Opinion
19-cv-07120 (AMD)
2020-12-15
UNITED STATES of America, Plaintiff, v. Akwasi Awuah DONKOR, Defendant.
Sheldon A. Smith, Layaliza K. Soloveichik, U.S. Attorney's Office for the Eastern District of NY, Brooklyn, NY, for Plaintiff. Paul O'Dwyer, Law Office of Paul O'Dwyer, P.C., New York, NY, for Defendant.
Sheldon A. Smith, Layaliza K. Soloveichik, U.S. Attorney's Office for the Eastern District of NY, Brooklyn, NY, for Plaintiff.
Paul O'Dwyer, Law Office of Paul O'Dwyer, P.C., New York, NY, for Defendant.
MEMORANDUM DECISION AND ORDER
ANN M. DONNELLY, United States District Judge:
On December 19, 2019, the government filed this action seeking to revoke the defendant's United States citizenship and cancel his Certificate of Naturalization pursuant to 8 U.S.C. § 1451(a). The government alleges that the defendant lied on his 2003 naturalization application—which was approved in 2004—resulting in "his procurement of naturalization by concealment of a material fact or by willful misrepresentation." Before the Court is the defendant's motion to dismiss the action as time-barred pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 9.) The government opposes the motion. (ECF No. 14.) For the reasons that follow, the defendant's motion is denied.
For purposes of this motion, I accept as true the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See Town of Babylon v. Fed. Hous. Fin. Agency , 699 F.3d 221, 227 (2d Cir. 2012).
On February 27, 1991, the defendant entered the United States via John F. Kennedy International Airport under the name Emmanuel Owusu-Ansah. (ECF No. 1 ¶ 22.) He presented a photo-substituted Republic of Ghana passport and an altered B-1/B-2 nonimmigrant visitor visa to Immigration and Naturalization Service ("INS") officials, who referred him to secondary inspection. (Id. ¶¶ 23-24.) During secondary inspection, the defendant gave an affidavit to INS in which he stated that he feared returning to Ghana because he faced persecution as a Jehovah's Witness; "[t]he police in Ghana arrested worshippers in Defendant's church, because they did not want them worshipping." (Id. ¶¶ 25-26.) He also represented that he was born in May of 1955, was married to "Esther Aboagye," with whom he had two children, and that he had obtained his passport lawfully and through "proper authorities." (Id. ¶ 26.) INS fingerprinted the defendant and detained him pending a hearing before an immigration judge. (Id. ¶ 27.)
On March 12, 1991, the defendant, now represented by counsel, submitted another affidavit to INS in which he stated that his real name was Kwasi Awuah Kwarteng and that "Emmanuel Owusu-Ansah" was the name on the passport that he purchased for $1,500 from a man in Lagos, Nigeria. (ECF No. 1 ¶¶ 29-30.)
On April 2, 1991, INS released the defendant, and on May 2, 1991, he appeared with counsel before Immigration Judge John K. Speer. (ECF No. 1 ¶¶ 33-34.) During that hearing, the defendant advised Judge Speer that he would be seeking asylum and withholding of deportation; the judge set the next hearing for March 31, 1992. (Id. )
In May of 1991, the defendant filed Form I-589—Request for Asylum in the United States—under the name Emmanuel Owusu-Ansah. (ECF No. 1 ¶ 35.) He stated on his application that he also went by the name "Kwasi Awuah Kwarteng," that he was born in January of 1960 and had been married to "Ester Aboagyg [sic]" since 1978. (Id. ¶ 36.) He explained that he feared religious persecution in Ghana—that he had been arrested and beaten in December of 1990 for practicing his faith and had fled to Nigeria where he obtained travel documents to the United States. (Id. ) On March 13, 1992, Judge Speer denied the defendant's asylum application and ordered that he be excluded and deported. (Id. ¶ 39.) Judge Speer ruled that the evidence did not support a "well-founded fear" or "clear probability" of persecution if the defendant returned to Ghana. (Id. ¶ 40.) The defendant appealed this decision to the Board of Immigration Appeals, which dismissed his appeal on December 29, 1992, finalizing the deportation order. (Id. ¶¶ 41-42.) However, the defendant did not leave the United States. (Id. ¶ 43.)
On November 20, 1997, the defendant filed Form I-485—Application to Register Permanent Residence or Adjust Status ("Adjustment Application")—under the name "Awuah Donkor." (ECF No. 1 ¶ 44.) On this form, the defendant represented that he was born in 1959, had married to "Paulina Boadu" in 1995, had not been previously married, and that he had last entered the United States in 1996 without inspection. (Id. ¶ 45.) On July 29, 1998, the INS approved the defendant's Adjustment Application and granted him permanent residence status. (Id. ¶ 55.)
On May 2, 2003, the defendant filed Form N-400—Application for Naturalization—based on his status as a lawful permanent resident in the United States for at least five years. (ECF No. 1 ¶ 56.) On his naturalization application and during his in-person interview with United States Citizenship and Immigration Services ("USCIS") on July 27, 2004, the defendant represented, among other things, that he had "never been ordered to be removed, excluded, or deported from the United States," and had "never applied for any kind of relief from removal, exclusion, or deportation." (Id. ¶¶ 75-76.) On August 19, 2004, the USCIS approved the defendant's naturalization application, and on September 2, 2004, he took the Oath of Allegiance and became a United States citizen. (Id. ¶¶ 78-79.)
Almost sixteen years later, on March 29, 2019, the defendant admitted to USCIS that he had used a false identity when he applied for asylum in 1991, and that he never left the United States despite the 1992 deportation order. (ECF No. 1 ¶¶ 80-81.) He also admitted that he was married to Charlotte Boadu from 1984 to 1995, and that Ester Aboagye was an ex-girlfriend. (Id. ¶ 82.)
The government filed this action on December 19, 2019, alleging that the defendant illegally procured his naturalization by making willful misrepresentations on his application for permanent residence. (ECF No. 1 ¶¶ 95-107.) The government also alleges that the defendant demonstrated a lack of good moral character by giving false testimony, making false statements and committing perjury during immigration proceedings. (Id. ¶¶ 111, 119.) Specifically, the government claims that the defendant:
concealed and willfully misrepresented on his Naturalization Application and at his subsequent interview the following: his name and identity; whether he had previously married; whether he had ever been arrested, cited, or detained by any law enforcement officer (including INS and military officers) for any reason; whether he had ever been in jail or prison; whether he had ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal; whether he had ever lied to any U.S. government official to gain entry or admission into the United States; whether he had ever been ordered to be removed, excluded, or deported from the United States; and whether he had ever applied for any kind of relief from removal, exclusion, or deportation from the United States.
(Id. ¶ 125.) The government asserts that the defendant would have been ineligible for naturalization had his misrepresentations been known, and that pursuant to 8 U.S.C. § 1451(a), his citizenship was obtained unlawfully and must be revoked. (Id. ¶¶ 128-29.)
The defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the government's claims are time-barred by the five-year statute of limitations set forth in 28 U.S.C. § 2462 for civil actions to enforce "any civil fine, penalty, or forfeiture, pecuniary or otherwise." (ECF No. 10 at 15.)
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Hogan v. Fischer , 738 F.3d 509, 514 (2d Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (internal quotation marks omitted). "Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint." Ellul v. Congregation of Christian Bros. , 774 F.3d 791, 798 n.12 (2d Cir. 2014) (citing Staehr v. Hartford Fin. Servs. Grp., Inc. , 547 F.3d 406, 425 (2d Cir. 2008) ).
DISCUSSION
"An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress." United States v. Ginsberg , 243 U.S. 472, 474, 37 S.Ct. 422, 61 L.Ed. 853 (1917) ; see also United States v. Dhanoa , 402 F. Supp. 3d 296, 299 (D.S.C. 2019) (citing Fedorenko v. United States , 449 U.S. 490, 505-06, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ) ("An individual who seeks to obtain naturalized United States citizenship must comply with the statutory requirements for naturalization."). "Failure to comply with any of these conditions renders the certificate of citizenship ‘illegally procured,’ and naturalization that is unlawfully procured can be set aside." Fedorenko , 449 U.S. at 506, 101 S.Ct. 737 (quoting 8 U.S.C. § 1451(a) and collecting cases). Section 15 of the Naturalization Act of 1906 established the process by which the government can revoke a fraudulent or illegally procured certificate of citizenship. See Ginsberg , 243 U.S. at 474, 37 S.Ct. 422 (quoting § 15 of the Act of June 29, 1906, chap. 3592, 34 Stat. at L. 59). Congress replaced the 1906 Act with the Immigration and Nationality Act of 1952 (the INA), but retained substantially all the language of § 15 and included it in 8 U.S.C. § 1451(a). The statute does not contain a statute of limitations, nor does it provide for the imposition of a fine, penalty, or sentence of imprisonment—only the revocation of citizenship. United States v. Phattey , 943 F.3d 1277, 1281 (9th Cir. 2019).
Courts have repeatedly held that there is no statute of limitations on an action to revoke a certificate of citizenship procured by fraud. See, e.g. , Phattey , 943 F.3d at 1283 ; Dhanoa , 402 F. Supp. 3d at 301 ; United States v. Lemos , No. 08-CV-11144, 2010 WL 1192095, at *2 (S.D.N.Y. Mar. 26, 2010) ; see also Costello v. United States , 365 U.S. 265, 283, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) ("Congress has not enacted a time bar applicable to proceedings to revoke citizenship procured by fraud."). Moreover, the government routinely brings denaturalization proceedings "long after the time when the certificate of citizenship was granted," even if "the citizen has meanwhile met his obligations and has committed no act of lawlessness." Schneiderman v. United States , 320 U.S. 118, 122-23, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943) (action commenced twelve years after naturalization); see also, e.g. , Kungys v. United States , 485 U.S. 759, 764, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (denaturalization proceedings commenced 28 years after naturalization); Costello , 365 U.S. at 281, 81 S.Ct. 534 (declining to apply the doctrine of laches to a denaturalization action filed 27 years after naturalization); United States v. Demjanjuk , 367 F.3d 623, 627 (6th Cir. 2004) (denaturalization action commenced 41 years after naturalization); United States v. Sokolov , 814 F.2d 864, 870 (2d Cir. 1987) (denaturalization action filed 25 years after naturalization); United States v. Wasel , No. 2:17-CV-12296, 2020 WL 4584168, at *1 (E.D. Mich. Aug. 10, 2020) (action commenced 20 years after naturalization); United States v. Charles , 456 F. Supp. 3d 268, 273 (D. Mass. 2020) (action filed thirteen years after naturalization).
The defendant maintains, nevertheless, that the government action is untimely under 28 U.S.C. § 2462, which provides for a five-year statute of limitations in civil actions to enforce "any civil fine, penalty, or forfeiture, pecuniary or otherwise." (ECF No. 10 at 15.) The defendant says that denaturalization is a "penalty" under § 2462, citing Kokesh v. Securities and Exchange Commission , ––– U.S. ––––, 137 S. Ct. 1635, 198 L.Ed.2d 86 (2017), in which the Supreme Court held that § 2462 ’s statute of limitations applied to SEC disgorgement actions. The Court ruled that disgorgement actions were "penalties" within the meaning of § 2462 because "SEC disgorgement is imposed by the courts as a consequence for violating public laws" and "for punitive purposes;" it is "not compensatory." Kokesh , 137 S. Ct. at 1643. The defendant analogizes denaturalization to disgorgement on the theory that denaturalization is meant to punish and "deter others from offending in like manner – as opposed to compensating a victim for a loss;" thus, denaturalization is a "penalty" subject to § 2462 ’s statute of limitations. (ECF No. 10 at 16 (citing Kokesh , 137 S. Ct. at 1642 ).)
The government responds that the Kokesh rationale does not apply to denaturalization, because it is not punitive. (ECF No. 14 at 10-11.) Rather, the government argues, denaturalization is strictly remedial; it "correct[s] an erroneous grant of citizenship ‘to which the individual was never entitled.’ " (Id. at 11 (quoting United States v. Hongyan Li , 619 F. App'x 298, 302 (5th Cir. 2015) ).) I agree that this action is not subject to the five-year statute of limitations in 28 U.S.C. § 2462.
It has long been the law that denaturalization is not a penalty. See Johannessen v. United States , 225 U.S. 227, 242, 32 S.Ct. 613, 56 L.Ed. 1066 (1912) ("The act imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges."). The Supreme Court did not upend this precedent when it decided in Kokesh that SEC disgorgement actions were subject to the five-year statute of limitations in 28 U.S.C. § 2462 because those actions were "penalties," which the Court defined as "punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offense against its laws." Kokesh , 137 S. Ct. at 1642 (internal quotations and alterations omitted). As the Court further explained, a sanction is a penalty if "the wrong sought to be redressed is a wrong to the public," and the purpose of the sanction is "punishment" and "to deter others from offending in like manner—as opposed to compensating a victim for his loss." Id. (internal quotations and citations omitted).
Observing that disgorgement is traditionally a remedial action grounded in restitution principles, the Court concluded that the SEC was using disgorgement to deter others from violating securities laws by "depriving violators of their ill-gotten gains." Id. at 1643-44 ("it has become clear that deterrence is not simply an incidental effect of disgorgement," but rather is the "primary purpose"). Moreover, disgorgement did not leave defendants in the position they occupied before they broke the law. On the contrary, because the SEC can recover not only a defendant's ill-gotten profits but also the profits of third-parties whom the defendant assisted, disgorgement actions take more from defendants than they actually received, often leaving them worse off than if they had never violated the law. Id. at 1644 ("When an individual is made to pay a noncompensatory sanction to the Government as a consequence of a legal violation, the payment operates as a penalty."). Therefore, SEC disgorgement, as practiced, "bears all the hallmarks of a penalty: It is imposed as a consequence of violating a public law and it is intended to deter, not to compensate." Id.
The defendant argues that denaturalization fits the Kokesh definition of "penalty" because denaturalization "is intended not only to ‘prevent the wrongdoer's unjust [naturalization]’ but also ‘to deter others’ violations of the [immigration] laws.’ " (ECF No. 10 at 23-24 (quoting Kokesh , 137 S. Ct. at 1645 ).) The defendant also says that the government's stated policy—that it initiates denaturalization proceedings in order to deport—does more than just restore the status quo; denaturalization proceedings are brought to punish the wrongdoer and to deter others. (Id. at 13.) Therefore, the defendant maintains, denaturalization is not merely remedial, it is a penalty as defined by Kokesh . (Id. )
Denaturalization is undeniably a serious sanction, "more serious than a taking of one's property, or the imposition of a fine or other penalty." Schneiderman , 320 U.S. at 122, 63 S.Ct. 1333. For this reason, the government carries a heavy burden of proof in a denaturalization proceeding. See Klapprott v. United States , 335 U.S. 601, 612, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (citing Schneiderman , 320 U.S. at 158, 63 S.Ct. 1333 ) ("[B]ecause of the grave consequences incident to denaturalization proceedings we have held that a burden rests on the Government to prove its charges in such cases by clear, unequivocal and convincing evidence which does not leave the issue in doubt."). It is perhaps especially difficult when the government institutes these proceedings long after someone has become a citizen, and has led an otherwise law-abiding life. However, denaturalization's significant and often cascading consequences do not make it a penalty under Kokesh .
A court determining whether a deprivation of rights is penal in nature must examine the statute's purpose rather than its practical effect. Trop v. Dulles , 356 U.S. 86, 96, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ("The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature."); Meeker v. Lehigh Valley R Co. , 236 U.S. 412, 423, 35 S.Ct. 328, 59 L.Ed. 644 (1915) ("The words ‘penalty or forfeiture’ in [ § 2462 ] refer to something imposed in a punitive way for an infraction of a public law, and do not include a liability imposed solely for the purpose of redressing a private injury, even though the wrongful act be a public offense, and punishable as such."). The Supreme Court found that SEC disgorgement is a penalty because its "primary purpose" is to punish wrongdoers and deter others from violating securities laws. Kokesh , 137 S. Ct. at 1643. On the other hand, the Court has repeatedly held that denaturalization is not punitive because its purpose is not to punish the individual but to restore the status quo and regulate the process by which the government extends citizenship. Trop , 356 U.S. at 98, 78 S.Ct. 590 ("Denaturalization is not imposed to penalize the ahen for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of ahens."); Johannessen , 225 U.S. at 242, 32 S.Ct. 613 ("[The INA] imposes no new penalty upon the wrongdoer. But if, after fair hearing, it is judicially determined that by wrongful conduct he has obtained a title to citizenship, the act provides that he shall be deprived of a privilege that was never rightfully his."); accord Phattey , 943 F.3d at 1282 ("revocation of citizenship is not sought for the purpose of punishment or to deter future violations").
That denaturalization deters others from lying on their naturalization applications or otherwise obtaining their citizenship illegally does not change the remedial nature of the proceeding. See Phattey , 943 F.3d at 1283 ("While [the defendant] may be correct that denaturalization will have a deterrent effect as a practical matter, the purpose of revocation proceedings is to revoke a wrongfully obtained benefit, rather than deterrence.") Naturalization is a privilege that the government confers; it is a right and a value that the recipient earns after complying with the rules and procedures outlined by Congress. Johannessen , 225 U.S. at 240, 32 S.Ct. 613. When the government revokes the citizenship of someone who procured it by fraud, it deprives the individual of something that he was never entitled to receive. Id. at 241, 32 S.Ct. 613 ("An alien has no moral nor constitutional right to retain the privileges of citizenship if, by false evidence or the like, an imposition has been practi[c]ed upon the court, without which the certificate of citizenship could not and would not have been issued."). In short, the primary purpose of denaturalization is remedial, rather than punitive. Accordingly, § 2462 ’s five-year statute of limitations is not applicable to an action to revoke citizenship.
This decision is consistent with "every court to have considered the argument [that the defendant] presents, solely based on his expansive reading of the Court's narrow holding in Kokesh ." Wasel , 2020 WL 4584168, at *2. See also, e.g. , Phattey , 943 F.3d at 1283 (9th Cir. 2019) ; United States v. Rahman , No. 19-CV-1113, 2020 WL 5236931, at *1 (D.N.H. Sept. 2, 2020) ; United States v. Becker , No. 18-CV-2049, 2019 WL 6167396, at *5 (C.D. Cal. June 20, 2019) ; United States v. Muthara , No. 15-CV-909I, 2019 WL 1762877, at *1 (D. Kan. Apr. 22, 2019) ; United States v. Borgono , No. 18-CV-21835, 2019 WL 1755709, at *4 (S.D. Fla. Apr. 19, 2019) ; Dhanoa , 402 F. Supp. 3d at 301 (D.S.C. 2019).
CONCLUSION
The defendant's motion to dismiss the complaint is denied. The defendant is directed to file his answer within 21 days of the date of this order. This action is respectfully referred to Magistrate Judge Vera Scanlon for further pre-trial management.
SO ORDERED .