United States v. Hamed
| Decision Date | 28 November 2018 |
| Docket Number | Case No. 2:18-CV-04024-BCW |
| Citation | 358 F.Supp.3d 865 |
| Parties | UNITED STATES of America, Plaintiff, v. Mubarak Ahmed HAMED, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Christopher W. Hollis, U.S. Department of Justice, Washington, DC, for Plaintiff.
James O. Hacking, III, Hacking Law Practice, St. Louis, MO, for Defendant.
Before the Court is Plaintiff's Motion for Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c). The Court, being duly advised of the premises, grants said motion.
On February 7, 2018, Plaintiff the United States of America ("the Government") filed the above-captioned action to revoke the naturalization of Defendant Mubarak Ahmed Hamed ("Hamed"). In the motion before the Court, the Government seeks judgment on the pleadings on each of its four claims. (Doc. # 17). The Court heard argument on the motion on November 8, 2018. Each party appeared through counsel.
In 1990, Hamed, a native of Sudan, came to the United States to study under an F-1 student visa. In 1991, Hamed became the Executive Director of the Islamic American Relief Agency ("IARA"), which received funds from the U.S. Agency for International Development. As the IARA Executive Director, Hamed negotiated cooperation agreements and authorized financing.
At some point before October 1994, Hamed obtained an immigrant visa through the Diversity Immigrant Visa Program. On October 2, 1994, Hamed applied to the Immigration and Naturalization Service ("INS") to become a lawful permanent United States resident. INS approved the application on February 21, 1995.
On or about November 23, 1999, after having been a lawful permanent United States resident for five years, Hamed applied for naturalization. In his naturalization application, Hamed checked "no" in response to the question asking "[h]ave you ever knowingly committed any crime for which you have not been arrested?," and certified under penalty of perjury that the information provided in the naturalization application was true and correct. Hamed further asserted the same during his INS interview. INS approved Hamed's naturalization application on May 8, 2000.
Thereafter, Hamed received notice that he would take the oath of allegiance to the United States on July 21, 2000. The notice included a questionnaire requiring Hamed to again certify that he had not, after the date of his INS interview, "knowingly committed any crime or offense, for which [he had] not been arrested[.]" Additionally, Hamed again certified that his questionnaire responses were true and correct.
On July 21, 2000, Hamed attended his naturalization ceremony, took the oath of allegiance to the United States, was admitted to United States citizenship, and was issued Certificate of Naturalization No. 25738418.
On October 21, 2008, the Government filed a 41-count indictment against Hamed, charging him with violations of multiple federal criminal statutes in connection with Hamed's work for the IARA.
On June 25, 2010, Hamed pleaded guilty to three counts: (1) conspiracy to violate the International Emergency Economic Powers Act and the Iraqi Sanctions Regulations in violation of 18 U.S.C. § 371 and 50 U.S.C. §§ 1701 - 1706 ; (2) violation of the International Emergency Economic Powers Act and the Iraqi Sanctions Regulations in contravention of 50 U.S.C. §§ 1701 - 1706 ; and (3) corrupt endeavor to obstruct or impede the administration of Internal Revenue laws in violation of 26 U.S.C. § 7212(a). The remaining charges against Hamed were dismissed under the plea agreement. On January 12, 2012, the Court entered judgment against Hamed and sentenced him to a total sentence of 58 months in the custody of the United States Bureau of Prisons, with two years of supervised release to follow.
Fed. R. Civ. P. 12(c) provides that a party may seek judgment on the pleadings. Fed. R. Civ. P. 12(c). "A motion for judgment on the pleadings will be granted only where the moving party has clearly established that no material issue of fact remains and the moving party is entitled to judgment as a matter of law."
Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004) (citations omitted).
A motion under Fed. R. Civ. P. 12(c) is governed by the same standards as a motion under Fed. R. Civ. P. 12(b)(6) : "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (citing Ashley Cnty., Ark. v. Pfizer, 552 F.3d 659, 665 (8th Cir. 2009) ). Further, the court "views all facts pleaded by the nonmoving party as true and grants all reasonable inferences in favor of that party." Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008). While the court's review is generally limited to the pleadings in this context, the court may properly consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
With specific respect to a denaturalization proceeding, the Government bears the burden "to present clear, unequivocal, and convincing evidence that the citizenship was illegally procured." United States v. Al-Aqaili, 550 Fed. App'x 356, 357 (8th Cir. 2014) (citing United States v. Hansl, 439 F.3d 850, 853 (8th Cir. 2006) ). "Citizenship is illegally procured if an applicant failed to comply with the statutory requirements for naturalization." Id. (citing Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ). "When the government succeeds in carrying this heavy burden, a district court must revoke citizenship on the ground that such order and certificate of naturalization were illegally procured." United States v. Jean-Baptiste, 395 F.3d 1190, 1192 (11th Cir. 2005) (citing 8 U.S.C. § 1451(a) ).
The Government alleges Hamed illegally procured naturalization by lack of good moral character through false statements, through crimes of moral turpitude, and through lack of good moral character. (Counts I, II, III). The Government also alleges Hamed improperly procured citizenship through concealment or willful misrepresentation (Count IV).
The issue is whether, based on the current record with all reasonable factual inferences drawn in Hamed's favor, the Government has presented clear, unequivocal, and convincing evidence, with respect to any of the four claims alleged, that Hamed's United States citizenship should be revoked as "illegally procured or [as] procured by concealment of a material fact or by willful misrepresentation." United States v. Nguyen, 829 F.3d 907, 916 (8th Cir. 2016) (citing 8 U.S.C. § 1451(a) ).
Illegal procurement arises when an individual "was statutorily ineligible for naturalization" because he or she does not meet the congressionally imposed requirements for citizenship. United States v. Rubalcava Gonzales, 179 F.Supp.3d 917, 922 (E.D. Mo. 2016) (citing Fedorenko, 449 U.S. at 506, 101 S.Ct. 737 ). One of these requirements is "good moral character" during the "statutory period," which spans from five years before a prospective citizen files his or her application for naturalization until the prospective citizen takes the oath of citizenship. Id.; 8 U.S.C. § 1427(a)(3) ; 8 C.F.R. § 316.10(a)(1).
The determination of good moral character is assessed "on a case-by-case basis" that is guided by a non-exhaustive list of "certain actions or characteristics that preclude persons from establishing good moral character ...." and "the standards of the average citizen in the community of residence." Rubalcava Gonzales, 179 F.Supp.3d at 922 (citing 8 U.S.C. § 1101(f)(1)-(9) ; 8 C.F.R. § 316.10(a)(2) ).
Additionally, an individual is considered to "lack[ ] good moral character and is ineligible for naturalization if he is convicted of or admits the commission of one or more crimes involving moral turpitude during the statutory period, even if the person was never charged, arrested or convicted." Id. (citing 8 C.F.R. § 316.10(b)(2)(iv) ).
Hamed applied for naturalization on November 23, 1999, and took the oath of citizenship on July 21, 2000. Therefore, the statutory period for good character in this case is from November 23, 1994 through July 21, 2000. Though Hamed's date of conviction falls outside the statutory period, he pleaded guilty to violating § 7212(a)"for each year 1997 through 2003," such that Hamed has admitted to committing a crime during the statutory period.
The Government first asserts Hamed is collaterally estopped from denying his criminal conduct. While the Court agrees with Hamed's assertion that this denaturalization action is not identical to the previous criminal action, the Eighth Circuit has found that in the course of a denaturalization proceeding, a defendant is collaterally estopped from "relitigating the issue of whether he knew his conduct was illegal." Al-Aqaili, 550 Fed. App'x at 358 (). The Court thus considers the merits of the Government's motion for judgment on the pleading in light of the finding that Hamed knowingly violated § 7212(a) during the statutory period for good moral character.
The Government argues Hamed's naturalization is illegally procured because he has admitted violation of 26 U.S.C. § 7212(a), a crime of moral turpitude, during the statutory period for good moral behavior. In opposition, Hamed does not dispute that he pleaded guilty to violation of § 7212(a) during the statutory period; however,...
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