United States District Court, District of Columbia
MEMORANDUM AND ORDER
BERYL A. HOWELL, Chief District Judge.
The petitioner, Selamawit Kifle Wolde, brings this action, pursuant to 8 U.S.C. § 1421(c), against the Attorney General of the United States and the District Director of the Washington Field Office of the United States Customs and Immigration Services ("USCIS") (collectively, the "government"), seeking de novo review of USCIS's denial of her Form N-400, Application for Naturalization. Pet. at 1, ECF No. 1. The petitioner, who entered the United States on February 23, 2005, as a lawful permanent resident under a diversity visa, was denied the opportunity to naturalize as a citizen because USCIS claims that she fraudulently concealed the existence of her daughter on the diversity visa application, which is called a Form DS-230, and during her interview with consular officials, rendering her admittance as a permanent resident unlawful. Id. ¶ 14; Govt.'s Mem. Supp. Mot. Summ. J. ("Govt.'s Mem.") at 5, ECF No. 13. The government has moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the ground that the petitioner omitted the existence of her daughter on a different form, the Electronic Diversity Visa Entry Form ("EDV Entry Form"). See Govt.'s Mot. Summ. J. ("Govt.'s Mot.") at 1, ECF No. 13. For the following reasons, the government's motion is denied.
Relevant to disposition of the pending motion are three critical steps the petitioner took to obtain the diversity visa with which she entered the United States in 2005. These steps are summarized briefly here.
First, the petitioner entered into the diversity visa lottery for applicants seeking to enter the United States in 2005 from her native country of Ethiopia by submitting an EDV Entry Form some time during November or December 2003. Govt.'s Statement of Uncontested Material Facts ("Govt.'s SMF") ¶ 4, ECF No. 13-1. The petitioner, who did not speak English or have internet service at the time, avers that the owner of an internet cafe in Addis Ababa completed and submitted the EDV Entry Form for her. Pet. ¶ 7; id., Ex. 3 (Aff. of Mr. Gezahagn Mamo Ayano, the Owner of Z-Photo, stating that he "had been providing free DV (Diversity Visa) lottery application services;" petitioner "was one of the customers whom we served during the DV-2005 application period when internet application started for the first time;" and that when the petitioner "won the visa lottery she came to our work place and expressed her great delight to us.") at 17, ECF No. 1-1. In light of the circumstances under which the EDV Entry Form was completed, the petitioner avers that she "does not recall whether she listed her daughter on the EDV Entry Form or not." Pet.'s Statement of Genuine Issues and Objections ("Pet.'s SMF") ¶ 2, ECF No. 16-1. Neither party submitted a copy of the petitioner's EDV Entry Form.
Second, after being selected as one of the winners of the diversity visa lottery, on July 6, 2004, the petitioner submitted her diversity visa application, Form DS-230. Govt.'s SMF ¶¶ 8-10. Mistakenly understanding that the form required her to disclose only those relatives who intended to accompany her to the United States, the petitioner disclosed only her then-husband, Zelalem Mengesha, whom she had married on July 4, 2004. Pet. ¶¶ 8, 9; Pet., Ex. 2 ("Pet.'s Form DS-230") at 14, 15, ECF No. 1-1. The petitioner did not disclose her daughter, who had been born while the petitioner was unwed and still in college, and whose father was not her then-husband, Mr. Mengesha. Pet. ¶¶ 6, 8. At the time of submission of the DS-230, the petitioner's daughter was living with the petitioner's father. Id. ¶ 6.
Finally, on December 13, 2004, the petitioner and her then-husband were interviewed, through an interpreter, by a consular officer at the United States Embassy in Addis Ababa. Govt.'s SMF ¶ 17. When asked how many children the married couple had, the petitioner correctly answered none because Mr. Mengesha is not the father of her daughter and the couple had no children together. Id. ¶ 18. On December 29, 2004, the petitioner and her then-husband were approved for diversity visas. Id. ¶ 20. They entered the United States as permanent residents on February 23, 2005. Id. ¶ 21.
Since the petitioner's arrival in the United States, she has worked hard to make a life for herself. From June 2005 to November 2006, the petitioner worked two separate jobs. Pet., Ex. 1 ("Pet.'s Form N-400") at 5, ECF No. 1-1. In November 2006, she became a bank teller at PNC, a position she has held ever since. Id. In 2008, the petitioner, in addition to working at PNC, enrolled at the University of District of Columbia. Id. In 2009, after she divorced Mr. Mengesha, the petitioner married her current husband, the father of her daughter, Abathun Demeke Almaw. Id. at 6, 7; Pet. ¶ 13. The petitioner's daughter and husband joined her in the United States in 2010 and 2014, respectively. Govt.'s SMF ¶¶ 23, 24.
On January 5, 2010, just before her fifth anniversary since coming to America, the petitioner applied to become a United States citizen, disclosing both of her marriages and the information about her daughter. Govt.'s SMF ¶ 25; Pet.'s Form N-400 at 6-8. Her application for naturalization was denied because the immigration officer found that the petitioner "had concealed the existence of her child on her diversity visa application and at her consular interview, " constituting "immigration fraud." Govt.'s Mem. at 5; Pet., Ex. 4 (Denial of Pet.'s App. Naturalization, dated June 27, 2012) at 24, ECF No. 1-1. The petitioner administratively appealed this decision, which was affirmed. Pet., Ex. 6 (Denial of the Pet.'s Form N-336, dated Dec. 20, 2013) at 35, ECF No. 1-1.
On April 15, 2014, the petitioner filed the instant lawsuit seeking de novo review of USCIS's denial of her application for naturalization under 8 U.S.C. § 1421(c). Govt.'s SMF ¶ 29; see generally Pet. Subsequently, the government filed a motion to dismiss for failure to state a claim, arguing, in marked contrast to the reasons given during the administrative proceeding, that even if petitioner had inadvertently omitted her daughter on the relevant forms, the petitioner "was never lawfully admitted to permanent residence" because she "failed to abide by all applicable immigration laws, " and because this error rendered her inadmissible under INA § 212(a)(7)(A)(i)(II), codified at 8 U.S.C. § 1182(a)(7)(A)(i)(II), regardless of fraudulent intent. See Govt.'s Mot. Dismiss at 10, 11, ECF No. 9. Noting that the government "attempt[ed] to side-step the clearly articulated claim in the [Petition] by seeking dismissal on grounds not considered by USCIS, " the Court denied the government's motion to dismiss because "the [government's] contention that INA § 212(a)(7)(A)(i)(II) and § 203 render inadmissible any immigrant who misrepresents by omission information on a diversity visa application does not appear supported by the statutory text." Minute Order Denying Govt.'s Mot. Dismiss, dated Mar. 31, 2015.
Just over a month after the Court's denial of the government's motion to dismiss, the government moved for summary judgment on the same grounds without any supplementation of the record, which consists entirely of the exhibits attached to the petition. See generally, Govt.'s Mot.
II. LEGAL STANDARD
A. Statutory Framework for Naturalization
This Court reviews de novo the administrative denial of the petitioner's application for naturalization, and "shall make its own findings of fact and conclusions of law." 8 U.S.C. § 1421(c). Therefore, the "deferential arbitrary and capricious' standard... does not apply in this context, " Kariuki v. Tarango, 709 F.3d 495, 502 (5th Cir. 2013), and the reviewing court must "make its own findings of fact, " Nagahi v. I.N.S., 219 F.3d 1166, 1169 (10th Cir. 2000), with no Chevron deference due to the agency's statutory interpretation, O'Sullivan v. U.S. Citizenship and Immigration Servs., 453 F.3d 809, 811 (7th Cir. 2006). As other courts have noted, "[t]his grant of authority is unusual in its scope, " Nagahi, 219 F.3d at 1169, since it stands "in ...