Opinion
4:19-cv-00194
2020-07-23
Daddy Stanley TUMOE, Plaintiff, v. William BARR, U.S. Attorney General; Chad Wolf, Acting Secretary of the Department of Homeland Security; Kenneth T. Cuccinelli, Acting Director of U.S. Citizenship & Immigration Services; Marta Nickols, Field Office Director of U.S. Citizenship & Immigration Services, Defendants.
Benjamin David Bergmann, Jessica Donels, PARRISH KRUIDENIER DUNN, BOLES GRIBBLE GENTRY, BROWN & BERGMANN, L.L.P., 2910 GRAND AVENUE, DES MOINES, IA 50312, 515 284 5737, 515 284 1704 (fax), bbergmann@parrishlaw.com, for Plaintiff Daddy Stanley Tumoe. Kristin Elaine Olson, UNITED STATES ATTORNEY'S OFFICE - DSM, 110 E COURT AVE, SUITE 286, DES MOINES, IA 50309, 515-473-9309, 515-473-9298 (fax), kristin.olson@usdoj.gov, for Defendants Department of Homeland Security, U.S. Attorney General, U.S. Citizenship & Immigration Services.
Benjamin David Bergmann, Jessica Donels, PARRISH KRUIDENIER DUNN, BOLES GRIBBLE GENTRY, BROWN & BERGMANN, L.L.P., 2910 GRAND AVENUE, DES MOINES, IA 50312, 515 284 5737, 515 284 1704 (fax), bbergmann@parrishlaw.com, for Plaintiff Daddy Stanley Tumoe.
Kristin Elaine Olson, UNITED STATES ATTORNEY'S OFFICE - DSM, 110 E COURT AVE, SUITE 286, DES MOINES, IA 50309, 515-473-9309, 515-473-9298 (fax), kristin.olson@usdoj.gov, for Defendants Department of Homeland Security, U.S. Attorney General, U.S. Citizenship & Immigration Services.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART AND GRANTING IN PART
ROBERT W. PRATT, Judge
Before the Court is Defendants' Motion for Summary Judgment, filed on March 13, 2020. ECF No. 19. Plaintiff filed his resistance on April 23. ECF No. 23. Defendants replied on May 12. ECF No. 27. The Court heard oral argument on June 10. ECF No. 29. The parties then filed supplemental briefing on June 17. ECF Nos. 31–32. The matter is fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Daddy Stanley Tumoe is a native citizen of Liberia who, after eight years in the United States, seeks the burdens and privileges of American citizenship. ECF No. 19-2 ¶¶ 1, 9. Whether that is possible hinges on how one views some paperwork he completed a decade ago. See id. ¶ 3; ECF No. 23-2 ¶¶ 3, 4.
In 2010, Plaintiff submitted an electronic entry for the Diversity Immigrant Visa Program. ECF No. 19-2 ¶ 3. His entry did not mention the five children he had fathered. Id. ¶ 2; ECF No. 23-2 ¶ 4. In 2011, the program's lottery selected him for further processing, and officials requested he complete more paperwork. ECF No. 19-2 ¶ 5. That paperwork asked Plaintiff to "List Names, Dates and Places of Birth, and Addresses of ALL Children." Id. ¶ 6. Plaintiff wrote "N/A" across the blank lines for his response. Id. ; see also ECF No. 15 at 176. In May 2012, a local consular official interviewed Plaintiff for his application. ECF No. 19-2 ¶ 7. During that interview, Plaintiff swore that his forms were "true and complete" and "that any willfully false or misleading statement or willful concealment of a material fact made by me" could have various negative consequences. ECF No. 15 at 178. Plaintiff received a visa that day and entered the United States on May 21, 2012, as a lawful permanent resident. See id. at 144; ECF No. 19-1 at 11.
Plaintiff fathered a sixth child in 2017. ECF No. 19-2 ¶ 2.
Plaintiff then sought American citizenship in 2017. ECF No. 19-2 ¶ 10. This time, he said he had six children. Id. ¶¶ 11, 14. In a 2018 interview with a consular official, Plaintiff acknowledged he had not listed his children on his visa application years earlier. Id. ¶ 15. Asked why, Plaintiff said "[t]he rules say only the people applying with [him] should be listed on the applications." Id. (alteration in original). Plaintiff had not petitioned for his children to join him in the United States. ECF No. 15 at 52.
Plaintiff said this was based on his understanding of the "instructions online." Id. ¶ 16.
U.S. Citizenship and Immigration Services (USCIS) denied Plaintiff's naturalization petition on July 25, 2018. ECF No. 19-2 ¶ 17. Plaintiff "was ineligible for naturalization because he was inadmissible to the United States at the time of his entry on May 21, 2012," the agency concluded. Id. ¶ 18. Plaintiff requested a review hearing. Id. ¶ 19. He also submitted an affidavit in which he swore that he had not listed his children on the original visa application because he " ‘misunderstood the rules for the Diversity Visa Lottery Application,’ ‘filled out [the] form without the assistance of an attorney,’ and ‘thought that [he] was only supposed to include the people applying for visas on the application.’ " Id. ¶ 20 (alteration in original). On March 12, 2019, USCIS affirmed the denial of Plaintiff's naturalization application. Id. ¶ 21.
On July 1, 2019, Plaintiff sought review by this Court. Id. ¶ 24. He brought claims under 8 U.S.C. § 1421(c) and the Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq. He has since acknowledged his APA claim must be dismissed. ECF No. 23 ¶ 4. Regarding his § 1421(c) claim, this Court's review is de novo, and it must "make its own findings of fact and conclusions of law." § 1421(c).
II. SUMMARY JUDGMENT STANDARD
"[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co. , 541 F.2d 207, 209 (8th Cir. 1976). It is designed to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc. , 545 F.2d 1127, 1129 (8th Cir. 1976).
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See id. ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994). A disputed issue is "genuine" when the evidence produced "is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." See id.
Summary judgment also can be appropriate when the parties, as here, agree on the material facts but disagree on the governing law. Odom v. Tripp , 575 F. Supp. 1491, 1493 (E.D. Mo. 1983). This includes disputes over "statutory construction involving legislative history and policy." Nat'l Gerimedical Hosp. & Gerontology Ctr. v. Blue Cross of Kansas City , 479 F. Supp. 1012, 1015 (W.D. Mo. 1979), aff'd , 628 F.2d 1050 (8th Cir. 1980), rev'd on other grounds , 452 U.S. 378, 101 S.Ct. 2415, 69 L.Ed.2d 89 (1981). However, courts tread lightly when granting summary judgment requires adopting a novel interpretation of law that could affect many litigants to come. E.g., Columbia Broad. Sys., Inc. v. Teleprompter Corp. , 251 F. Supp. 302, 305 (S.D.N.Y. 1965).
When a summary judgment motion is filed, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See id. at 323; Anderson , 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or admissions in the record. Id. ; Anderson , 477 U.S. at 257, 106 S.Ct. 2505.
III. ANALYSIS
"[I]t has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." Berenyi v. Dist. Dir., Immigr. & Naturalization Serv. , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). The U.S. Supreme Court "has often stated that doubts ‘should be resolved in favor of the United States and against the [person seeking citizenship].’ " Id. (citing United States v. Macintosh , 283 U.S. 605, 626, 51 S.Ct. 570, 75 L.Ed. 1302 (1931) ). Of course, the present question is not whether Plaintiff is "eligib[le] for citizenship in every respect," Berenyi , 385 U.S. at 637, 87 S.Ct. 666, but whether the Government is entitled to summary judgment on a theory that is both very narrow and, yet, exceedingly broad.
"[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. "The [Immigration and Nationality Act] defines the term ‘lawfully admitted for permanent residence’ as meaning ‘the status of having been lawfully accorded the privilege of residing permanently in the United States.’ " Arellano-Garcia v. Gonzales , 429 F.3d 1183, 1186 (8th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(20) ). Because Congress's definition is circuitous, the Eighth Circuit has deferred to the Attorney General's interpretation. Id. (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).
The Attorney General interpreted the word "lawfully" to mean "compliance with substantive legal requirements, not mere procedural regularity." Id. (collecting cases). Courts have thus held that an immigrant who was, in fact, inadmissible yet nonetheless obtained lawful-permanent-resident status—through fraud or the government's mistake—did not "lawfully" obtain that status and, thus, cannot be naturalized. See id. ; see also Injeti v. U.S. Citizenship & Immigr. Servs. , 737 F.3d 311, 316 (4th Cir. 2013) (citing Walker v. Holder , 589 F.3d 12, 19 (1st Cir. 2009) ). Under this reasoning, to become a truly lawful permanent resident, one must be, in fact, "admissible." See 8 U.S.C. § 1255(a)(2).
Congress spelled out specific grounds in which an immigrant is "inadmissible." 8 U.S.C. § 1182. One such ground is "fraud or willfully misrepresenting a material fact" to procure a visa or admission into the United States. § 1182(a)(6)(C)(i) (emphasis added). Another ground is failure to comply with certain "[d]ocumentation requirements." § 1182(a)(7). This documentation-requirement provision states that "[e]xcept as otherwise specifically provided in this chapter, any immigrant at the time of application for admission ... whose visa has been issued without compliance with the provisions of section 1153 of this title, is inadmissible." § 1182(a)(7)(A)(i)(II).
As relevant here, § 1153 lays out the Diversity Immigrant Visa Program Plaintiff used to enter the United States. See § 1153(c). It provides that, among other things, only immigrants who comply with 8 U.S.C. § 1154 can obtain a diversity visa. See § 1153(f). In other words, to comply with § 1153, one must comply with § 1154. Section 1154, in turn, provides that any diversity visa application "shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require." § 1154(a)(1)(I)(iii). That is, to comply with § 1154, one likely must comply with whatever related regulations the Secretary promulgates. See Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778.
The Secretary's regulations for diversity visa lottery entries require a would-be immigrant to include, as relevant here,
[t]he name[s], date[s] and place[s] of birth and gender of the petitioner's spouse and child[ren], if any, (including legally adopted and step-children), regardless of whether or not they are living with the petitioner or intend to accompany or follow to join the petitioner should the petitioner immigrate to the United States ..., but excluding a spouse or a child[ren] who is already a U.S. citizen or U.S. lawful permanent resident.
22 C.F.R. § 42.33(b)(1)(v). Failure to submit any of the required information "will result in disqualification of the [lottery] entry for that fiscal year." § 42.33(b)(1)(ix). And indeed, internal State Department manuals show consular interviewers must deny any lottery visa in which the applicant did not list a child on his application but later acknowledged the child during the interview. ECF No. 19 at 10.
Here, the Government argues that Plaintiff cannot be naturalized because he did not comply with the foregoing labyrinth of laws and regulations. The argument goes that his paperwork mistake made his 2012 admission into the United States unlawful under § 1182(a)(7)(A)(i)(II). ECF No. 19-1 at 14. And if his initial admission was substantively unlawful, naturalization would be barred because he was not "lawfully admitted to the United States for permanent residence in accordance with all applicable provisions." § 1429. Reading each provision in isolation, the Government's theory maintains some strong textual support. Indeed, a unanimous Fourth Circuit panel accepted a similar argument in the Injeti case. See 737 F.3d at 318.
Using nearly identical reasoning, the Government also argues Defendant was inadmissible under § 1182(a)(7)(A)(i)(I) because his omission invalidated his visa. ECF No. 19-1 at 14 n.6.
The problem with this reasoning—and one recognized by at least one other court—is that allowing any innocent, minor mistake to bar naturalization would read § 1182(a)(6)(C)(i)'s fraud provision, with its higher evidentiary burden, out of the statute. See Ampe v. Johnson , 157 F. Supp. 3d 1, 15–16 (D.D.C. 2016). Indeed, the Government here has avoided proving whether Plaintiff's omission was "willful," as § 1182(a)(6)(C)(i) would require. See ECF No. 19-1 at 11 n.5.
In Ampe , USCIS denied a woman's naturalization petition because, as here, she did not disclose a child on her lawful-permanent-resident application years earlier. 157 F. Supp. 3d at 6–7. There, as here, the would-be citizen blamed the omission on a "misunderstanding of the application." Id. at 7. The court denied summary judgment under § 1182(a)(6)(C)(i) because there remained genuine issues of material fact as to whether the plaintiff acted willfully. Id. at 12. In doing so, the court also rejected an argument very similar to the one the Government makes here: that an unintentional misstatement bars naturalization because it violates immigration regulations and makes the immigrant's prior admission into the country unlawful. Id. at 15. Such "regulatory language ... is far too thin a reed to support such an extreme result," id. at 16, and "would subsume all misstatements on applications for immigration benefits without requiring any scienter," id. at 15–16.
Congress generally does not add language to statutes "which renders superfluous another portion of that same law." Me. Cmty. Health Options v. United States , ––– U.S. ––––, 140 S. Ct. 1308, 1323, 206 L.Ed.2d 764 (2020) (quoting Republic of Sudan v. Harrison , ––– U.S. ––––, 139 S. Ct. 1048, 1058, 203 L.Ed.2d 433 (2019) ). Yet if the Government can bar immigrants for minor mistakes under § 1182(a)(7)(A)(i), why bother proving that mistake was a willful and material misrepresentation under § 1182(a)(6)(C)(i) ? The Government's theory would allow it to achieve the same ends—barring citizenship for immigrants—with far less work.
There is a textual problem, too. Section 1182(a)(7)(A)(i) —the broader, non-fraud provision at issue—states it governs "[e]xcept as otherwise specifically provided in this chapter." § 1182(a)(7)(A)(i). It would seem that § 1182(a)(6)(C)(i)'s fraud provision "specifically provided" the elements that must be proven in misrepresentation cases, thus making § 1182(a)(7)(A)(i) inapplicable.
The Government raises its own surplusage argument. During this Motion's hearing, counsel noted that if the Government must prove scienter and materiality for every paperwork mistake, suddenly § 1182(a)(7)(A)(i) begins to look pointless. ECF No. 30 at 15:23–16:1. But as Plaintiff notes, § 1182(a)(7)(A)(i) still has plenty of work to do. See ECF No. 31 at 5–6. Subsection (a)(7), after all, is titled "documentation requirements"—i.e., whether an immigrant has the right documents when trying to enter the country. Indeed, § 1182(a)(7)(A)(i) applies "at the time of application for admission," § 1182(a)(7)(A)(i), a term of art in the Immigration and Nationality Act limited to "the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa," § 1101(a)(4) ; see also Marques v. Lynch , 834 F.3d 549, 558 (5th Cir. 2016). This also explains why Congress exempted refugees—who presumably lack such documents—from § 1182(a)(7). See 8 U.S.C. § 1157(c)(3).
" ‘[T]he title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute." Almendarez-Torres v. United States , 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co. , 331 U.S. 519, 528–29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) ).
And while the Government points to several cases in which courts have held an immigrant was inadmissible for a non-fraudulent misrepresentation or misunderstanding, these cases almost all involved immigrants who were clearly inadmissible in fact. See, e.g., Arellano-Garcia , 429 F.3d at 1184–85 ; Walker , 589 F.3d at 16–17. That is not the case here. As the Government acknowledges, "we simply cannot know whether [Plaintiff] would have obtained a visa had he disclosed his children from the outset." ECF No. 19-1 at 19.
To the extent the Fourth Circuit's Injeti decision suggests an immigrant need not be inadmissible in fact to be excluded under § 1182(a)(7)(A)(i), see ECF No. 19-1 at 16, the Court does not find its reasoning persuasive, cf. Ampe , 157 F. Supp. 3d at 15 ("[T]he Court is not convinced by the rationale articulated in Injeti . ").
The Government's reading also creates a slippery-slope problem. It would require an immigrant who came to the United States as a lawful permanent resident, behaved flawlessly for years, but misstated the "political subdivision of the country" in which he was born or "the location of the consular office nearest to the petitioner's current residence" to be barred from naturalization. See 22 C.F.R. § 42.33(b)(1)(ii), (vii) (listing the required information for a diversity immigrant visa application). This is so because the Secretary's regulations appear to place the same weight on an applicant providing details about political subdivisions and office locations as "[t]he name[s], date[s] and place[s] of birth and gender of the petitioner's spouse and child[ren], if any." § 42.33(b)(1)(v). Naturalization indeed is a privilege, not a right, but it seems hard to fathom that is what Congress had in mind.
The Government suggests this need not be so if only "material" misrepresentations invalidate required documents under § 1182(a)(7)(A)(i). That limiting principle appears tenable at first blush but not long afterward. The reason: the provision's text lacks the word "material." See § 1182(a)(7)(A)(i). Section 1182's fraud provision, meanwhile, shows that Congress knew how to add a materiality requirement when it wanted one. See § 1182(a)(6)(C)(i).
Even if the Court could so redraft the statute, it would feel obligated to bring along § 1182(a)(6)(C)(i)'s willfulness requirement, too. Cf. Ampe , 157 F. Supp. 3d at 16. The problem there, of course, is that the Government, "for purposes of this motion only, ... assume[s] Plaintiff's statement [that he did not intend to commit fraud] is true." ECF No. 19-1 at 11 n.5. In sum, the Court concludes that § 1182(a)(7)(A)(i) does not elevate innocent or immaterial misstatements on immigration paperwork to grounds for inadmissibility. And if this is so, it follows that § 1182(a)(7)(A)(i) does not make Plaintiff inadmissible, at least on this record.
The Government may well be right that Plaintiff cannot be naturalized. But if it wishes to bar Plaintiff from obtaining citizenship because he did not initially disclose children he never intended to bring to the United States, it should do so under § 1182(a)(6)(C)(i) with its materiality and willfulness requirements. The Government has not raised such an argument here. Summary judgment is thus foreclosed. IV. CONCLUSION
As the Government made clear at oral argument, it reserves the right to contest citizenship under § 1182(a)(6)(C)(i) or other theories following additional discovery. ECF No. 30 at 5:1–2. See also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2718 (4th ed. 2020). Nothing in this Order should be read as a prejudgment of any such arguments.
For the foregoing reasons, Defendants' Motion for Summary Judgment (ECF No. 19) is DENIED without prejudice with respect to Plaintiff's § 1421(c) claim and GRANTED with respect to Plaintiff's APA claim.
IT IS SO ORDERED.