Opinion
Case No. 2:18-cv-11089
2023-11-30
Frida MARKO, Plaintiff, v. Merrick GARLAND, Attorney General of the United States, et al., Defendants.
Renis Nushaj, Goetz Nushaj P.L.L.C., Troy, MI, Carrah L. Crofton-Wloszek, Crofton Legal PLLC, Troy, MI, for Plaintiff. T. Monique Peoples, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendants L. Francis Cissna, Mirash Dedvukaj, Director Michael Klinger, Merrick Garland, Alejandro Mayorkas.
Renis Nushaj, Goetz Nushaj P.L.L.C., Troy, MI, Carrah L. Crofton-Wloszek, Crofton Legal PLLC, Troy, MI, for Plaintiff.
T. Monique Peoples, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendants L. Francis Cissna, Mirash Dedvukaj, Director Michael Klinger, Merrick Garland, Alejandro Mayorkas.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF
Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff Frida Marko is a citizen of Albania who has been living in the United States for the past twenty-four years. Prior to arriving in the United States, Plaintiff submitted a nonimmigrant visa application on three occasions — first in March 1999, second in May 1999, and third in September 1999. The March and May applications were denied, but the September one was approved. As a result of the approval, she traveled to the United States in September 1999 and has resided in Michigan ever since. In 2009, Plaintiff applied for Lawful Permanent Resident (LPR) status, which the United States Customs and Immigration Services (USCIS) granted in July of the same year.
In 2017, Plaintiff applied for naturalization, but her application was denied, as was her appeal of that decision. Plaintiff filed the instant suit seeking de novo judicial review of the decisions under 8 U.S.C. § 1421(c). The Court held a bench trial in this matter from December 5 through December 8, 2022. Based on the following findings of fact and conclusions of law, the Court finds for the defendants, United States Attorney General Merrick Garland, et al., and affirms the denial of Plaintiff's application for naturalization. II. FINDINGS OF FACT
A. Marko Family
Plaintiff Frida Marko was born in Albania on June 10, 1957. (ECF No. 66, PageID.982.) She married her husband, Vangjush Marko, in Albania in 1979, with whom she had two daughters: Monika, born in 1980, and Xhorlina, born in 1983. (Id.) Before taking her husband's last name in marriage, Plaintiff's maiden name was "Tomco." (Id., PageID.1004.) In 1975, Plaintiff received a pharmacy degree from a medical school in Korca, Albania. (Id., PageID.984.) She began her career working as a pharmacist at a state-owned pharmacy from 1975 until 1995. (Id., PageID.985.) In 1995, Plaintiff and a childhood friend, Nexhmie Gyjsema, opened their own pharmacy (id. at PageID.985, 999), which Plaintiff described as "very successful." (Id., PageID.1002.)
Vangjush Marko was a construction engineer in Albania. (ECF No. 67, PageID.1137.) In 1995, Vangjush was assigned to work on a new cathedral in Korca. (Id.) Between 1995 and 1997, he and his family were threatened and attacked by Muslim extremist groups in Albania (id., PageID.1073, 1138-1139), and, in 1997, Plaintiff was attacked in their home (id., PageID.1139). The attack and the threats leading up to it prompted Plaintiff and her family to flee to Greece in 1997, although she apparently returned to Albania sometime later. (Id., PageID.1139.) In the same year, Plaintiff paid more than $5,000 for her daughter, Monika, to travel to the United States on a temporary student visa. (ECF No. 66, PageID.1030.) In June 1998, Vangjush traveled to the United States on a temporary visa to attend Monika's graduation. (Id., PageID.1030; ECF No. 67, PageID.1178.) With no intention of returning to Albania, and desiring to "save [his] family for good," Vangjush applied for asylum in September 1998. (ECF No. 67, PageID.1147.) Shortly thereafter, Plaintiff paid around $5,000 to send her other daughter, Xhorlina, to the United States on a temporary student visa. (ECF No. 66, PageID.1030.)
B. Plaintiff's First Albanian Passport and Initial Visa Applications
On November 18, 1998, after Vangjush had applied for asylum, Plaintiff obtained an Albanian passport ("Marko passport"). (Id.) The passport was issued under the name "Frida Marko," reported her correct birth date (June 10, 1957), listed her children, and was valid for five years. (Id., PageID.1030-32; Ex. 21.) In March 1999, Plaintiff applied for a nonimmigrant temporary visa to attend a baptism in the United States using the same passport, paying a private company to help her complete it. (ECF No. 66, PageID.988-99.) Following the completion of her application, Plaintiff traveled to the U.S. Embassy in Skopje, Macedonia, where she gave her passport to a consular officer and was interviewed by him. (Id., PageID.1034.) After the interview, the officer returned Plaintiff's passport to her, which she understood as a denial of her application. (Id.) The officer denied the application under Section 214(b) of the Immigration and Nationality Act ("INA"), which indicates "that the person[ ] [is] an intending immigrant." (ECF No. 67, PageID.1182; see also ECF No. 69, PageID.1378-79.)
In May 1999, Plaintiff applied for another temporary visa through the embassy in Skopje. (ECF No. 68, PageID.1283-1285; ECF No. 69, PageID.1381-1382; Ex. 10 & 21.25; see also ECF No. 66, PageID.1037-38.) That application contained her correct
Throughout this opinion, decimal points will be used after exhibit numbers as pin cites to particular pages within an exhibit. For example, page 14 of Exhibit 15 would be cited as 15.14. Defendants identified exhibits by number, and Plaintiff identified exhibits by letter, although the vast majority were admitted by stipulation and there was some overlap or duplication. Exhibits with the "PD" (Proposed Defense) prefix indicate that they were initially proposed by Defendants as "may use" exhibits, and which were, in fact, later admitted.
biographical information. (ECF No. 67, PageID.1184; ECF No 69, PageID.1383.) The Embassy similarly denied this application, because it believed that Plaintiff intended to immigrate to the United States on account of the rest of her family already living there. (ECF No. 67, PageID.1183-84; ECF No. 69, PageID.1383-84.)
C. The Washington, D.C. "Business Conference"
Plaintiff testified that, in August 1999, she met a woman named "Linda," who held herself out to be an employee of the United Nations Population Fund (UNFPA). (ECF No. 66, PageID.999-1001, 1038-39.) Plaintiff does not recall Linda's last name. (ECF No. 67, PageID.1098.) Plaintiff also did not know what the UNFPA was and did not verify whether this individual actually worked there. (ECF No. 66, PageID.999-1000.) Linda offered to help Plaintiff obtain a visa to attend a "business conference" in Washington, D.C., and Plaintiff accepted, paying Linda $5,450 to register for the conference and $550 to help her fill out the application. (Id., PageID.1000, 1038-39.) Plaintiff did not ask Linda how the conference would benefit her existing and successful pharmacy business (to which she wished to return) and allegedly thought it was about "establishing businesses." (Id., PageID.1043; ECF No. 69, PageID.1424; ECF No. 67, PageID.1125.)
According to its website, www.unfpa.org/about-us, the "UNFPA is the United Nations sexual and reproductive health agency." (Last checked Nov. 5, 2023.) Its connection to the business conference described infra is, to say the very least, unclear.
Linda then provided Plaintiff with a letter from "The Institute for Public-Private Partnerships," confirming her acceptance to the conference, as well as an invoice for the registration fee. (ECF No. 66, PageID.1039-40; ECF. No. 67, PageID.1103; Exs. 19 & 20.) Both documents are dated September 2, 1999, and bear a fax transmission stamp indicating they were faxed on the same date. (ECF No. 66, PageID.1041; Exs. 19 & 20.) The letter is addressed to "Frida Tomco," Plaintiff's maiden name, and inaccurately indicates that Plaintiff works as a "finance assistant" for the UNFPA Office in Tirana, Albania. (ECF No. 67, PageID.1189; Ex 20.) Plaintiff testified at trial that she had "never" worked for the UNFPA. (ECF No. 66, PageID.1001.) Furthermore, Plaintiff did not read, speak, or understand English at the time these events took place. (ECF No. 67, PageID.1126.) A September 3, 1999 letter from the "U.N. Population Fund" was submitted to the U.S. Embassy on Plaintiff's behalf, falsely identifying Frida Tomco as its "financial assistant" and enclosing a Washington, D.C. conference acceptance letter and conference invoice in support of Plaintiff's visa application. (Exs. 3 & 4; ECF No. 69, PageID.1391-1393.) Those documents were later determined to be "fraudulent" and "forged." (ECF No. 67, PageID.1209; ECF No. 69, PageID.1392-95; Exs. 1, 2 & 8.)
D. Plaintiff Obtains a Second Albanian Passport and Uses it to Apply for a U.S. Visa
On September 8, 1999, Plaintiff obtained a second Albanian Passport ("Tomco passport"). (ECF No. 66, PageID.1005, 1045; ECF No. 69, PageID.1391; Ex. 22.) It was
written in Albanian, French and English, so Plaintiff should have been able to identify any errors it may have contained. (ECF No. 67, PageID.1194.) This passport included Plaintiff's photo and provided her correct height, place of birth, and eye color. (Ex. 22.) However, it was issued under her maiden name (with her first name spelled "Firda"), gave an incorrect birth date (July 9, 1957), omitted her children (in contrast to the Marko passport, where she lists them (for comparison, see Ex. D)), and had a different passport number than the original passport. (Ex. 22; ECF No. 66, PageID.1045-47; ECF No. 67, PageID.1194-95.) Plaintiff confirmed that the Tomco passport had "wrong and incomplete information." (ECF No. 66, PageID.1048, 1051.) At the time the Tomco passport was issued, Plaintiff's original/Marko passport, which contained her correct information, was still valid for four more years. (ECF No. 66, PageID.1051; see also ECF NO. 69, PageID.1391.)
In the Court's view, after viewing the originals of the trial exhibits, the photo image used in the Tomco passport (September 1999) appears several years younger than the ones used in the Marko passport (November 1998) and the derivative asylee application (April 2005), discussed infra. (Compare Exs. 21.3, 22.3 and PD20.182.) The two passport photos also have different hairstyles, and Plaintiff is wearing glasses in the Tomco passport, but not in the Marko passport.
After obtaining her Tomco passport, Plaintiff used it to attend her visa interview at the U.S. Embassy in Macedonia on September 10, 1999. (ECF No. 66, PageID.1011.) She attended the interview with a woman named Entela, who spoke both Albanian and English and was also allegedly registered for the Washington, D.C. conference and worked for the UNFPA. (ECF No. 66, PageID.1010-12; ECF No. 67, PageID.1067.) At the embassy, Plaintiff gave the consular officer her Tomco passport, but claims that the officer only spoke to Entela and did not ask Plaintiff any questions. (ECF No. 66, PageID.1010-12; ECF No. 67, PageID.1067-68; ECF No. 69, PageID.1425.)
Although Plaintiff's September 1999 visa application identifies Entela's last name as Papo (Ex. 7), and counsel referred to her by that full name in argument, a search of Plaintiff's trial testimony (ECF Nos. 66 & 67) reveals that Plaintiff herself only refers to Entela by her first name.
The embassy stamped a visa application for "Frida Tomco," as well as what later were determined to be forged UNFPA documents, as received on September 10, 1999. (Exs. 3, 4 & 7; ECF No. 69, PageID.1389.) While Plaintiff did attend the interview at the embassy, she claims that she never saw any of the documents the embassy stamped that day and that she did not give them to the consular officer. (ECF No. 66, PageID.1004, 1052-53, 1067.) The September 1999 visa application has the same photo and passport number found on Plaintiff's Tomco passport. (Ex. 7; ECF No. 67, PageID.1065-67; ECF No. 69, PageID.1388, 1390-91.) The application omitted that Plaintiff's family was living in the United States and that Plaintiff had applied for previous visas, and it stated that Plaintiff's supposed employer (the UNFPA) was paying for the trip. (ECF No. 67, PageID.1201-03; ECF No. 69, PageID.1385-88.) It falsely indicates that she was a "financial assistant" for the UNFPA and indicates that she intended to stay for two weeks total. (Exs. 3 & 4.) Such information would likely lead an officer to conclude that Plaintiff did not intend to immigrate and had reasons to return to Albania at the end of her trip. (ECF No. 67, PageID.1191-92, 1201-03; ECF No. 69, PageID.1379-80, 1383-88, 1393-95, 1410-11.) As USCIS Officer Batol Makki explained at trial, the disclosure of family members may "demonstrate nonimmigrant intent
[since] there are ties to the home country[,]" but "if immediate family members are already in the United States, in this case ... Ms. Marko's entire immediate family, then that would work against her in demonstrating nonimmigrant intent." (ECF No. 69, PageID.1380.) The Court agrees that these inferences are reasonable, although obviously not per se dispositive.
Furthermore, the visa application gave Plaintiff's maiden name instead of her legal married name, incorrectly listed her husband's name as "Nico Tomco," stated an incorrect birth date—a different date (July 7, 1957) than the dates on either of her passports—and used the Tomco passport number, which had not been used in previous visa applications. (Ex. 7; see also Ex. 26 (blank form translation); ECF No. 67, PageID.1201-1203; ECF No. 69, PageID.1385-1388.) Because of the change in her name, biographical information and passport number, it is unlikely that the consular officer could or would have connected Plaintiff's Tomco visa application with her previous, unsuccessful applications. (ECF No. 67, PageID.1201-05; ECF No. 69, PageID.1385-88, 1393-95.)
The U.S. Department of State (DOS) granted Plaintiff's September 1999 visa application and recorded the biographical information provided in her visa application. (Exs. 6, 7 & PD20.193.) Notably, the DOS records reflected that the visa application was associated with Frida Tomco (allegedly) born on July 7, 1957, rather than recording the varying birth dates (correctly June 10th or incorrectly July 9th) listed in either of Plaintiff's passports. (Ex. 7; ECF No. 67, PageID.1204, 1209; ECF No. 69, PageID.1384-85.)
Exhibits submitted to the Court by Plaintiff show June 10 on her "Frida Marko" Permanent Resident Card (Ex. B), her 2018 "Frida Marko" Michigan driver's license (Ex. C), and a "Frida Marko" U.S. travel document (Ex. E), but July 9 on a prior "Frida Tomco" Michigan driver's license (Ex. C). In other words, there appears to have been ongoing use of the July 9 birthdate in connection with the Frida Tomco name.
E. Plaintiff Travels to the United States and Remains (September 1999)
Before leaving Albania, Plaintiff purchased airline tickets for a flight from Albania to Washington, D.C. and another flight to fly immediately to Michigan from D.C. (ECF No. 67, PageID.1069-70; ECF No. 69, PageID.1426-27.) On September 23, 1999, Plaintiff boarded a flight with Entela and flew to Washington D.C. (ECF No. 66, PageID.1013; ECF No. 67, PageID.1069.) After arriving in D.C., Plaintiff and Entela went through Customs together. (ECF No. 67, PageID.1071.) Plaintiff gave the immigration officer her Tomco passport, but claims that he did not ask her any questions. (ECF No. 66, PageID.1014; ECF No. 67, PageID.1070-71; ECF No. 69, PageID.1425-26.) Without leaving the D.C. airport, Marko and Entela boarded another flight to Michigan. (ECF No. 66, PageID.1015; ECF No. 67, PageID.1069; ECF No. 69, PageID.1388.)
Within days of arriving in Michigan, Plaintiff decided that she would not return to Albania. She claims that she remained in this country so that she could testify at her husband's asylum hearing, which, at the time, was two years away. (ECF No. 66, PageID.1016-17; ECF No. 67, PageID.1072-73, 1104-1105.) She never returned to D.C. for the business conference, which was the very basis for which she sought entry into the United States, despite paying over $5,000 to attend. (ECF No. 67, PageID.1071-72; ECF No. 69, PageID.1387-88, 1427.) Having overstayed her one month temporary visa, Plaintiff has remained in the United States since. (ECF No. 67, PageID.1072; Ex. 15.1.)
Back in Albania, Plaintiff's business partner continued the pharmacy business until Plaintiff sold her share. (ECF No. 66, PageID.1013; ECF No. 67, PageID.1106, 1125.)
F. Department of State Investigation of "Frida Tomco" Visa Application (1999)
In November 1999, the DOS conducted an investigation and determined that the UNFPA documents used to support "Frida Tomco's" visa application were forged. (Ex. 1; Ex. 2; Ex. 8; ECF No. 69, PageID.1412-13.) The DOS memorialized its investigation and conclusions in several documents stating that Frida Tomco, (purportedly) born July 7, 1957, had misrepresented material facts and was, therefore, inadmissible. (Ex. 1; Ex. 2; Ex. 8; ECF No. 69, PageID.1414.) These documents listed only the incorrect July 7 birth date contained in the September 1999 visa application. (ECF No. 67, PageID.1209; ECF No. 69, PageID.1384-85.) At that point, the DOS knew only that the UNFPA's letter regarding "Frida Tomco" "was not authentic... was fraudulent and was forged." (Id., PageID.1208-09, Exs. 1 & 8.) Based on these findings, the DOS retroactively denied the September 1999 visa application by Frida Tomco. (Ex. 5; Ex. 8; ECF No. 67, PageID.1209-10; ECF No. 69, PageID.1413-14.) The retroactive denial deemed Frida Tomco — who ultimately turned out to be Frida Marko — inadmissible, because, according to the DOS, she had misrepresented material facts and committed fraud to obtain an immigration benefit. (ECF No. 67, PageID.1209-10; ECF No. 69, PageID.1414-16.) However, the DOS did not know in 1999 that Frida Tomco, (allegedly) born July 7, 1957, was in fact Frida Marko, (actually) born June 10, 1957. (ECF No. 67, PageID.1211.) Notably, overseas embassies, which handle visas, are under the DOS, while the USCIS, which handles naturalization, is overseen by the Department of Homeland Security. (Id.)
Based on her demeanor when testifying, which the Undersigned personally observed, as well as her clarity, consistency, supporting documentation, and the logical plausibility of her explanations, the Court finds government witness Brandee Harris, f/k/a/ Brandee Prior, who testified to this procedural history, to be very credible.
At the time the DOS retroactively denied the Tomco visa application in November 1999, Plaintiff was already living in the United States. (ECF No. 67, PageID.1073.) The DOS records relating to "Frida Tomco's" inadmissibility were not connected to Plaintiff's USCIS immigration file until after she had already obtained LPR status in July 2009 and applied for naturalization in 2017. (ECF No. 67, PageID.1211-12; ECF No. 69, PageID.1417.)
G. Asylum and Derivative Asylum Application (2003-2008)
In November 2003, Plaintiff testified at her husband's asylum hearing (ECF No. 67, PageID. 1018, 1072-73, 1151), and he was granted asylum. (Id., PageID.1151; Ex. 18.) Based on Vangjush's asylee status,
Vangjush Marko's asylum application file was admitted "for what it's worth" for the limited purposes of showing what he represented to the Government and what was considered by the Government in the grant of asylum, and as to the intent, motive and/or plan of Plaintiff and her husband. However, as to hearsay statements contained therein, it was not accepted for the truth of the matter asserted. (Ex. 18; ECF No. 67, PageID.1142-1153.) Notwithstanding Plaintiff's objection, Ex. 18 was already included in Plaintiff's A-file (Ex. PD20; ECF No. 67, PageID. 1146), which was admitted after Plaintiff's counsel agreed "absolutely" that, under the case law — even in criminal cases — the A-file is commonly admitted and voiced a self-described "tepid objection because, frankly, I don't know that this helps their cause. I don't know that it hurts my cause." (ECF No. 67, PageID.1173.) See United States v. Hodulik, 44 Fed. App'x 656, 661-662 (6th Cir. 2002); United States v. Santos, 947 F.3d 711, 726-727 (11th Cir. 2020); United States v. Lang, 672 F.3d 17, 23-25 (1st Cir. 2012). In any case, the Court did not end up relying upon Ex. 18 in reaching its decision.
Plaintiff sought derivative asylum with the assistance of an immigration attorney. (ECF No. 66, PageID.1017-18; ECF No. 67, PageID.1104, 1212-13). The application requires only that the relation to the asylee be demonstrated (see Ex. PD20.183-185; ECF No. 69, PageID.1459), and it does not require that the derivative asylee show lawful admission or good moral character. (See Ex. PD20.183-185; ECF No. 68, PageID.1322.)
While Ms. Harris's testimony about this application referred to Exhibit 17, an excerpt from Plaintiff's A-file that was never formally admitted as such, the application was contained in the complete A-file, which was admitted as Ex. PD20.
A 2005 derivative asylee application was filed by Vangjush Marko and his attorney on Plaintiff's behalf. (Ex. PD20.183.) Although the application acknowledged that Plaintiff had a July 9, 1957 date of birth on her passport and June 10, 1957 on her birth certificate, and truthfully listed "Tomco" under the category called "Other name(s) used (including maiden name)," it did not mention the July 7, 1957 birth-date used in her visa application (Ex. 7) and utilized in the State Department's 1999 nonimmigrant visa (NIV) Applicant Detail/refusal worksheet or retroactive refusal (Exs. 5 & 8; ECF No. 67, PageID. 1209-1212) (emphasis added). The application also did not seek a waiver of inadmissibility. (Ex. PD20.182-186; ECF No. 67, PageID.1213-14; ECF No. 69, PageID.1434-35.) See 8 U.S.C. §§ 1182(h), 1127(a)(1)(H); 8 C.F.R. § 209.2(b). The USCIS granted derivative asylum status to "Frida Marko" on January 4, 2008 (Ex. PD20.183) and issued a certificate of the same the following day (Ex. H). Nonetheless, because the DOS had deemed Plaintiff, as originally admitted under "Frida Tomco," inadmissible (in November 1999), she was required to seek a waiver before applying for LPR status, and the waiver likely would have been granted by USCIS if she could demonstrate the need for a waiver based on "family unity, for humanitarian purposes, or for the public interest." (ECF No. 67, PageID.1213-14; ECF No. 69, PageID.1433-35.)
Plaintiff's counsel pointed out that his client had "no business" in the filing of the derivative asylee status application. (ECF No. 67, PageID.1138.) While counsel is correct that the asylum application is not being relitigated here and does not count as an admission against Plaintiff's interest under Fed. R. Evid. 804(b)(3), it does show what information the Government had about Plaintiff, and when, and through what disconnected channels the information was communicated. The Court considers it only for those limited purposes.
An NIV Applicant Detail "basically is a record kept by the State Department. It summarizes — it basically includes — it's not the application for the nonimmigrant visa, it's a summary of who applied, that person's information, what the adjudication was and when that adjudication was made." It is generated every time a visa application is made, regardless of whether it is granted or refused. (ECF No. 69, PageID.1377-1378.)
H. Plaintiff Applies for LPR Status (2009)
In 2009, Plaintiff applied for LPR status, which allows a noncitizen to live and work in the U.S. indefinitely and to receive public benefits, using the name Frida Marko and the correct (June 10, 1957) birth date. (Ex. 15; ECF No. 67, PageID.1060, 1074.) An applicant who has been deemed inadmissible for making false statements is eligible for LPR status only if they seek, and are granted, a waiver of inadmissibility. (Id., PageID.1060.) In her application for LPR status, Plaintiff did not disclose
that she had used other birth dates, provided the wrong city and country for the consulate where her visa was issued (providing Tirana, Albania, instead of Skopje, Macedonia), and denied having ever "by fraud or willful misrepresentation of a material fact ... sought to procure, or procured, a visa, other documentation, entry into the United States or any immigration benefit[,]" despite the circumscribed admissions contained in her derivative asylum application. (Exs. 15 & 17; ECF No. 67, PageID.1074-75, 1122-23, 1216.) See also 8 U.S.C. § 1182(a)(6)(C)(i). Plaintiff did, however, acknowledge that she had entered the United States under the name Frida Tomco, ten years after the fact. (Ex. 15.2.) But, notwithstanding the existence of the above-described, materially incorrect information used to procure her initial entry in September 1999, Plaintiff did not request a waiver of inadmissibility with her 2009 application for LPR status. (Id.; ECF No. 67, PageID.1214; ECF No. 69, PageID.1434.)
Plaintiff should not have been mistaken as to which U.S. embassy she visited. At trial, she easily remembered that, at least in March 1999, "the U.S. Embassy in Triana [sic] back then was completely shut down and not functioning." (ECF No. 66, PageID.988.) This is surprising, as the official Embassy website shows an accredited ambassador in place through May 20, 1999, and then a newly accredited one beginning on September 8, 1999. See https://al.usembassy.gov/former-ambassadors/?_ga=2.54652459.1049654592.1697050677-1150809891.1697050666(last visited Oct. 11, 2023). Nonetheless, theoretically, it is possible that visa services were suspended for some unknown reason.
USCIS records from around that time show that the agency performed background checks using the names Frida Marko and Frida Tomco, but used only the birth dates from Plaintiff's two passports (i.e., correctly June 10, 1957 and incorrectly July 9, 1957). (ECF No. 68, PageID.1349-51, PageID.1356-57; Ex. PD20.265-291.) The USCIS did not search the birth date used in Plaintiff's September 1999 visa application (i.e., it did not search for Frida Tomco, born July 7, 1957); therefore, the USCIS did not learn of the November 1999 DOS investigation at the time of Plaintiff's 2009 LPR application. (See Ex. PD20.265-278; ECF No. 68, PageID.1355-1357; see also Ex. N (ECF No. 58-3).) Notably, the DOS investigative information, as reflected in the NIV applicant detail and refusal worksheet, uses the incorrect July 7, 1957 birth-date. (Exs. 5, 6, 8.) Consequently, and not surprisingly, on July 13, 2009, the USCIS granted Plaintiff's application for LPR status. (Ex. 15.)
I. Plaintiff's Application for Naturalization is Denied (2017)
In 2017, Plaintiff applied for naturalization (ECF No. 66, PageID.1019.) Naturalization is considered the greatest immigration benefit that the United States can bestow on a noncitizen. (ECF No. 67, PageID.1162.) Accordingly, naturalization applications are reviewed more thoroughly by USCIS than applications for other immigration benefits. (ECF No. 69, PageID.1373; compare Ex. 15 with Ex. 14.) These applications are given under oath. (ECF No. 69, PageID.1467; Ex. 14.17.) For an applicant to be eligible for naturalization, he or she must have been "properly" and "lawfully" admitted and must have good moral character. (ECF No. 67, PageID.1162, 1165; ECF. No. 6, PageID.1418.) As Judge Tarnow, of happy memory, explained earlier in this case in his opinion denying summary judgment, the applicant bears the burden "'to show [her] eligibility [ ] for citizenship in every respect' and 'doubts should be resolved in favor of the United States against the claimant.'" Marko v. Barr, No. 18-11089, 2019 WL 5578103, at *3 (E.D. Mich. Oct.
29, 2019) (quoting Berenyi v. District Director, INS, 385 U.S. 630, 671, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967)). See U.S. v. Macintosh, 283 U.S. 605, 626, 51 S.Ct. 570, 75 L.Ed. 1302 (1931) ("[T]he United States is entitled to the benefit of any doubt which remains in the mind of the court as to any essential matter of fact.") (See also ECF No. 35, PageID.614; ECF No. 67, PageID.1165.)
In her January 5, 2017 naturalization application, Plaintiff certified that she could "read and understand English" and that she "understood all the questions." (Exs. 14.16.) She did not disclose that she had used other birth dates, although she did list her maiden name under "Other Names You Have Used Since Birth." (Ex. 14.2; ECF No. 67, PageID.1077-78, 1219-20.) She denied ever giving "any U.S. Government officials any information that was false, fraudulent, or misleading." (Ex. 14.15; ECF No. 66, PageID.1021-24; ECF No. 67, PageID.1078.) She also denied ever lying to "any U.S. Government officials to gain entry or admission into the United States or to gain immigration benefits while in the United States." (Id.) Plaintiff signed her application under penalty of perjury. (Ex. 14.17; ECF No. 67, PageID.1081.) When confronted with this at trial, she testified that, "my youngest daughter [who had been educated in the United States] helped me with this" and "I didn't focus in on this with full mind." (ECF No. 67, PageID.1078.) Nonetheless, Plaintiff admitted that by that time in 2017 she herself "could read English." (Id.)
In contrast to reading, Plaintiff testified that she could only speak English, "Not a hundred percent; 50 percent[,] yes." (Id.)
Plaintiff attended a naturalization interview with USCIS Officer Brandee Harris on June 15, 2017 and testified under oath during the interview. (ECF No. 67, PageID.1076-1077, 1155-56, 1420-1421.) Harris was an experienced USCIS officer with extensive training in immigration law and procedure who had adjudicated thousands of naturalization applications. (Id., PageID.1156-57, 1164-65.) At that interview, Plaintiff stated that she did not have trouble understanding English. (Id., PageID.1077, 1081; Ex. 14.1.) Before the interview, Officer Harris learned of the November 1999 DOS investigation and knew that Plaintiff's September 1999 visa application was based on false information and that Plaintiff had been deemed inadmissible. (Id., PageID.1165-66, 1216.) During the interview, Harris repeatedly asked Plaintiff whether she had ever given false information or documents to a government official or lied to a government official to obtain an immigration benefit. (Id., PageID.1221-22.) Plaintiff denied having done so, but Harris did not find her responses credible. (Id., PageID.1175, 1221-22.)
On September 14, 2017, the USCIS denied Plaintiff's naturalization application for several reasons. (Exs. 11, 14.1; ECF No. 67, PageID.1081, 1176-77; Pl. Ex. F.) First, Plaintiff was not lawfully admitted for permanent residence, because the DOS had retroactively denied her visa application, deeming her inadmissible, and she had not sought a waiver, making her ineligible for naturalization. (ECF No. 67, PageID.1176, 1223; see also Ex. O (ECF No.58-4).) In other words, despite erroneously granting Plaintiff LPR status in July 2009, the USCIS's error did not satisfy the statutory requirement that an applicant be lawfully admitted for permanent residence before seeking naturalization. (Id., PageID.1162.)
Second, Plaintiff's pattern of visa applications in 1999 indicated an intention to mislead the embassy to obtain a visa. (Id.,
PageID.1176-77.) The USCIS generally considers errors related to personal information the applicant should readily know, such as the applicant's own name and birth date, to be intentional. (Id., PageID.1160.) In contrast, it generally considers as inadvertent minor typographical mistakes or errors in dates and locations not intrinsically important to the applicant. (Id., PageID.1159-60, 1188; Ex. PD20.161.) Plaintiff's visa application and her Tomco passport — among them containing material falsities which she should have known to be untruthful, such as her legal surname, date of birth, occupation, and family ties — had errors strongly suggesting that she intended to mislead the U.S. embassy, which, in fact, she did. (Id., PageID.1223.)
J. Plaintiff's Appeal of Her Naturalization Application is Denied (2017)
On October 8, 2017, Plaintiff appealed the decision and requested that the agency rehear her naturalization application. On December 6, 2017, Plaintiff attended her rehearing interview with her attorney and an interpreter. (ECF No. 69, PageID.1423, 1438.) USCIS Officer Batol Makki—a licensed attorney with extensive training and experience in immigration law and procedure who the Court also finds to be very credible, based on its personal observation of her demeanor and the consistency of her testimony—conducted the rehearing interview. (Id., PageID.1368-72, 1376; Ex. 11.) As Ms. Makki recounted, at the rehearing interview, Plaintiff again denied ever making false statements or giving false information to obtain an immigration benefit. (Id., PageID.1430.) Officer Makki considered Marko's explanation for her second passport and the other incorrect information in her visa application, and found that the preponderance of the evidence indicated Plaintiff had intentionally misled the embassy to obtain a visa. (Id., PageID.1430-32, 1461-63.)
USCIS denied Plaintiff's application upon rehearing for two reasons: she had not been lawfully admitted for permanent residence and she lacked good moral character. (Id., PageID.1432-33; Ex. 11.) Officer Makki noted that Marko lied at the rehearing interview when she denied applying for a visa in May 1999 (id., PageID.1424), she gave false information when she used her Tomco passport at the embassy in Macedonia and at Customs in Washington, D.C. in September 1999 (id., PageID.1431), her September 1999 visa application had numerous false statements intended to mislead (id.), she failed to disclose her previous false statements in her 2009 application for LPR status (id., PageID.1418), and she denied making false statements when she filled out her naturalization application and then stuck by that denial at her interview. (Id., PageID.1420-21; see also Ex. 11, listing irregularities and findings from the rehearing.) As Ms. Makki explained, the effect of providing false information "with the subjective intent of obtaining an immigration benefit of naturalization" — or, for that matter, in obtaining the initial visa for entry into this country in September 1999 — rightly resulted in the denial of Plaintiff's naturalization application. The Court agrees with this summary, as supported by the record.
And, as Ms. Makki further explained, the applicant bears the burden, by a preponderance standard of proof, to demonstrate that the application should be granted. (ECF No. 69, PageID.1422.)
III. CONCLUSIONS OF LAW
A. STANDARD
The Immigration and Nationality Act (INA) provides that "[n]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent
residence in accordance with all applicable provisions of this chapter." 8 U.S.C. § 1429. See also 8 U.S.C. § 1427(a)(1). "The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C. § 1101(a)(20). The fact that the Government has adjusted an applicant's status is not dispositive. Rather, a naturalization applicant must demonstrate that the grant of LPR status complied with substantive legal requirements for admissions and not mere procedural regularity. Turfah v. United States Citizenship and Immigration Services, 845 F.3d 668, 672-73 (6th Cir. 2017) (adopting BIA's interpretation of the "lawful-admission requirement" as consistent with Sections 1427(a), 1429). Therefore, an applicant is not considered to have been lawfully admitted if her LPR status was obtained by "fraud, or [she] had otherwise not been entitled to it." Id. at 671-73. "The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States...." 8 U.S.C. § 1429.
The INA also requires that no person shall be naturalized unless the person "during all periods referred to in this subsection has been and still is a person of good moral character." 8 U.S.C. § 1427(a)(3). "The statutory period for which good moral character is required includes five years prior to Defendant's filing of [her] application for naturalization and continue[s] until Defendant [takes] the oath of allegiance and bec[omes] a citizen of the United States." United States v. Kiang, 175 F. Supp. 2d 942, 945 (E.D. Mich. 2001) (referencing 8 U.S.C. § 1427; 8 C.F.R. § 316.10), aff'd, 56 F. App'x 696 (6th Cir. 2003). The INA specifically bars an individual from being regarded as one of good moral character if, "during the period for which good moral character is required to be established ...," she "has given false testimony for the purpose of obtaining any [immigration] benefits...." 8 U.S.C. § 1101(f)(6). See also 8 C.F.R. § 316.10(b)(2)(vi) ("An applicant shall be found to lack moral character if during the statutory period the applicant ... [h]as given false testimony to obtain any benefit... regardless of whether the information provided in the false testimony was material...."). However, "the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period." 8 U.S.C. § 1427(e) (emphasis added).
"A naturalization applicant bears the burden of establishing, by a preponderance of the evidence, that he or she has been, and continues to be, 'a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.'" Lucaj v. Dedvukaj, 13 F. Supp. 3d 753, 768 (E.D. Mich. 2014) (quoting Berenyi, 385 U.S. at 637, 87 S.Ct. 666; 8 U.S.C. § 1427(a)(3)); c.f., Dicicco v. U.S. Dep't of Justice, 873 F.2d 910, 915 (6th Cir. 1989) (citing Berenyi at 636-637, 87 S.Ct. 666 and interpreting it to mean that a plaintiff must establish her "eligibility for citizenship by clear, convincing, and unequivocal evidence.") (footnote omitted). B. Lawful admission
Respectfully, this Court is not convinced that Berenyi goes quite as far as interpreted in Dicicco, as the only uses of the words clear or convincing that are contained in Berenyi relate to cases involving the stripping of citizenship where naturalization has already been obtained or deportation, in each instance discussing the Government's burden, rather than the citizen's or alien's burden. Berenyi, 385 U.S. at 636 n 11, 87 S.Ct. 666. More recent cases from this District have applied the preponderance standard. See, e.g., Beleshi v. Holder, No. 12-11681, 2014 WL 4638359, at *5 (E.D. Mich. Sept. 16, 2014); Lucaj, 13 F. Supp.3d at 768. However, the issue makes no difference to the outcome of the instant opinion, as this Court finds that Plaintiff has not even proven her case by a preponderance of the evidence, let alone by clear and convincing evidence. See Conclusion, infra. Should the Court of Appeals review this decision, it is respectfully asked to clarify the plaintiff's burden in this Circuit.
The question on de novo review, Abdul-Khalek v. Jenifer, 890 F. Supp. 666, 669 (E.D. Mich. 1995), is whether Plaintiff falls within 8 U.S.C. § 1182(a)(6)(C)(i), which reads as follows:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
Fraud within the meaning of § 1182(a)(6)(C)(i) "consists of false representations of a material fact made with knowledge of its falsity and with the intent to deceive the other party." Beleshi, 2014 WL 4638359, at *6 (quoting Matter of G- G-, 7 I. & N. Dec. 161, 164 (BIA 1956) and citing Parlak v. Holder, 578 F.3d 457, 464 (6th Cir. 2009)). Fraud additionally requires that the representation is "believed and acted upon by the party deceived." Id.
Willful misrepresentation, on the other hand, does not require an intent to deceive on the part of the alien. See Bazzi v. Holder, 746 F.3d 640, 645 (6th Cir. 2013). Rather, it "requires no more than 'knowledge of the falsity' of facts presented to an immigration officer; unlike fraud, misrepresentation requires no intent to deceive." Id. (emphasis added) (quoting Parlak, 578 F.3d at 463-64). Indeed, "[w]hile fraud requires an intent to deceive, willful misrepresentation of a material fact does not." Parlak, 578 F.3d at 463. However, both fraud and willful misrepresentation require a "material" misrepresentation, Beleshi, 2014 WL 4638359, at *7, meaning that it "had a natural tendency to influence the decisions" of the immigration decision-making body to which it was addressed. Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Furthermore, a misrepresentation is material "if it tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which might well have resulted in a proper determination that [she] be excluded." Beleshi, 2014 WL 4638359, at *7 (internal citations and quotation marks omitted). Materiality does not require the Government "to prove that [the applicant] would not have been granted a visa but for the misrepresentation." United States v. Kalymon, 541 F.3d 624, 635 (6th Cir. 2008).
"A charge of material misrepresentation comes down to the 'two-part inquiry: did the alien (1) willfully misrepresent (2) a fact that was material.'" Marko, 2019 WL 5578103, *4 (quoting Bazzi, 746 F.3d at 645). "'The element of willfulness is satisfied by a finding that the misrepresentation was deliberate and voluntary.'" Parlak, 578 F.3d at 463 (quoting Witter v. I.N.S., 113 F.3d 549, 554 (5th Cir. 1997)). Determining a fact's materiality depends on what effect the fact "would have had on the ultimate immigration decision if the truth had been known." Bazzi, 746 F.3d at 645-46 (citing Petkiewytsch v. I.N.S., 945 F.2d 871, 881 (6th Cir. 1991)) ("[M]ateriality of the misrepresentations is established where the government shows that disclosure of the concealed information probably would have led to the discovery of facts
warranting the denial of a visa."). Additionally, "[o]missions of material facts can be material misrepresentations." Parlak, 578 F.3d at 465 (internal citations omitted).
Defendants can prevail by showing either fraud or willful misrepresentation.
1. Fraud
Because a finding of fraud requires a higher standard than willful misrepresentation, we begin first with that inquiry: did Plaintiff knowingly and intentionally misrepresent material facts, with knowledge of their falsity, with the intent to deceive immigration officials as part of her plan to enter (and ultimately relocate) from Albania to the United States? Based on the testimony provided at trial and the findings of fact contained within this opinion, the Court finds that Plaintiff committed fraud by making false representations of material facts with knowledge of their falsity and with intent to deceive various immigration officials. Beleshi, 2014 WL 4638359, at *6.
She also concealed material facts with the intent and effect of deception, e.g., her true date of birth, legal name and the fact that she has twice applied for U.S. visas and been rejected within that very year.
It appears that, by the end of 1998, and certainly before September 1999, Plaintiff's husband and two daughters had all come to the United States, without ever returning to Albania. (ECF No. 66, PageID.1029-1030; ECF No. 67, PageID.1083, 1178, 1207.) In September 1998, three months after arriving, Vangjush (her husband) applied for asylum. In November 1998, Plaintiff obtained a passport, which she used twice (in March 1999 and May 1999) in applying for a U.S. visa; in each case her application was denied. Plaintiff, likely realizing that using her original passport for visa applications would only result in further denials, obtained a new passport months later (in September 1999), which contained new and inaccurate personal information. (ECF No. 66, PageID.1005, 1045; ECF No. 69, PageID.1391; Ex. 22.) She used this passport to apply for a visa a third time, ostensibly to attend a conference in Washington, D.C., which she never, in fact, attended.
Likewise, Plaintiff's childhood friend and former business partner had come to United States on a visa in 1996. (ECF No. 67, PageID.1083-1084.)
In applying for this visa and allegedly registering for the conference, Plaintiff obtained the services of "Linda" from the UNFPA. Not only is there no evidence that Linda worked for the UNFPA, but the UNFPA documents provided in support of Plaintiff's visa application had been forged. According to Plaintiff, at her visa interview, the immigration official oddly asked her no questions, instead speaking only to Entela, her traveling companion and interpreter, who was also allegedly registered to attend the conference. Moreover, no evidence was provided showing that such a business conference actually occurred, and, even if it had, Plaintiff, upon arriving in Washington, D.C., immediately boarded a plane to Michigan, where she has since remained. From this, the Court infers that Plaintiff had no intention of attending the conference that was her proffered reason for entry into the United States.
Considering this lack of intention to actually attend the conference, taken together with the fact that the purported conference would be in a language she did not speak and for an alleged purpose that had little application to her existing, successful pharmacy business, and the misrepresentation that she was somehow a "finance assistant" for UNFPA, the Court comfortably concludes that Plaintiff knowingly and intentionally misrepresented and concealed material facts to deceive immigration officials
in order to gain entry into the United States. The information she supplied in support of her September 1999 visa application — which obfuscated the fact that she had previously been denied entry under a different name and passport and that her entire family was already in the United States and "shut off a line of inquiry which was relevant to [Plaintiff's] eligibility," Beleshi, 2014 WL 4638359, at *7 — was detrimentally relied upon by the Government in issuing her visa and permitting her entry into the United States. The effect that accurate information "would have had on the ultimate immigration decision if the truth had been known[,]" Bazzi, 746 F.3d at 645-646, is no mystery: She would have been denied a visa for the third time in six months.
The facts strongly favor a finding of fraud, which is only reinforced by Plaintiff's trial testimony, notwithstanding her attempts to claim a lack of knowledge or explain away inconsistencies. The Court finds these explanations, coupled with its personal observation of Plaintiff's demeanor while testifying, lacking in credibility. For instance, Plaintiff testified that she did not apply for a visa in May 1999. (ECF No. 66, PageID.1037.) However, her Marko passport admittedly bears an unambiguous stamp that reads "U.S. Embassy Skopje, application received on March 8, 1999[,]" with a further stamp immediately below it that reads "May 27, 1999[,]" as acknowledged by the Court for the record. (Ex. 9; ECF No. 66, PageID.1035, 1038.) Furthermore, U.S. DOS records show that Plaintiff applied for visas on March 8, 1999 and May 27, 1999, the latter indicating that "an application for nonimmigrant visa was also filed on May 27 of 1999 at the same embassy[;]" yet, Plaintiff suggests that she could have "travel[ed] to Skopje for other reasons as well [in May 1999], so I don't know." (ECF No. 69, PageID.1383; ECF No. 66, PageID.1037-38; ECF No. 67, PageID.1183-84; Ex. 10.) The Court has the distinct impression that Plaintiff was not forthright on this point.
Plaintiff also attempted to explain away several facts indicating her awareness of the false statements in her Tomco passport and September 1999 visa application. Plaintiff offered no legitimate reason why she obtained a second passport when her first passport had correct information and was valid for several more years. (ECF Nos. 66-67, PageID.980-1126.) Her explanation for such an oddity was that she did not remember or "didn't know that [her first passport, issued just ten months earlier] was valid still" before applying for another passport. (ECF No. 66, PageID.1051.) Unfortunately for Plaintiff, that explanation — and the further elucidation that she made to Judge Tarnow that "Albanian passports had formerly expired within a year, and that she didn't check the expiration date on her Marko passport before applying for her Tomco passport" — is "simply too implausible." Marko, 2019 WL 5578103, at *4. (ECF No. 35, PageID.618.) Indeed, as Judge Tarnow also observed, "[t]he timing of the issuance of [Plaintiff's] second passport, received shortly before her September 1999 visa application — despite the fact that her other passport was valid until 2003 — presents circumstantial evidence that she applied for the Tomco passport precisely in order to deceive the visa application screeners." (Id.) The Court now concludes from this circumstantial evidence, coupled with common sense, that Plaintiff knowingly and purposefully deceived the United States Government through these means.
Plaintiff admitted she paid just short of $6,000 to travel to and attend a transatlantic conference called "Regulation of Utilities and Monopolies: Effective Models for Promoting Competition and Consumer Protection in Transforming Economies," which she understood to be about
"establishing businesses," that would be presented in English, despite her not speaking English at the time and not even understanding how it would benefit her well-established business. (ECF No. 67, PageID.1125-1126; ECF No. 66, PageID.1039, 1043; ECF No. 69, PageID.1424; Ex. 20.) Plaintiff's only explanation for this discrepancy is that she simply did not ask Linda how the conference would benefit her business. (ECF No. 69, PageID.1424.) She also claims that she did not know until testifying at trial that she had been identified to the U.S. government as a "financial assistant" for the UNFPA. (ECF No. 66, PageID.1041.) These explanations — that she did not ask or did not know — make more sense if Plaintiff never intended to attend the conference in the first place, which is indeed what occurred. Moreover, the Court finds the suggestion made through her counsel's redirect examination — that it somehow made sense for Plaintiff to attend such a conference because Albania had an early post-Communist era economy that was in transformation — to be weak, unconvincing and implausible. (ECF No. 67, PageID.1096-1097.)
The Court further notes that the amount paid to allegedly attend the conference is remarkably similar to the amounts she paid to two different companies in Albania to help prepare her daughters' exchange student visa applications, i.e., the "going rate" to obtain entry into the United States at that time would appear to have been $5,000 to $6,000 in each case. (ECF No. 66, PageID.1029-1030.)
The Court also dismisses as improbable the suggestion that Entela, who Plaintiff testified flew with her all the way from Albania to Michigan, with a mere transfer in Washington, D.C., was really going to translate the entire Washington, D.C. conference for her on a subject of little relevance or value to Plaintiff's pharmacy business. (ECF No. 67, PageID.1069.) At trial, Plaintiff denied having purchased the airplane ticket to Michigan while still in Albania (id.); yet, in her October 2018 deposition, she unequivocally stated that she had. (ECF No. 27-2, PageID.376 [p. 91, lines 16-18].)
Plaintiff testified that she was unaware her Tomco passport had incorrect information because she simply never looked at it. (ECF No. 67, PageID.1071.) Again, this is an implausible explanation, especially considering that she used the passport to cross from Albania into Macedonia, gave it to an officer at the Embassy in Macedonia, and gave it to a Customs and Immigration officer in Washington, D.C. (Ex. 22.5.) And from human experience, it is unimaginable that a person receiving a new passport — leaving aside the fact that she had a perfectly good passport already, with over four years of validity left on it — would not open it up and at least skim it over for accuracy on the most basic points. Her testimony to the contrary lacks credibility.
Plaintiff's counsel argued that she used her maiden name in business, so it was natural she would obtain a passport in that name. (ECF No. 69, PageID.1475.) Notwithstanding the fact that arguments by counsel are not evidence, Ferensic v. Birkett, 501 F.3d 469, 477 (6th Cir. 2007), any assertion that Plaintiff "thought she would need a new passport in her maiden name to travel for business, because she used that name for business[,]" was, as Judge Tarnow previously noted, "entirely unsupported by deposition or affidavit evidence." Marko, 2019 WL 5578103, at *4. (ECF No. 35, PageID.618.) Even at trial, she claimed she was "recognized" only by her maiden name "for quite some time" in her home city. (ECF No. 66, PageID.1004.) While admitting that her legal name was Frida Marko, Plaintiff offered no evidence that she had used her maiden name after 1979 in an official sense — except in connection with her September 1999 U.S. visa application
— although she testified she "was also using Frida Tomco for the sake of the business." (ECF No. 66, PageID.1048) (emphasis added). By contrast, Plaintiff's own Albanian records show that she consistently used "Frida Marko" on all government documents except her Tomco passport. (See e.g., (translated) 1998 Republic of Albania family and marriage certificates, Ex. PD20.161, 20.196; Ex. L.) Of course, it is only logical to appreciate the fact that an international travel document requires the use of a legal name.
Finally, Plaintiff's explanation for the errors in her Tomco passport is similarly implausible. Plaintiff testified that she supplied only her birth certificate when she applied for her Tomco passport. (ECF No. 66, PageID.1006.) But that passport had the wrong birth date. Further, her Tomco passport has a photo of Plaintiff as an adult and lists her adult height and eye color. Plaintiff did not explain how this correct later-in-life information ended up in her Tomco passport if she provided only her birth certificate. (See ECF Nos. 66-67, PageID.980-1126.) Also, Plaintiff's September 1999 visa application and her Tomco passport had the kind of errors that strongly suggest she intended to mislead the embassy and avoid discovery of her prior visa applications (in March 1999 and May 1999) under Frida Marko.
In the Court's view, Plaintiff's use of her maiden name in a different passport with a different birth date had its intended effect: It tricked the Government into disassociating the person who had previously applied and been rejected, from the person who applied under false pretenses and was given permission to enter the United States. Although, during trial, Plaintiff hinted at an argument suggesting some form of acquiescence, waiver or ratification by the Government because of the passage of time between the DOS's November 1999 discovery of a fraud associated with Frida Tomco and the USCIS's 2017 denial of naturalization to Frida Marko eighteen years later, Plaintiff should not benefit from her deception. Moreover, the immigration process provides for a formal waiver if a person comes clean and applies for one, which did not happen here. (ECF No. 67, PageID.1213-14; ECF No. 69, PageID.1433-35.)
The solid, almost overwhelming evidence of Plaintiff's knowing use of materially false information, with knowledge of its falsity and with the intent to deceive, which was reasonably relied upon by the Government in granting her an entry visa in September 1999, combined with Plaintiff's lack of credibility at trial — evinced by her implausible explanations, documentary contradictions, and unfavorable demeanor while testifying, as personally observed by the Court — leads the Court to find that Plaintiff committed fraud within the meaning of § 1182(a)(6)(C)(i) when obtaining her second Albanian passport and submitting her third visa application in September 1999. Consequently, she was inadmissible at the time of her September 1999 entrance into the United States. Denial of her application for naturalization — whether initially in September 2017 or upon rehearing — was proper and justified. Plaintiff has not met her burden to establish otherwise, and she certainly has not provided a credible, benign explanation to the contrary. As Judge Posner once explained: "Legal proofs are not the only source of knowledge and decision. Categorical judgments based on experience and common sense play an important role in all areas of the law." Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir. 1993). Common sense and human experience lead this Court to reject Plaintiff's illogical and implausible explanations as to how so many material inaccuracies could be presented in support of Plaintiff's attempt to gain entry into the United States without intending to defraud
the Government. As discussed below, her subsequent efforts to obtain more privileged immigration status — whether LPR in 2009 or naturalization in 2017 — also contained misrepresentations, and only made matters worse.
2. Willful Misrepresentation
Assuming, arguendo, that Plaintiff's actions do not rise to the elevated standard of fraud, the Court has also considered whether her actions constitute willful misrepresentation within the meaning of Section 1182(a)(6)(C)(i) and answers that question in the affirmative, because she deliberately and voluntarily misrepresented facts to, and concealed facts from, the Government in seeking to procure and procuring a visa, gaining admission to the United States, and seeking LPR status. Consequently, she is inadmissible under Section 1182(a)(6)(C)(i).
Plaintiff testified that she paid Linda to prepare her September 1999 visa application and to register her for a business conference in Washington, D.C. After Plaintiff received the conference acceptance letter and invoice addressed to "Frida Tomco," she obtained the Tomco passport, despite the validity of her other passport for four more years. Plaintiff concedes that the September 8, 1999 Tomco passport does not have her legal name, has an incorrect birth date, and omits her children—who, along with her husband, were living in the United States at the time. Plaintiff deliberately and voluntarily gave her Tomco passport, containing inaccurate and incomplete information, to the officer at the U.S. Embassy during her visa interview and again used it at Customs and Immigration in Washington, D.C. She did not inform either officer that the passport had wrong or incomplete information. (ECF No. 69, PageID.1067-71.)
Plaintiff's excuse that she did not speak or understand English in September 1999 is insufficient and lacks credibility. The Tomco passport was written in her native Albanian (along with French and English). (Ex. 22.) She could read it and see that it did not have her legal name, her correct birth date, or identify her children in the space provided. She gave it to U.S. Government officials anyway, despite having a valid and accurate passport that she could have presented. Even if she could not relay that to the officials herself, she could have asked Entela, who spoke and understood English, to inform the embassy or Customs and Immigration officers of the wrong and incomplete information in the passport, as Entela was the individual with whom U.S. Government officials primarily spoke in these particular interactions. Plaintiff failed to insist upon the conveyance of accurate information, opting instead to remain silent and gain uneventful entry into this county. Indeed, Plaintiff asks this Court to: (1) suspend its intelligence and assume that she blindly relied upon a stranger to pay for smooth passage into the United States to attend a professional conference in a foreign language on a largely inapplicable and somewhat nebulous topic — which conference she did not, in fact, attend; and, (2) ignore the fact that she had very recently and unsuccessfully attempted entry into the United States for entirely different reasons (e.g., to attend a baptism). (Exs. 9, 10, 20.) The more logical explanation, which the Court will not ignore, is that Plaintiff hired Entela, for $6,000, to help Plaintiff get into the country under false pretenses.
Additionally, in 2009, i.e., ten years after her initial entry in 1999, Plaintiff applied for LPR status. Question 10 on the Form 1-485 asked whether Plaintiff "by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the United States or any immigration benefit?" Plaintiff checked the box "no" and certified under penalty of perjury that her answers
were true and correct. (Ex. 15.3-15.4; ECF No. 68, PageID.1359-61.) Given all of the evidence at trial, and the findings of fact laid out in this opinion, that answer was untrue, exhibiting yet another instance where Plaintiff willfully misrepresented and concealed material facts.
In fact, in 2017 she admitted to having told her husband's immigration judge in 2003 that she had "to break the law in order to be what I loved most about me, a mother, a wife[,] then a businesswoman ... only because I wanted to be with my daughters, with my family[.]" (Ex. 13.18; ECF No. 67, PageID.1087-1088; ECF No. 67, PageID.1073, 1151.) This would have been at her husband's asylum hearing. (ECF No. 67, PgaeID.1073, 1151.) The Court recognizes that Plaintiff could have been admitting to breaking the law by either falsifying her visa application or overstaying her visa, as the latter is explicitly admitted three paragraphs earlier in her 2017 statement. (Ex. 13.18.)
The Court finds that Plaintiff presented false, material facts — with knowledge that the facts were false — to United States consular or immigration officers in seeking to obtain entry into the United States (1999) and later for both LPR status (2009) and in support of her naturalization application (2017) and is, therefore, inadmissible under Section 1182(a)(6)(C)(i). Relatedly, when asked about prior misrepresentations or inaccuracies she had communicated to the Government, Plaintiff omitted and concealed them from the USCIS. Petkiewytsch, 945 F.2d at 881; Parlak, 578 F.3d at 465. Consequently, without a waiver of inadmissibility, she was granted LPR status in error and was (and is) properly denied naturalization. And, even if all of this did not add up to fraud or willful misrepresentation, it still does not bode well in terms of being scrutinized for good moral character, as discussed below.
C. Good moral character
Under 8 U.S.C. § 1101(f)(6), false testimony applies to oral statements made under oath with the subjective intent of obtaining immigration benefits. Kungys, 485 U.S. at 780, 108 S.Ct. 1537. It is irrelevant whether the false testimony is given to hide a fact that would disqualify the applicant, as § 1101(f)(6) does not have a materiality requirement. Id. at 779-81, 108 S.Ct. 1537; 8 C.F.R. § 316.10(b)(2)(iv). As the Supreme Court explained: "Literally read, [§ 1101(f)(6)] denominates a person to be of bad moral character on account of having given false testimony if he [or she] has told even the most immaterial of lies with the subjective intent of obtaining immigration or naturalization benefits. We think it means precisely what it says." Kungys, 485 U.S. at 779-80, 108 S.Ct. 1537.
Since coming to the United States, Plaintiff provided false information under oath on three occasions, in each instance with the subjective intent of obtaining immigration or naturalization benefits: (1) in her 2009 1-485 LPR application (Ex.15); (2) at her June 2017 naturalization interview (before Brandee Prior, now known as Brandee Harris); and, (3) at her December 2017 rehearing. During the naturalization interview, USCIS Officer Harris asked Plaintiff about her answers to questions 31 and 32 on her naturalization application. Those questions asked whether the applicant had ever provided false or misleading information or lied to gain entry, admission, or immigration benefits. (See Ex. 14.15; ECF No. 69, PageID.1420.) Plaintiff maintained her "no" answers to those questions and denied any wrongdoing. (ECF No. 68, PageID.1315-1316.) At her rehearing after initially being denied, Plaintiff stood by her "no" answers from the 1-485 LPR and N-400 naturalization applications when asked about them by Ms. Makki (Exs. 14.15 & 15.3), falsely claimed that she had filed only two visa
applications, and failed to reveal the May 1999 application. (ECF No. 69, PageID.1423-1424, 1428-1429.) Plaintiff also told Ms. Makki that when she went through the Customs and Immigration border interview in Washington, D.C., she had showed the officer her Tomco passport, did not mention that she was going to visit her family in Michigan, and told the officer that she would attend the workshop in D.C. for four days. (Id., PageID.1426.) Yet, by continuing to deny in the naturalization process that she ever gave false, fraudulent, or misleading information, or ever lied to gain entry, admission, or immigration benefits, Plaintiff gave false testimony to the Government. Her trial testimony was likewise unreliable on crucial points, as explained throughout this opinion.
In 2017, Plaintiff knew that her Tomco passport had wrong or incomplete information. Indeed, she had at least one document given to her by "Linda," falsely identifying Plaintiff as "Frida Tomco" a "financial assistant for the UNFPA Project[,]" and used in support of her September 1999 visa application "in her possession since then" — that she turned over to her attorneys for the instant 2018 case — even if she did not understand English at the time the document was first given to her "in August 1999[.]" (Ex. 20; ECF No. 66, PageID.1039-1040 (emphasis added).) By 2017, however, she had learned to speak and understand English and would have been able to read the information on or used in support of the 1999 visa application. (ECF No. 67, PageID.1077, 1081; Ex. 14.16.) Therefore, at the very least, Plaintiff knew in 2017 that in 1999 she had given to the embassy and Customs and Immigration officials "information or documentation that was false, fraudulent, or misleading." By denying that she had ever done so in her January 2017 application for naturalization and in her interview with Officer Harris in June 2017, Plaintiff lied under oath. To make matters worse, in her December 2017 appeal interview with Officer Makki, Plaintiff failed to acknowledge having applied for a visa in May 1999, and she denied making false statements in her naturalization application. (ECF No. 69, PageID.1424.)
At her rehearing with Officer Makki, Plaintiff testified falsely about how many times she had applied for a temporary visa, stating that she had applied only twice, despite actually applying three times. (ECF No. 69, PageID.1423-1424.) Plaintiff doubled down on this at trial, again denying having applied for a visa in May 1999; yet, when confronted with a page of her own passport that had a clear stamp showing that Plaintiff applied for, and was denied, a visa on May 27, 1999, Plaintiff lamely asserted, "I could have been there for other reasons as well, so I don't know." (Ex. 21.25; ECF No. 66, PageID.1036-1037 (emphasis added).)
Each instance of Plaintiff's false testimony was rendered in the context of her naturalization application and was calculated to obtain United States citizenship. And again, because Section 1101(f)(6) does not have a materiality requirement, "any testimony given under oath that is false can be used to show that the petitioner lacked good moral character, no matter how trivial or inconsequential." Lucaj v. Dedvukaj, 13 F. Supp. 3d 753, 768 (E.D. Mich. 2014).
Finally, a word on language issues is in order. Although, during the course of arguments and questioning at trial, Plaintiff's poor English language skills were sometimes suggested as an excuse for the inaccuracy of the information she gave U.S. Government officials between 1999 and her naturalization efforts in 2017, she notably testified that she had no problems communicating with the USCIS officer at
her naturalization interview. (ECF No. 67, PageID.1081.) Moreover, under penalty of perjury, her application attested, by checking the appropriate box, that "I can read and understand English, and I have read and understand every question and instruction on this application and my answer to every question." (Ex. 14.16-14.17.) She did not avail herself of the opportunity to check the box immediately below that statement, which permitted her to claim that an interpreter in "a language in which I am fluent" read the questions, instructions and answers to her. (Ex. 14.16.) In fact, Plaintiff had studied English while in the United States (Ex. K) and had passed the English skills portion of her naturalization exam. (ECF No. 67, PageID.1176.) Furthermore, Plaintiff's niece—who spoke English and Albanian—attended the rehearing later that year as her interpreter. If Plaintiff had any problems understanding English, her niece was there to translate. (ECF No. 67, PageID.1081-82.) In any case, given the materiality of her misrepresentations (some of which were contained in her Albanian language Tomco passport), and her failure to offer any law in support of the proposition "that she should not be held accountable for them because she did not understand English[,]" the Court is not convinced that a language issue is responsible for or should forgive the misrepresentations. Velasquez v. U.S. Atty. Gen., 303 Fed. App'x 703, 707 (11th Cir. 2008) (applying 8 U.S.C. § 1182(a)(6)(C)(i) and finding no error in decision to remove alien). See also Hussain v. Mukasey, 518 F.3d 534, 536 (7th Cir. 2008) (citing 8 U.S.C. § 1182(a)(6)(C)(i), alien was removable after gaining entry into the United States by use of spurious documents and making a false representation and material omission in his naturalization petition, despite later testifying that these were "innocent mistakes" and "that he knew no English when he came to the United States," and "immigration judge was not required to believe him.").
For the foregoing reasons, Plaintiff has not shown error in the USCIS's finding on rehearing that she lacked good moral character. Having repeatedly given false testimony with the subjective intent of obtaining immigration benefits and, ultimately, naturalization, a finding that Plaintiff lacks good moral character — consistent with 8 U.S.C. § 1101(f)(6) and Kungys, 485 U.S. at 779-80, 108 S.Ct. 1537 — was, and is, appropriate. She is, therefore, statutorily ineligible for naturalization.
Defendants Merrick Garland (U.S. Attorney General), Alejandro Mayorkas (U.S. Secretary of Homeland Security) and Michael Klinger (Field Office Director at U.S. Department of Homeland Security) are quite obviously sued in their official capacities as representatives of their respective departments. At trial, Plaintiff never explained or established any basis for liability against any other remaining defendant. However, the rulings and reasoning given in this opinion, and the results which flow therefrom, apply to all defendants, and thus do not merit individual consideration of the local/field level defendants (L. Francis Cissna and Mirash Dedvukaj), both of whom are directors at the Detroit field or district level.
IV. CONCLUSION
Based on the foregoing findings of fact (see Section II) and the related discussion, which explains how Plaintiff has not satisfied her burdens as to lawful admission (see Section III(B)) and good moral character (see Section III(C)), Plaintiff has not established her eligibility for naturalization by a preponderance of the evidence, let alone "clear, convincing, and unequivocal evidence." Dicicco, 873 F.2d at 915. To the contrary, the evidence received by the Court demonstrates that the denial of naturalization was fitting and proper under
the circumstances. Accordingly, Plaintiff's prayer for declaratory and injunctive relief is DENIED (ECF No 1), and the Court renders its verdict in favor of Defendants. With respect to the specific prayers for relief pleaded, the Court having already accepted jurisdiction and conducted a de novo hearing in the form of a trial (id., PageID.6, ¶¶ 1-2), the Court DENIES Plaintiff's request for naturalization (id., ¶ 3), DECLINES Plaintiff's request to hold unlawful and set aside Defendants' denial of her application for naturalization (id., ¶ 4), and DENIES Plaintiff's request to order that Defendants grant her citizenship (id., ¶ 5). Judgment shall, accordingly, be entered in Defendants' favor forthwith.