Yemer v. U.S. Citizenship & Immigration Servs.

• Decision Date: 12 February 2019
• Docket Number: Civil Case No. 1:18-cv-677
• Citation: 359 F.Supp.3d 423
• Parties: Aster YEMER, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

359 F.Supp.3d 423

Aster YEMER, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

Civil Case No. 1:18-cv-677

United States District Court, E.D. Virginia, Alexandria Division.

Signed February 12, 2019

Tamara Lee Jezic, Yacub Law Office, Woodbridge, VA, for Plaintiff.

R. Trent McCotter, US Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

Plaintiff Aster Yemer, an Ethiopian citizen who has resided in the United States since November 2009, initiated this action pursuant to 8 U.S.C. § 1421(c), challenging the United States Citizenship and Immigration Service's ("USCIS") denial of her naturalization application. Yemer contends the denial was improper because USCIS erroneously concluded that Yemer was not lawfully admitted for permanent residence. USCIS responds that its conclusion was correct and that Yemer's application fails for the additional reason that Yemer cannot establish that she has good moral character.

At issue now are the parties' cross-motions for summary judgment. The parties, by counsel, have fully briefed and argued the motions, and they are now ripe for disposition. For the reasons set forth herein, USCIS's motion must be granted and Yemer's motion must be denied.

I.

Summary judgment is appropriate only where there are no genuine disputes of material fact, Fed. R. Civ. P. 56. Accordingly, the record facts as to which no genuine dispute exists must first be identified. The following undisputed facts are derived from the parties' respective factual narratives and their responses thereto:¹

• Yemer is a native and citizen of Ethiopia.

• Yemer gave birth to a daughter, E.Y.B., in Addis Ababa, Ethiopia in 1999. Yemer was not married to E.Y.B.'s father. As is customary in Ethiopia when a child is born to unwed parents, Yemer's mother cared for E.Y.B. Yemer, Yemer's mother, and E.Y.B. lived together in Addis Ababa.²

• In late 2008, Yemer submitted an electronic entry for the Diversity Immigration Visa Program ("DV program"). Yemer did not include E.Y.B. on her Electronic Diversity Entry Form ("eDV Form").

• Yemer was selected by lottery for further processing in the DV program, and she completed a DS-230 Visa Application, Application for Immigrant Visa and Alien Registration, ("Form DS-230") in June 2009. In response to the question instructing Yemer to "List Names, Dates and Places of Birth, and Addresses of ALL Children," Yemer wrote "NA."

• In connection with the process of submitting Form DS-230, Yemer was placed under oath and interviewed by a consular official in Ethiopia on November 4, 2009. During the interview, Yemer stated that she did not have any children. She also swore that "all statements which appear in [her DS-230] ... are true and complete to the best of [her] knowledge and belief."³

• The Department of State granted Yemer a diversity immigrant visa, and Yemer was admitted into the United States as a lawful permanent resident on November 28, 2009.

• On May 13, 2015, Yemer, seeking to become a United States citizen, filed a Form N-400, Application for Naturalization, with USCIS. Form N-400 instructed Yemer to list all children, and Yemer listed E.Y.B. Additionally, Yemer responded "no" to the following two questions: (i) "Have you ever given any U.S. Government official(s) any information or documentation that was false, fraudulent, or misleading?" and (ii) "Have you ever lied to any U.S. Government official to gain entry or admission into the United States or to gain immigration benefits while in the United States?"

• In connection with her application for naturalization, Yemer was interviewed under oath⁴ on September 1, 2015. The USCIS official asked Yemer whether she (i) had ever given a United States government official information or documentation that was false, fraudulent, or misleading or (ii) had ever lied to any U.S. government official to gain entry or admission into the United States or to gain immigration benefits while in the United States. Yemer orally answered "no" to both questions. Yemer also confirmed that she knew that E.Y.B. was her daughter when she filled out Form DS-230 in 2009 and that she has always known her daughter. Finally, Yemer, under oath, confirmed that the contents of her Form N-400 were "true and correct."

• USCIS sent Yemer a letter on March 7, 2016 denying her naturalization application because she was not lawfully admitted for permanent residence. USCIS reaffirmed its decision to deny Yemer's naturalization application on February 9, 2018 following a hearing.

Yemer subsequently brought this action seeking de novo review of her naturalization application. In her motion for summary judgment, Yemer requests remand to USCIS with instructions to grant her naturalization application. USCIS opposes this relief and, in its cross-motion for summary judgment, seeks a finding that Yemer is not eligible for naturalization.

II.

The summary judgment standard is too well settled to require extensive elaboration. In essence, summary judgment is appropriate under Rule 56, Fed. R. Civ. P., only where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A genuine factual dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court must "view the facts and draw all reasonable inferences in the light most favorable to the non-moving party." Glynn v. EDO Corp. , 710 F.3d 209, 213 (4th Cir. 2013). Importantly, however, the non-movant may not rely on "mere allegations." Id. (citation omitted). Instead, the non-movant "must set forth specific facts that go beyond the mere existence of a scintilla of evidence." Id. (internal quotation marks and citation omitted). Given these principles, it is clear the material facts supporting summary judgment are undisputed and require that USCIS's motion for summary judgment be granted.

III.

The Immigration and Nationality Act ("INA") provides for judicial review of the denial of naturalization applications. Specifically, the INA provides that

A person whose application for naturalization under this subchapter is denied ... may seek review of such denial before the United States district court for the district in which such person resides .... Such review shall be de novo , and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.⁵

8 U.S.C. § 1421(c). Accordingly, judicial review of the denial of a naturalization application is conducted de novo , and review is not limited to the administrative record. See, e.g. , Kariuki v. Tarango , 709 F.3d 495, 502 (5th Cir. 2013) ; Chan v. Gantner , 464 F.3d 289, 291 (2d Cir. 2006).

Importantly, Yemer bears the "heavy burden of proving h[er] eligibility for citizenship." Cody v. Caterisano , 631 F.3d 136, 142 (4th Cir. 2011). In particular, when an alien applies for naturalization, "the burden is on the alien applicant to show [her] eligibility for citizenship in every respect." Berenyi v. Dist. Dir., INS , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). To that end, "doubts should be resolved in favor of the United States and against the claimant." Id. This is so because federal courts "have the power to confer citizenship only ‘in strict compliance with the terms of an authorizing statute.’ " Cody v. Caterisano , 631 F.3d 136, 142 (4th Cir. 2011) (quoting INS v. Pangilinan , 486 U.S. 875, 884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ).

An applicant for naturalization must, among other requirements, establish that (i) she is of good moral character and (ii) she was lawfully admitted as a permanent resident. 8 U.S.C. § 1427(a). With respect to the first requirement—good moral character—an applicant for naturalization must establish that, during the five years preceding the filing of her petition, she has been "a person of good moral character." 8 U.S.C. § 1427(a)(3) ; see also Berenyi v. Dist. Dir., INS , 385 U.S. 630, 631, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). An applicant "who has given false testimony for the purpose of obtaining any [immigration or naturalization] benefits" during the previous five years is precluded from being found to be a person of good moral character. 8 U.S.C. § 1101(f)(6).

With respect to the second requirement, the INA provides that "no person shall be naturalized unless [s]he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter." 8 U.S.C. § 1429. Importantly, it is not enough that an applicant was admitted to the United States as a lawful permanent resident; as the Fourth Circuit has made clear, "to establish that she was lawfully admitted for permanent residence, [an applicant] must do more than simply show that she was granted [lawful permanent resident] status; she must further demonstrate that the grant of that status was in substantive compliance with the immigration laws." Injeti v. USCIS , 737 F.3d 311, 316 (4th Cir. 2013). Given this requirement, USCIS argues that Yemer cannot, as a matter of law, establish either that she is of good moral character or that she was lawfully admitted as permanent resident.

A.

An applicant for naturalization must establish that, during the five years preceding the filing of her petition, she has been "a person of good moral character." 8 U.S.C. § 1427(a)(3) ; see also Berenyi v. Dist. Dir., INS , 385 U.S. 630, 631, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). The INA instructs that "[n]o person shall be regarded as, or found to be, a person of good moral character who, during [the previous five years] ... has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. § 1101(f)(6). Only ...