iraq and sentenced to three years of incarceration in an Iraqi prison for a gun crime, and served two years and three months of the sentence. Saleh and Farhan (together, Petitioners), were married on March 13, 2003, in Ramadi, Iraq (“Ramadi”), after which Saleh moved into her in-laws' house in Ramadi. In addition to Petitioners, the household (“the Farhan household”) included Farhan's parents, and siblings among which were Farhan's brothers Imad who was two years older than Farhan, and Ziyad who was younger than Farhan[4] (“Farhan's brothers).[5] As a member of the Farhan household, Saleh assisted her mother-in-law with maintaining the household including cooking, cleaning, and serving meals. Because Farhan's brothers were present in the Farhan's household, they also benefitted from Saleh's contributions to the household although Saleh did not socially interact with Farhan's brothers and Saleh's knowledge of their activities was limited to what Saleh overheard. Saleh maintains she was afraid of Farhan's brothers and knew Imad was a “fighter.” Petitioners' Responding Statement of Facts ¶ 7.

On March 20, 2003, Operation Iraqi Freedom was launched when the United States military led a coalition (“the Coalition Forces”) in invading Iraq. Ramadi, as the capital of Iraq's Al Anbar province, became a focal point of the military conflict which also included numerous insurgent groups that often opposed the Coalition Forces. One such insurgency group was Al Qaeda, [6] which is designated under the INA as a “Tier I terrorist organization.” 8 U.S.C. § 1189(a). Fahran's brothers were members of Al Qaeda. Imad killed numerous people and was involved in an Iraqi prison escape in which several Iraqi prison guards and police officers were killed. Ziyad was also a member of Al Qaeda but his contributions were mainly limited to providing such ancillary support as maintaining vehicles for the organization.

In contrast to his brothers, Farhan worked in Iraq for the Ministry of Education and was friends with the Governor of Al Anbar, Ahmed Khalaf Mohamed, also known as Ahmed Khalaf Al-Dulami. Between 2004 and 2007, Farhan voluntarily acted as an informant to the U.S. military forces (“U.S. Military”) in Iraq, often providing information received from Imad to the U.S. Military, but not revealing to the U.S. Military that the source of the information was Fahran's brother, Imad. According to Farhan, he covertly worked with the Iraqi government and Coalition Forces including the U.S. Department of Defense (“DOD”), Central Intelligence Agency (“CIA”), and the Joint Special Operations Task Force (“JSOTF”). Farhan met weekly with Coalition Forces at “Camp Blue Diamond” which was a Coalition Forces base in Ramadi. In connection with his covert work with the Coalition Forces, Farhan was provided with a satellite phone, computer, and a device used for locating military objectives by Coalition Forces, but declined to accept a larger suitcase device which Farhan feared he would not be able to keep from being discovered at his home. In connection with his covert work, Farhan facilitated the targeting of his childhood friend, one Rafa Abdul Salam (“Rafa”), [7] an Al Qaeda member in Iraq, who was killed by a U.S. Military airstrike. Farhan did not disclose his covert work until after Petitioners came to the United States and Saleh maintains she was aware Farhan's brothers were “fighters” for the insurgency, but was unaware of any particular activities in which the brothers engaged in furtherance of the insurgency.

On January 10, 2007, Fahran was shot in the head and sustained a traumatic brain injury. Fahran later learned he had been targeted by several of Ziyad's friends to retaliate against Fahran for providing information to the U.S. Military. In Iraq, Fahran was unable to obtain appropriate treatment for his head injury which affected Fahran's memory and rendered him wheelchair bound for two years, so Petitioners went to Syria for Fahran's treatment. Petitioners stayed in Syria for several years. Petitioners initially lived in Syria with Imad and his family until Imad returned to Iraq at some unidentified time before 2010. Upon returning to Iraq, Imad was arrested and sentenced to prison for his involvement with Al Qaeda including murdering others. In December 2008, Imad managed to escape from prison but was killed by Iraqi police.

On December 5, 2007, Petitioners applied through United Nations High Commissioner for Refugees (“UNHCR”) in Damascus, Syria, for admission as refugees to the United States by filing with USCIS a...

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