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applying the preponderance of the evidence standard
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Civil Action No. 3:03-CV-1342-G.
June 16, 2004
MEMORANDUM OF DECISION
Before the court is the petition of Zaher Mohammed Abu Saad ("Abu Saad") for review of the decision of the Dallas District Office of the Bureau of Citizenship and Immigration Service ("BCIS") denying his application for naturalization. The court conducted a non-jury trial concerning Abu Saad's petition on May 5, 2004. Having received and considered the evidence presented and the arguments of counsel, and based upon the applicable law, the court hereby renders the following findings of fact and conclusions of law as required by FED. R. CIV. P. 52(a).
On March 1, 2003, the Immigration and Naturalization Service ("INS") was transferred into a new agency — the Department of Homeland Security ("DHS"). As part of this transfer, program responsibility for naturalization was shifted from the Attorney General and the INS to the BCIS, a division of DHS. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, 2195 (2002). The Secretary of DHS, Tom Ridge, succeeded the Attorney General as the department head of the former Immigration and Naturalization Service. The defendant Eduardo Aguirre is currently the Commissioner of the BCIS. The defendant Angela K. Barrows is currently the District Director for BCIS in Dallas, Texas.
I. FINDINGS OF FACT
Abu Saad is a native and citizen of Jordan. Stipulated Facts ¶ 1, located in Parties' Joint Pretrial Order. He entered the United States on December 26, 1987 with a non-immigrant F-1 Student visa to attend North Texas State University in Denton, Texas. See Stipulated Facts ¶ 2; Respondents' Proposed Findings of Fact and Conclusions of Law ("Respondents' Findings Conclusions") ¶ 1.
After living in the United States for a few years, Abu Saad met Deborah Joan Walker ("Walker"), a United States citizen, in Dallas, Texas, in June 1990. Respondents' Findings Conclusions ¶ 3. After dating for only a few weeks, Abu Saad and Walker were married on July 6, 1990. Id.; Stipulated Facts ¶ 3. As a result of this marriage and through the petition of Walker for his residency, Abu Saad became a conditional permanent resident of the United States on April 3, 1991. Stipulated Facts ¶ 3.
On August 25, 1992, Walker filed a petition for annulment of the marriage in the 219th Judicial District Court of Collin County, Texas, alleging that she was induced to marry Abu Saad by fraud. See Original Petition to Annul Marriage ¶ 4, attached to Respondents' Exhibit List as Exhibit 6; see also Stipulated Facts ¶¶ 4, 6; Respondents' Findings Conclusions ¶ 5. In her annulment petition, Walker asserted that she no longer resided with Abu Saad and that she had not voluntarily cohabited with him since learning of the fraud. See Original Petition to Annul Marriage ¶ 4; Stipulated Facts ¶ 4. Abu Saad was served with this petition, but he never appeared and, consequently, defaulted in the annulment proceeding. Stipulated Facts ¶ 4. The state court entered a decree annulling the marriage between Abu Saad and Walker on January 29, 1993. See generally Decree of Annulment, attached to Respondents' Exhibit List as Exhibit 7; see also Respondents' Findings Conclusions ¶ 6. No direct appeal was ever taken of this judgment of annulment. Respondents' Findings Conclusions ¶ 6; see also Trial Record ("TR") at 24-25.
On August 26, 1992, Walker submitted a copy of the Petition for Annulment to the INS and a videotape was made of her sworn statement accompanying that petition by INS Officer John Michael Peace ("Officer Peace"). Stipulated Facts ¶ 5.
The Decree of Annulment was judicially rendered on January 29, 1993, but was not signed until February 10, 1993. Stipulated Facts ¶ 6.
The facts show that Abu Saad and Walker were living together after the filing of the annulment petition and prior to entry of the court order granting the annulment — even until January 28, 1993, the day before the annulment was judicially rendered. See Petitioner's Proposed Findings of Fact and Conclusions of Law ("Petitioner's Findings Conclusions") ¶¶ 9, 10; see also TR at 34, 35, 39-40, 67. In fact, the annulment decree contained an order requiring Abu Saad to vacate the property by February 1, 1993, and permanently enjoined Abu Saad from entering, remaining, or coming within 50 feet of Walker's residence. See Decree of Annulment at 5-6; see also Respondents' Findings Conclusions ¶ 6; Petitioner's Findings Conclusions ¶ 11. The evidence also shows that Abu Saad and Walker reconciled and were living together soon after the annulment decree was issued on January 29, 1993. See TR at 39-40.
On March 25, 1993, Abu Saad and Walker together submitted a Petition to Remove Conditions on Residence ("I-751 Petition"). Stipulated Facts ¶ 8; see also I-751 Petition at 1-2, attached to Respondents' Exhibit List as Exhibit 8. On the I-751 Petition, at 1, Abu Saad indicated: "[m]y conditional residence is based on my marriage to a U.S. citizen or permanent resident, and we are filing this petition together." Thus, Abu Saad's petition was based upon the annulled marriage to Walker, which he represented to be valid. See id. (designating the "Date of Marriage" as "7/6/90"); see also Respondents' Findings Conclusions ¶ 7. Although the packet was prepared and submitted by Walker, Stipulated Facts ¶ 8, Abu Saad signed the I-751 petition certifying under penalty of perjury that all information was true and correct. See I-751 Petition at 2; TR at 38; see also Respondents' Findings Conclusions ¶ 7. On April 13, 1993, the INS procedurally "removed" the conditions of Abu Saad's status and he facially became a lawful permanent resident alien. See Notice of Removal of Conditional Basis of Lawful Permanent Residence, attached to Respondents' Exhibit List as Exhibit 9.
Abu Saad could have indicated on the I-751 Petition that he "entered into the marriage in good faith, but the marriage was terminated th[r]ough divorce/annulment." See I-751 Petition at 1.
The I-751 Petition also included a hand-written letter from Walker stating that the couple was residing together at the time the petition was filed. See Stipulated Facts ¶ 8.
Abu Saad and Walker celebrated another ceremonial marriage on April 26, 1993. See Marriage License ("1993 Marriage License"), attached to Respondents' Exhibit List as Exhibit 10; Stipulated Facts ¶ 9. The couple lived together for a short period of time and later divorced on November 2, 1993. Final Decree of Divorce, attached to Respondents' Exhibit List as Exhibit 11; see also Stipulated Facts ¶ 9. To date, Abu Saad and Walker have not reconciled. See TR at 55.
The parties stipulated that Abu Saad and Walker celebrated this second ceremonial marriage on April 26, 1993. Stipulated Facts ¶ 9. The Marriage License reflects, however, that it was issued on April 26 but that the marriage ceremony did not occur until May 22, 1993. See Respondents' Exhibit 10.
On February 21, 1996, Abu Saad filed an Application for Naturalization (or "Naturalization Application") with the INS seeking to become a naturalized United States citizen. Application for Naturalization, attached to Respondents' Exhibit List as Exhibit 12; see also Stipulated Facts ¶ 10. Abu Saad signed the application under penalty of perjury, certifying that "this application, and the evidence submitted with it, is all true and correct." Application for Naturalization at 4. In Part 2 of the application, entitled "Basis for Eligibility," Abu Saad indicated that he had "been a permanent resident for at least three (3) years" and that he had "been married to a United States Citizen for those three years." Id. at 1.
Abu Saad stated in Part 5 of the application, entitled "Information about your marital history," that he had been married only "1" time. Application for Naturalization at 2. And where this Part stated, "If you are now married, complete the following regarding your husband or wife," someone filled in the name of Deborah Walker. See id. Cf. TR at 43.
On April 11, 2001, the INS denied Abu Saad's Naturalization Application based upon a finding that he had committed fraud in obtaining his original lawful permanent resident status. Decision ("Naturalization Decision") at 1-2, attached to Respondents' Exhibit List as Exhibit 15. The INS determined that Abu Saad was ineligible for naturalization because he did not meet the requirements for good moral character under section 316(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1427(a)(3), and Title 8, Code of Federal Regulations, Part 316.10(b)(2)(vi), because he had given false testimony to obtain a benefit under the INA. See generally Naturalization Decision; Decision on Request for Hearing on a Decision Naturalization Proceedings under Section 336 of the Act ("Decision on Request for a Hearing"), attached to Respondents' Exhibit List as Exhibit 16. Abu Saad requested a hearing on the denial, but the INS denied that request on February 18, 2003. See id.
Abu Saad had an initial naturalization interview on February 6, 1998. However, he failed to attend his second naturalization interview on January 18, 2000, and his application for naturalization was denied that day for failure to appear. See Decision, attached to Respondents' Exhibit List as Exhibit 13. On February 7, 2001, the INS reversed the January 18, 2000 denial for failure to appear and reopened the naturalization process. See Motion to Reopen and Reconsider, attached to Respondents' Exhibit List as Exhibit 14.
Although the BCIS previously maintained that Abu Saad's marriage to Walker was fraudulent, see Naturalization Decision at 1-2; Decision on Request for a Hearing at 3, it abandoned this contention in closing argument. TR at 125.
On June 17, 2003, Abu Saad filed his petition seeking de novo review, under 8 U.S.C. § 1421(c), of the denial of his application for naturalization. See Docket Sheet; Petition for Review; see also Respondents' Findings Conclusions ¶ 23; Petitioner's Findings Conclusions at 4 ¶ 2.
II. CONCLUSIONS OF LAW A. Judicial Review of Naturalization Denials
The denial of a Naturalization Application is reviewed de novo by a district court, pursuant to the Immigration and Nationality Act. 8 U.S.C. § 1421(c). See Amended Petition for Review § I. Section 1421(c) provides:
A person whose application for naturalization . . . is denied, after a hearing before an immigration officer under section 1447(a) of this Title, 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.8 U.S.C. § 1421(c); see also Aparicio v. Blakeway, 302 F.3d 437, 440 (5th Cir. 2002) ("Rather than conducting an administrative review, the district court reviews the case de novo and makes its own findings of fact and conclusions of law."); 8 C.F.R. § 336.9(a) ("[ 8 U.S.C. § 1421(c) provides] the sole and exclusive procedures for requesting judicial review of final determinations on applications for naturalization . . ."). Another federal court has stated that a district court "must decide the issues upon the testimony which it hears, and that neither the testimony heard by the [BCIS] Examiner, his findings, nor his recommendation are of any consequence." Application of Murra, 178 F.2d 670, 672 (7th Cir. 1949) (citation and quotation marks omitted).
Before reaching the merits of Abu Saad's case, there are two questions the court must answer regarding its power of judicial review. First, whether Abu Saad has exhausted administrative remedies under 8 U.S.C. § 1421(c) where a hearing has not been conducted before an immigration officer. Second, whether this court has subject matter jurisdiction to conduct a de novo review of the denial of naturalization where removal proceedings are occurring simultaneously. The court concludes, after considering these questions, that it has jurisdiction under 8 U.S.C. § 1421(c) to review de novo the denial of Abu Saad's Application for Naturalization.
1. Exhaustion of Administrative Remedies
The first question the court must answer is whether Abu Saad is entitled to de novo review of the BCIS's denial of his Application for Naturalization where he was denied a hearing before an immigration officer. He is.
Under section 1421, administrative review of naturalization denials is a prerequisite for judicial review. See 8 U.S.C. § 1421(c) (requiring "a hearing before an immigration officer" before seeking judicial review in a district court); see also 3C AM. JUR. 2D ALIENS AND CITIZENS § 3002 (2003) (finding that a naturalization denial is "not subject to judicial review until the applicant has exhausted those statutory administrative remedies available to the applicant"). Interpreting this section, the Fifth Circuit recently stated in Aparicio:
Applicants may only appeal to the district court . . . if they either sought administrative review and the application was again denied, or if they sought administrative review and the review was delayed for more than 120 days.302 F.3d at 440 (citation omitted); see also Levy v. Davis, 83 Fed. Appx. 602, 2003 WL 22903857 at *1 (5th Cir. 2003) (per curiam) (finding that the district court was without jurisdiction to review the denial of plaintiff's application for naturalization where he failed to comply with the applicable regulations for obtaining an immigration hearing); Chavez v. Immigration and Naturalization Service, 844 F. Supp. 1224, 1225 (N.D. Ill. 1993) (stating that Congress did not intend "to permit a district court to circumvent the appeals process provided for by statute").
In this case, after the BCIS denied his application for naturalization, Abu Saad timely filed a request for administrative review, under 8 U.S.C. § 1447(a), of the denial of his application for naturalization. See Decision on Request for a Hearing at 1 ("Your Request for [a] Hearing . . . was filed timely"). Abu Saad was denied a hearing before an immigration officer on February 18, 2003. See generally id. Because Abu Saad was denied further administrative review, he has exhausted the administrative remedies available to him and has satisfied the jurisdictional prerequisite of 8 U.S.C. § 1421(c).
8 U.S.C. § 1447(a) provides that "[i]f, after an examination under section 1446 of this title, an application for naturalization is denied, the applicant may request a hearing before an immigration officer."
2. Pending Removal Proceedings
The second question is whether this court has subject matter jurisdiction to conduct a de novo review of the naturalization denial where removal proceedings were commenced after the application for naturalization was denied. It does.On May 22, 2003, DHS charged Abu Saad, in a Notice to Appear personally served on him, with being removable for obtaining his lawful permanent resident status through fraud or willful misrepresentation of a material fact. See Record of Deportable/Inadmissible Alien at 2, attached to Respondents' Exhibit List as Exhibit 17; Notice to Appear, attached to Respondents' Exhibit List as Exhibit 18; see also Respondents' Findings Conclusions ¶ 17. Abu Saad denied the charge and on March 17, 2004, the removal case was tried in Immigration Court in Dallas, Texas, before an Immigration Judge ("IJ"). Respondents' Findings Conclusions ¶ 17. The IJ found that Abu Saad was removable as charged for committing fraud or willful misrepresentation of a material fact. See id. ¶ 18; Petitioner's Response to Respondents' Proposed Findings of Fact and Conclusions of Law at 3. No final order has been issued in this removal proceeding.
Abu Saad applied for relief from removal. Respondents' Findings Conclusions ¶ 19. The application for relief was tried on March 18, 2004, and the case was reset for a decision to June 28, 2004. See id. ¶ 20; Petitioner's Response to Respondents' Proposed Findings of Fact and Conclusions of Law at 5.
Whether a district court may review an applicant's naturalization denial where removal proceedings are pending simultaneously is a novel issue. One court recently framed the issue:
While on the one hand, Congress has limited the Attorney General's power to consider petitions for naturalization when a removal proceeding against the petitioner is pending, 8 U.S.C. § 1429, on the other hand, it has authorized district courts to conduct de novo review of the denial of petitions for naturalization. 8 U.S.C. § 1421(c).Apokarina v. Ashcroft, 232 F. Supp.2d 414, 415 (E.D. Pa. 2002). Section 1429 provides, in pertinent part, that "no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest. . . ." 8 U.S.C. § 1429.
A notice to appear issued in a deportation proceeding is regarded as a warrant for arrest. 8 C.F.R. § 318.1. A notice to appear was served on Abu Saad on May 22, 2003. See Notice to Appear at 3; see also Respondents' Proposed Findings of Fact and Conclusions of Law ¶ 17.
Section 1429, however, does not divest a district court of jurisdiction to review the denial of an application for naturalization where the removal proceeding is commenced after the petition for naturalization has been denied. Grewal v. Ashcroft, 301 F. Supp.2d 692, 696 (N.D. Ohio 2004); Ngwana v. Attorney General of the United States, 40 F. Supp.2d 319, 320-22 (D. Md. 1999). See also Apokarina, 232 F. Supp.2d at 417 (finding that the court could not review the denial of plaintiff's application for naturalization where the BCIS began removal proceedings before denying his application); Mosleh v. Strapp, 992 F. Supp. 874, 876 (N.D. Tex. 1998) (same). But cf. Gatcliffe v. Reno, 23 F. Supp.2d 581, 582-83 (D.V.I. 1998) (concluding that a district court may exercise jurisdiction to review naturalization applications filed after the institution of removal proceedings). "If section 1429 divested district courts of jurisdiction to review denials of naturalization applications, INS could effectively circumvent the congressionally mandated de novo judicial review of naturalization decisions simply by initiating removal proceedings pursuant to 8 U.S.C. § 1229." Ngwana, 40 F. Supp.2d at 321-22.
Here, as in Grewal and Ngwana, the BCIS began removal proceedings after Abu Saad's application for naturalization was denied. The BCIS denied Abu Saad's application on April 11, 2001, Amended Petition for Review ¶ VI, and later commenced removal proceedings against him on May 22, 2003. Respondents' Findings Conclusions ¶ 17. The Ngwana court's concerns about the BCIS circumventing de novo review of naturalization decisions permeate Abu Saad's case. Because the removal proceedings were commenced after the denial of Abu Saad's application for naturalization, the court concludes that it does have subject matter jurisdiction over this case.
B. The Naturalization Standard
An applicant seeking naturalization must strictly comply with the requirements for citizenship established by Congress, Fedorenko v. United States, 449 U.S. 490, 506-07 (1981), and bears the burden of establishing "eligibility for citizenship in every respect." Immigration and Naturalization Service v. Pangilinan, 486 U.S. 875, 886 (1988) (quoting Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630, 637 (1967)); 8 C.F.R. § 316.2(b) ("The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization . . ."). "[W]hen doubts exist concerning a grant of [citizenship], generally at least, they should be resolved in favor of the United States and against the claimant." United States v. Manzi, 276 U.S. 463, 467 (1928).
Two of the basic criteria for naturalization are at issue in this case. The first issue is whether Abu Saad is and has been during his period of residency a person of "good moral character." See 8 U.S.C. § 1427(a)(3). The second issue is whether Abu Saad is eligible for naturalization as a permanent resident. To be eligible, Abu Saad must have resided in the United States for five years after having been admitted as a permanent resident alien and prior to the filing of his application. 8 U.S.C. § 1427(a)(1). This period is shortened to three years in the case of the spouse of a United States citizen. 8 U.S.C. § 1430(a).
I. Good Moral Character
To be eligible for naturalization, an applicant must show that he is "a person of good moral character." 8 U.S.C. § 1427(a)(3); see also 8 C.F.R. § 316.2(a)(7). The statutory period for which good moral character is required begins five years before the application for naturalization is filed, and continues until the applicant becomes a United States citizen. 8 U.S.C. § 1427(a)(3); see also 8 C.F.R. § 316.10(a)(1). Determinations of good moral character must be made "on a case-by-case basis taking into account the elements enumerated in [ 8 C.F.R. § 316.10] and the standards of the average citizen in the community of residence." 8 C.F.R. § 316.10(a)(2); see also Brukiewicz v. Savoretti, 211 F.2d 541, 543 (5th Cir. 1954). The burden is on the applicant to demonstrate that, during the statutorily prescribed period, he has been and continues to be a person of good moral character. See 8 C.F.R. § 316.10(a)(1).
Congress has erected several statutory bars to a finding that an applicant possesses good moral character. According to 8 U.S.C. § 1101,
(f) No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was —
* * *
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter . . . 8 U.S.C. § 1101(f)(6). The Supreme Court has interpreted section 1101(f)(6) to "mean precisely what it says" — a person may lack good moral character "on account of having given false testimony if he has told even the most immaterial of lies with the subjective intent of obtaining immigration or naturalization benefits." See Kungys v. United States, 485 U.S. 759, 779-80 (1988) (emphasis added). Indeed, "[i]t is only dishonesty accompanied by this precise intent that Congress found morally unacceptable." Id. at 780 (quotation marks omitted); see also Plewa v. Immigration and Naturalization Service, 77 F. Supp.2d 905, 910 (N.D. Ill. 1999) ("[F]alse testimony coupled with an intent to deceive for the purpose of obtaining citizenship or other benefits is required in order to deny a citizenship application under 8 U.S.C. § 1101(f)(6)."). Hence, false testimony due to a misunderstanding, a misinterpretation, or an innocent mistake is insufficient to deny citizenship for lack of good moral character. See id. at 912 ("[I]t seems incongruous that Congress would consider an innocent mistake, misinterpretation, or incorrect statement as grounds to disqualify an otherwise upstanding person for American citizenship when the speaker had no deceitful intent."); see also Kungys, 485 U.S. at 780 (noting that willful misrepresentations because of embarrassment, fear, or a desire for privacy, are not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character).
The Code of Federal Regulations echoes this sentiment:
(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:
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(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; . . . regardless of whether the information provided in the false testimony was material. . . .8 C.F.R. § 316.10(b)(2)(vi).
In this case, the BCIS contends that, because Abu Saad made intentional misrepresentations regarding his marital status in his I-751 Petition and in his Naturalization Application, he should be denied citizenship because he fails to qualify as someone possessing good moral character. See TR at 14-15, 124-26. Abu Saad, on the other hand, contends that he has the requisite "good moral character" to be naturalized under 8 U.S.C. § 1427(a)(3), see Petitioner's Findings Conclusions at 4, because the information he provided to the INS was truthful and accurate and, if the information was inaccurate, it was the result of misunderstanding or an innocent mistake. See TR at 120.
The evidence shows that Abu Saad did not have a subjective intent to deceive the INS in order to remove the conditions on his permanent residence. Although Abu Saad knew that an annulment had taken place, he did not understand the effect of that annulment under Texas law. See TR at 51-53, 57; Letter from Walker to Officer Peace, INS, at 1. Walker — not Abu Saad — prepared and submitted the I-751 Petition. Stipulated Facts ¶ 8. Although Abu Saad signed the I-751 Petition, he deferred, in filing this joint petition, to Walker's seniority, to her controlling disposition, and to her superior comprehension of the immigration laws. See TR at 40, 41, 45, 52, 57. During trial, Abu Saad was asked whether, "[a]t the time that that I-751 was submitted," he had "any idea that it was the incorrect form of attempting to remove the conditions on [his] residency." TR at 38. He answered simply, sincerely, and in this court's opinion, veraciously, "No, I didn't." Id.
Abu Saad clearly understood that his marriage to Walker had been annulled when he filed his Naturalization Application. He (1) was served with the annulment papers, see Decree of Annulment at 1; TR at 34-35, 49-50; (2) received a copy of the decree granting the annulment, see TR at 50; (3) was "devastated by the annulment," according to Walker, Letter from Walker to Officer Peace, INS, at 1, attached to Petitioner's Trial Exhibit List as Exhibit 22; and, significantly, (4) married Walker for a second time, see 1993 Marriage License; TR at 52.
At the time they were married, Abu Saad was twenty-two years old and Walker was about forty years old. See TR at 32.
In characterizing his relationship with Walker, Abu Saad testified that she was "controlling and manipulative, abusive, obsessive." TR at 40. Even her business partner and close friend, Jamee Jepson, testified that Walker was "a very difficult person," "hard to get along with," and "manipulative." TR at 19, 22.
Moreover, neither the annulment nor the facts surrounding the annulment were concealed from the INS. After the annulment was granted but before the I-751 Petition was filed, Walker disclosed to Officer Peace — an experienced immigration officer — information surrounding the annulment and sought his advice concerning the best course of action to advance Abu Saad through the immigration process. See Letter from Walker to Officer Peace, INS, at 3 ("Mike, Zak [Abu Saad] is willing to start over with immigration if we have to. Please support us as we seek help."); see also TR at 95-96.
Given these facts, the court finds that it was not Abu Saad's intent to deceive the INS concerning his marital status when he and Walker together filed the I-751 Petition. His innocent mistake is not a basis for showing bad moral character.
The evidence also shows that Abu Saad did not have the subjective intent to deceive the INS in order to obtain naturalization. Abu Saad genuinely believed he satisfied the prerequisites of the Naturalization Application, which simply required him (1) to be a permanent resident for at least three years, and (2) to have been married to a United States citizen for those three years. See Application for Naturalization at 1. The test for good moral character is not whether Abu Saad "legally" satisfied the specific prerequisites of the underlying statute, 8 U.S.C. § 1430(a), but whether he had the subjective intent to deceive the INS to acquire citizenship.
There is no question that Abu Saad believed he had been a lawful permanent resident for at least three years. Abu Saad became a conditional permanent resident of the United States on April 3, 1991, see Stipulated Facts ¶ 3, and those conditions were removed on April 13, 1993. See Notice of Removal of Conditional Basis of Lawful Permanent Residence.
Abu Saad sincerely — though mistakenly — believed he qualified for citizenship on the basis of three years of marriage to Walker. He clearly misunderstood the effect of the annulment. Abu Saad testified that he believed he qualified for naturalization "[b]ecause I was married to a U.S. citizen for at least three years." TR at 43. In so stating, he mistakenly adds his annulled marriage of roughly two-years and seven months to his second marriage of roughly six months. Abu Saad also misunderstood that his permanent residency and his marriage needed to run concurrently for three years. See TR at 43. Finally, Abu Saad asserts that he received erroneous advice from the INS regarding what basis of naturalization eligibility to indicate on his application. See TR at 42 ("I went to the [INS] window, and I think one of the INS employees suggested . . . that I would check that box."); see also Plewa, 77 F. Supp.2d at 912. The BCIS did not challenge this assertion.
The court, therefore, finds that Abu Saad honestly believed he was making accurate and truthful statements in his I-751 Petition and his Naturalization Application. His misunderstandings do not amount to a subjective intent to deceive, nor do they amount to bad moral character. See, e.g., Poka v. Immigration and Naturalization Service, No. Civ. A. 3:01-CV-1378, 2002 WL 31121382 at *4 (D. Conn. Sept. 19, 2002) (finding that alien's false testimony before hearing officer that he had never been arrested or convicted for breaking the law was not an intentional misrepresentation and, therefore, was not evidence of bad moral character); DeLuca v. Ashcroft, 203 F. Supp.2d 1276, 1280 (M.D. Ala. 2002) (finding "no evidence of bad moral character" where petitioner erroneously stated that she had not been convicted based on her belief that she had provided accurate information because she had been adjudicated as a youthful offender); Chan v. Immigration and Naturalization Service, No. 00 MISC 243(FB), 2001 WL 521706 at *7-*8 (E.D.N.Y. May 11, 2001) (granting petitioner's application for naturalization because his statements that he had not been arrested "were not misrepresentations aimed to deceive the INS; rather they appear to be the consequences of Chan's confusion, misunderstandings, limited command of English, and lack of a full appreciation of the factors that would constitute and render impregnable his arrest under the American legal system"); Plewa, 77 F. Supp.2d at 912 (granting petitioner's application for naturalization based on finding that, despite petitioner's false testimony that she had not been arrested based on an immigration counselor's erroneous advice, petitioner was a person of good moral character).
In evaluating good moral character, courts have recognized that "[w]e do not require perfection in our new citizens," Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), nor does the law require virtue approaching sainthood. The standard of good moral character for naturalization purposes, is that "petitioner's character must measure up to that of the average citizen in the community in which he resides. . . ." Brukiewicz, 211 F.2d at 543. In making this determination, "wide discretion is vested in the trial judge." Id.
Here, Abu Saad has presented uncontradicted evidence of his good moral character. He has no criminal history. Since arriving in the United States, Abu Saad has held gainful employment, and is a "good worker" who "get[s] along well with the other employees and supervisors." TR at 58, 60. Moreover, several witnesses testified that Abu Saad was an upstanding, honest, and peaceful individual with good moral character. See TR at 60 (Walker Keith Burris); TR at 26 (Khalid Hamidah); TR at 71 (Luay Abu Saad). The court, having reviewed the evidence, including Abu Saad's testimony at trial, finds that Abu Saad measures up to the average citizen in the community and is a person of good moral character, as that term is used in 8 U.S.C. § 1101(f)(6) and 8 U.S.C. § 1427(a)(3).
2. Bases for Naturalization Eligibility
In this case, Abu Saad suggests that his naturalization eligibility rests on two separate bases: (1) he was a five-year permanent resident under 8 U.S.C. § 1427(a)(1), see TR at 2-3; Petitioner's Findings Conclusions at 4; and (2) he lived in marital union with his citizen spouse for three years under 8 U.S.C. § 1430(a). See Application for Naturalization at 1. For the following reasons, the court finds that Abu Saad has failed to prove that he is eligible for naturalization on either basis.
(a) Naturalization as a Five-Year Permanent Resident
Abu Saad argues that he has demonstrated that he satisfies all the prerequisites for naturalization as a five-year permanent resident under 8 U.S.C. § 1427(a)(1). See TR at 2-3; Petitioner's Findings Conclusions at 4. The court disagrees.
Before seeking judicial review, Abu Saad did not exhaust administrative remedies for a denial of naturalization on the basis of 8 U.S.C. § 1427(a)(1). As discussed above, the sole basis of naturalization eligibility alleged by Abu Saad in his Naturalization Application was his marriage to a citizen spouse under 8 U.S.C. § 1430(a). Nowhere in his Naturalization Application did he indicate that he sought citizenship as a five-year permanent resident. See generally TR 96-97. According to the court's reading of 8 U.S.C. § 1421(c), the court cannot review bases for naturalization eligibility not indicated in an applicant's Naturalization Application and neither examined under 8 U.S.C. § 1446 by the BCIS nor heard under 8 U.S.C. § 1447(a) by an immigration officer. Therefore, the court must dismiss without prejudice Abu Saad's petition to review his naturalization application under 8 U.S.C. § 1427(a)(1). See Levy, 2003 WL 22903857 at *1.
(b) Naturalization as the Spouse of a United States Citizen
Abu Saad originally sought naturalization as the spouse of a United States citizen. To satisfy the statutory prerequisites under the citizen spouse provision for naturalization, an applicant must, inter alia, (1) have been a lawfully admitted permanent resident for at least three years, and (2) have lived in marital union with the citizen spouse for the three years immediately preceding the date of filing his application for naturalization. 8 U.S.C. § 1430(a). Under section 1430(a), an alien can apply for expedited naturalization three years after becoming a lawful resident.First, to qualify for naturalization under the citizen spouse provision, the applicant must be a lawful permanent resident of the United States. Id. (requiring that the applicant be "lawfully admitted to the United States for permanent residence"). The term "lawfully admitted for permanent residence" is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C. § 1101(a)(20). The applicant has the burden of proving that he was lawfully admitted to the United States for permanent residence. See 8 U.S.C. § 1429; Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983), cert. denied, 467 U.S. 1219 (1984).
The regulations at 8 C.F.R. § 1.1(p) contain a virtual mirror image of the applicable legal definition of "lawfully admitted for permanent residence."
An alien who acquires permanent residence status through fraud or misrepresentation has never been "lawfully admitted for permanent residence," and is therefore ineligible to legally rely upon the facial or procedural appearance of having such status to obtain a benefit such as naturalization. See Monet v. Immigration and Naturalization Service, 791 F.2d 752, 753 (9th Cir. 1986) (finding that an alien who had concealed a prior drug conviction in obtaining permanent resident status had not been "lawfully" granted that status and could not seek discretionary waiver of deportation); Matter of Longstaff, 716 F.2d at 1441 (finding that the status of being lawfully admitted for permanent residence "denotes compliance with substantive legal requirements, not mere procedural regularity"); see also In re Koloamatangi, 23 I. N. Dec. 548, 549 (BIA 2003) ("Nearly half a century ago . . . the Board and the Attorney General determined that an alien who acquires permanent residence status through fraud or misrepresentation has not made a lawful entry upon which to base eligibility for relief."); see also Matter of T ___, 6 I. N. Dec. 136, 137-38 (BIA 1954); Matter of Wong, 14 I. N. Dec. 12, 14 (BIA 1972), aff'd, 474 F.2d 739 (9th Cir. 1973).
Second, to qualify for naturalization under the citizen spouse provision, an applicant must live in marital union with the citizen spouse during the three years immediately preceding the date of filing his application. See 8 U.S.C. § 1430(a). "An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse." 8 C.F.R. § 319.1(b)(1). Thus, section 1430 requires that the applicant actually reside with the citizen spouse. See United States v. Moses, 94 F.3d 182, 185 (5th Cir. 1996); United States v. Maduno, 40 F.3d 1212, 1215-17 (11th Cir. 1994), cert. denied, 516 U.S. 840 (1995).
In the case sub judice, the BCIS urges that Abu Saad has not satisfied the requirements for naturalization under the citizen spouse provision. First, the BCIS asserts that Abu Saad's March 25, 2003, I-751 Petition was improperly based upon his annulled marriage to Walker. See TR at 14-15. In other words, the BCIS contends that no marriage existed between Abu Saad and Walker at the time he indicated on his I-751 Petition, at 1, that his "conditional residence is based on my marriage to a U.S. citizen. . . ." Second, the BCIS argues that Abu Saad improperly represented on his Naturalization Application on February 21, 1996, that he was married to a citizen spouse. See TR at 125.
Abu Saad, on the other hand, maintains that he has satisfied the requirements for naturalization as a citizen spouse. First, he collaterally attacks the state court's annulment decree, asserting that his marriage to Walker remained valid despite that decree. See Petitioner's Findings Conclusions at 6. Abu Saad suggests that the state court had "no subject-matter jurisdiction" to grant the annulment where, after Walker had discovered Abu Saad's alleged fraud, the couple continued to reside together. See id.; TR at 7. Second, Abu Saad contends that even if the annulment is effective, the couple satisfied the requirements for a Texas common law marriage. See Petitioner's Findings Conclusions at 6; TR at 7.
(i) The Texas Annulment
Abu Saad first contests the validity of the annulment. See Petitioner's Findings Conclusions at 6; TR at 7. The Texas Family Code permits a court to grant an annulment of a marriage if:
(1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and
(2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud. . . .
TEX. FAM. CODE § 6.107 (Vernon 2003). A decree annulling a marriage is not merely a dissolution of the marriage, but a judicial declaration that no marriage ever existed. See 4 AM. JUR. 2D, ANNULMENT OF MARRIAGE § 1. Once a marriage is annulled, it is said to be void ab initio, i.e., void from its inception. See Fernandez v. Fernandez, 717 S.W.2d 781, 782 (Tex.App. — El Paso 1986, writ dism'd).
In Walker's annulment petition, she alleged that Abu Saad "induced [her] to enter into marriage by fraud[,] [and that she had] not voluntarily cohabitated with [Abu Saad] since learning of the fraud." Original Petition to Annul Marriage at 1. The state court, upon Abu Saad's default, found that Walker's "material allegations . . . [were] substantially correct and ha[d] been proved by full and satisfactory evidence." Decree of Annulment at 2. Accordingly, the state court rendered a decree on January 29, 1993 annulling the marriage between Abu Saad and Walker. Stipulated Facts ¶ 6.
Significantly, Abu Saad did not appeal this decree of annulment nor has he made any collateral attack on it — until now. Abu Saad now argues that the state court could not "grant an annulment on the basis of fraud because the parties had not ceased cohabitation as statutorily required." Petitioner's Findings Conclusions at 6; see also TR at 5-7. Indeed, the state court seems to have recognized the couple's continued cohabitation, as it included in the annulment decree an order requiring Abu Saad to vacate the premises by February 1, 1993. See Decree of Annulment at 5. Based on this error by the state court, Abu Saad argues that that court "did not have subject matter jurisdiction under Texas Family Code § 6.107 and should not have entered a default judgment granting the annulment because it could not have granted such a judgment had the proceedings been contested." Petitioner's Findings Conclusions at 6.
Title 28 U.S.C. § 1738 requires that the court give to Texas decrees "the same full faith and credit . . . as they have by law or usage in the courts of [Texas]." Under section 1738, the annulment decree at issue is to be given the same effect in this court as in the 219th Judicial District Court of Collin County, Texas. If Abu Saad could not have collaterally attacked the decree in state court, he cannot do so in federal court. See Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1020 (5th Cir. 1982), cert. denied, 464 U.S. 818 (1983).
Under Texas law, only a void — as opposed to a voidable — judgment or decree is subject to collateral attack. See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987); Little v. Celebrezze, 259 F. Supp. 9, 11 (N.D. Tex. 1966) ("Both Texas and federal authorities recognize that only void judgments as opposed to voidable judgments may be collaterally attacked . . ."). The grounds upon which a collateral attack may be successful are that the court rendering the judgment or decree has (1) no jurisdiction of the person of a party, or his property, (2) no jurisdiction of the subject matter of the suit, (3) no jurisdiction to enter the particular judgment entered, or (4) no capacity to act as a court. Kortebein v. American Mutual Life Insurance Company, 49 S.W.3d 79, 88 (Tex.App.-Austin 2001, pet. denied), cert. denied, 534 U.S. 1128 (2002). "The record must affirmatively show that a court's jurisdiction did not attach in a particular case." Id. (citing Tucker v. Cole, 215 S.W.2d 252, 255 (Tex.Civ.App.-Texarkana 1948, writ ref'd n.r.e.)); see also H.C. Price Company v. Compass Insurance Company, 483 F. Supp. 171, 174 n. 3 (N.D. Tex. 1980) ("Texas limits collateral attack on a judgment to challenges against the prior court's jurisdiction or its power to act as a court."); Little, 259 F. Supp. at 11 ("[O]nly judgments which show a jurisdictional defect on the face of the record are classified as void judgments.").
"Generally, where a judgment is attacked in a way other than a proceeding in the original action to have it vacated, reversed, or modified, or a proceeding in equity to prevent its enforcement, such an attack is considered a collateral attack." 47 AM. JUR. 2D JUDGMENTS § 905 (2003). A direct attack on a judgment, conversely, "is an attempt to change that judgment in a proceeding brought for that specific purpose, such as an appeal or a bill of review." Ranger Insurance Company v. Rogers, 530 S.W.2d 162, 167 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.).
The non-cohabitation requirement in TEX. FAM. CODE § 6.107(b) is not a jurisdictional requirement. Rather, this provision establishes a statutorily-defined element for stating a claim of annulment. See generally Harmon v. Harmon, 879 S.W.2d 213, 216 (Tex.App. — Hous. [14th Dist.] 1994, writ denied) (finding that residency requirements in a suit for divorce are not jurisdictional, but rather establish qualifications of parties necessary for the plaintiff to bring suit). As such, an annulment decree based on false testimony of non-cohabitation would not be void and subject to collateral attack, but merely voidable by direct appeal or suitable equitable proceeding. Errors "such as a court's action contrary to [TEX. FAM. CODE § 6.107(b)], merely render the judgment voidable so that it may be corrected through the ordinary appellate process or other proper proceedings." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).
Abu Saad failed to directly attack the annulment decree in the right tribunal at the right time. Had Abu Saad answered Walker's annulment petition or appeared at the January 29, 1993 non-jury trial in the state court, he could have put Walker to her proof. Alternatively, had Abu Saad challenged the annulment decree on direct appeal, the decree might have been overturned. Instead, Abu Saad proceeded without objecting to the decree until he was denied naturalization in 2001. He may not now assail the decree in a collateral proceeding on the theory that he and Walker failed the non-cohabitation requirement of TEX. FAM. CODE § 6.107(b). In re Garza, 126 S.W.3d 268, 272 (Tex.App. — San Antonio 2003, orig. proceeding) (finding that a voidable judgment — such as an annulment decree — may become valid if it is not timely challenged through direct appeal).
Under Texas law, therefore, the decree annulling the marriage between Abu Saad and Walker is not subject to a collateral attack in Texas state courts. Ergo, this annulment cannot be attacked collaterally in federal court and it is entitled to full faith and credit. See 4 AM. JUR. 2D, ANNULMENT OF MARRIAGE § 82 (citing Sutton v. Leib, 342 U.S. 402, 408 (1952)). Given the legal effect of the annulment, the court concludes that Abu Saad improperly relied upon his annulled marriage to Walker to remove the conditions on his permanent residency.
(ii) Texas Common Law Marriage
Abu Saad also asserts that he and Walker satisfied the requirements for a common law marriage before he submitted his I-751 Petition. See Petitioner's Findings Conclusions at 6. However, his belated assertion that he relied on a common law marriage is disingenuous. Abu Saad, in fact, relied upon his annulled 1990 ceremonial marriage to Walker — not upon a subsequently arising common law marriage — when he filed his I-751 Petition. See Witter, 113 F.3d at 553 ("Petitioners relied upon their annulled 1988 ceremonial marriage, not upon a subsequently arising common law marriage, when representing that they were married on their visa applications."). In his I-751 Petition, Abu Saad listed "7-6-90" as his "Date of Marriage." I-751 Petition at 1. Moreover, Abu Saad presented no evidence that he or Walker informed the INS that they were relying on a common law marriage arising after the annulment. See Witter, 113 F.3d at 553.
To establish a common law marriage under Texas law, there must be proof that: (1) the man and woman agreed to be married, (2) they lived together as husband and wife after they agreed to be married, and (3) they represented to others that they were married. TEX. FAM. CODE § 2.401(a)(2) (Vernon 2003); see also Witter v. Immigration and Naturalization Service, 113 F.3d 549, 553 (5th Cir. 1997).
Even if the court assumes arguendo that the couple's common law marriage began January 30th, 1993, and that Abu Saad's marriage to Walker was valid when he filed his I-751 Petition on March 25, 1993, Abu Saad was still ineligible for naturalization as the spouse of a United States citizen. Abu Saad's previous marriage to Walker was void ab initio and, in effect, the annulment erased his prior marriage. If Abu Saad and Walker had a common law marriage from January 30th, 1993 until their divorce on November 2, 1993, their marriage could have lasted no longer than nine months. Therefore, under no circumstances was Abu Saad married to Walker, a United States citizen, for three years before filing his Naturalization Application.
No common law marriage could have existed between Abu Saad and Walker prior to January 29, 1993 — the date of the annulment. An annulment necessarily dissolves both ceremonial and common law marriages.
Moreover, Abu Saad clearly was not living in marital union with Walker during the three years immediately preceding the date of filing his application, February 21, 1996. See 8 U.S.C. § 1430(a). In fact, Abu Saad and Walker ceased residing together immediately after their divorce in November 1993. TR at 55. Because Abu Saad was not living in marital union with his citizen spouse up until the time he filed his Naturalization Application, he cannot obtain naturalization under section 1430(a). Moses, 94 F.3d at 185; Maduno, 40 F.3d at 1215-17.
(iii) Summary
In sum, the court concludes that Abu Saad has failed to establish that he is eligible for naturalization based upon his marriage to a citizen spouse under 8 U.S.C. § 1430(a). The state court annulment voided Abu Saad's first ceremonial marriage to Walker, and he relied upon that marriage — not a common law marriage — in seeking to remove the conditions on his permanent residence when filing his I-751 Petition. Moreover, Abu Saad had not been married, nor had he been living in marital union with Walker, for the three years immediately preceding the filing of his Naturalization Application.