United States v. Yetisen
| Decision Date | 28 February 2019 |
| Docket Number | No. 3:18-cv-00570-HZ,3:18-cv-00570-HZ |
| Citation | 370 F.Supp.3d 1191 |
| Parties | UNITED STATES of America, Plaintiff, v. Sammy Rasema YETISEN aka Rasema Handanovic aka Zolja, Defendant. |
| Court | U.S. District Court — District of Oregon |
Steven A. Platt, Timothy M. Belsan, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044, Dianne Schweiner, U.S. ATTORNEY'S OFFICE-DISTRICT OF OREGON, Civil Division, 1000 SW Third Avenue, Suite 600, Portland, OR 97204, Attorneys for Plaintiff
Sammy Rasema Yetisen, 2088 NW Cadbury Ave. # 203, Beaverton, OR 97006, Pro Se Defendant
Plaintiff United States of America ("the Government") seeks to revoke Defendant Sammy Rasema Yetisen's naturalized United States of America ("U.S.") citizenship. The Government alleges that Defendant committed war crimes in her native country, Bosnia, and then procured her U.S. citizenship illegally and by concealment or willful misrepresentation of material fact. The Government moves for judgment on the pleadings. The Court grants the Government's motion because it concludes that Defendant procured her citizenship illegally.
Defendant is a Bosnian Muslim. Compl. ¶ 11, ECF 1. She was born in 1972 in the Socialist Republic of Bosnia and Herzegovina, which was then part of Yugoslavia. Id. at ¶ 8. In the early 1990s, some of Yugoslavia's republics began seceding, which triggered a series of ethnic-based conflicts. Id. at ¶ 14. Tension between Bosnian Muslims and predominantly Roman-Catholic Croats from Bosnia and Herzegovina ("Bosnian Croats") developed into an open conflict known as the Croat-Bosniak War. Id. at ¶ 19.
In January 1993, Defendant joined a special-forces unit within the Supreme Command Staff of the Army of the Republic of BiH (Bosnia and Herzegovina) called the Zulfikar Special Purposes Detachment ("Zulfikar"), VJ5683. Id. at ¶¶ 22, 51. On April 16, 1993, Defendant and other members of Zulfikar attacked the village of Trusina, a village in what is now central Bosnia. Id. at ¶ 25. Defendant and other Zulfikar members targeted Bosnian Croats. ¶¶ 13, 29-30. They executed six Bosnian Croats, three prisoners of war and three civilians, by firing squad. Id. at ¶ 40. They killed sixteen other Bosnian Croats during what became known as the "Trusina massacre." Id. at ¶ 43. In her Answer2 , Defendant states:
What the government says in its papers is not correct. They do not understand war. Yes I was in the civil war. I was 20 years old and a female in an army of men when we went into Trusina. The government writes like I was giving orders but I was not, I did what the commander told us to do.
Less than three years after the Trusina massacre, Defendant sought refugee status at the U.S. embassy in Austria. Id. at ¶ 44. Defendant filed a Form I-590—Registration for Classification as a Refugee on October 31, 1995. Compl. Ex. C. On the form, Defendant sought refugee status based on persecution she faced due to being Muslim. Id. She wrote that she had "nowhere to return to in Bosnia." Id. Defendant states, "I told them I was a solider in the Army and we talked all about it and they saw my condition and what war had done." Answer. On the form, she stated that she had served in the Bosnian army from September 3, 1992 until May 12, 1995, in "branch and organization" VJ 5089. Id. She also wrote: "I fought for Bosnia in the Bosnian army, but when I was no longer able to do battle, I was demobilized and left without help, shelter, and worst of all, without food."Id. She wrote: "I dismissed myself and went to Austria where I have no-one." Id.
On February 2, 1996, Defendant filled out a Form G-646, "Sworn Statement of Refugee Applying for Entry into the United States. Compl. Ex. D. Defendant indicated that she was not a part of "any of the following classes [that] are not admissible to the United States": "Aliens who have committed or who have been convicted of a crime involving moral turpitude[.]"
Id. She also signed the form, thereby assenting to the following statement: "Further, I have never ordered, assisted or otherwise participated in the persecution of any person because of race, religion, or political opinion." Id. Defendant's refugee status was approved on May 2, 1996. Compl. Ex. C. She entered the United States as a refugee on May 15, 1996. Id. ; Compl. ¶ 66.
On June 6, 2001, Defendant applied for naturalization by filing a Form N-400, Application for Naturalization. Compl. Ex. E. Form N-400 required Defendant to mark a "yes" or "no" box next to several "additional eligibility factors." Id. Defendant marked "no" in response to the following two questions:
Id. Form N-400 also required Defendant to list her present and past membership with "any military service." Id. Defendant wrote "none." Id. Defendant signed her Form N-400, under penalty of perjury, attesting that the application was "true and correct." Id. She signed the form again following her naturalization interview. Id. On May 23, 2002, Defendant was issued a Certificate of Naturalization. Compl. Ex. F.
Over nine years later, this Court granted the Government's request for a certificate of extradibility, based on a Warrant of Arrest issued by the Prosecutor's Office of Bosnia and Herzegovina, alleging that Defendant committed war crimes against civilians and prisoners of war. Id. at ¶¶ 90, 97. Magistrate Judge Stewart held that Defendant was extraditable on the alleged offenses that constituted first degree murder. In re Extradition of Handanovic , 829 F.Supp.2d 979, 983 (D. Or. 2011). In December 2011, the Government extradited Defendant to Bosnia and Herzegovina. Compl. ¶ 99.
On April 26, 2012, Defendant entered into a Plea Agreement with the Bosnia and Herzegovina Prosecutor's Office. Compl. Ex. B. Defendant was convicted of violating Articles 173(1)(c) and 175(1)(a) of the Criminal Code of Bosnia and Herzegovina, based on the offenses of War Crimes against Civilians and War Crimes against Prisoners of War. Id. at 3. Defendant was found guilty of "participating in the summary execution" of six Bosnian Croats. Id. at 4. Her acts were found to "have satisfied the underlying elements of the criminal offense of murder by depriving three civilians and three war prisoners of their lives with direct intention, that is, by execution." Id. at 21.
Defendant was sentenced to a term of imprisonment of 5 years and 6 months. Id. at 4-5. After she served time, she was released and she returned to Oregon. Compl. ¶ 104; Answer.
A motion for judgment on the pleadings may be brought after the pleadings are closed but within such time as not to delay the trial. Fed. R. Civ. P. 12(c). Rule 12(c) is "functionally identical" to Rule 12(b)(6) and "the same standard of review" applies to motions brought under either rule. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1054 n. 4 (9th Cir. 2011) (internal quotation marks omitted). "A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." United States v. Teng Jiao Zhou , 815 F.3d 639, 642 (9th Cir. 2016) ; Fajardo v. Cty. of L.A. , 179 F.3d 698, 699 (9th Cir. 1999). In evaluating a motion for judgment on the pleadings, the allegations of the non-moving party are credited as true, whereas those allegations of the moving party which have been denied are deemed false for purposes of the motion. Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1550 (9th Cir. 1989).
A court may properly consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Lee v. City of Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001) ; United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003) (). "However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment." Hal Roach Studios, Inc. , 896 F.2d at 1550.
Under 8 U.S.C. § 1451(a), the government may file a complaint to revoke naturalization if a citizen's naturalization was "illegally procured" or "[was] procured by concealment of a material fact or by willful misrepresentation." Zhou , 815 F.3d at 642 ; 8 U.S.C. § 1451(a).
A naturalized individual's citizenship "should not be taken away without the clearest sort of justification and proof," Schneiderman v. United States , 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), as "its loss can have severe and unsettling consequences," Fedorenko v. United States , 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Due to the extremely high stakes involved, "[t]he evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt." Zhou , 815 F.3d at 642 (citing Federenko , 449 U.S. at 505, 101 S.Ct. 737 ) (internal quotation marks omitted). "If the government meets its high burden, however, a court must enter a judgment of denaturalization—it lacks any discretion to do otherwise." Id.
The Government's Complaint to Revoke Naturalization brings five counts against Defendant, all of which seek the same relief:...
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