United States v. Mohamed Ahmed

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0257n.06
Case No. 17-4046
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 24, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
MOHAMED AHMED, ) OHIO
)
Defendant-Appellant. )
BEFORE: CLAY, STRANCH, and LARSEN, Circuit Judges.
CLAY, Circuit Judge. Defendant Mohamed Ahmed (“Ahmed”) appeals from the
judgment entered by the district court revoking Ahmed’s citizenship and cancelling his
Certificate of Naturalization under 8 U.S.C. § 1451(a). For the reasons set forth below, we
AFFIRM the district court’s judgment.
BACKGROUND
I. Factual History
Ahmed is a native of Somalia. He is an imam employed in Columbus, Ohio who travels
to different Somali communities around the world giving speeches, sermons, and lectures, and
providing counseling.
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Ahmed immigrated to the U.S. on June 21, 1997, as a lawful permanent resident. In May
2002, Ahmed sought U.S. citizenship, executing an Application for Naturalization on May 28,
2002. In order to obtain assistance in completing that application, Ahmed went to WIN
Translation Services (“WIN”). A WIN employee completed Ahmed’s application. Ahmed
signed and dated the application, certifying under penalty of perjury that all of the information
contained within the application was “true and correct.” (R. 59, Trial Tr., PageID # 1484–85.)
WIN filed the form for Ahmed. The parties dispute who filled out Ahmed’s application and
what occurred during the preparation of the application.
The application asked about Ahmed’s foreign travel in the five years preceding his
application, from May 28, 1997 to May 28, 2002. Foreign travel is relevant to certain statutory
requirements for naturalization. Under 8 U.S.C. § 1427(a)(1), an applicant must be physically
present for at least 30 months of the five years (60 months) preceding the date of filing the
application (the “physical presence” requirement). Under 8 U.S.C. § 1427(b), an applicant
cannot have been absent for a continuous period exceeding six months during that five-year
period (the “continuous residence” requirement). Ahmed’s application indicated that he had
taken no trips outside of the U.S. during the relevant statutory time. This information was
incorrect because Ahmed did travel abroad during those five years. In fact, he made thirteen
trips outside of the U.S. as part of his work and to visit his family. Ahmed testified that those
trips averaged from two to four months and one of those trips may have been over six months.
The application also asked about Ahmed’s marital history and children. Ahmed’s
application indicated that he had one wife and listed the children that he had with that wife. The
government contended that this information was also inaccurate because Ahmed had what he
referred to as a “religious” or “cultural” wife and children with her as well.
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On February 27, 2003, after submitting his naturalization application, Ahmed appeared
for a naturalization interview. While the parties dispute what occurred during the interview, they
do not dispute that the interview was conducted by Yvonne Jarrett (“Jarrett”) (formerly
Valenzuela). During that interview, Ahmed affirmed under oath that all the information in the
application was true and correct. Another immigration officer, Terence Lee (“Lee”), re-verified
Ahmed’s application the same day. The Immigration and Naturalization Service (“INS”) (now
United States Citizenship and Immigration Services) approved Ahmed’s naturalization
application on February 27, 2003, and administered his oath of allegiance, granted him U.S.
citizenship, and issued a Certificate of Naturalization on March 3, 2003.
II. Procedural History
On October 16, 2012, the United States filed a complaint to revoke and set aside
Ahmed’s citizenship and to cancel his Certificate of Naturalization pursuant to 8 U.S.C.
§ 1451(a). The government alleged that Ahmed had provided false information in his
Application for Naturalization, which was “reaffirmed under penalty of perjury at the conclusion
of [his] naturalization interview.” (R. 1, Complaint, PageID # 7.) The government cited the
false statements and testimony regarding Ahmed’s trips outside of the U.S. and his marital
history. The government argued that denaturalization was required because Ahmed illegally
procured his naturalization and procured his naturalization by concealment of a material fact or
by willful misrepresentation.
A two-day bench trial was held from April 26–27, 2016. On September 20, 2017, the
district court issued its findings of fact and conclusions of law. The court found that Ahmed had
“procured his naturalization by concealment of material facts and willful misrepresentations
based on his travel outside of the United States.” (R. 65, Findings, PageID # 1619.) The district
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court did not address the government’s other arguments that Ahmed had failed to disclose his
marital history and had given false testimony. The court granted the government’s request to
revoke and set aside Ahmed’s citizenship and to cancel his Certificate of Naturalization.
On October 3, 2017, Ahmed timely filed a notice of appeal.
DISCUSSION
I. Misrepresentation or Concealment
Standard of Review
This Court reviews the district court’s conclusions of law de novo, its findings of fact for
clear error, and its evidentiary rulings for abuse of discretion. United States v. Mandycz,
447 F.3d 951, 957 (6th Cir. 2006).
A factual finding is clearly erroneous when “although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citing
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). “If the district court’s
account of the evidence is plausible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Id. at 573–74. “Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at
574 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)). This is true whether the
district court’s finding rests on credibility determinations, physical or documentary evidence, or
inferences from other facts. Id. “[W]hen a trial judge’s finding is based on his decision to credit
the testimony of one of two or more witnesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evidence, that finding, if not internally
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inconsistent, can virtually never be clear error.” Id. at 575. “A finding that is ‘plausible’ in light
of the full record—even if another is equally or more so—must govern.” Cooper v. Harris,
137 S. Ct. 1455, 1465 (2017) (citing Anderson, 470 U.S. at 574).
Analysis
“No alien has the slightest right to naturalization unless all statutory requirements are
complied with . . . .” United States v. Ginsberg, 243 U.S. 472, 475 (1917). However, “the right
to acquire American citizenship is a precious one and . . . once citizenship has been acquired, its
loss can have severe and unsettling consequences.” Fedorenko v. United States, 449 U.S. 490,
505 (1981). Consequently, the government “carries a heavy burden of proof in a proceeding to
divest a naturalized citizen of his citizenship.” Costello v. United States, 365 U.S. 265, 269
(1961). And the evidence justifying revocation of citizenship must be “clear, unequivocal, and
convincing” and “not leave the issue in doubt.” Schneiderman v. United States, 320 U.S. 118,
125 (1943) (citation and internal quotation marks omitted).
Under 8 U.S.C. § 1451(a), a citizen may be denaturalized when the order and certificate
of naturalization was “procured by concealment of a material fact or by willful
misrepresentation.” “[T]he provision plainly contains four independent requirements: the
naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or
concealment must have been willful, the fact must have been material, and the naturalized citizen
must have procured citizenship as a result of the misrepresentation or concealment.” Kungys v.
United States, 485 U.S. 759, 767 (1988).
After considering the first requirement, the district court concluded that Ahmed’s
application contained misrepresentations or concealments regarding his international travel. On
appeal, Ahmed argues that the district court clearly erred in finding that Ahmed misrepresented
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his foreign travel. He argues “it was undisputed at trial that Mr. Ahmed disclosed his foreign
travel during his naturalization interview” by bringing his passport to the immigration interview
and the district court erred in concluding otherwise. (Ahmed Br. at 14.)
As an initial matter, Ahmed’s own testimony does support his contention that he provided
his passport to the naturalization officer. Ahmed testified that he received an appointment letter
which specifically instructed him to bring his passport to the interview. He testified that he did
in fact bring his passport, which reflected foreign travel, to the interview and gave it to Jarrett.
He testified that she reviewed the passport, took it out of the room with her, and brought it back.
He did not know whether she made a copy of the passport. Ahmed testified that Jarrett did not
ask any questions about his travel or go over the questions in the application regarding foreign
travel or amount of time spent outside the U.S.
However, the evidence is not nearly as one-sided as Ahmed suggests. The district court
also heard from government witnesses whose testimony supported the government’s view that
Ahmed did not bring his passport to, or verbally disclose his foreign travel during, the
naturalization interview. For example, although she did not specifically remember Ahmed or his
interview, 1 Jarrett testified that she always asked applicants every question on the naturalization
1
Ahmed seems to suggest that it was improper for the district court to rely on Jarrett’s and Lee’s testimony
regarding their standard and customary practices during naturalization interviews because they had no recollection
of him. In one sentence, he notes that the government presented witnesses who had no memory of Ahmed, his
application, or his interview. In the next sentence, he says, “The witnesses testified generally as to their standard
procedures – over 13 years earlier.” (Ahmed Br. at 13–14.) Ahmed does nothing more than hint at this argument.
He also does not cite a single legal authority to support this argument. “[I]t is not the job of an appellate court to
make these arguments for him.” United States v. Brownlee, 716 F. App’x 472, 477 (6th Cir. 2017). “Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to
put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (alterations omitted) (quoting
Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293–94 (1st Cir.
1995)).
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application. She was confident that she asked Ahmed all questions and that Ahmed personally
confirmed the answers to those questions based on the fact that she approved his application.
Jarrett testified that if Ahmed had disclosed his international trips or presented her with his
passport, she would have confronted him about his travel and would have asked follow up
questions, annotated the application, and made a copy of the passport. The district court also
heard from Lee, who conducted a quality review of Ahmed’s naturalization application to make
sure all the statutory requirements and policy requirements had been fulfilled. He testified that
he believed Jarrett asked Ahmed the questions related to foreign travel because there was a red
mark at the top of the page containing those questions by Ahmed’s alien number (“A number”)
and because of the significance of the questions. Lee testified that had a copy of Ahmed’s
passport been in the file, he would have brought the application back to Jarrett because it
reflected “multiple” travel dates. (R. 58, Trial Tr., PageID # 1283–84.)
As a result, Ahmed is simply incorrect that there was “only one permissible conclusion
from the evidence presented at trial.” (Ahmed Br. at 14.) Another permissible conclusion from
Jarrett’s and Lee’s testimony was that Ahmed neither presented his passport during his interview
nor verbally disclosed his travel during the immigration interview. Consequently, the record
does support a finding that Ahmed had misrepresented his foreign travel. Accordingly, we
Furthermore, even if the Court were to consider this argument, there is no authority to support Ahmed’s
suggestion. See United States v. Syouf, No. 3:98CV7175, 1999 WL 689953, at *3 (N.D. Ohio Mar. 26, 1999) (“The
defendant contends that lesser weight should be given to testimony that is based on an INS examiner’s ‘invariable
practice’ instead of personal recollection. Testimony about habit is expressly sanctioned by Fed. R. Evid. 406, and,
contrary to the defendant’s argument, testimony about an examiner’s invariable practice may be determinative.”),
aff’d, 238 F.3d 425 (6th Cir. 2000) (Table); United States v. Rossi, 319 F.2d 701, 702 (2d Cir. 1963) (“The
Government produced . . . various officers who conducted the several [naturalization] inquiries. These officers
testified as to the practice and procedure in conducting the inquiries. . . . Such evidence was admissible and
determinative.”); United States v. Oddo, 314 F.2d 115, 117 (2d Cir. 1963) (“Testimony as to custom and practice [in
naturalization interviews] is admissible as circumstantial evidence [in denaturalization proceedings], subject to the
usual condition that its probative value outweigh any possible prejudicial impact.”).
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affirm the district court’s conclusion that Ahmed misrepresented and concealed his international
travel.2
II. Willfulness
Standard of Review
This Court reviews the district court’s conclusions of law de novo, its findings of fact for
clear error, and its evidentiary rulings for abuse of discretion. Mandycz, 447 F.3d at 957.
The parties dispute the appropriate standard of review on this question. Ahmed asserts
that the standard is de novo, while the government asserts that it is clear error. But because
Ahmed argues that the district court’s finding is legally insufficient to constitute willfulness, this
question is properly characterized as a mixed question of law and fact. See Byrne v. United
States, 857 F.3d 319, 326 (6th Cir. 2017) (“[W]e believe that, at least in this context, willfulness
is a question of ultimate fact because finding that someone was willful requires the application of
a legal standard to underlying facts. [Plaintiffs] do not challenge the district court’s factual
findings regarding their conduct; they challenge whether this conduct satisfies the legal standard
of willfulness. We therefore review de novo the district court’s holding [regarding
willfulness].”). Thus, we review the district court’s findings of fact related to willfulness for
clear error, but review de novo whether those findings satisfy the legal standard of willfulness.
2
Ahmed also makes an argument that the materiality requirement was not met because the statements in his
application “had no bearing at all on the decision to award citizenship” because he disclosed his foreign travel to the
government by providing it with his passport. (Ahmed Br. at 15–16.) This argument seems more appropriately
characterized as another challenge to the district court’s misrepresentation finding because it is based on Ahmed’s
assertion that there is only one permissible view of the facts and that he disclosed his foreign travel by handing over
his passport. And other than disputing the underlying facts, Ahmed does not argue that the district court erroneously
concluded that the responses to the foreign travel questions were material. The government characterizes Ahmed’s
argument as “another attack on the district court’s factual finding of misrepresentation dressed up in ‘materiality’
clothing.” (Gov’t Br. at 27.) We agree and dispose of the argument here as well.
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United States v. Demjanjuk, 367 F.3d 623, 636 (6th Cir. 2004) (citing United States v. Harris,
246 F.3d 566, 570 (6th Cir. 2001)).
Analysis
The second of the requirements under § 1451(a) is that the misrepresentation or
concealment must have been willful. Kungys, 485 U.S. at 767. A misrepresentation is willful if
it was deliberate and voluntary. Parlak v. Holder, 578 F.3d 457, 463–64 (6th Cir. 2009); see
also United States v. Arango, 670 F.3d 988, 995 (9th Cir. 2012); Toribio-Chavez v. Holder,
611 F.3d 57, 63 (1st Cir. 2010); Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999).
Knowledge of falsity is sufficient to show willfulness. Parlak, 578 F.3d at 463. An intent to
deceive is not necessary. Id.
The district court concluded that Ahmed willfully misrepresented his foreign travel. On
appeal, Ahmed argues that the record does not support a finding that he deliberately
misrepresented his foreign travel as there is “no evidence on record to show that Mr. Ahmed
intended to misrepresent his foreign travel, or that he knew that his foreign travel had been
misrepresented.” (Ahmed Rep. Br. at 7.)
In this case, Ahmed knew that he had traveled internationally during the five years
preceding the filing of his application. Further, evidence in the record supports a finding that
Ahmed knew that his application had misrepresented his foreign travel and that he failed to
verbally disclose his travel during his naturalization interview. For instance, Bich Khue Truong
(“Truong”) from WIN testified that she was certain she completed Ahmed’s application even
though she did not specifically remember Ahmed. Truong testified that she would have asked
Ahmed all of the questions on the application, filled in the answers as provided by Ahmed, and
then reviewed the application with him to make sure everything was correct. She testified that
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Ahmed would have read the application for the purposes of catching any errors. Truong testified
that she had never seen Ahmed’s passport. She testified that if Ahmed had presented her with
his passport, she would have reflected on the form the travel indicated on the passport. She said
she would not have written zero international trips on the application form if Ahmed had told her
he had traveled or if she had seen his passport. Additionally, as detailed above, Jarrett testified
that, based on her normal procedures, Ahmed did not bring his passport to the interview or
verbally disclose his travel during the naturalization interview, even though she asked him
questions about it. Furthermore, Ahmed signed Part 13 of his application certifying “under
penalty of perjury . . . that I know that the contents of this application for naturalization
subscribed by me . . . are true and correct to the best of my knowledge and belief” and the district
court found that he did so during his naturalization interview. (R. 65, Findings, PageID # 1613
n.6.; R. 22-3, Application, PageID # 283.)
The record considered in its entirety does support finding that Ahmed knew he had
traveled internationally, that Ahmed knew his application misrepresented his extensive foreign
travel, and that Ahmed confirmed his travel history during the interview. Accordingly, we
affirm the district court’s conclusion that Ahmed willfully misrepresented his foreign travel.
III. Procurement
Standard of Review
This Court reviews the district court’s conclusions of law de novo, its findings of fact for
clear error, and its evidentiary rulings for abuse of discretion. Mandycz, 447 F.3d at 957. “To
the extent that the questions of law are predicated on factual findings, this Court reviews the
factual findings for clear error.” Demjanjuk, 367 F.3d at 636 (citing Harris, 246 F.3d at 570).
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Analysis
The final requirement under § 1451(a) is that the naturalized citizen “procured citizenship
as a result of the misrepresentation or concealment.” Kungys, 485 U.S. at 767. The materiality
and procurement elements are separate, and “satisfaction of one does not necessarily mean
satisfaction of the other.” United States v. Latchin, 554 F.3d 709, 713 (7th Cir. 2009); see
Kungys, 485 U.S. at 767. Procurement requires that “citizenship be obtained as a result of the
application process in which the misrepresentations or concealments were made.” Kungys,
485 U.S. at 776. The Supreme Court split on what more procurement requires in a
“maddeningly fractured” opinion. Latchin, 556 F.3d at 713. The Seventh Circuit summarized
the division as follows:
Justice Stevens, speaking for two others, advocated what amounts to a “but for”
test-that the government has to establish that citizenship would not have been
conferred but for the misrepresentation. Justice Scalia, joined by two others,
rejected this construction because it would make the materiality requirement
meaningless, “requiring, in addition to distortion of the decision [(procurement)],
a natural tendency to distort the decision [(materiality)].” [Kungys, 485 U.S.] at
776, 108 S. Ct. 1537. But Justice Scalia and company did agree that procurement
requires more than just obtaining citizenship “as a result of the application process
in which the misrepresentations or concealments were made.” To them, proof of
a material misrepresentation created a presumption that citizenship was procured
on that basis. However, the citizen could rebut that presumption by showing that
she was actually eligible for citizenship. Justice Brennan wrote a separate
concurrence joining in Justice Scalia’s opinion to make a controlling plurality.
Justice Brennan’s controlling opinion stressed that citizenship is a “most precious
right” and added a more restrictive gloss to Justice Scalia’s view. Id. at 783, 108
S. Ct. 1537 (Brennan, J., concurring). Although Justice Brennan agreed that a
material falsehood can raise a presumption of ineligibility, he said that
presumption does not arise unless the government produces evidence sufficient to
raise a “fair inference of ineligibility.” Id. at 783, 108 S. Ct. 1537 (Brennan, J.,
concurring).
Latchin, 554 F.3d at 713–14 (first and second alterations in original).
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Applying the Seventh Circuit’s rationale, Justice Brennan’s concurring opinion controls
on this point.3 See id.; United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016); United States
v. Alferahin, 433 F.3d 1148, 1155 (9th Cir. 2006). So, as the Latchin court put it, “[a]t the end of
the day, then, the government only wins if it shows that the citizen misrepresented a material fact
and it is ‘fair to infer that the citizen was actually ineligible.’” Latchin, 554 F.3d at 714
(footnote omitted) (citing Kungys, 485 U.S. at 784 (Brennan, J., concurring)). The rebuttable
“presumption of ineligibility does not arise unless the Government produces evidence sufficient
to raise a fair inference that a statutory disqualifying fact actually existed.” Kungys, 484 U.S. at
783 (Brennan, J., concurring). “Evidence that simply raises the possibility that a disqualifying
fact might have existed does not entitle the Government to the benefit of a presumption that the
citizen was ineligible, for as we have repeatedly emphasized, citizenship is a most precious right
and as such should never be forfeited on the basis of mere speculation or suspicion.” Id. (citation
omitted).
The district court correctly found that Ahmed procured his naturalization as a result of his
misrepresentation about his foreign travel. Ahmed misrepresented a material fact and it is fair to
infer that he was actually ineligible for citizenship. As noted by the district court, Ahmed
admitted that he took thirteen international trips during the relevant time period, and that each
trip lasted two to four months and one may have lasted more than six months. This testimony
implicates two separate statutory requirements for eligibility. An applicant cannot have been
absent for a continuous period exceeding six months during the five-year period preceding his
application. 8 U.S.C. § 1427(b). But Ahmed indicated he may have been on a trip that exceeded
six months. An applicant must also have been physically present in the U.S. for at least thirty
3
Both parties agree with this.
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months of the preceding five year period. 8 U.S.C. § 1427(a)(1). But as the district court noted,
“[g]iven that one trip possibly exceeded six months, if even one of the remaining twelve trips
exceeded two months, Defendant’s cumulative foreign travel would have exceeded thirty
months.” (R. 65, Findings, PageID # 1631.) Alternatively, the district court noted that “even if
one of the trips did not exceed six months, if only three or four of the thirteen trips were three or
four months in duration, Defendant’s cumulative travel would have exceeded thirty months.”
(Id. at # 1631 n.9.) Ahmed’s travel was sufficient to break both the continuous residence
requirement and the physical presence requirement, rendering him statutorily ineligible for
citizenship. Because the evidence in this case raises a fair inference of actual ineligibility, the
rebuttable presumption of ineligibility arises. Ahmed failed to rebut this presumption.
Accordingly, we affirm the district court’s conclusion that Ahmed procured citizenship as
a result of his misrepresentation.
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.
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