United States v. Almallah , 244 F. App'x 584 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 7, 2007
Charles R. Fulbruge III
No. 06-10962 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASMI KHADER ALMALLAH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:04-CV-2230)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rasmi Khader Almallah, a native and citizen of Jordan,
challenges the revocation of his admission to United States
citizenship and cancellation of his certificate of naturalization.
He contends the Government failed to prove by clear and convincing
evidence that he fraudulently obtained citizenship; and the court
abused its discretion by not allowing him to amend his answer to
assert a selective-prosecution defense and by denying the testimony
of his expert witness.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
A bench trial produced the following facts. After coming to
the United States on a student visa, Almallah left school to manage
and partly own a Sonic restaurant in Dallas, Texas. Because his
student visa was nearing expiration, Almallah asked a Sonic
employee, who was a United States citizen, to marry him. He
offered to pay her money in exchange for assisting him in obtaining
a green card and promised a divorce thereafter. After two
employees refused his offer, another woman, Rose Marie Hawley, a
United States citizen, accepted.
Almallah and Hawley married on 21 December 1981, four days
before Almallah’s student visa expired. Almallah testified the
marriage was legitimate and that they lived together. (As
discussed infra, the district court, based on Hawley’s and two
other witnesses’ testimony, found, however, that the couple “did
not marry with the intent to establish a life together and assume
the duties and obligations of husband and wife.” Rather, “they
never resided together as husband and wife, never established joint
bank accounts, never filed joint income tax returns, and their
purpose for marrying was solely for [Almallah] to obtain lawful
permanent resident immigration status”. The court found Almallah’s
testimony not credible.)
In March 1982, Hawley filed a “Petition for Alien Relative”,
INS form I-130, seeking immediate-relative status for Almallah.
After that Petition was approved, Almallah filed his “Application
for Status as Permanent Resident”, Form I-485, requesting
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permanent-resident status. In response to a question on that
application, and during an INS interview conducted under oath,
Almallah represented that he and his wife resided together. Later
that year, the INS granted Almallah permanent resident status.
Shortly thereafter, Almallah filed for, and received, a
divorce from Hawley, as promised. Approximately three years later,
he married a Jordanian woman, with whom he subsequently had seven
children. In June 1987, Almallah filed an “Application to File
Petition for Naturalization”, INS form N–400, based on his
eligibility for naturalization as a lawful permanent resident for
at least five years, pursuant to 8 U.S.C. § 1427. Almallah
responded “no” to a question on that application which asked if he
had ever given false testimony for the purpose of obtaining any
benefits under the Immigration and Nationality Act. During a
subsequent INS interview, Almallah signed a sworn statement that
his application’s contents were true. On 29 January 1988, the INS
approved Almallah’s application. He filed his “Petition for
Naturalization” the same day and was admitted to United States
citizenship on 29 July 1988.
Conclusions of law are reviewed de novo; findings of fact, for
clear error. United States v. Lopez-Ortiz, 313 F.3d 225, 228 (5th
Cir. 2002). “Deference is given to the district court’s assessment
of the credibility of witnesses and a finding of fact in that
regard will not be overturned unless manifest error appears in the
record.” Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th
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Cir. 1997). Evidentiary rulings in a denaturalization proceeding
are evaluated for an abuse of discretion. United States v. Hajda,
135 F.3d 439, 443 (7th Cir. 1998).
“The Government carries a heavy burden of proof in a
proceeding to divest a naturalized citizen of his citizenship
[because] American citizenship is a precious right [and s]evere
consequences may attend its loss, [especially] when the person has
enjoyed his citizenship for many years”. Costello v. United
States, 365 U.S. 265, 269 (1961). Specifically, the Government
must prove by “clear and convincing” evidence that the
naturalization was procured illegally or by concealment of a
material fact or willful misrepresentation. Schneiderman v. United
States, 320 U.S. 118, 123 (1943); see also 8 U.S.C. § 1451(a).
Naturalization is “illegally procured” when the individual was
statutorily ineligible for naturalization before and including the
time he was naturalized. Fedorenko v. United States, 449 U.S. 490,
506 (1981). To warrant denaturalization, any concealment or
misrepresentation must be “both willful and material”. Kungys v.
United States, 485 U.S. 759, 767 (1988).
Allmallah first contends he was improperly denaturalized
because he was selectively prosecuted. See, e.g., United States v.
McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984) (prosecution
improper when others similarly situated are not prosecuted and
defendant was selected based on race, religion, or exercise of a
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constitutional right). Almallah did not assert selective
prosecution in his original answer to the Government’s complaint,
and the district court refused his motion for leave to amend, filed
eight months after the deadline for amending pleadings, because
Almallah failed to show good cause. In this regard, the district
court did not abuse its discretion. (In any event, Almallah has
shown neither that selective prosecution applies in the civil
immigration context nor that it is a defense on the merits. See
United States v. Armstrong, 517 U.S. 456, 463 (1996) (applying
selective prosecution principle in the criminal context and
stating: a “selective prosecution claim is not a defense on the
merits ... but an independent assertion that the prosecutor has
brought the charge for reasons forbidden by the Constitution”).)
Almallah next claims the district court abused its discretion
in denying the testimony of his expert witness, Harry Joe, who
would have opined the Government lacked clear and convincing
evidence that Almallah entered into a sham marriage. The court
found: “Mr. Joe’s opinion would supply ... no information other
than Mr. Joe’s own view of how the verdict should read”. “Because
a district court has broad discretion in deciding the admissibility
vel non of expert testimony, we will not find error unless the
ruling is manifestly erroneous.” Guy v. Crown Equip. Corp., 394
F.3d 320, 325 (5th Cir. 2004) (emphasis in original). The court
did not err in excluding Mr. Joe’s testimony.
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Finally, Almallah maintains the district court erred in
holding, by clear and convincing evidence, that he fraudulently
obtained United States citizenship. The district court found
Almallah “entered into a sham marriage by paying a United States
citizen, whom he never resided with or otherwise had the intention
to reside with, to marry him for the purpose of circumventing
immigration law and obtaining legal immigration status”. This
factual finding, which we review only for clear error, was based on
Hawley’s testimony and that of two corroborating witnesses. Only
Almallah’s testimony contradicts this finding, and, as noted supra,
the court found his testimony “not credible”. Accordingly, the
district court did not clearly err in this finding or those
findings discussed below that stem from it. N.N.P. Inc., 104 F.3d
at 1485 (factual finding not clearly erroneous unless manifest
error appears in the record).
An alien’s marrying a United States citizen for the purpose of
circumventing immigration laws is not valid to confer immigration
benefits. See Lutwak v. United States, 344 U.S. 604 (1953).
Because Almallah’s marriage to Hawley was invalid, he was not
eligible for immediate-relative status, permanent-resident status,
or naturalization. Moreover, Almallah wilfully misrepresented his
eligibility to the INS at each of these stages. Witter v. INS, 113
F.3d 549, 554 (5th Cir. 1997) (misrepresentation wilfull if
deliberate, voluntary, and knowingly false; proof of intent to
deceive not required). Because Almallah did not comply with the
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naturalization prerequisites, his naturalization was illegally
procured. Federenko, 449 U.S. at 506 (naturalization illegally
procured when individual was statutorily ineligible when
naturalized). Therefore, the evidence was clear and convincing
that Almallah fraudulently obtained his United States citizenship.
AFFIRMED
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