United States v. Khan

• Decision Date: 03 April 2020
• Docket Number: NO. 3:17-cv-965-J-PDB,3:17-cv-965-J-PDB
• Court: U.S. District Court — Middle District of Florida
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. PARVEZ MANZOOR KHAN, A/K/A MOHAMMAD AKHTAR, A/K/A JAWEED KHAN, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. PARVEZ MANZOOR KHAN,A/K/A MOHAMMAD AKHTAR, A/K/A JAWEED KHAN, Defendant.

NO. 3:17-cv-965-J-PDB

United States District Court Middle District of Florida Jacksonville Division

April 3, 2020

Findings of Fact and Conclusions of Law¹

The United States seeks denaturalization of Parvez Manzoor Khan, bringing three causes of action against him under 8 U.S.C. § 1451(a). Doc. 1. The Court issues these findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a).

I. Overview

In an order denying cross motions for summary judgment, the Court foundseveral facts material and not genuinely in dispute and ruled, under Federal Rule of Civil Procedure 56(g), those facts are treated as established.² Doc. 41 at 58. Neither party challenges that finding.

For material disputed facts, the Court conducted a non-jury trial on April 2, 2019. Doc. 51. Afterward, the parties submitted proposed findings of fact and conclusions of law, and the government added supplemental authority. Docs. 57, 58, 64. The parties presented closing arguments on July 30, 2019. Doc. 61.

At the trial, the government presented testimony of two witnesses: Khan and Lisa Pellechia (an Immigration Services Officer). Doc. 52 at 15-245. Khan presented testimony of two witnesses: Betty Louise Khan (his wife) and Suhail Khan (his brother). Doc. 52 at 249-76, 279-319.

The Court admitted into evidence two joint exhibits: an A-File for Khan with personal identifiers and sensitive information redacted (Jt. Ex. 1; Docs. 51-1-51-4); and the same A-File without the redactions (sealed Jt. Ex. 2; Doc. 54).³ Doc. 52 at 9.

Without objection, the Court admitted into evidence fourteen exhibits offered by the government: a transcript and a video recording of a deposition of Xiomara Flores (a U.S. Customs and Border Protection [CBP] Officer) (Pl. Exs. 1 & 2; Docs. 51-5, 51-6); a transcript and a video recording of a deposition of Eduardo Reveles (a CBP Officer) (Pl. Exs. 3 & 4; Docs. 51-7, 51-8); a transcript and a video recording of a deposition of Sarah Wescott (a CBP Officer) (Pl. Exs. 5 & 6; Docs. 51-9, 51-10); a certified copy of Khan's Form N-400 (sealed Pl. Ex. 7; Doc. 55); a certified copy ofKhan's Form I-485 (sealed Pl. Ex. 8; Doc. 56);⁴ a stipulation (Pl. Ex. 9; Doc. 51-13); a completed Form I-877 (Pl. Ex. 10; Doc. 51-14);⁵ a "Warning as to Rights" and a "Health Questionaire" [sic] (Pl. Ex. 11; Doc. 51-15);⁶ a laboratory report (Pl. Ex. 12; Doc. 51-16); and affidavits of Khan and Suhail Khan (Pl. Exs. 13, 14; Docs. 51-17, 51-18). Doc. 52 at 10-14, 20, 303.

Without objection, the Court admitted into evidence three exhibits offered by Khan: filings in the Supreme Court of California (Def. Ex. 2; Doc. 51-19);⁷ a news release by the U.S. Department of Justice (Def. Ex. 3; Doc. 51-20); and a report by the Office of Inspector General for the U.S. Department of Homeland Security (Def. Ex. 4; Doc. 51-21). Doc. 52 at 321-23.

At the close of the government's case, Khan moved to dismiss, arguing the government had not proved any omission would have caused him to be denied lawful permanent residency or citizenship. Doc. 52 at 246. The Court took the motion under advisement. Doc. 52 at 248. The Court denies the motion for reasons that follow.

II. Findings of Fact

The findings of fact are from credibility findings; from the facts found material, not genuinely in dispute, and treated as established under Rule 56(g) in the order on the cross motions for summary judgment, Doc. 41; and from the evidence admitted at trial.

The Court's credibility findings are based on the witness's tone and demeanor, the witness's opportunity to know about the topic of the testimony, the witness's ability to remember, the witness's interest in the outcome, the witness's familial or other bias, the incredibility of the witness's testimony given documentary and other evidence, and other reasons specified in the footnotes that follow.

Considering those indicators of credibility, the Court finds Pellechia's testimony credible and some of Khan's, Betty Khan's, and Suhail Khan's testimony credible. Where a witness testified contrary to a finding of fact, the Court makes a credibility finding against the witness's testimony.

A. Entry, Exclusion Proceedings, and Asylum Request

Parvez Manzoor Khan was born in Pakistan on [Redacted] 1957, to Manzoor Ahmad Khan and Razia Beguni.⁸ Doc. 52 at 16, 45, 274, 283, 291; Jt. Exs. 1 & 2 at 162, 164, 167, 169-70, 173, 176. He has three siblings: Javed (his twin brother), Zubair, and Suhail Khan. Doc. 52 at 17, 280, 281. Javed Khan lives in Pakistan, and Zubair and Suhail Khan live in the United States. Doc. 52 at 17, 291. Khan has never had a serious medical issue or a drug or alcohol problem. Doc. 52 at 17.

On December 7, 1991, Khan, then age 34, arrived in Los Angeles, California,aboard Korean Airlines on Flight KE002, which was a direct flight from Karachi, Pakistan. Doc. 41 ¶ 2; Doc. 52 at 22-23; Jt. Exs. 1 & 2 at 273. Because he had never traveled outside of Pakistan, the date was significant to him. Doc. 52 at 22.

Khan knew he would need a passport and a visa to travel to the United States but feared he would not get one because of insufficient money and business ties in Pakistan. Doc. 52 at 25, 101, 132-33. In Pakistan, for a couple thousand dollars, he bought a Pakistani passport stamped with a U.S. B-2 Visitor Visa. Doc. 41 ¶ 4; Doc. 52 at 24, 32-33; Jt. Exs. 1 & 2 at 572-91. The passport was issued to and in the name of "Mohammad Akhtar" with a birthdate of [Redacted] 1958, but Khan's image was inserted for the photograph.⁹ Doc. 41 ¶ 4; Doc. 52 at 24; Jt. Exs. 1 & 2 at 585-86.

On landing in the United States, Khan was happy and excited but also worried and scared because he was using someone else's passport. Doc. 52 at 26. He exited the airplane, joined a long line of passengers for an immigration inspection, and waited his turn to be called to a booth. Doc. 52 at 29-31. He saw other passengers called before him being questioned at the booths and understood immigration officers were deciding whether to permit them to enter the United States. Doc. 52 at 30-31.

Khan's Form I-94 (Arrival Record) states his name is "Mohammad Akhtar" and his birthdate is [Redacted] 1958, as represented in the altered passport. Doc. 41 ¶ 3; Jt. Exs. 1 & 2 at 524. He completed a Customs Form 6059B (Customs Declaration) using that name and birthdate, writing his airline/flight number, checking boxes conveying he is not a U.S. citizen and does not reside permanently in the United States, and writing his expected stay is 15 days. Jt. Exs. 1 & 2 at 570-71. But he expected to stay indefinitely.¹⁰

When Khan's turn arose, he was called to a booth, where he presented the passport to an immigration officer. Doc. 52 at 30-31. He knew the passport was issued to someone else but the photo was of himself, and he understood by handing the officer the passport, he was asking the officer for permission to enter the United States. Doc. 52 at 32-33, 101. The officer asked him where he had obtained the passport. Doc. 52 at 31-32. He responded, "This is my passport." Doc. 52 at 32. The officer replied no and called over someone who led Khan to secondary inspection for questioning. Doc. 52 at 32, 33; Jt. Exs. 1 & 2 at 242.

Immigration officers determined the passport had been altered. Doc. 41 ¶ 5; Jt. Exs. 1 & 2 at 253, 515. According to a memorandum prepared at the time:

The photograph on page 03 was substituted into the passport that the subject presented for inspection. The wet seal located on the page runs under the photo and is of uneven dimension, the inside line is smaller than the line outside the picture.

The signature of the issuing officer on the subject's picture was tampered with and a different ink was used which is easily detected when compared to the original signature on the cover page and page 32.

On page 19 the maceration "PHOTOGRAPH ATTACHED FOREIGN SERVICE UNITED STATES OF AMERICA" which is placed from the photo onto the page has no similarities and are not uniformed [sic].

Doc. 41 ¶ 5; Jt. Exs. 1 & 2 at 253, 515.

The memorandum states Khan speaks Punjabi and explains, "No statement was taken from subject due to the subject[']s inability to speak and understand sufficient English, and the lack of a translator."¹¹ Doc. 41 ¶ 6; Jt. Exs. 1 & 2 at 242, 253. Another memorandum prepared at the time repeats that Khan speaks Punjabi. Doc. 41 ¶ 7; Jt. Exs. 1 & 2 at 511. Khan's native language is Urdu. Doc. 52 at 18.

On the day of his arrival, Khan, in the name "Mohammad Akhtar," was personally served with a Form I-122 (Notice to Applicant Detained for Hearing Before Immigration Judge), which initiated exclusion proceedings against him.¹² Doc. 41 ¶ 12; Jt. Exs. 1 & 2 at 513. The notice charged him with inadmissibility under three provisions of the Immigration and Nationality Act, stating, "You do not appear to me to be clearly and beyond a doubt entitled to enter the United States as you may come within the exclusion provisions of Section[s] 212(a)(5)(A)(i); 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the ... Act[.]"¹³ Doc. 41 ¶ 13; Jt. Exs. 1 & 2 at 262-63. The noticecontinues, "Therefore you are detained under the provisions of Section 235(b) ... for a hearing before [an] Immigration Judge to determine whether or not you are entitled to enter the United States or whether you shall be excluded and deported." Doc. 41 ¶ 14; Jt. Exs. 1 & 2 at 262-63.

An alien can be detained without a formal criminal charge. Doc. 52 at 232. Khan was detained and transported for exclusion proceedings in Los Angeles. Doc. 41 ¶ 15; Doc. 52 at 33; Jt. Exs. 1 & 2 at 513, 516. He was fingerprinted under the name on the altered passport, "Mohammad Akhtar." Doc. 41 ¶ 16; Jt. Exs. 1 & 2 at 565.

On December 12, 1991 (five days after arrival), Khan appeared for a hearing before an immigration judge at his detention center. Doc. 52 at 40-41, 43-44; Jt. Exs. 1 & 2 at 533, 540....