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finding that "[t]he Affidavit of Good Cause is required only to proceed with the case—not to determine whether the court should grant judgment as a matter of law" and that there is "no law indicating that . . . more demanding standards for affidavit should apply at the initiation of a case"
Summary of this case from United States v. BorgonoOpinion
Case No. 15-9092-CM
11-09-2015
UNITED STATES OF AMERICA, Plaintiff, v. AFAQ AHMED MALIK, Defendant.
FILED UNDER SEAL MEMORANDUM AND ORDER
Plaintiff, the United States of America, brought this action against defendant Afaq Ahmed Malik, claiming that defendant fraudulently obtained United States citizenship. Plaintiff states that defendant concealed and lied about a bigamous relationship. The relationship disqualified defendant from lawfully becoming a United States citizen through the naturalization process. According to plaintiff, although defendant married a United States citizen, he secretly remained married to his first wife—a citizen and national of Pakistan. Defendant also had two children with the wife in Pakistan and concealed the existence of his first wife and children throughout the legal permanent residency application process. The case is before the court on defendant's Motion to Dismiss (Doc. 6).
Defendant asks the court to dismiss the case for several reasons: (1) the court lacks jurisdiction because the Attorney General's Office of Immigration Litigation ("OIL") brought the suit instead of the United States Attorney for the District of Kansas; (2) plaintiff failed to submit an affidavit of the United States attorney stating that there is good cause for the suit; and (3) the declaration attached to the complaint does not adequately substitute for the required affidavit.
This case is authorized and governed by the denaturalization statute, which provides:
It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively . . . .8 U.S.C. § 1451(a) (emphasis added). Defendant focuses on the language of the statute that requires the United States attorneys—not attorneys for the Attorney General's office—to "institute proceedings" and file an affidavit showing good cause. The court turns now to defendant's specific arguments why this case must be dismissed.
Must the United States Attorney File This Action?
First: Must the United States Attorney for the District of Kansas file this action? "The Supreme Court has emphasized that the detailed provisions of the statute set forth an exclusive procedure by which U.S. attorneys, through production of an affidavit showing good cause therefor, may institute proceedings revoking naturalization." In re Benjamin, 217 F. App'x 165, 166 (3d Cir. 2007) (citing United States v. Zucca, 351 U.S. 91, 95, 99 (1956)). In In re Benjamin, the naturalized citizen himself actually filed a motion to revoke his own naturalization because he said that he had procured it through willful misrepresentation. Id. The Third Circuit held that it lacked jurisdiction over the motion because the United States attorney had not instituted the proceedings. Id. Similarly, in Gorbach v. Reno, the Ninth Circuit held that the Attorney General did not have the power to revoke naturalization through administrative proceedings. 219 F.3d 1087, 1093-94 (9th Cir. 2000). But this holding is also limited to prohibit the Attorney General's attempt to denaturalize citizens outside of federal district courts:
There is an express statutory procedure for denaturalization. The statute says that United States attorneys are supposed to bring proceedings "in any district court." Thus the express scheme plainly and unambiguously gives the Attorney General the power to naturalize citizens and to cancel certificates of citizenship but not the citizenship itself, and plainly and unambiguously gives to district courts the power to denaturalize citizens.Id. Gorbach centers on whether the Attorney General holds the power to denaturalize outside of the court system; Gorbach does not address the technical question of who must file suit. Another case cited by defendant—United States v. Clarke, 628 F. Supp. 2d 1, 9 (D.D.C. 2009)—is a criminal case. In Clarke, a criminal defendant asked for the court to declare a victim's citizenship void. 628 F. Supp. 2d at 8. The court held that a criminal action was not the proper venue for revocation of naturalization, quoting Gorbach: "'Congress has provided one way to revoke the citizenship of a naturalized American citizen: that is for a United States Attorney to file a petition in a United States District Court. There is no statutory warrant for a second way . . . .'" Id. at 9 (quoting Gorbach, 219 F.3d at 1099) (emphasis in Clarke).
The complaint in this case was filed by OIL. The United States Attorney for the District of Kansas authorized OIL to file the denaturalization complaint. (See Doc. 9-1.) OIL is within the Department of Justice's Civil Division and reports to the United States Attorney General, as the United States attorney does. In 28 U.S.C. § 517, Congress provided that "any officer of the Department of Justice . . . may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States . . . ." And § 516 further provides, "Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General."
Defendant asks the court to disregard these statutes because they relate to representation after the initiation of a suit. In defendant's view, this is a material difference. Defendant would not, in fact, object to the OIL attorney's representation in the case so long as the United States Attorney for the District of Kansas had initiated the case. But drawing this distinction between initiation of an action and continued representation in an action is too rigid. It is not a material distinction, and the court is unwilling to infer that Congress so intended.
Likewise, the court determines that defendant's reading of § 1451(a) is too narrow. Cf. Huff v. United States, 10 F.3d 1440, 1444 (9th Cir. 1993) (holding that an attorney in the tax division of the Department of Justice could represent the United States, citing §§ 516, 517); United States v. Plesinski, 912 F.2d 1033, 1038 (9th Cir. 1990) (observing that either an attorney with the Department of Justice or the United States Attorney's Office may represent the United States); United States v. Smith, No. C-1-99-974, 2002 WL 31174188, at *3 (S.D. Ohio Aug. 23, 2002) (noting that either the Department of Justice of the United States attorneys may represent the United States in litigation). These cases did not involve the denaturalization statute, but their rationale still applies. Although the statute specifies that it is the duty of the Unites States attorney for the respective district to initiate proceedings, the statute does not prohibit the United States attorney from delegating that duty. This is not a case where a private party has attempted to initiate the action or the Attorney General has tried to use an administrative process to denaturalize a citizen. Instead, this is a situation where the United States attorney has delegated the duty to initiate an action to another office within the Department of Justice. The statute does not prohibit this approach, and the court denies defendant's motion to dismiss on this basis.
Must the United States Attorney Sign The Affidavit of Good Cause?
Second: Must the United States Attorney for the District of Kansas sign an affidavit stating that there is good cause for this suit? Defendant's answer is "yes," citing United States v. Minerich, 250 F.2d 721, 725 (7th Cir. 1957): "From such an affidavit an experienced judge should be able to detect a United States attorney's reckless categorization or noncritical selection of candidates for denaturalization."
Supervisory Immigration Services Officer David Bruggeman, who signed the affidavit in this case, is not the United States Attorney for the District of Kansas. But the affidavit need not be signed by a United States attorney. See, e.g., Nowak v. United States, 356 U.S. 660, 662 (1958) (noting that an affidavit was signed by an attorney of the Immigration and Naturalization Service). The statute merely requires that a denaturalization suit be brought "upon affidavit showing good cause." 8 U.S.C. § 1451(a); it does not specify who must sign the affidavit. This argument does not entitle defendant to relief.
Is the Declaration Attached to the Complaint Sufficient?
Third: Is the declaration attached to the complaint sufficient to qualify as an Affidavit of Good Cause? In Zucca, the Supreme Court explained the importance of the Affidavit of Good Cause requirement:
The mere filing of a proceeding for denaturalization results in serious consequences to a defendant. Even if his citizenship is not cancelled, his reputation is tarnished and his standing in the community damaged. Congress recognized this danger and provided that a person, once admitted to American citizenship, should not be subject to legal proceedings to defend his citizenship without a preliminary showing of good cause. Such a safeguard must not be lightly regarded.351 U.S. at 99-100. 28 U.S.C. § 1746(2) permits substitution of declarations for affidavits, but only when the declarant "declare[s] (or certif[ies], verif[ies], or state[s]) under penalty of perjury that the foregoing is true and correct."
As noted above, the Affidavit of Good Cause was prepared and signed by Officer Bruggeman. Officer Bruggeman declared under penalty of perjury that the information in the document was true and correct. He summarized the evidence showing that defendant was ineligible for naturalization because he had misrepresented his marital status. Although Officer Bruggeman used the terminology "upon information and belief," the affidavit need not be based on personal knowledge. Instead, it may be "based upon facts disclosed by official records . . . to which [the declarant] had access." Nowak, 356 U.S. at 662. The affidavit satisfies the legal requirements.
Defendant urges the court to apply the federal and local requirements for an affidavit submitted in support of a summary judgment motion. The court declines to apply these heightened standards. Significantly, this case is at a different juncture. The Affidavit of Good Cause is required only to proceed with the case—not to determine whether the court should grant judgment as a matter of law. And defendant has cited no law indicating that the more demanding standards for a Rule 56(e) affidavit should apply at the initiation of a case. The court denies the motion to dismiss on this basis.
IT IS THEREFORE ORDERED that defendant's Motion to Dismiss (Doc. 6) is denied.
Dated this 9th day of November, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge