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United States v. Abo Al Dahab

United States District Court, District of Columbia

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KHALED ELSAYED MOHAMMAD ABO AL DAHAB A/K/A KHALED ELSAYED MOHAMMAD-ABO ALDAHAB A/K/A KHALED ELSAYED ALI MOHAMMAD A/K/A KHALED ELSAYED MOHAMED A/K/A KHALED E. MOHAMED A/K/A KHALED MOHAMED Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         On April 8, 2015, the government filed this action against defendant Khaled Elsayed Mohammad Abo al Dahab to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's Certificate of Naturalization, pursuant to 8 U.S.C. § 1451(a). Compl. ¶ 1, ECF No. 1. Due in part to alleged false statements and false testimony related to the defendant's applications for citizenship, the government seeks revocation of the defendant's naturalization and cancelation of his Certificate of Naturalization as both illegally procured and procured by willful misrepresentation or concealment of material facts. Id. ¶ 35 (citing 8 U.S.C. § 1451(a)). For the reasons stated below, the government's motion is granted.

         I. BACKGROUND

         A. Factual Background

         The defendant is a native and citizen of Egypt, who entered the United States in 1986 on a nonimmigrant visitor visa. See Gov't Statement of Material Facts As To Which There Is No Genuine Dispute (“Gov't SMF”) ¶ 1, ECF No. 12-1.[1] Shortly after his arrival, the defendant married Bozena Teresa Lierno, a lawful permanent resident of the United States, whom he divorced three years later. Id. ¶ 2. On March 18, 1989, the defendant married Kim Annette Patterson, a citizen of the United States. Id. ¶ 3. Two months later, based on this marriage, Ms. Patterson filed an Immigration and Naturalization Service (“INS”) Form I-130, a Petition for Alien Relative, on behalf of the defendant, and the defendant filed an INS Form I-485, an Application for Permanent Residence.[2] Id. ¶ 4. On July 8, 1989, the INS approved both Ms. Patterson's petition and the defendant's application, granting the defendant conditional lawful permanent residence status. Id. ¶ 5. Although his lawful permanent residence status was subject to revocation if he did not remain married to his citizen-spouse for at least two years, the defendant divorced Ms. Patterson just two months later on September 13, 1989. Id. ¶¶ 5, 6. In December 1989, the defendant married Karie A. Rottluff, a citizen of the United States. Id. ¶ 7.

         Almost one year later, in September 1990, the defendant filed an INS Form I-131, an Application for Issuance of Permit to Reenter the United States, in anticipation of travel abroad. Id. ¶ 8. In this application, signed under penalty of perjury, id. ¶ 9, the defendant provided a mailing address abroad in Cairo, Egypt, id. ¶ 8(d), indicated his absence from the United States would be for a period of sixteen weeks, id. ¶ 8(b), and said his reason for travelling was that he might have to donate a kidney to his mother, id. ¶ 8(e).

         On July 19, 1991, approximately three months past the deadline, the defendant filed an INS Form I-752, an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions, due to his earlier divorce and remarriage. Id. ¶ 10. To excuse the untimeliness, the defendant claimed he was unable to file the application on time because he was in Pakistan donating a kidney to his mother, supporting this claim with a copy of his airline ticket to Pakistan along with a letter purportedly from his mother's doctor in Pakistan. Id. ¶¶ 11, 12. On March 9, 1992, the INS approved the defendant's request, removing the conditions on his permanent resident status. Id. ¶ 13.

         On March 17, 1995, the defendant filed his first application for naturalization, having been a permanent resident for at least five years. Id. ¶ 14. In his application, signed under penalty of perjury, id. ¶ 15, the defendant claimed, among other things, that: (1) he resided in Reno, Nevada; (2) he had never left the United States since becoming a permanent resident in 1989; (3) he had been married only twice; (4) he had never falsely claimed to have been a United States citizen; and (5) “he had never given false testimony to obtain an immigration benefit, ” id. ¶ 14. Although INS scheduled two separate interviews for his application for naturalization, the defendant did not attend either interview, and INS subsequently denied his application as abandoned. Id. ¶ 16.

         Over one year later, in October 1996, the defendant filed a second application for naturalization. Id. ¶ 17. In this application, also signed under penalty of perjury, id. ¶ 18, the defendant claimed that: (1) he resided in Sparks, Nevada; (2) his only absence from the United States since becoming a permanent resident was a trip to Egypt from May 1995 through November 1995 for an “emergency”; (3) he had been married only once; (4) he had never falsely claimed to be a United States citizen; and (5) he had never given false testimony for the purpose of obtaining an immigration benefit, ” id. ¶ 17.

         Later that month, INS conducted an interview of the defendant under oath. Id. ¶ 19. As part of the interview, an immigration officer asked the defendant to verify each of his answers on his second naturalization application.[3] Id. When asked about his marriages, the defendant admitted that he had been married more than once, but testified that he had only been married twice. Id. The defendant apparently otherwise testified consistent with his application. See Id. At the end of the interview, the defendant signed his application, again under penalty of perjury, id. ¶ 20, and INS approved his application for naturalization on December 7, 1996, id. ¶ 21.

         B. Procedural History

         On April 8, 2015, the government filed this action against the defendant to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's Certificate of Naturalization. Compl. ¶ 1. Over the past two years, the defendant, who the government alleges currently resides in Alexandria, Egypt, Gov't Mot. Substituted Service (“Gov't Mot. Subst. Serv.”), Ex. 1, Decl. of Special Agent Rami Nimri (“Nimri Decl. II”) ¶ 2, ECF No. 5-1, has not responded to any of the government's filings or this Court's orders. After customary means of service proved ineffective, on August 27, 2015, this Court granted the government's motion, under Rule 4(f)(3) of the Federal Rules of Civil Procedure, for substituted service of process, and authorized the government to serve process upon the defendant by means of email and Facebook message. See generally Mem. Op. and Order Granting in Part and Denying in Part Gov't Mot. Subst. Serv. (“Mem. Op. Subst. Serv.”), ECF No. 6. The government verified that they did so. See Return of Service/Affidavit of Summons and Complaint Executed at 2, ECF No. 7. According to the Federal Bureau of Investigation (“FBI”), the defendant's Facebook page “shows he was active before receiving the Summons and after receiving the Summons” and that the defendant “posted several items on Facebook before and after receiving the Summons.” Gov't Mot. Summ. J. (“Gov't MSJ”), Ex. 21, Internal FBI Document dated September 21, 2015, at 2, ECF No. 12-2.[4] Yet, the defendant still did not respond.

         On October 31, 2016, the government filed a motion for summary judgment. See Gov't MSJ, ECF No. 12. After nearly three months, the Court advised the defendant, for whom no attorney has entered an appearance, that “the Court will accept as true any factual assertions contained in affidavits or attachments submitted by the government in support of its motion for summary judgment, unless the defendant submits his own affidavits or documentary evidence showing that the government's assertions are untrue.” See Order at 3-4, ECF No. 13 (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (holding that a pro se party must be advised, when motion to dismiss may be converted to motion for summary judgment, that “‘any factual assertion in the movant's affidavits will be accepted by the district judge as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion'” (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)))). This Court ordered the government to serve the order on the defendant by January 18, 2017, by email and Facebook message, and ordered the defendant to file any opposition or other response to the government's Motion for Summary Judgment on or before January 27, 2017. Id. at 4. To this date, the defendant has not responded.

         II. ...


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