United States v. Tall
| Decision Date | 18 February 2021 |
| Docket Number | NO. 5:19-CV-549-FL,5:19-CV-549-FL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MOUSSA TALL, a/k/a BAMOUSSA Tall, Defendant. |
| Court | U.S. District Court — Eastern District of North Carolina |
This matter is before the court on the plaintiff's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (DE 17). Pro se defendant responded in opposition, and plaintiff replied. In this posture, the issues raised are ripe for ruling. For the following reasons, plaintiff's motion for summary judgment is granted.
Plaintiff commenced this action on December 3, 2019, pursuant to 8 U.S.C. § 1451(a), seeking to revoke defendant's United States citizenship, on grounds that defendant procured his naturalization illegally and by willful concealment or misrepresentation of a material fact. After filing a limited notice of appearance, defendant's prior counsel moved for an extension of time to respond to plaintiff's complaint, which was granted on February 10, 2020. Shortly thereafter, defendant's prior counsel moved to withdraw, which the court allowed on February 27, 2020, and defendant began proceeding pro se. Defendant did not answer plaintiff's complaint.
On June 22, 2020, plaintiff filed the instant motion for summary judgment, relying upon a memorandum of law, statement of material facts, and appendix of exhibits thereto, comprising the following: 1) email correspondence between plaintiff's counsel and defendant; 2) declaration of Kathryne Gray; 3) Department of Homeland Security Fingerprint Report; 4) Form 1-589 application for asylum and for withholding of deportation ("Form I-589" or "asylum application") and record of interpreter oath in asylum interview; 5) referral notice from United States Immigration and Naturalization Service ("INS"); 6) notice to appear in removal proceedings; 7) transcript of May 28, 1997, removal hearing before an immigration judge; 8) transcript of July 16, 1997 removal hearing before an immigration judge; 9) transcript of October 22, 1997, removal hearing before an immigration judge; 10) transcript of December 3, 1997, removal hearing before an immigration judge; 11) transcript of May 11, 1998, removal hearing before an immigration judge; 12) May 11, 1998, oral decision of an immigration judge; 13) notice of appeal of immigration judge's decision to the Board of Immigration Appeals; 14) May 30, 2002, decision of the Board of Immigration Appeals; 15) March 2, 2005, warrant of removal/deportation; 16) November 5, 2010, notice to appear for removal; 17) Form 1-485, Application to Register Permanent Residence or Adjust Status ("Form 1-485" or "application to register permanent residence"); 18) defendant's birth certificate; 19) application for employment authorization; 20) Form 6-325A biographic information; 21) declaration of William H. Winfield; 22) Form I-751, Petition to Remove the Conditions on Residence ("Form I-751" or "petition to remove the conditions on residence"); 23) Form N-400, Application for Naturalization ("Form N-400" or "application for naturalization"); 24) declaration of Dana J. Lindauer; and 25) certificate of naturalization.
On June 24, 2020, the court provided defendant notice of plaintiff's motion pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). The notice informed defendant that he:
must respond to the motion with affidavits (written statements signed before a notary public and under oath), declarations (written statements bearing a certificatethat the statement is signed under penalty of perjury), deposition transcripts, discovery responses, sworn statements (bearing a certificate that the statement is signed under penalty of perjury), or other evidence in such a manner so as to persuade the court that a genuine issue of material fact remains to be determined, and that the case should proceed to trial or evidentiary hearing.
(Roseboro Letter (DE 21) at 1). The notice further informed defendant of the requirement for an "Opposing Statement of Facts," including the following information and warning:
Under Local Civil Rule 56.1(a)(2), you MUST file a separate statement with numbered paragraphs responding to each paragraph in the plaintiff's statement of facts. Note that if you fail to respond to any numbered paragraph in the plaintiff's statement of facts, the facts in that paragraph will be deemed to be admitted.
(Id. at 2).
Despite receiving the foregoing notice, defendant did not file an opposing statement of facts, but rather filed a response brief on July 16, 2020, unaccompanied by any affidavit or declaration affirming its authenticity. Plaintiff replied on July 30, 2020, relying upon declaration of Ellen C. Fasano, in support.
On February 27, 1997, defendant submitted an asylum application to INS, under the name "Bamoussa Tall." (Pl. Stat. (DE 19) ¶ 11). Defendant was fingerprinted in connection with his asylum application and he certified under penalty of perjury that the information stated therein was accurate. (Id. ¶¶ 12, 15). As relevant to the instant action, defendant stated in his asylum application that he was born in August 1970 in "Mauritanian (Rosso)"; his nationality was Mauritanian; he last entered the United States on September 16, 1996, in Miami; his address prior to arrival in the United States was in Senegal; his father's name was Cheikh Tall and his nationality was Mauritanian; and his mother's name was Koumoutia Makalow and her nationality was alsoMauritanian. (Id. ¶ 14). Defendant left blank that part of the asylum application which asked whether anyone other than defendant prepared the asylum application. (Id. ¶ 16).
On April 21, 1997, an INS asylum officer interviewed defendant under oath with assistance from a French interpreter, who defendant identified as his friend. (Id. ¶¶ 17-18). At the conclusion of the interview, defendant again signed the asylum application, affirming that he knew of the contents of his application, including any attached documents, and all information contained therein was accurate. (Id. ¶ 20). Thereafter, INS denied defendant's asylum application and referred his case to an immigration judge. (Id. ¶ 21).
After being served with a notice to appear in removal proceedings, defendant appeared in person with his attorney in immigration court for five removal hearings, where he was provided an interpreter. (Id. ¶ 25). At the conclusion of the removal proceedings, on May 11, 1998, defendant testified under oath that he was born in Rosso, Mauritania, and he submitted an affidavit dated December 2, 1997, in which he swore under penalty of perjury that he was a citizen of Mauritania and that the Mauritanian government confiscated his identity card and birth certificate. (Id. ¶¶ 27-28).
On May 11, 1998, the immigration judge denied defendant's application for asylum and ordered him removed to Mauritania with an alternative order of removal to Senegal. (Id. ¶ 29). The immigration judge warned defendant that if the Board of Immigration Appeals affirmed the immigration judge's decision, the removal order would become final and defendant would be ordered to surrender for removal. (Id. ¶ 30). The immigration judge further warned that, if defendant failed to surrender, he would be ineligible for certain forms of relief, including change of his status and adjustment of his status, "or in other words obtaining a green card in the UnitedStates." (Id.). Defendant verbally acknowledged that he understood the immigration judge's admonishments. (Id. ¶ 31).
On appeal, the Board of Immigration Appeals affirmed the immigration judge's order, rendering it a final order of removal. (Id. ¶ 34). Thereafter, on March 2, 2005, a warrant of removal/deportation, was issued for defendant, and on November 5, 2010, a notice to appear for removal, was issued to defendant, requiring him to report for removal to Mauritania on December 14, 2010. (Id. ¶ 36). The notice to appear for removal, was sent by certified mail, return receipt requested, to defendant at the updated address he provided the immigration court as well as his attorney. (Id.). There is no record or other evidence that defendant reported for removal or departed the United States pursuant to the final order or removal against him. (Id. ¶¶ 37-38).
On August 17, 1999, after the immigration judge ordered that defendant be removed, and while defendant's appeal before the Board of Immigration Appeals was pending, defendant submitted to the INS an application for permanent residence, using the identity "Moussa Tall." (Id. ¶ 39). A fingerprint report performed by the Department of Homeland Security confirms that the aliases Moussa Tall and Bamoussa Tall belong to the same person. (Id. ¶ 10).
In his application for permanent residence, defendant stated that he was born in February 1971 in "Bobo-Dioulasso"; his date of last of arrival in the United States was February 16, 1996; his last place of entry into the United States was in New York; his mother's name was Macalou Koumana; his father's name was Tall Sekou; he had never been deported from the United States, or removed from the United States at government expense, nor was he then in deportation proceedings; and he had not 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 otherimmigration benefit. (Id. ¶ 40). In support of his application for permanent residence, defendant submitted a document purporting to be a birth certificate issued by the City of Bobo-Dioulasso for "Tall Moussa", born in February 1971 to father "Tall Sekou" and mother "Makalou Koumana." (Id. ¶ 42). Defendant signed the application for permanent residence, certifying under penalty of perjury that the application, and the evidence submitted therewith, was true and correct. (Id. ¶ 41).
On March 19, 2001, an INS officer interview defend...
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