Muhanad Al-Hasani v. Secretary United States Department of Homeland Sec ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-1603
____________
MUHANAD AL-GOUDI AL-HASANI,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY;
DIRECTOR UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES;
DIRECTOR NEWARK NEW JERSEY FIELD OFFICE
IMMIGRATION
& CUSTOMS ENFORCEMENT
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-20-cv-08984)
District Judge: Honorable John M. Vazquez
____________
Argued on June 14, 2023
Before: PORTER, FREEMAN and FISHER, Circuit Judges.
(Filed: August 30, 2023)
Jeremy Bressman
Benjamin F. Cooper ARGUED
Steven W. Perlstein
Danielle L. Rose
Kobre & Kim
800 Third Avenue, 6th Floor
New York, NY 10022
Counsel for Appellant
Aneesa Ahmed ARGUED
Brian M. Boynton, Principal Deputy Assistant Attorney
General
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
Counsel for Appellee
___________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Muhanad Al-Hasani, a native of Syria, applied to be
naturalized as a U.S. citizen. The Department of Homeland
Security (DHS), through U.S. Citizenship and Immigration
Services (USCIS), denied his application. Al-Hasani petitioned
the District Court for review, and that Court denied his petition.
We will affirm.
2
I.
Factual Background
Muhanad Al-Hasani was born in Syria in 1966. He
worked there as a human rights lawyer. In February 2003, Al-
Hasani married Sabah Khalili, a native of Morocco who had
been living in Syria. When Khalili became pregnant, she
decided to move home and raise the child in Morocco. Al-
Hasani bought her a house in Casablanca. His son A.L. was
born in 2004. He “thought that when [he] was inevitably
detained” because of his human rights work, “at least [he]
could hope to come out of prison and find a grown son.” App.
133. Soon after A.L’s birth, the Syrian government imposed a
travel ban on Al-Hasani, which prevented him from leaving the
country and seeing his wife and son.
In August 2005, Al-Hasani married fellow Syrian Hiam
Jouni. He did not divorce Khalili first; Syrian law did not
require him to. In 2007, Jouni gave birth to Al-Hasani’s son
A.A. In 2009, Al-Hasani was arrested for crimes including
“weakening the State’s ‘prestige’” and “‘transferring’ false and
exaggerated information that weakens ‘national sentiments.’”
App. 208. Jouni was “unhappy with [Al-Hasani] for getting
thrown in jail and . . . jeopardizing [their] son[’s] . . . future.”
App. 135.
In 2011, Al-Hasani was released from prison. Soon
after, though, Wikileaks reported that Al-Hasani had provided
human rights information to the U.S. embassy. Al-Hasani fled
Syria the same day, but Jouni did not want to leave. She stayed
in Damascus with A.A. Al-Hasani has not seen her since 2011,
though he has a close relationship with A.A.
Al-Hasani was paroled into the United States in
December 2011. In October 2012, he was granted permanent
resident status. After he arrived in the United States, Al-Hasani
3
learned that his first wife, Khalili, and son A.L. were doing
poorly and had lost the house he bought. He petitioned for them
to join him in the United States, which they did. In 2016, when
Khalili’s mother got sick and needed care, Khalili and A.L.
moved back to Morocco. Al-Hasani’s relationship with Khalili
ended.
In a 2019 declaration, Al-Hasani described legal
barriers to divorce. Al-Hasani and Jouni could not divorce in
Syria because he would need a lawyer to exercise a power of
attorney and act on his behalf—but when he has tried in the
past to confer powers of attorney for other purposes, “those
powers of attorney have not been recognized and [his]
colleagues have run into problems with the Syrian Bar
Association, the intelligence services, or both.” App. 136. Al-
Hasani could not divorce Jouni in New Jersey because their
marriage, which occurred after Al-Hasani married Khalili, is
not recognized under New Jersey law.
Khalili could not get a divorce in Morocco because “she
would need to allege specific grounds,” such as cruelty, that
did not apply. App. 136. However, Al-Hasani did not mention
any legal barriers to divorcing Khalili in New Jersey. Indeed,
this is what eventually happened—but it took place after Al-
Hasani appealed to our Court and thus is not in the record. We
discuss the divorce further in Part II.B., below.
Al-Hasani also described non-legal barriers to divorce.
He explained that “there is a stigma associated with divorce in
Syria” and he did not want to subject Jouni “to the negative
social consequences of divorce simply for the sake of my
naturalization.” App. 136. Al-Hasani did not want to divorce
Khalili because he believed that would make A.L. feel
“separated” from his father. App. 93.
Al-Hasani contends he “never lived in a marital
relationship with [Khalili and Jouni] at the same time.” App.
4
56. He supports both his children financially.
Procedural Background
In September 2017, Al-Hasani applied for
naturalization, candidly describing the circumstances of his
two marriages. In August 2019, USCIS denied his application
because he “remain[ed] married to both [his] wives at the same
time” and “[t]he practice of polygamy is . . . a statutory bar to
[the] finding of good moral character” required for
naturalization. App. 81. The denial was “without prejudice
toward the filing of a new application for naturalization in the
future.” App. 82.
Al-Hasani requested a hearing on the denial, as
permitted by 8 U.S.C. § 1447(a), and USCIS reaffirmed its
denial. USCIS explained that “there is no dispute that you are
married to two people at the same time,” and “[t]he practice of
polygamy,” which is “the act of being married to two or more
individuals at the same time,” is “a statutory bar to finding
good moral character.” App. 97–98.
Al-Hasani filed a petition for review in the District
Court under 8 U.S.C. § 1421(c). The District Court granted
summary judgment for DHS. The Court held that Al-Hasani
did not “prov[e] that he does not fall within the category of
individuals barred from a finding of good moral character as a
result of practicing polygamy.” App. 11. The Court
alternatively held that if the deference described in Chevron,
U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), applied, DHS’s interpretation of the statute and
regulations was reasonable and entitled to deference. Al-
Hasani appeals.
5
II. 1
An individual seeking to naturalize as a U.S. citizen
“has the burden of proving ‘by a preponderance of the evidence
that he or she meets all of the requirements for naturalization.’”
Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) (quoting
8 C.F.R. § 316.2(b)). Naturalization requires “[s]trict
compliance with all the congressionally imposed
prerequisites.” Id. (quoting Fedorenko v. United States, 449
U.S. 490, 506 (1981)). “[W]hen doubts exist concerning a
grant of [citizenship], generally . . . they should be resolved in
favor of the United States and against the claimant.” Id.(quoting United States v. Manzi, 276 U.S. 463, 467 (1928)).
The Immigration and Nationality Act (INA) provides
that “[n]o person . . . shall be naturalized unless,” for the five
years preceding his naturalization application and from the
application date forward, he “is a person of good moral
character.” 8 U.S.C. § 1427(a). “No person shall be regarded
as, or found to be, a person of good moral character” if, during
the five-year statutory period, he or she is part of “the class[]
of persons . . . described in paragraph[] . . . (10)(A) of section
1182(a).” Id. § 1101(f)(3). That paragraph, in turn, provides
that “[a]ny immigrant who is coming to the United States to
practice polygamy is inadmissible.” Id. § 1182(a)(10)(A). The
regulations also speak to good moral character, saying it is
lacking “if during the statutory period” the individual “[h]as
practiced or is practicing polygamy” or “[w]illfully failed or
refused to support dependents.” 8 C.F.R. § 316.10(b)(2)(ix),
1
The District Court had jurisdiction under 8 U.S.C.
§ 1421(c) (providing for district court review of denial of a
naturalization application). We have jurisdiction under 28
U.S.C. § 1291 (providing for review of final decisions of
district courts).
6
(b)(3)(i).
At the outset, we confront a question about the
framework for our analysis. The issue on appeal is whether the
District Court erred in affirming DHS’s denial of Al-Hasani’s
naturalization application. Naturalization is governed by the
INA, which the Secretary of Homeland Security administers. 8
U.S.C. § 1103(a)(1). The INA provides that “determination[s]
and ruling[s] by the Attorney General with respect to all
questions of law shall be controlling” upon the Secretary of
Homeland Security. Id. Normally, when addressing a question
that “‘implicates an agency’s construction of the statute which
it administers,’ . . . we ‘apply the principles of deference
described in Chevron.’” Mejia-Castanon v. Att’y Gen., 931
F.3d 224, 232 (3d Cir. 2019) (alterations omitted) (quoting
INS. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). 2
But Congress has instructed that a district court’s
review of a denial of a naturalization application “shall be de
novo, and the court shall make its own . . . conclusions of law.”
8 U.S.C. § 1421(c). This standard percolates through to us as
well, because “[w]e review the District Court’s grant of
summary judgment de novo, applying the same standard as the
District Court.” Koszelnik v. Sec’y of Dep’t of Homeland Sec.,
828 F.3d 175, 179 n.5 (3d Cir. 2016).
The question, then, is whether Chevron deference
applies to USCIS’s decision, or whether our review is de novo
as § 1421(c) commands. The potential conflict between
2
The Supreme Court recently granted certiorari on the
issue of whether Chevron should be “overrule[d] . . . or at least
clarif[ied].” Loper Bright Enters. v. Raimondo, No. 22-451,
Pet. for Writ of Cert. (Nov. 10, 2022), Order Granting Cert.
(May 1, 2023). For now, however, we are still bound by
Chevron and its progeny.
7
Chevron and the statutory standard could, in a different case,
pose interesting and complex questions. 3 Here, we need not
resolve the issue because the outcome is the same either way.
If Chevron were not on the table, we would interpret the statute
de novo. See 8 U.S.C. § 1421(c). And if we were to apply
Chevron, at step one we would use the “traditional tools of
statutory construction,” Chevron, 467 U.S. at 843 n.9, to
ascertain whether “Congress has directly spoken to the precise
question at issue,” id. at 842. Here, as we will explain,
Congress has done so. The polygamy bar is not ambiguous as
applied to Al-Hasani. Because “the intent of Congress is clear,”
“that is the end of the matter” and we “must give effect to the
unambiguously expressed intent of Congress.” See id. at 842–
43.
So the two analytical paths converge. Whether at
Chevron step one or through § 1421(c) de novo review—which
amount to the same exercise—we conclude Al-Hasani may not
be naturalized because of the statutory polygamy bar.
The Polygamy Bar Applies to Al-Hasani
Unsurprisingly, we will “start where we always do: with
the text.” Van Buren v. United States, 141 S. Ct. 1648, 1654
(2021). The INA does not define polygamy. See 8 U.S.C.
§ 1101. Even so, DHS argues the statute unambiguously bars
Al-Hasani’s naturalization because the 2009 edition of Black’s
3
The Seventh Circuit has reasoned that because
“Congress specifically calls for de novo review in
naturalization cases, while ordering great deference in other
immigration contexts,” the § 1421(c) de novo standard applies
and courts should not employ Chevron deference in cases like
this one. O’Sullivan v. U.S. Citizenship & Immigr. Servs., 453
F.3d 809, 812 (7th Cir. 2006). We have not addressed the
question directly. See Koszelnik, 828 F.3d at 179–80.
8
Law Dictionary defines “polygamy” as “[t]he state or practice
of having more than one spouse simultaneously.” Appellee’s
Br. 24. We must examine the word’s “ordinary meaning . . . at
the time Congress enacted the statute.” United States v.
Smukler, 991 F.3d 472, 482 (3d Cir. 2021) (quoting Wis. Cent.
Ltd. v. United States, 138 S. Ct. 2067, 2070, 2074 (2018)). This
means the relevant years are 1891, when “polygamy” appeared
in the Immigration Act, and 1990, when the current language
of the polygamy bar was enacted—not 2009. In addition, a
word’s ordinary meaning can include more than just its legal
meaning, so it is useful to look to both legal and general
dictionaries. See Wis. Cent., 138 S. Ct. at 2071 (citing
Webster’s, the Oxford English Dictionary, and Black’s).
In 1891, Black’s defined polygamy as “[t]he offense of
having several wives or husbands at the same time” or “[t]he
offense committed by a layman in marrying while any previous
wife is living and undivorced.” Polygamy, Black’s Law
Dictionary (1891 ed.). That aligns with DHS’s preferred
definition: anyone who is legally married to more than one
person at once. But Black’s also went on to say:
A bigamist or polygamist, in the sense of the . . .
act of [C]ongress of March 22, 1882, is a man
who, having contracted a bigamous or
polygamous marriage, and become the husband
at one time, of two or more wives, maintains that
relation and status at the time when he offers to
be registered as a voter.
Id. (emphasis omitted). Maintaining both the “relation and
status” of marriage implies that all the ties of marriage—
financial, emotional, physical—are ongoing with multiple
people at once. Although this definition pertains to a federal
statute not at issue here, it shows that “polygamy” had multiple
meanings in 1891.
9
A general dictionary in 1890 defined “polygamous” as
“a union including more than one spouse of either sex,
sanctioned in respect to plurality of wives by the law of some
countries, but not recognized as marriage by the law of
Christian states.” Polygamous, 4 Century Dictionary (1890).
So in 1891, polygamy could also carry religious or cultural
connotations.
In 1990, Black’s defined polygamy as “[t]he offense of
having several wives or husbands at the same time.” Polygamy,
Black’s Law Dictionary (6th ed. 1990). It also said, quoting the
Model Penal Code, that “[a] person is guilty of polygamy, a
felony of the third degree, if he marries or cohabits with more
than one spouse at a time in purported exercise of the right of
plural marriage.” Id. In 1990, Webster’s defined “polygamy”
as “marriage in which a spouse of either sex may have more
than one mate at one time.” Polygamy, Webster’s Ninth New
Collegiate Dictionary (1990). The word “may” implies
permission—that is, a situation where all the spouses consent
to the arrangement. So the 1990 definitions of polygamy, like
the 1891 definitions, encompass simply being legally married
to more than one person and also something more: doing so
with permission or as an expression of a right or a religious or
cultural belief.
The statutory term “practice” is important as well. An
individual does not have good moral character if he or she “is
coming to the United States to practice polygamy.” 8 U.S.C.
§ 1182(a)(10)(A) (emphasis added). Turning once again to
contemporary dictionaries, Black’s definition of “practice”
around 1907 (the year the word first appeared in the statute) is
unhelpfully limited to the legal term of art: “The form or mode
of proceeding in courts of justice for the enforcement of rights
or the redress of wrongs . . . .” Practice, Black’s Law
Dictionary (1910 ed.). A general dictionary from 1907 defines
10
“practice” as “the habit of doing anything . . . performance . . .
method.” Practice, Chambers’s Twentieth Century Dictionary
of the English Language (1907). Another general dictionary
included among its definitions “[f]requent or customary
performance; habit; usage; custom.” Practice, 4 Century
Dictionary (1890).
In 1990, when the statute was amended again (retaining
the word “practice”), Black’s defined “practice” as “[r]epeated
or customary action; habitual performance; a succession of acts
of similar kind; custom; usage.” Practice, Black’s Law
Dictionary (6th ed. 1990). The 1990 Webster’s included as
definitions “to do or perform often, customarily, or habitually”
and “to do something customarily.” Practice, Webster’s Ninth
New Collegiate Dictionary (1990).
These definitions indicate that, while “practice” may
have different shades of meaning, it connotes doing something
intentionally rather than passively, mistakenly, or through an
oversight. In addition, “practice” is something that can be
ascertained objectively by observing a person’s actions. Unlike
beliefs, which require inquiry into a person’s subjective state
of mind, his or her practices are apparent, objectively, to
outside observation.
Besides examining the ordinary meaning of words used
in a statute, we also look to statutory history, which is
important in ascertaining a word’s meaning in context. United
11
States v. Hansen, 143 S. Ct. 1932, 1943 (2023). 4 Al-Hasani
argues that the changes between earlier versions of the
polygamy bar and the current version show that the current
statute does not prohibit his naturalization because it is forward
looking—concerned with behavior after an individual arrives
in the United States, not before. We agree that statutory history
is important to the textual interpretation of the polygamy bar,
but we disagree with Al-Hasani on the conclusion to be drawn
from it.
The Immigration Act of 1891 excluded “polygamists”
without elaborating further. An Act in Amendment to the
Various Acts Relative to Immigration, Pub. L. 51-551, 26 Stat.
1084 (1891). 5 The 1907 version of the polygamy bar excluded
“polygamists, or persons who admit their belief in the practice
of polygamy.” An Act to Regulate the Immigration of Aliens,
Pub. L. 59-96, § 2, 34 Stat. 898 (1907). 6 The added language
indicated Congress’s concern with both what an individual
4
Statutory history is “the record of enacted changes
Congress made to the relevant statutory text over time.” BNSF
Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J.,
dissenting). It is “the sort of textual evidence everyone agrees
can sometimes shed light on meaning.” Id. It is distinct from
legislative history—committee reports and the like—the
mining of which is “disfavored” as a statutory interpretation
strategy. Thomas v. Reeves, 961 F.3d 800, 817 n.45 (5th Cir.
2020) (Willett, J., concurring).
5
Available at
https://heinonline.org/HOL/P?h=hein.statute/sal026&i=1142
(visited July 10, 2023).
6
Available at
https://heinonline.org/HOL/P?h=hein.statute/sal034&i=930
(visited July 10, 2023).
12
objectively did and what he subjectively believed. This dual
focus on belief and practice remained in the text of two
successor statutes. An Act to Regulate the Immigration of
Aliens, Pub. L. 64-301, § 3, 39 Stat. 874 (1917) (“polygamists,
or persons who practice polygamy or believe in or advocate the
practice of polygamy”) 7; An Act to Revise the Laws Relating
to Immigration, Pub. L. 82-414, § 212, 66 Stat. 163 (1952)
(“[a]liens who are polygamists or who practice polygamy or
advocate the practice of polygamy”). 8
In 1990, Congress amended the statute to the language
that remains in force today. It bars “[a]ny immigrant who is
coming to the United States to practice polygamy.”
Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104
Stat. 4978 (1990). References to belief or advocacy were
deleted. This change indicates that only an individual’s
objectively observable practices, not his or her subjective
beliefs, trigger the polygamy bar. Congress also added a new
phrase: “coming to the United States.” Id. As Al-Hasani
argues, this addition shows past behavior elsewhere is not the
concern, but rather intended conduct in the United States.
The statute’s forward-looking orientation does not help
Al-Hasani, however. He contends he did not come to the
United States with the intent to practice polygamy, nor did he
practice polygamy once here. But he intended to come to the
United States, he was married to two women at the time, and
he chose to remain married to them in order to provide and
7
Available at
https://heinonline.org/HOL/P?h=hein.statute/sal039&i=898
(visited July 10, 2023).
8
Available at
https://heinonline.org/HOL/P?h=hein.statute/sal066&i=209
(visited July 10, 2023).
13
receive the benefits of marriage. So the question is not whether
the statute looks forward or backward. Rather, the nub of the
issue remains the definition of polygamy. We conclude that Al-
Hasani’s conduct fits the statutory definition.
Al-Hasani was married to Khalili and Jouni at the same
time. While he could not divorce Khalili in Morocco (where
she lived) and could not divorce Jouni in Syria (where she
lived), he could—and indeed, eventually did—divorce Khalili
in New Jersey (where he lived). But, for the five years
preceding Al-Hasani’s naturalization application, it is
objectively clear that he remained in simultaneous marriages.
Al-Hasani points to record evidence of the subjective reasons
he remained married to both his wives: he did not want to
divorce Jouni because she then would be subjected to stigma,
and he did not want to divorce Khalili because that would make
Khalili’s son, A.L., feel separated from his father.
But the ordinary meanings of the statutory terms,
together with the statutory history, show that Congress shifted
its focus from both beliefs and practices to the sole concern of
the 1990 statute: the practice of polygamy. Therefore, we must
focus on Al-Hasani’s practices, not his subjective reasons for
doing what he did. Objectively speaking, Al-Hasani
deliberately remained married to both his wives at the same
time. He therefore practiced polygamy. 9
Al-Hasani offers several arguments in an effort to resist
this result. He cites Matter of G–, 6 I&N Dec. 9, 9–10 (B.I.A.
9
We need not decide whether extenuating
circumstances, such as mistake or inability to obtain a divorce,
might cause some simultaneous legal marriages to fall outside
the definition of polygamy. No such circumstances are present
here.
14
1953), 10 where the BIA held the polygamy statute bars the
admission only of those who “subscribe[] to the historical
custom or religious practice called ‘polygamy.’” Id. at 11. The
BIA explained that “[i]t is not sufficient that an alien should in
fact have had more than one spouse at a given time, by virtue
of a second marriage undertaken without benefit of divorce.”
Id. Al-Hasani contends this language describes him, so the
polygamy bar does not apply.
There are multiple reasons why Matter of G– does not
compel reversal. Most importantly, agency interpretations do
not illuminate Congress’s intent in passing a statute where that
intent is plain from the text (either at step one of Chevron or as
part of a non-Chevron statutory interpretation exercise). Port
Auth. Trans-Hudson Corp. v. Secretary, 776 F.3d 157, 161 (3d
Cir. 2015) (“[W]hen we are called upon to resolve pure
questions of law by statutory interpretation, we decide the issue
de novo without deferring to an administrative agency that may
be involved.” (internal quotation marks and citation omitted)).
And even if we considered Matter of G–, it dealt with
the 1917 version of the statute, which barred “polygamists, or
persons who practice polygamy or believe in or advocate the
practice of polygamy.” An Act to Regulate the Immigration of
10
The BIA is part of the Department of Justice. USCIS,
which denied Al-Hasani’s naturalization application and is the
defendant here, is part of the Department of Homeland
Security. However, “BIA decisions are binding on all DHS
officers and Immigration Judges.” Board of Immigration
Appeals, in Executive Office for Immigration Review: About
the Office, available at https://www.justice.gov/eoir/board-of-
immigration-appeals (last visited June 27, 2023); 8 U.S.C.
§ 1103(a). So Al-Hasani is correct that, if Matter of G– applied
here, USCIS would be bound to follow it.
15
Aliens, Pub. L. 64-301, § 3, 39 Stat. 874 (1917). Based on the
text and legislative history of the 1917 act, the BIA reasoned
the bar applied only to those who believe in the custom or
practice of polygamy. 6 I. & N. Dec. at 10–11. As a result, it
held the bar did not apply to the appellant, who “stated that he
did not know the definition of polygamy; had never before
heard the word; and did not believe in having plural wives.” Id.
at 11. This application of the 1917 statute does not help us
interpret the current version, which lacks language about
subjective beliefs and instead requires consideration of the
objective question of whether the individual has “com[e] to the
United States to practice polygamy.” See 8 U.S.C.
§ 1182(a)(10)(A) (emphasis added).
There was also another appellant in Matter of G– who
thought “that [her] second marriage was somehow valid,” even
though as a legal matter it was not because she had not divorced
her first husband. Id. at 13. Because she was not in two
simultaneous legal marriages, her situation was quite different
from the facts here. In sum, then, Matter of G– is irrelevant,
outdated, and distinguishable.
Although Al-Hasani portrays his two marriages as
simply “successive singular unions without intervening
divorce,” Appellant’s Br. 21, the facts are more complicated
than that. Al-Hasani married Khalili and, not long after, was
separated from her by the travel ban. He then married Jouni
and, not long after, was separated from her by his flight from
Syria. But when he arrived in the United States, he petitioned
for his first wife, Khalili, to join him—not his second wife. Al-
Hasani then lived with Khalili and their son in New Jersey for
some time. These were not merely successive singular unions,
but alternating relationships with two women to whom Al-
Hasani remained married simultaneously. At oral argument,
counsel asserted that when Al-Hasani and Khalili cohabitated
16
in New Jersey, they did not live in a marital relationship. Oral
Arg. Recording at 6:16–6:31. But this contention—even if it
were supported by the record, which it is not—would lead us
into a subjective inquiry about whether a particular kind of
relationship constitutes a marriage. That approach is not
supported by the statute’s objective focus. See 8 U.S.C.
§ 1182(a)(10)(A).
Al-Hasani argues he was caught between two good-
moral-character requirements: he could not practice polygamy,
and he also could not “[w]illfully fail[] or refuse[] to support
[his] dependents.” Appellant’s Br. 28 & n.6 (quoting 8 C.F.R.
§ 316.10(b)(3)(i)). But Al-Hasani does not explain why he
needed to remain married to both wives in order to support both
sons. People around the world routinely send financial support
to, and remain in contact with, unmarried partners and ex-
spouses in order to co-parent their children.
Judicial Notice of Al-Hasani’s Divorce
Al-Hasani argues this Court should take judicial notice
of the judgment of divorce from his first wife, Khalili, which
was granted by a New Jersey court in July 2022 after he filed
his notice of appeal in this case. He says he got the divorce
because he was “frustrated by the mischaracterization of his
situation in the naturalization process and the growing
difficulties this was posing.” Appellant’s Br. 31. According to
Al-Hasani, “his divorce further demonstrates that he did not
practice polygamy and did not come to the United States to do
so.” Reply Br. 16.
The Federal Rules of Evidence authorize a court to
“judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). A court opinion is the type of source
whose accuracy cannot be readily questioned. S. Cross
17
Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181
F.3d 410, 426 (3d Cir. 1999). However, we decline to notice
the divorce because it is not relevant to our decision. For one
thing, a divorce in 2022 does not change the facts of Al-
Hasani’s conduct for the five years preceding his naturalization
application, from 2012 to 2017. For another thing, while the
divorce could be retrospective evidence of Al-Hasani’s intent
during the five-year statutory period, it might also show simply
that Al-Hasani wants very much to naturalize and was willing
to end one of his marriages to attain that goal.
Because the 2022 divorce would not change our
conclusion about the applicability of the polygamy bar, we
decline to notice it. The divorce will, of course, be highly
relevant should Al-Hasani reapply for naturalization in the
future.
III.
The good moral character requirement begins five years
before the date of the naturalization application. 8 U.S.C.
§ 1427(a). DHS agreed at oral argument that Al-Hasani is not
barred from re-applying for naturalization in 2027, which will
be five years after his 2022 divorce. As long as he meets the
other naturalization requirements, DHS said, he would be
eligible for citizenship. Oral Arg. Recording at 23:09–23:32.
While Al-Hasani understandably wants to naturalize now
rather than waiting, he is not statutorily eligible at this time.
We will therefore affirm.
18