2022 WL 168631
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United States District Court, S.D. California.
ABDELILLAH ELHASSANI, Petitioner,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.
Case No.: 33:20-cv-02159-BEN-AHG
|
Filed 01/14/2022
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER: (1)
DENYING-IN-PART AND GRANTING-IN-PART REQUESTS FOR JUDCIAL NOTICE; and (2)
DENYING AS MOOT PETITIONER’S REQUEST FOR AN EXTENSION
HON. ROGER T. BENITEZ
United States District Judge
I. INTRODUCTION
*1 Petitioner Abdelillah Elhassani (“Petitioner” or “Mr.
Elhassani”) brings this action seeking (1) de novo review of the
decision of Respondent United States Citizenship and Immigration Services (“Respondent”
or “USCIS”) denying his application for naturalization as a United States
citizen and (2) a hearing de novo on that application, under 8 U.S.C. §
1421(c). ECF No. 1 at 1,1 ¶ 1. Also before the Court are Petitioner’s Request for
Judicial Notice, ECF No. 18; Respondent’s Request for Judicial Notice, ECF No.
22; and Petitioner’s Unopposed Motion to Extend the Deadline for Submission of
the Parties’ Proposed Findings of Fact and Conclusions of Law, ECF No. 28.
Petitioner’s Unopposed Motion to Extend the Deadline for
Submission of the Parties’ Proposed Findings of Fact and Conclusions of Law is DENIED
as moot given Petitioner timely submitted his Proposed Findings of Fact before the
Court was able to rule on the Motion for the Extension. See, e.g., Tur v. YouTube,
Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (“we conclude that an
issue is moot when deciding it would have no effect within the confines of the
case itself”). After considering the papers submitted, supporting
documentation, and applicable law, the Court (1) DENIES-IN-PART and GRANTS-IN-PART
the parties’ requests for judicial notice and (2) DENIES Petitioner’s
request that the Court grant him naturalization and administer the oath of
allegiance.
II. BACKGROUND
USCIS denied Petitioner’s application on the ground that
he (1) was affiliated with ISIS2 and (2) intentionally lied to obtain an immigration
benefit, thereby precluding him from establishing his good moral character.
Compl. at 2, ¶ 3. Petitioner claims that he is not a terrorist; strongly
denounces both ISIS and terrorism in general; “considers himself to be living
the American dream, and he is attached to the principles of the U.S.
Constitution.” Id. at 2, ¶ 4. He argues that “[h]is brothers’ actions
are not a basis to deny Mr. Elhassani naturalization.” Id.
A. Findings of Fact
Petitioner is a 39-year-old native and citizen of Morocco
and a lawful permanent resident of the United States (the “U.S.”). Respondent’s
Proposed Findings and Conclusions of Law, ECF No. 29 (“RFFCL”) at 12:11-12;
Petitioner’s Proposed Findings and Conclusions of Law, ECF No. 30 (“PFFCL”) at
2:5-6. His wife, Armelina Elhassani (“Armelina”), and three children are U.S.
citizens, and Petitioner, who has resided here for more than twenty (20) years,
has been seeking U.S. citizenship for the past five (5) years. Complaint, ECF
No. 1 (“Compl.”) at ¶ 2, 10, ¶ 33.
*2 Petitioner has five brothers and one sister. CAR, Record
of Sworn Statement, ECF No. 13-3 (“Transcript I”) at 41; Transcript of August
30, 2021 Trial, ECF No. 27 (“TT”) at 21:14-15. In terms of birth order,
Salaheddine Elhassani (“Salaheddine”) is the first born; Petitioner is second;
Moussa Elhassani (“Moussa”) is third; Abdelhadi Elhassani (“Abdelhadi”) is
fourth; Abdalfattah Elhassani is fifth; Yassine Elhassini (“Yassine”) is the
sixth son; and Fatima is the youngest and seventh child as well as the only
daughter. Statement at 41-42; see also CAR, ECF No. 13-1 at 40-41; TT at
21:16-22:3, 24:18-19, 33:21-22.
Moussa married Samantha Elhassani (“Samantha”).
Transcript I at 42; ECF No. 14 at 55; TT at 21:16-22:3, 24:18-19, 33:21-22.
Petitioner states that while he was close to Moussa when they grew up, once
they lived in different states, they were not very close, and at the time of
his September 10, 2018 naturalization interview, they “had not spoken for three
or four years.” Id. at 41.
1. Initial Admission on Student Visa and Education
In July 1999, Petitioner was admitted into the U.S. on a
F-1 student visa to attend North Dakota State University to study computer
science. JCMS at 2:1-2; TT at 13:3-8; PFFCL at 2:7-8. While Petitioner was
attending North Dakota State University, Moussa also attended school there for
one year, but then, he moved away. Transcript I at 41. Petitioner has testified
that Moussa has struggled with addiction throughout his life and often
disappeared for months at a time. Transcript of October 30, 2019 Interview, ECF
No. 24 (“Transcript II”) at 5, 14:3-14.
In 2003, Petitioner graduated with a bachelor’s degree in
Computer Science. JCMS at 2:1-2; see also Transcript I at 40. From 2003
to 2005, Petitioner was enrolled in a master’s degree program in software engineering
at San Jose State University. Compl. at 10, ¶ 34; see also Transcript I
at 40. However, he never finished this degree because in 2005, he started
working for a start-up in Silicon Valley. Transcript I at 40.
2. Adjustment to Conditional Permanent Resident
On November 16, 2004, or over seventeen years ago,
Petitioner adjusted his status to conditional permanent resident of the U.S.,
based on marriage to his U.S. citizen wife. JCMS at 2:3-4; RFFCL at 12:13-14;
TT at 13:14-15; PFFCL at 2:9-15. During his period of conditional status,
Petitioner was convicted of two felonies,3 which he disclosed to USCIS while also providing
documentation of the convictions. JCMS at 2:4-5.
a. Felony Conviction for Use of Personal
Identifying Information
*3 On July 16, 2005, Petitioner used the personal
identifying information, including the social security number, of Tarik
Benhiba, without his permission to open a PayPal/eBay account in Mr. Benhiba’s
name. RFFCL at 12:15-18. Petitioner testified that he had to use his roommate’s
identification to open the PayPal account because his own account had been
suspended “for some reason” that he still does not “know to this day.” TT at
18:17-19:5. He stated that when the new account he opened in Benhiba’s name was
closed, he was no longer able to add money to it, which resulted in a negative
balance in the account.4 Id. at 20:3-8.
On April 21, 2006, Petitioner was convicted of using
personal identifying information under California Penal
Code § 530.5(a), a felony.5 JCMS at 2:6-8; see also CAR, ECF No. 13-1 at 89;
RFFCL at 12:18-20; PFFCL at 2:16-20. He was placed on formal probation for
three years, sentenced to 60 days in jail, and ordered to pay restitution.
Compl. at 14, ¶ 54. Petitioner only served two days in jail. TT at 19:8-9.
b. Felony Conviction for Grand Theft
On November 8, 2006, while he was still on probation for
his 2006 conviction, Petitioner was accused of stealing more than four hundred
dollars from Rougier Arnaud. RFFCL at 12:21-22. At trial, he testified that he
was selling electronics and had “several hundreds, probably a couple of
thousands of customers,” and “at some point, ... had issues with inventory”
causing him to be unable to deliver merchandise on time, even though he
received money for the merchandise. TT at 20:11-17.
On April 13, 2007, Petitioner was convicted of grand
theft under California Penal Code § 484/487(a), a felony, in connection with a
customer’s order that never arrived.6 JCMS at 2:8-10; PFFCL at 2:21-23. He was placed on
probation for three years, sentenced to six months in jail, and ordered to pay
restitution. Compl. at 14-15, ¶ 54. He served fourteen days in jail. TT at
20:18-19.
3. Adjustment to Lawful Permanent Resident
On May 2, 2007, despite his felony convictions,
Petitioner and his wife successfully removed the condition on his residence on
or about May 2, 2007. JCMS at 2:11; RFFCL at 12:26-27. They remain married and
have three U.S. citizen children together, ages 10, 9, and 2. PFFCL at 2:11-13.
On April 26, 2012, Petitioner’s two felony convictions
were reduced to misdemeanors and expunged pursuant to California Penal
Code § 1203.4. JCMS at 2:12-13; PFFCL at 2:24-26; RFFCL at 13:1-3.
4. Petitioner’s Involvement with Global Warehousing
Group, LLC and World Logistics Solutions, LLC
*4 On October 13, 2011, articles of organization were filed
for World Logistics Solutions, LLC, an Indiana limited liability company (“WLS”),
which listed its principal place of business as 55335 Corwin Rd., Ste. A,
Elkhart, Indiana 46514, and its managing member as Armelina.7 See PFFCL at 6:6-15. Petitioner describes WLS as “a
packaging and consolidation service.” Transcript I at 40; see also TT at
14:25-15:3. He elaborated that WLS has “hundreds [of] thousands of customers
overseas,” who cannot purchase items from U.S. retailers, like Macy’s or
Wal-Mart, because those retailers will not ship outside the U.S. TT at
15:11-16:7. WLS allows those customers to purchase items from those U.S.
retailers by providing WLS’ address as the shipping address. Id. Once
the items for that customer arrive at WLS, they are consolidated into fewer
boxes to save on shipping costs and forwarded to the customer’s home country
via Fed-Ex, UPS, or DHL. Id.
On December 28, 2011, articles of organization were filed
for Global Warehousing Group, LLC, an Indiana limited liability company (“GWG”),
which listed its principal place of business as 2421 S. Nappanee St., Gate 7,
Elkhart, IN 46517, and its managing member as Aremelina. PFFCL at 6:6-15.
Petitioner describes GWG as “an on-demand storage company.” Transcript I at 40.
While Armelina was the owner of GWG, Petitioner managed its websites and served
as GWG’s manager. Id. Not only did GWG own the warehouse in Elkhart,
Indiana where WLS operated, CAR, Declaration of Applicant, ECF No. 13-2 (“Applicant
Decl.”) at 148, ¶ 31, but GWG would also liquidate abandoned WLS merchandise.
TT at 25:20-26:20. For example, if a WLS customer shipped items to the WLS
warehouse but failed to pay shipping fees within 180 days, then, WLS would
treat the items as abandoned, move the items to GWG’s warehouse, and list and
sell those items on eBay and Amazon. Id.; see also PFFCL at
6:24-7:2.
Petitioner advises that GWG unofficially did business as
Atlasmart, which was the name of GWG’s online stores for Amazon and eBay, where
it would sell WLS’ abandoned items. TT at 9:11-19; see also CAR, ECF No.
13-2 at 154-58 (showing Atlasmart’s Amazon and eBay seller profiles); PFFCL at
6:24-7:2. GWG sales proceeds from Amazon and eBay were deposited directly into
a Bank of America account that Petitioner and Armelina jointly held. Applicant
Decl. at 148, ¶ 33.
Sometime on or before 2014 through Spring 2015, and
because Petitioner and his wife lived 2,100 miles away from WLS and GWG, Moussa
started working for WLS in Indiana as an independent contractor. See
CAR, ECF No. 13-2 at 212 (showing Moussa’s 2014 1099-MISC for WLS); see also
PFFCL at 6:6-23. Petitioner states that he and his wife “let him work for us
because he was related to us.” Transcript I at 41; PFFCL at 6:19-21. However,
he elaborates that even though WLS issued Moussa’s 1099-MISC, the work Moussa
performed around the warehouse that the two companies shared was actually for
GWG. See Applicant Decl. at 148, ¶ 35. This work included “doing work
around the warehouse and shoveling snow with a truck.” E Transcript I at 41. He
also broke pallets, put pallets together, pulled boxes, put boxes together,
brought overstocked items from one warehouse to another, and arranged for them
to be listed on eBay and Amazon to sell. Transcript II at 7, 21:12-22:11.
Samantha also worked for GWG for approximately one year.
Transcript I at 41. Because they were independent contractors, Petitioner would
pay Moussa and Samantha via bank transfers from the joint bank account where
Atlasmart sales proceeds were deposited “for their work at the warehouse.” Id.
at 42-43. As an independent contractor, Moussa had no fixed start and end time
for his work day and would not clock in or calculate his hours. Transcript II
at 6:1-24. Instead, each quarter (i.e., payments would be made in early
April, July, September, and December), as his earnings for helping with the
business, Moussa would receive a 30% share after deducting shipping expenses
and other independent contractor expenses from the joint account, which
contained the proceeds from sales of the liquidated items. Applicant Decl. at
148, ¶ 33; see also PFFCL at 7:3-7. Because of the nature of his
employment (i.e., being an independent contractor) along with the fact
that Petitioner and his wife lived in California while Moussa worked at the
warehouse in Indiana, Petitioner had no way of knowing if Moussa failed to show
up for work for a week or two. Transcript II at 6, 17:1-24.
*5 On February 10, 2015, WLS was administratively
dissolved. Shortly thereafter, on April 16, 2015, GWG was administratively
dissolved.
On June 29, 2015, WLS registered to start business in
Portland, Oregon, listing its principal place of business as 11923 NE Sumner
St., Portland, Oregon 97220. See Applicant Decl. at 148, ¶ 30; see
also http://egov.sos.state.or.us/br/pkg_web_name_srch_
inq.show_detl?p_be_rsn=1772019&p_srce=BR_INQ&p_print=FALSE. Petitioner
stated that the reason for closing GWG and moving WLS to Oregon was that he and
Armelina did not see GWG growing. Transcript I at 40. They wanted to focus on
growing WLS because it had more growth potential and moved it Portland, Oregon
for tax reasons. Id.
5. Moussa, Samantha, and Abdelhadi’s Departure from
the U.S.
In late November 2014, while Moussa was working for GWG, “ISIS
had been designated by the United States as a foreign terrorist organization
and had become a household name, in large part due to the beheadings of
journalist James Foley and other Westerners by ISIS member ‘Jihadi John’ that
went viral on the internet in the summer of 2014.” See Government’s
Sentencing Memorandum, ECF No. 23 in United States v.
Samantha Elhassani, Case No. 19-cr-00159-PPS-JEM, 2020 WL 7232419 (N.D. Ind.
Aug. 17, 2020).8
Sometime in November 2014, Abdelhadi and Moussa met in
Indiana, and according to Samantha, “Abdelhadi[, who] was far more radicalized
than Moussa ... ultimately swayed his brother to follow him to Syria, beginning
most likely in November 2014 when they met in Indiana.” Defendant’s Response to
Government’s Sentencing Memorandum, Elhassani II, 2020 WL 7230627
(N.D. Ind. Sept. 4, 2020). On Thanksgiving weekend of 2014, Moussa
introduced the idea of wanting to join ISIS to his wife. Id. However,
there is no evidence in the record that Moussa ever expressed his feelings to
Petitioner, and Petitioner denies any knowledge of Moussa’s plans. In fact, the
Government has admitted in the subsequent case brought against Samantha
relating to aiding and abetting ISIS that it has “little or no documentation of
Moussa’s support of ISIS’s ideology or the Caliphate before they moved to
Syria.” Elhassani II, 2020 WL
7230627 (citing the Government’s Sentencing Memorandum in the same
case, ECF No. 23 at 12, n.5). Abdelhadi, on the other hand, was “[t]he only
member of the conspiracy who openly discussed his support for ISIS before
traveling to Syria.” Id.; see also Government’s Sentencing
Memorandum in Elhassani II, 2020 WL
7232419.
*6 Between November 2014 and February 2015, Moussa and
Samantha “had already begun drawing down the savings in their bank accounts.” See
Elhassani II, 2020 WL 7232419.
On February 17, 2015, Samantha went alone to Hong Kong, taking their cash and
gold bought with those savings to Hong Kong, China.9 Id. Financial records show that Moussa and
Samantha “bought roughly $97,000 in gold and precious metals from November 2014
through the time they [later] crossed into Syria.” Id.
On March 7, 2015, seemingly out of nowhere,10 Petitioner sent Abdelhadi an e-mail with the subject “DO
NOT send me any more messages about ...,” in which the body of the e-mail
stated, “From now own, please DO NOT include my email address in any message
regarding ISIS, the group, the Sunna, the Shi’a, etc. ... I don’t have time to
waste on that stuff.” CAR, ECF No. 13-3 at 9. Five others were copied on this
e-mail, including Moussa and Yassine. Id. Petitioner has reiterated many
times that Abdelhadi was a chronic e-mail forwarder, who frequently sent
e-mails to the family regarding various topics.11 PFFCL at 12:15-21. Petitioner states that if Abdelhadi
sent additional e-mails regarding religion after his March 7, 2015 e-mail, he
would not have seen them because he set up a filter to forward Abdelhadi’s
e-mails to his junk mail folder. Id.
On March 16, 2015, approximately one month after
Samantha’s trip to Hong Kong, Samantha and one of her children went on a
one-day, round-trip visit to Hong Kong to deposit more of the couple’s savings.
See Elhassani II, 2020 WL 7232419.
On March 19, 2015, Samantha even “lied to FBI agents with whom she previously
worked as a confidential human source that she was traveling to Morocco for
three months for knee surgery to be performed by her father-in-law (who was
actually an engineer) and had not yet made travel plans.” Id. “In fact,
her final trip to Hong Kong was booked almost two weeks before her meeting with
the FBI.” Id.
“With the money safely abroad in an inconspicuous
location, Abeldhadi and Moussa would be able to leave the United States without
carrying large sums of money and precious metals.” See Elhassani II, 2020 WL
7232419. In Samantha’s prosecution, the government acknowledged that
“the Elhassani family travel plans were done in secret.” Id. “In the
months leading up to their final departure, [Samantha] told coworkers,
including close friend Cassie Daniels, that she and her family were taking an
extended vacation to Morocco.” Id. Samantha admitted that she helped
Moussa and Abdelhadi join ISIS by making a total of three trips abroad to Hong
Kong between November 2014 and April 2015. Plea Agreement, Elhassani II, 2019 WL
11318372 (N.D. Ind. Nov. 25, 2019). During the first two trips, she
transported more than $30,000 in cash and gold from the United States and
deposited these items in a safe deposit box in Hong Kong. Id.
*7 Later in March 2015, Moussa and Abdelhadi departed their
respective homes in Indiana and Minnesota to leave the U.S. and join ISIS. CAR,
USCIS April 4, 2019 Decision, ECF No. 13-2 (“Decision”) at 83; see also
PFFCL at 7:27-8:2; RFFCL at 13:5-8. First, on March 22, 2015, Moussa and
Samantha departed the U.S. at the Chicago O’Hare International Airport aboard
American Airlines Flight 187 and arrived in Hong Kong on March 23, 2015. Id.;
see also PFFCL at 7:27-8:2; RFFCL at 13:5-8. Next, on March 29, 2015,
Abdelhadi departed the U.S. from Chicago aboard American Airlines Flight 185
for Hong Kong. Id.; RFFCL at 13:5-8.
Petitioner alleges he did not know when Moussa departed
the U.S. as Moussa was living in Indiana and never said goodbye or told him
about his plans. Compl. at 3, ¶ 6.
6. Post-Departure E-mails between Petitioner and His
Brothers
As of April 2015, GWG dba Atlasmart owed Moussa for its
November 2014 through March 2015 sales. PFFCL at 7:8-11. Accordingly, on April
5, 2015, after Moussa and Abdelhadi had departed the U.S., Moussa e-mailed Mr.
Elhassani the following message: “[C]an you please do atlasmart accounting
asap. I have to pay several bills including phone. Please do a transfer to my
bank of america acct.” CAR, ECF No. 13-3 at 15-16; see also RFFCL at
13:9-10. While Moussa sent this e-mail two days before he and Samantha were
leaving Hong Kong for Turkey, the record contains no evidence to indicate that
at the time of this e-mail, Petitioner knew Moussa and/or Abdelhadi had left
the U.S., much less joined ISIS. See generally CAR.
On April 6, 2015, at 12:24 a.m., Petitioner responded, “Got
it. I’m working on it now.” CAR, ECF No. 13-3 at 16. That same day, at 4:21
p.m., he responded again:
I just sent you $1000 now to help with your
urgent bills, on top of the $2000 previously paid in advance. I will finish the
rest of accounting tomorrow and transfer the remaining amount.
BTW, Amazon account was suspended because of
high defects rate, Yassine is working on getting it restored but he may
need your help.
Id. at 16
(emphasis added); RFFCL at 13:14-15. Moussa replied to this e-mail with:
plz plz try to finish it today. Allah ketter
min khayrekh!
I am helping as much as possible. We are only
selling on Amazon low ticket items that are very simple to fulfill and no one
wants to returns. The rest is sold on eBay. The account is not suspended
anymore. We appealed it.
Nicole and Zahra are doing great. Mohamed
Yassine is helping a lot.
Please don’t include Atlasmart income after
March 23rd. I haven’t helped with orders but I did bring 3 pallets of items to
the small warehouse. That should keep them listing for a month inchallah.
Plz don’t forget to finish accounting today
Thank you
CAR, ECF No. 13-3 at 16; RFFCL at 13:10-13.
That same day, Petitioner did, in fact, transfer
$1,000.00 to Moussa’s checking account. See CAR, ECF No. 13-2 at 185; see
also PFFCL at 9:7-8. By doing so, whether he knew it or not, Petitioner
unquestionably provided funds to someone planning on joining—or someone who had
already joined—a terrorist organization.
On April 7, 2015, Samantha, Moussa, their children, and
Abdelhadi left Hong Kong for Turkey. See Elhassani II, 2020 WL 7232419;
see also RFFCL at 22:11-5 (stating that they flew to Istanbul, Turkey,
and then, traveled to Sanliurfa, Turkey, near the Syrian border). On April 10,
2015, at 9:28 a.m., Petitioner e-mailed Moussa a breakdown of what he was owed
for November and December 2014. CAR, ECF No. 13-2 at 204-209. This accounting
breakdown showed a total income of $5,187.89, which is backed up by actual
profits from Amazon sales ($9,799.36) with deductions for expenses ($1,099.70)
and employee pay ($3,511.87), leaving Moussa entitled to 30% (or $1,556.34) and
Yassine entitled to 20% ($1,037.59). Id. at 204-207; PFFCL at 7:11-14.
Because Moussa had received a $1,000.00 advance, he was only entitled to a
remainder of $99.70 for November and December 2014 income. See CAR, ECF
No. 13-2 at 185. However, later that day, Petitioner also e-mailed Moussa the
accounting breakdown for the first quarter of 2015 (i.e., January,
February, and March 2015), which showed Amazon and eBay gross profits of
$31,664.15, with deductions of $3,572.92 for expenses and $2,829.01 for
employee pay, resulting in total income of $25,262.22, with Moussa entitled to
30% ($7,578.67) and Yassine entitled to 20% ($5,052.44). Id. at 208-209;
see also PFFCL at 7:15-18.
*8 On April 11, 2015, Moussa responded to Petitioner with “please
do the transfer to boa; I need it urgently.” CAR, ECF No. 13-3 at 3. On April
12, 2015, Petitioner responded with the following accounting reconciliation:
Atlasmart Quarter: November, December 2014 Q4
Income: January, February, and March 2015 Q1 Income: TOTAL: Advances Already
Paid: February 16, 2015: April 6, 2015: Remainder to be Transferred: Income
Owed to Moussa: $1,556.34 $7,578.67 $9,135.01
($2,000.00) ($1,000.00) $6,135.01
CAR, ECF No. 13-3 at 13-14; see also PFFCL at
7:19-22; RFFCL at 13:18-20. Petitioner stated in the same e-mail that he would
transfer $4,135.01 that day, leaving a remaining $2,000.00 balance that he
would transfer on Monday. See CAR, ECF No. 13-3 at 13-14; see also
PFFCL at 7:23-25, 9:15-19; RFFCL at 13:18-20.
On April 13, 2015, Petitioner transferred the $4,135.01
to Moussa’s bank account. CAR, ECF No. 13-2 at 183, 185. Three days later, on
April 16, 2015, GWG was dissolved.
On April 17, 2015, Moussa e-mailed Petitioner and said, “Plz
try to transfer the remainder today; thank you.” CAR, ECF No. 13-2 at 13; RFFCL
at 13:21-22. This is the last e-mail from Moussa directly to Mr. Elhassani in
the record. Petitioner responded later that day explaining that he had “made a
large payment to [the] IRS for taxes due this week,” so he was just “waiting
for some funds to arrive from PayPal,” so he could send him the remaining
$2,000.00. CAR, ECF No. 13-3 at 12.
Sometime around April 14, 2015, after Petitioner’s last
transfer to Moussa, “Samantha and her two children crossed the border from
Turkey into Syria along with Moussa and Abdelhadi.” Elhassani II, 2020 WL 7232419;
see also Defendant’s Objections and Clarifications to the Presentence
Investigation Report and Sentencing Memorandum, Elhassani II, 2020 WL 7232418
(N.D. Ind. Aug. 17, 2020); RFFCL at 22:15-17.
Sometime around the third week of April 2015 (i.e.,
April 19, 2015 through April 25, 2015), Petitioner spoke to his brother,
Yassine, who also lived in Elkhart, Indiana and informed Petitioner that Moussa
and Samantha had left. Transcript II at 4, 11:18-21; PFFCL at 9:25-10:2.
Petitioner testified that he was upset that Moussa “just left his role at the
warehouse.” Transcript II at 5, 15:14-17. At the hearing, Petitioner testified
that after he learned Moussa left, he tried to call and text to find out where
he was, but Moussa did not answer. PFFCL at 10:9-10. From April 2015 through
May or June 2015, Petitioner knew Moussa and his family had departed Indiana
but did not know they had departed the U.S. Applicant Decl. at 145, ¶¶ 12-13.
Sometime in May or June 2015, Petitioner spoke on the
telephone with his parents, who informed him that they heard Moussa, his
family, and Abdelhadi may be in Hong Kong and might head to Morocco afterwards.
Transcript II at 5, 15:19-20; PFFCL at 10:14-17 (citing Applicant Decl. at 145,
¶ 13). Sometime after this initial telephone call but before August 20, 2015,
Petitioner spoke with his parents again, during which they told him that they
had heard that Moussa, Samantha, and Abdelhadi may be going to Turkey. PFFCL at
10:20-23.
Almost four months after learning of Moussa’s departure,
on August 19, 2015, Petitioner’s mother, Rkia Fourdaous, see CAR, EC No.
13-1 at 40; TT at 60:16-23, e-mailed Moussa the following message while carbon
copying at least seven family members, including Petitioner:
I’m waiting [for] a word from you ..., but
nothing. I’ve waited forever. I wanted to have a sign of life from you. I
want[ed] to write [to] you for your birthday.
What’s going on with Sam? With the kids?
What are you trying to say of this silence?
It’s very hard, hard. ...[D]o you need help? Do you want us to come help? Tell
us something. We are awaiting your response.12
CAR, ECF No. 13-3 at 23; PFFCL at 10:11-28. In response
to his mother’s e-mail, Moussa “replied all” and provided a lengthy response:
Salam [Greetings] everyone! We miss you very
much! Alhamdulillah all is well!
I am sorry I haven’t replied to you in a
while! I just installed internet at home now and I can reply fast. I am still
setting up a desk and things around the house.
Alhamdoulillah I bought a house!
Alhamdoulillah! Please pray for us and tell baba to do the same. Please tell
him not to pray against us. We have nothing to do with the war going on.
In fact[,] we see no sign of it! The media makes it seem big[,] but I swear I
have not seen no sign of it!!!
We live in what they call the reef!13 it is like farmlands far away from any village or city.
We are close to a big river. We have unlimited water but no electricity. I just
bought a gas generator. gas here is sooooo cheap! 1 gallon is around $1. random
farmers around have oil wells and produce gas themselves! 1 gallon costs around
$1.20
Alhamdoulillah with the money we saved we are
living really good!! A chicken buritto made of organic chicken and organic
vegetables costs 75 cents!!! 2 pounds of bread cost 1$!!! (that comes up to 12
rolls of french bread!!!). The house we bought is about 100 square meter. It
cost us $5000 only! We were going to buy a 1000 square meter mansion by the
river for around 36000$ but that would leave us broke ... The weather is
amazing alhamdoulillah! dry and warm ... (No more suffocating humidity or dead
freezing winter)
Baba please don’t pay so much attention to
Abdelhadi’s emails14 ... He listens to too many shouyoukh’s mp3’s and
youtubes videos ... He doesn’t know that those shouyoukhs only talk and don’t
do nothing!!!
Abdelhadi knows that; that is why he is at
his farm house watching his brand new Panasonic flat screen TV eating a lamb
buritto that cost him 90 cents!
He knows each shaykh he is listening to has a
nice office with a big desk and a nice library and has a big monitor and a nice
desktop; a nice microphone and nice audio editing software ... actually most of
them have a team of editors working for them ... and a little servant who runs
and get him fresh hot tea!
Please understand we didn’t leave because we
have something against the US or americains [sic]. Americains [sic] are some of the
greatest people in world! I can confirm that to you after meeting many
races now that we’ve traveled a little bit. I am very grateful for the many
times I got saved while in the U.S.! Like when I was stuck in middle of a snow
storm with the Dodge Viper on Mount Shasta! The car was half buried in snow[,]
and I had no winter clothes! No phone service! Nada! Alhamdoulillah a guy came
with his bulldozer and got me out and took me to nearest town where there was a
hotel! That is just one of the many nice things you don’t see many people in
the world do for you!
*10 The reason why I left was because I was really tired
of being illegal! Stupid immigration attorney Meza pretty much robbed me of
3500$ ... years went by since I paid her and she said I had to re-do all the
papers from scratch (go again to hospital and pay $400, get all the birth
certificates, marriage certificates, public notaries, pay again immigration fees
... )
Plus[,] the IRS was sending me letters ... It
wasn’t just from the IRS it was from an agent that they assigned for my case!!
He was from Indianapolis. He was sending me letters every week. He was saying
that my taxes were seriously messed up and that they were getting ready to
seize property, cars, and even have all my income goes directly to them ... I
told him everything was going to be paid up by the deadline of 2015 (April
15th)
Even If I figured out something with the IRS
and immigration[,] I would have been legal but poor with no money except a
house that was falling apart and an extremely cold winter! -15 degrees with an
average of 6 feet of snow! My spine has major problems from working in the
cold lifting heavy stuff (heavy boxes, lifting garage doors, pallets,
attaching and detaching towing trailers, shoveling snow, carrying Sarah
... ) I have 2 herniated spine disks (Disk # C 1 which makes my neck paralyzed
most of winter unless I take really strong prescribed pain killers (tramadol
or Tylenol
3)) and also disks# Tl 1 & T12!!! When these start hurting[,] I have to
basically lie down on the ground flat on my back for a while until the pain
goes away ... Also knee and hips problems for Sam ... wrist problems and ankles
problems ... We were slowly dying!!!! Also ear infections sore throats that
last months .... !!!
Going back to [M]orocco was not easy ... Sending money to [M]orocco by wire was impossible
since the IRS was gonna take it before it leaves the US. Sam went to [M]orocco
to see if taking cash/gold was easy[,] but those guys in the Mohamed V airport
were very scary! They went through her luggage like crazy and confiscated many
many things! I was not about to go and have them confiscate the Porsche money
and give me a receipt instead!!
Please please please ignore what abdelhadi is
saying he is doing nothing but sitting home and watching aljazeera15! Please
don’t be mad at us for leaving. Inchallah soon the borders will open up ... new
american president and inchallah they will get rid of bashar16 and things will become even better .... right now[,] we
keep to ourselves and no one come to bother us ... there is no police on the
road or army people ... where we are at it is completely safe bi idni allah!
Please don’t forget us in your prayers ... we
never do forget you! Thank you for understanding ... We hope we are not causing
you any trouble.
Sorry for not answering to your emails and
leaving you worried for a long time.
I hope things are doing great for you all!
CAR, ECF No. 13-3 at 17-20 (emphasis added); RFFCL at
14:5-7. Nowhere in this e-mail did Moussa explicitly state where he was located
at the time he wrote the e-mail. See id.; see also PFFCL at
11:11-12. It refers to him and Samantha as having been in Morocco, but it also
refers to a desire for the borders to open up if Bashar al-Assad is no longer
president. Id. Petitioner testified that because Syria is next door to
Turkey, and Moussa mentioned being “very far away from the war,” he assumed,
but did not know, they might be “somewhere in a country in Turkey.” Transcript
II at 12, 41:1-16; PFFCL at 11:17-20. That same day, Mr. Elhassani sent another
e-mail in response to Moussa’s e-mail, which was addressed to Moussa but cc’d
their mother, Mohamad Elhassani (either their father or brother, both of whom
are named Mohamed), Salaheddine, Abdelhadi, Yassine, and Zahra Elhassani. This
e-mail stated:
*11 Glad to hear you guys are doing fine.
If you get tired there, move to Morocco
& let’s start an import-export business.
We can ship you US cars & containers of
unsold clothes & other goods to sell in Morocco and live comfortably close
to our parents
Use a Bitcoin wallet when you travel
overseas, no one can confiscate that from you.
CAR, ECF No. 13-3 at 17-20 (emphasis added); PFFCL at
11:23-27; RFFCL at 14:8-9. At the hearing, Petitioner testified that he wrote
this e-mail at his mother’s encouragement, who wanted Moussa to return home to
Morocco. PFFCL at 11:23-27. To date, Petitioner still has not transferred
Moussa the remaining $2,000.00 he owed Moussa. Id. at 12:3-8.
Despite now claiming that Petitioner is “affiliated” with
ISIS by virtue of his relationship with his brothers, neither USCIS nor law
enforcement ever contacted Mr. Elhassani during this time. Compl. at 5, ¶ 11;
PFFCL at 13:19-21.
7. Petitioner’s Application for Naturalization
*12 On or about November 27, 2015, after these last
communications with Moussa, Petitioner filed a Form N-400, Application for
Naturalization (the “Application”), along with the $680 filing fee, with USCIS.
See Exhibit 3 to Compl., ECF No. 1-2 at 8 (showing the N.400 Application
for Naturalization Receipt Notice and payment of the $680.00 fee); JCMS at
2:14-15; PFFCL at 3:2-4; RFFCL at 14:10-11. USCIS placed Petitioner’s
application in a national security program, the Controlled Application Review
and Resolution Program (“CARRP”). PFFCL at 3:5-9. In a memorandum outlining
policy for vetting and adjudicating cases involving Known Suspected Terrorist (“KST”)
National Security (“NS”) concerns, USCIS states that “[o]fficers are not
authorized to approve applications with confirmed KST NS concerns.” Exhibit 4
to Petitioner’s Request for Judicial Notice (“RJN”), ECF No. 18-2 at 59, 64-65;
see also PFFCL at 3:10-12.
On or about December 23, 2015, Petitioner appeared at a
USCIS “Application Support Center” for an appointment to provide his
biometrics. JCMS at 2:14-15.
On February 22, 2016, Petitioner was added to the
Terrorist Screening Database and confirmed as a KST. CAR, ECF No. 13-1 at 36.
Despite being added to this database, to date, law enforcement has not contacted
Petitioner regarding any national security concerns. PFFCL at 3:16-20 (citing
ECF No. 14 at 71; ECF No. 27 at 56).
On March 28, 2016, R.M. Gonzales, who was part of the
CARRP, submitted the following eligibility assessment: “Pending interview, submission
of court documents and de-confliction of KST(B10) status, EL HASSANI appears to
be statutorily eligible for naturalization at this time. However, focus on
employment and possible marriage fraud is warranted.” PFFCL at 3:5-9 (citing
ECF No. 13-1 at 36). As Petitioner points out, and as a point of concern, this
document erroneously states that Petitioner was born in Iraq, when he was born
in Morocco, and states that he was married with no children, when, in fact, he
has three children. Id. at 3:26-28.
Sometime between July 2017 and September 6, 2018, while
Petitioner’s Application was pending, Moussa was killed in a drone strike in
Raqqa, Syria. See CAR, ECF No. 13-3 at 44; RFFCL at 14:12-17. From April
through August 2018, the fact that Samantha was in Syria and that Moussa had
died received media attention. RFFCL at 14:18-20.
a. Petitioner’s First September 10, 2018 Interview
Almost three years after filling his Application, on
September 10, 2018, USCIS interviewed Petitioner. JCMS at 2:16; PFFCL at
3:21-23; RFFCL at 14:22-24. As part of the interview, the officer transcribed
the questions and answers, and Petitioner does not dispute the Record of Sworn
Statement, which he signed at the conclusion of the interview. PFFCL at
13:27-14:10. Petitioner believed his interview would concern topics such as his
family, marriage, and employment. However, USCIS questioned Petitioner
extensively regarding his most last communications with his brothers (i.e.,
the e-mails from almost three years before the interview from the April 2015
and August 2015 between Petitioner and his family), without specifically
referencing or showing him those e-mails. PFFCL at 14:11-19.
During the interview, Petitioner made the following
statements, which are indisputably false; however, Petitioner claims he did not
know the statements were false at the time he made them. See Compl. at
5-6, ¶¶ 13-15. First, the questioning USCIS officer asked Petitioner whether he
spoke with, or transferred money to, his brothers after they departed the U.S.,
without first establishing when Petitioner learned his brothers departed the
U.S. PFFCL at 16:3-8. Petitioner testified that he did not have any contact
with Moussa or Abdelhadi after they left the U.S., except for a mass e-mail
during the holidays from Abdelhadi. Transcript I at 42; PFFCL at 15:8-15; RFFCL
at 14:24-28. Second, he testified that he never transferred any funds to Moussa
after he departed the U.S., and the only money he transferred was for payment
for contractor services. Transcript I at 42-43; PFFCL at 15:22-16:2-14; RFFCL
at 14:24-28. Third, he denied having any knowledge regarding Moussa’s
whereabouts after April 2015 except that he went to Hong Kong and planned to go
to Morocco and then perhaps to Turkey at some point. Transcript I at 42; RFFCL
at 14:24-28. Fourth, when asked whether he had any siblings that were members
of a terrorist organization, he stated that he had brothers with whom he had not
spoken to in several years and did not know their affiliations or associations.
Transcript I at 41, 43; ECF No. 14 at 51; PFFCL at 14:24-15:1.
*13 Additionally, when asked about Moussa’s duties related
to his work for GWG, Petitioner also testified that he performed “work around
the warehouse, like mowing trees and ... shoveling snow.” Transcript I at 41;
ECF No. 14 at 55. Petitioner also stated that he “did not handle payroll.” Id.
at 43.
Toward the end of the interview, the USCIS interviewer
showed Petitioner, on his computer monitor, a story in the Chicago Tribune
about Samantha and verbally informed Petitioner that Moussa had died in a drone
strike. Transcript I at 44; PFFCL at 4:1-4 (citing ECF No. 14 at 72-73), 16:22-17:1;
RFFCL at 15:1-6. The officer also advised that Samantha had been extradited to
the U.S. for prosecution for material support to a Tier 1 Terrorist Group.
Transcript I at 44; PFFCL at 4:5-8 (citing ECF No. 14 at 73).
b. USCIS Denial
After the September 10, 2018 interview, USCIS obtained
Petitioner’s bank records and the e-mails between him and his brother Moussa.
RFFCL at 15:7-8.
On January 24, 2019, USCIS issued a Notice of Intent to
Deny (“NOID”), alleging that Petitioner (1) made intentional false statements
under oath; (2) was “affiliated” with ISIS under 8 U.S.C. §
1424(a)(4)(C) due to his last payment to Moussa for Moussa’s work as
an independent contractor at Petitioner’s wife’s company; and (3) failed to
establish his good moral character under 8 C.F.R. §
316.10(a)(2). JCMS at 2:19-20; PFFCL at 4:13-20, 17:11-19; RFFCL at
15:9-10. The NOID provided Petitioner with 30 days to respond. Compl. at 12, ¶
42.
On February 26, 2019, Petitioner timely submitted a
response to the NOID, asserting that he had not made intentionally false
statements under oath, was not affiliated with ISIS, and was otherwise a person
of good moral character. PFFCL at 4:21-23, 17:24-18:1; RFFCL at 15:10-14.
Petitioner even provided additional April 2015 e-mails that he found from
Moussa along with providing a Declaration. PFFCL at 18:5-7. Nonetheless, on
April 4, 2019, USCIS denied his application on the same grounds as set out in
the NOID. PFFCL at 4:24-26, 18:8-11; RFFCL at 15:11-14.
On April 24, 2019, Petitioner timely filed his Form
N-336, Request for a Hearing on a Decision in Naturalization Proceedings, as 8 U.S.C. §
1447(a) requires. See Exhibit 5 to Compl., ECF No. 1-2 at 10;
PFFCL at 4:27-5:3, 18:10-11.
In advance of the October 30, 2019 interview, USCIS
provided him with a copy of the Record of Sworn Statement and the audiovisual
recording of the September 10, 2018 interview. JCMS at 2:23-25; RFFCL at
15:15-16. Petitioner submitted his supporting brief at the interview and
responded to all questions.
c. Petitioner’s Second October 30, 2019 Interview
On October 30, 2019, USCIS held an interview on the Form
N-336 at the San Diego Field Office in connection with his administrative
appeal. JCMS at 2:23-25; PFFCL at 45:4-7, 18:12-14; RFFCL at 15:15-16.
During this interview, Petitioner testified that he did
not realize that his brother and Samantha left the country until around the
third week of April. ECF No. 24 at 4. Next, when asked about Moussa’s job
duties again, Petitioner stated that Moussa would help around the warehouse by
plowing snow, cutting trees, breaking pallets, moving pallets, and transferring
overstocked items from one warehouse to another. Id. at 5, 7. Toward the
end of the interview, Petitioner stated that he had learned of his brother
Moussa’s death in “some newspaper or, I mean, some magazine.” Id. at 13;
RFFCL at 15:17-19. He elaborated that at the September 10, 2018 interview, he
was told about “a big news article.” Id.
*14 On December 12, 2019, Petitioner submitted a request
under the Freedom of Information Act (the “FOIA”) to USCIS for a copy of the
audiovisual recording of the October 30, 2019 interview and for “[a]ny and all
documents related to or obtained as a result of the Applicant’s N-400 filing on
11/27/2015 and N-336 filing on 4/24/19, including any all of the Applicant’s
own emails and bank records obtained from the grand jury subpoena reference
#2016R01109-020.” Compl. at 13, ¶ 48.
d. Final Denial
On July 15, 2020, USCIS denied Petitioner’s Form N-336 on
the same grounds as in the original denial of the Form N-400. JCMS at 3:1;
PFFCL at 5:8-9, 18:27; RFFCL at 15:20. Petitioner has exhausted his
administrative remedies under 8 U.S.C. §
1447(a) and now seeks a de novo review of the denial and a de novo
hearing under 8 U.S.C. §
1421(c). Compl. at 15, ¶ 55.
8. Prosecution of Moussa’s Wife, Samantha
Petitioner acknowledges in his Complaint that the U.S.
Department of Justice has prosecuted Samantha for financing terrorist activities
and has contacted at least one of Petitioner’s other siblings about Moussa and
Samantha. Compl. at 14, ¶ 53. However, Petitioner has not been contacted nor
questioned by any law enforcement agency in connection with Moussa or Samantha.
Id.
On March 21, 2018, almost six months before Petitioner’s
first interview, an indictment was returned while Samantha was still with her
children in a Kurdish refugee camp, which charged her with making a false
statement to the Federal Bureau of Investigation (“FBI”) three years earlier in
violation of 18 U.S.C. § 1001.
See Elhassani II, 2020 WL
7232418 (citing ECF No. 1 in Elhassani I, Case No.
18-cr-00033). In late July 2018, the government executed the arrest warrant and
flew Samantha back to the U.S. on a military cargo transport plane. Id
On August 22, 2018, a superseding indictment was returned
by a grand jury, which charged Samantha with (1) Conspiracy to Provide Material
Support to ISIS, from Fall 2014 through Summer 2015, in violation of 18 U.S.C. §
2339B(a)(1) and (2) Aiding and Abetting two individuals in Providing
Material Support to ISIS, from March 23, 2015 through April 7, 2015, in
violation of 18 U.S.C. § 2
and 18 U.S.C. §
2339B. Elhassani II, 2020 WL
7232419 (citing ECF No. 23 in United States v. Samantha Elhassani,
Case No. 18-cr-00033).
On November 25, 2019, an information was filed against
Samantha, pleading that she “[b]etween on or about February 2015 and on or
about March 2015, ... did knowingly conceal and disguise the nature, location
and control of material support and resources, knowing and intending that the
support and resources were to be provided by Individuals A and B as material
support to the Islamic State of Iraq and al-Sham (ISIS), in violation of Title 18, United
States Code Section 2339B(a)(1), 2339C(c)(2)(A)
and 2.” See Elhassani II, 2019 WL
11318371 (N.D. Ind. Nov. 25, 2019). That same day, Samantha entered
into a plea agreement, pursuant to which she pled guilty to Count 1 of the
information, charging her with the lesser offense of financing terrorism. See
Elhassani II, 2019 WL
11318372 (N.D. Ind. Nov. 25, 2019). In this Plea Agreement, she
admits the following facts:
a. In November 2014, I was informed by my
husband, Individual A [Moussa], that he and his brother, Individual B
[Abdelhadi], wanted to travel to Syria to live in the Caliphate and join ISIS.
b. Between November 2014 and April 2015, I
helped Individuals A and B join ISIS, by making three trips abroad to Hong
Kong.
*15 c. During the first two trips, I transported more than
$30,000 in cash and gold from the United States and deposited these items in a
safe deposit box in Hong Kong. At the time I transported the funds and gold, I
knew that Individuals A and B had expressed an interest in joining ISIS and
that Individuals A and B intended to use these resources to support ISIS.
d. I concealed the support and resources
described above by: (1) transporting gold that was melted down to look like
jewelry and (2) not disclosing the cash and gold on customs declaration forms.
e. I performed these acts knowingly and
willingly and with the knowledge that ISIS was a foreign organization involved
in terrorist activities.
Id.
The government points out that Samantha also worked as a
confidential informant for the FBI “but did not report on her
brother-in-law’s business.” Elhassani II, 2020 WL 7232420
(N.D. Ind. Sept. 4, 2020) (original emphasis).17 Rather, she “worked in a secondary shipping business
that facilitated shipments between U.S.-based vendors and individuals located
in places where those vendors did not directly ship.” Id. From company
records readily available to her, Samantha “provided information about
customers and shipments of interest to the FBI.” Id.
On November 17, 2020, Samantha pled guilty to count 1 of
the superseding Information on November 25, 2019, and the government dismissed
the indictment against her in Case Number 2:18-cr-00033. See Amended
Judgment, United States v.
Elhassani, No. 2:19-cr-00159-PPS-JEM, 2020 WL 7082758, at *1 (N.D. Ind. Nov. 17,
2020). Samantha was sentenced to 78 months in prison. Id.
B. Procedural History
On November 4, 2020, Petitioner filed his Petition for de
novo review of denial of his application for naturalization and request for
a hearing pursuant to 8 U.S.C. §
1421(c). See Compl.; PFFCL at 5:10-12. On February 26, 2021,
the parties lodged the administrative record with the Court in compliance with
the Court’s Scheduling Order. ECF Nos. 13, 14.
On May 28, 2021, Petitioner timely submitted his hearing
Brief. ECF No. 17. Petitioner also filed a Request for Judicial Notice. ECF No.
18 at 1.
On June 25, 2021, USCIS submitted its hearing brief,
which focused predominantly on why the Court should deny Petitioner’s Request
for Judicial Notice rather than why the USCIS decision was correct. ECF No. 19.
On July 9, 2021, Petitioner submitted his reply brief, which focused on
supporting his Request for Judicial Notice. ECF No. 20. On July 23, 2021, USCIS
submitted its reply brief, which recited the relevant law that applies to this
case but still failed to advance any arguments relating to the factual issues.
ECF No. 21.
*16 On August 2, 2021, USCIS filed its own Request for
Judicial Notice. ECF No. at 22 at 1. On August 7, 2021, Petitioner filed a
response to USCIS’ Request for Judicial Notice. ECF No. 23 at 1.
On August 23, 2021, USCIS lodged a copy of the transcript
of Petitioner’s October 30, 2019 interview with the Court. ECF No. 24.
On August 30, 2021, Petitioner appeared before this Court
for trial. See HT.
III. LEGAL STANDARD
District courts have original jurisdiction over all “all
civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331.
The Immigration and Nationality Technical Corrections Act of 1994, 8 U.S.C. §§
1100 et seq. (the “INA”), governs an individual’s ability to become
naturalized as a U.S. citizen. Orellana v.
Mayorkas, 6 F.4th 1034, 1042 (9th Cir. 2021) (“The relevant framework
for establishing eligibility for naturalization is set forth in 8 U.S.C. §
1427(a) and the implementing regulations, 8 C.F.R. part 316.”). It
also vests district courts with the task of reviewing de novo any denial
of an application for naturalization. 8 U.S.C. §
1421(c); see also Compl. at 7, ¶ 18; see also JCMS at
1:23-25
Under the INA, an individual seeking naturalization must
have (1) resided continuously, after being lawfully admitted for permanent
residence, within the U.S. for at least five years immediately preceding the
date he or she filed the application for naturalization and been physically
present for at least half of that time; (2) resided continuously within the
U.S. after the date the applicant applies for naturalization through the time
of admission to citizenship; and (3) qualify as “a person of good moral character”
during all periods that he or she resided in the U.S. 8 U.S.C. §
1427(a); see also 8 C.F.R. §
316.2(a) (citing the same requirements in addition to requiring that
the individual be at least 18 years of age). An individual applying for
naturalization must also submit to biometric screening. See 8 U.S.C. § 1440f
(requiring the Secretary of Homeland Security to use the fingerprints provided
by an individual at the time the individual files for an adjustment of status
if the individual applies for naturalization under the INA). “The applicant
shall bear the burden of establishing by a preponderance of the evidence that
he or she meets all of the requirements for naturalization.” 8 C.F.R. §
316.2(b); see also Berenyi v. Dist.
Dir., Immigr. & Naturalization Serv., 385 U.S. 630, 637 (1967)
(providing that an alien applicant seeking naturalization bears the burden of
showing “his eligibility for citizenship in every respect”). Any doubts
regarding eligibility for “should be resolved in favor of the United States and
against the claimant.” Berenyi, 385 U.S. at
637.
The INA vests the Attorney General with the authority to
designate an employee “to conduct examinations upon petitions for
naturalization.” 8 U.S.C. §
1446(b). Following the examination, the employee designated to
conduct the examination determines “whether the application should be granted
or denied” while stating the reasons for doing so. 8 U.S.C. §
1446(d). “In determining whether the applicant has sustained the
burden of establishing good moral character and the other qualifications for
citizenship,” the Attorney General, or district court conducting judicial
review, “shall not be limited to the applicant’s conduct during the five years
preceding the filing of the petition, 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).
*17 If the individual’s application for naturalization is
denied, “the applicant may request a hearing before an immigration officer.” 8 U.S.C. §
1447(a). Thus, “[u]nsuccessful applicants must first take an
administrative appeal of the denial and complete the INS’s administrative
process before seeking judicial review.” United States v.
Hovsepian, 359 F.3d 1144, 1162-63 n.15 (9th Cir. 2004) (citing 8 U.S.C. §
1421(c), (d); 8 U.S.C. §
1447(a); 8 C.F.R. § 336.2).
If after that hearing, the application remains denied, the person “may seek
review of such denial before the United States district court or the district
in which such person resides.” 8 U.S.C. §
1421(c); see also 5 U.S.C. §§ 701 et
seq. (providing for judicial review of agency action). “Such
review shall be de novo, and the court shall make its own findings of fact and
conclusions of law and shall, at the request of the petitioner, conduct a
hearing de novo on the application.” 8 U.S.C. §
1421(c). On the one hand, “[t]he court may not rely on the [USCIS]’
findings of fact or law and, on request, must hold its own hearing on the
naturalization application.” Hovsepian, 359 F.3d at
1162 (noting that “even if the [USCIS] is allowed to make the
initial decision on a naturalization application, the district court has the
final word and does not defer to any of the [USCIS]’ findings or
conclusions”). On the other hand, “[t]his does not necessarily require an
evidentiary hearing or bench trial, however, nor is summary judgment precluded
where there is no genuine issue of material fact.” Garcia-Garcia v.
Holder, No. 08-cv-01129-LAB (AJB), 2010 WL 1292155, at *2 (S.D. Cal. Mar. 30,
2010) (Burns, J.) (citing Abghari v.
Gonzales, 596 F. Supp. 2d 1336, 1343-44 (C.D. Cal. 2009) (citing Chan v. Gantner, 464 F.3d 289,
295-96 (2d. Cir. 2006))). Further, although the Court shows no
deference to the USCIS’ findings or conclusions on legal issues, Hovsepian, 359 F.3d at
1162, the Court may rely on the record from in the USCIS proceedings
but may also establish its own factual findings, see, e.g., Saliba v. Att’y
Gen. of United States, 828 F.3d 182, 189 (3d Cir. 2016) (“As a
consequence, judicial review of naturalization denials ‘is not limited to any
administrative record but rather may be on facts established in and found by
the district court de novo.’”). See also Aparicio v.
Blakeway, 302 F.3d 437, 445 (5th Cir. 2002); Abghari, 596 F. Supp.
2d at 1343.
At the hearing, the “applicant for naturalization may
present testimony and documents to the district court to establish eligibility.”
Orellana, 6 F.4th at
1042. Both the Federal Rules of Civil Procedure and Federal Rules of
Evidence apply to such hearings. See id. at n.3 (rejecting the argument
that the Federal Rules of Civil Procedure do not apply to a district court’s
review of the denial of a naturalization petition; the Federal Rules of
Evidence “apply to proceedings in United States courts,” and “[a] judicial
review of a denial of a naturalization application is one such proceeding”)
(citing FED. R. EVID.
101, 1101);
see also Gonzalez v.
Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 262 (3d Cir. 2012)
(applying the Federal Rules of Evidence in reviewing the denial of a
naturalization application); see also FED. R. CIV. P.
81(a)(3) (“These rules apply to proceedings for admission to
citizenship to the extent that the practice in those proceedings is not
specified in federal statutes and has previously conformed to the practice in
civil actions.”).
IV. CONCLUSIONS OF LAW
Petitioner asked the Court “[c]onduct a de novo
hearing on Petitioner’s application for naturalization.” Compl. at 16, ¶ 59(b).
He asks the Court to “grant Mr. Elhassani naturalization and administer the
oath of allegiance” because he argues he (1) “did not intentionally provide
false statements under oath with the intent of obtaining an immigration benefit”;
(2) “is not affiliated with ISIS, as that term is defined in the regulations,
because he never voluntarily or knowingly gave, lent, or promised anything of
value to ISIS”; and (3) “is otherwise a person of good moral character who
satisfies the requirements for naturalization.” JCMS at 3:5-10. USCIS responds
that its denial of Petitioner’s naturalization was well-founded, and “Petitioner
lacks good moral character and is therefore not entitled to naturalization to
U.S. citizenship.” Id. at 3:12-14 (citing 8 U.S.C. § 1427).
It explains that Petitioner lacks good moral character because he made false
statements during his interviews on his Application. Id. at 3:11-14; see
also 8 U.S.C. §
1101(f)(6) (“one who has given false testimony for the purpose of
obtaining any benefits under this chapter” lacks good moral character).
*18 As stated, under the INA, an individual seeking
naturalization must, inter alia, meet various residency requirements,
submit to a biometrics screening, and qualify as a person of good moral
character. 8 U.S.C. §
1427(a); see also 8 C.F.R. §
316.2(a) (citing the same requirements in addition to requiring that
the individual be at least 18 years of age). The parties stipulate that
Petitioner meets all of the requirements for naturalization other than good
moral character. JCMS at 3:5-10; PFFCL at 22:9-24. Thus, the sole issue before
the Court is whether Petitioner has established sufficient facts for the Court
to find he has met his burden of showing he possesses good moral character for
citizenship. In doing so, the Court is “not subject to the rules governing
typical immigration cases,” which bind courts “by an immigration judge’s
factual and credibility determinations.” Bijan v. United
States Citizenship & Immigr. Servs., 900 F.3d 942, 945 (7th Cir. 2018).
Rather, the Court may make its own factual findings and credibility
determinations.
“Above all else, [courts] are concerned with the
character of a petitioner.” In re L., 59 F. Supp.
179, 180-81 (N.D. Cal. 1944). It is a person’s “character which determines
whether he [or she] will make a good citizen.” Id.; see also United States v.
Leles, 236 F. 784, 786 (N.D. Cal. 1916) (“One of the essential
qualifications for admission to citizenship is that the applicant shall be a
man of good moral character.”).
Following a bench trial in this matter conducted pursuant
to 8 U.S.C. §
1421(c), the Court makes the following findings of fact and
conclusions of law: In this case, the Court finds that Petitioner has been
married for seventeen years, with three young children that he helps support,
and he has remained gainfully employed throughout his time in the U.S., even
creating jobs for others. PFFCL at 27:2-9. While the Court does not find
Petitioner voluntarily or intentionally affiliated with ISIS, as set forth
below, it concludes that some of his Petitioner’s testimony was not credible
and intentionally false, which when considered with his past relevant conduct,
demonstrates a lack of good moral character, disqualifying him from
citizenship. However, before addressing particular findings of fact and
conclusions of law, the Court considers the parties’ pending requests for
judicial notice as such information has informed the Court’s findings on moral
character.
A. Request for Judicial Notice
The court may take judicial notice at any stage of a
proceeding of (1) facts not subject to reasonable dispute and “generally known
within the hearing court’s territorial jurisdiction” and (2) adjudicative
facts, which “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” FED. R. EVID.
201(b)(1)-(2).
On May 28, 2021, Petitioner filed a Request for Judicial
Notice, asking the Court to take judicial notice of four exhibits, seeking to
prove “what information was in the public realm” at the time of his
naturalization interview. RJN, ECF No. 18 at 1. Petitioner seeks judicial
notice of three different articles as well as a USCIS Memorandum. Id. at
2. He fails to specify particular facts within the article or memorandum of
which he would like the Court to take judicial notice. Respondent largely
objected to the Court taking judicial notice on the basis that Petitioner was
improperly attempting to supplement the administrative record as to what
knowledge was in the public realm. ECF No. 19 at 3:22-25
Other courts have taken judicial notice of USCIS Policy
Manuals and Memoranda. See, e.g., Attias v.
Crandall, 968 F.3d 931, 936 (9th Cir. 2020) (affirming the decision of
the district court, which granted summary judgment in favor of USCIS, while
noting that in its “summary-judgment order, the district court sua sponte took
judicial notice of USCIS’[ ] Policy Manual”). Further, Respondent has
not advanced any argument objecting to the Court taking judicial notice of this
document, other than generally objecting to the supplementation of the record.
However, Petitioner’s Request for Judicial Notice is flawed in that it asks the
Court to take judicial notice of entire documents rather than specific facts
from the documents or the fact that the documents were published on a specific
date. This is improper. Thus, the Court DENIES-IN-PART Petitioner’s
Request for Judicial Notice to the extent it asks the Court to take judicial
notice of entire documents without specifying particular facts, if any, from
those documents of which the Court should take judicial notice. However,
Petitioner does rely on certain facts in his briefing. See PFFCL at
3:10-12. Thus, the Court GRANTS-IN-PART Petitioner’s request by taking
judicial notice of the fact that the USCIS memorandum (1) outlined a policy for
vetting and adjudicating cases involving KST NS concerns and (2) states that “[o]fficers
are not authorized to approve applications with confirmed KST NS concerns.”
Exhibit 4 to Petitioner’s RJN, ECF No. 18-2 at 59, 64-65.
*19 On August 2, 2021, Respondent filed its own Request for
Judicial Notice, asking the Court to take judicial notice of all publications
prior to Petitioner’s September 10, 2018 and October 20, 2019 USCIS interviews,
which reported the fact that Petitioner’s brother, Moussa, had been killed in
Syria while fighting for ISIS, including but not limited to the publications
listed below. ECF No. at 22 at 1. Respondent seeks to show that “Petitioner
likely knew, by the time of his interviews, that his brother had died fighting
for ISIS.” Id. at 2. On August 7, 2021, Petitioner filed a Response to
USCIS’ Request for Judicial Notice, advising that he “did not object to the
Court taking judicial notice of publications regarding Moussa and Samantha
Elhassani, regardless of the date of publication.” ECF No. 23 at 1. However, he
objects to any attempt by Respondent to make belated arguments that it should
have advanced in its hearing brief. Id. at 1-2. He also advises that the
USCIS’ “motion is inconsistent ... with its June 25, 2021 objection to
[Petitioner]’s request for judicial of three media publications and one USCIS
Memorandum.” Id. at 1:24-28 (citing ECF No. 19 at 2). He states that “if
the Court grants [his] Request for Judicial Notice (ECF Nos. 18, 18-1, and
18-2), then [he] has no objection to the Court judicial notice of any media
accounts regarding Moussa and Samantha Elhassani, regardless of their date of
publication.” Id. at 4.
The Court DENIES-IN-PART the Respondent’s Request
for Judicial Notice to the extent it also asks the Court to take judicial
notice of entire articles or publications. However, “[c]ourts may take judicial
notice of publications introduced to ‘indicate what was in the public realm at
the time, not whether the contents of those articles were in fact true.’ ” See
Von Soher v.
Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),
overruled on other grounds by Galbraith v.
Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002); see
also Ochoa v. Santa
Clara Cty. Off. of Educ., No. 16-CV-03283-HRL, 2017 WL 11619097, at *2 (N.D.
Cal. Aug. 17, 2017) (noting that courts may take judicial notice of
articles where the moving party “is not trying to prove the contents of the
articles, but merely the fact that they were published and circulating in the
public realm at the time”). Thus, the Court GRANTS-IN-PART Respondent’s
Request for Judicial Notice to the extent it asks for take judicial notice of
the fact that Moussa’s death was in the public realm before the September 10,
2018 Interview but not necessarily that Petitioner knew that Moussa had been
killed before his interview.
B. Petitioner is Not Disqualified due to
Affiliation with a Terrorist Group
The USCIS Decision states that Petitioner failed to
qualify pursuant to 8 U.S.C. §
1424(a)(4)(C), which states that “no person ... shall be naturalized
as a citizen of the United States .... who advocates or teaches or who is a member
of or affiliated with any organization that advocates or teaches ... (C) the
unlawful damage, injury, or destruction of property.” 8 U.S.C. §
1424(a)(4)(C). The USCIS decision concludes that “the evidence
establishes that you are affiliated with the tier 1 terrorist group ISIS as
evidenced by the fact that on March 7, 2015, you personally emailed your
brother Abdelhadi (and copied Moussa) warning him to stop emailing you
regarding the subject ‘ISIS group.’ ” Decision at 100-101. USCIS also argues
that “[s]ervice records show that you knew of Abdelhadi’s interest in ISIS prior
to [his] April 2015 money transfers to Moussa.” Decision at 101. Thus,
Respondent contends that even though Petitioner claims “that [his] money
transfers were only to pay Moussa for his previous services at [Petitioner’s]
wife’s warehouse, 8 C.F.R. § 313.1
makes clear that the money or other support to the organization could be used
for any purpose.” Id. Respondent finds that “the money transfers
you sent to Moussa while he was in Hong Kong helped facilitate Moussa in
getting from Hong Kong to Syria where he followed through on his overarching
plan to assist ISIS.” Id. Petitioner alleges that he neither joined ISIS
himself nor knew about or supported his brothers’ decisions. Compl. at 3, ¶ 6.
Rather, he pleads that he only learned about their affiliation with ISIS in his
naturalization interview. Id. He also pleads that he was not close to
his brothers, “which law enforcement apparently recognized because no law
enforcement agency has ever contacted him about his brothers’ actions.” Id.
*20 “Affiliation with an organization includes, but is not
limited to, the giving, lending, or promising of support or of money
or any thing of value, to that organization to be used for any
purpose.” 8 C.F.R. § 313.1
(emphasis added). However, involuntary affiliation with an organization
described in 8 U.S.C. §
1424(a) does not disqualify a person from naturalization. See
8 U.S.C. §
1424(d) (providing that “[a]ny person who is within any of the
classes described in subsection (a) solely because of past membership in, or
past affiliation with, a party or organization may be naturalized without
regard to the provisions of subsection (c) if such person establishes that such
... affiliation ... was involuntary”); see also 8 C.F.R. §
313.3(d). As outlined below, the Court finds that (1) Petitioner did
not provide intentionally false statements when he testified that he heard
Moussa had gone to Hong Kong and was either going to Morocco or Turkey but was
not certain where he was, and (2) Petitioner did not know Moussa had joined
ISIS before he transferred the April 2015 money transfers for Moussa’s work for
Petitioner’s entities. Thus, while the Court finds Petitioner lacks good moral
character because he provided intentionally false statements for the purpose of
gaining immigration benefits, it does not find that he fails to qualify for
naturalization by virtue of being associated with a Tier 1 terrorist
organization pursuant to 8 U.S.C. §
1424(a)(4)(C). While there can be no disputing that gave money to
Moussa, 8 C.F.R. § 313.1,
it is unclear whether Moussa had joined ISIS on the dates of the transfers or
gave the money to ISIS. The Court also finds that any support given by
Petitioner to ISIS was involuntary and inadvertent.
C. Intentional False Testimony During His
September 10, 2018 N-400 Interview
The INA provides that “[n]o person shall be regarded as,
or found to be, a person of good moral character who, during the period for
which good moral character is required to be established is, or was .... one
who has given false testimony for the purpose of obtaining any benefits under”
its provisions. 8 U.S.C. §
1101(f)(6); see also 8 C.F.R. §
316.10(b)(2)(vi) (providing that “[a]n applicant shall be found to
lack good moral character if during the statutory period the applicant ....
[h]as given false testimony to obtain any benefit from the Act”); JCMS at
3:16-22. A person will be found to lack good moral character where he or she
provides false testimony even “if he has told even the most immaterial of lies
with the subjective intent of obtaining immigration or naturalization benefits.”
Kungys v. United
States, 485 U.S. 759, 780 (1988). Thus, intentional
misrepresentations made without the subjective intent of obtaining immigration
benefits or unintentional misrepresentations do not preclude the Court from
finding Petitioner has good moral character. Further, “[w]illful
misrepresentations made for other reasons, such as embarrassment, fear, or a
desire for privacy, [are] not deemed sufficiently culpable to brand the
applicant as someone who lacks good moral character.” Id.; see also United States v.
Hovsepian, 422 F.3d 883, 887-88 (9th Cir. 2005) (noting that statements
made due to “faulty memory, misinterpretation of a question, or innocent
mistake” have no bearing an applicant’s character for truthfulness and do not
prevent the Court from finding good moral character). However, “unlike the
misrepresentation clause of § 1451(a), the false testimony provisions of § 1101(f)(6)
do not apply to ‘concealments.’ ” Kungys, 485 U.S. at
781; see also Hovsepian, 422 F.3d at
887-88 (affirming the holding of the district court as not clearly
erroneous, which found the applicant to be a person of good moral character
within the meaning of 8 U.S.C. §§
1101(f) and 1427(a)(3)
despite inaccuracies in his testimony). “Whether a person has the subjective
intent to deceive in order to obtain immigration benefits is a question of
fact.” See Hovsepian, 422 F.3d at
887-88; see also Newton v. Nat’l
Broad. Co., 930 F.2d 662, 670 n.12 (9th Cir. 1990) (“A
state of mind issue such as actual motive is a ‘pure question of fact’ normally
subjected to review under the ‘clearly erroneous’ standard.”).
There is no disputing Petitioner provided false testimony
during his September 10, 2018 interview. There were also many inconsistencies
among the record, Petitioner’s testimony at the September 10, 2018 interview,
Petitioner’s testimony at the October 30, 2019 interview, and Petitioner’s
testimony at the trial in this matter. However, there is also no disputing that
many of the questions posed by USCIS lacked foundation and assumed facts not in
evidence, such that they proved to be misleading or intended to elicit
incorrect responses. Even if those questions intended to elicit false answers,
the issue with the instant application is not whether Petitioner’s testimony
was false (some of it was) but whether it was (1) intentionally false; and (2)
for the purposes of obtaining an immigration benefit. See 8 U.S.C. § 1427;
see also 8 U.S.C. §
1101(f)(6); 8 C.F.R. §
316.10(b)(2)(vi); JCMS at 3:16-22. Respondent accuses Mr. Elhassani
of giving five categories of intentionally false testimony, which relate to
whether (1) he had contact with Moussa after Moussa left GWG and departed the
U.S.; (2) he transferred money to Moussa after he ceased working GWG and left
the U.S.; (3) his brothers were involved with ISIS; (4) he knew that Moussa,
Abdelhadi, and Samantha went to Syria; and (5) he was indirectly associated
with ISIS.
*21 Although Petitioner has an explanation for every
inconsistency, the Court finds it difficult to believe that so many
inconsistencies over such an important matter can result from an intent to tell
the truth. The Court acknowledges that if Petitioner did intentionally lie
about knowing his brothers had joined ISIS and/or been killed, he did so only
because he believed it would look bad or jeopardize his ability to become a
citizen, not because he supported his brother’s actions. Unfortunately, good
moral character involves honesty regarding all matters, including matters that
one believes would look bad or might jeopardize one’s ability to become a
citizen. As set forth below, the Court finds that Petitioner provided intentionally
false statements for the purpose of obtaining an immigration benefit on the
below topics.
1. Intentional False Statements Regarding Contact with
Moussa After He Left GWG and Departed the U.S.
At the September 10, 2018 interview, Petitioner provided
the following testimony regarding whether he had contact with Moussa after he
had left the U.S.:
Q: Did they ever contact you while they were
outside the U.S.?
A: I never talked to them.
Q: Did they write you any texts or emails?
A: I may have seen a group email that was
sent to the family but I don’t recall exactly.
Q: Did they mention where they were or where
they were going?
A: I honestly don’t recall. At the time I was
upset that they just took off and left. We were counting on them to do the work
around the warehouse. So that made us not want to talk to them.
Transcript I at 42. USCIS argues that Petitioner provided
intentionally false testimony under oath with the subjective intent of
obtaining an immigration benefit, i.e., naturalization, when he
testified that he did not have contact with Moussa and Samantha after they
departed the U.S. Decision at 84. It elaborates that he stated that “the only
communication he received from Moussa was ‘an email from them like on a holiday
just sent it a mass email to everybody in the family but nothing to me
personally’ is an intentional oral false statement under oath.” Id.
However, Petitioner exchange several e-mails with Moussa alone regarding the
accounting. Id.
Respondent originally found incredible Petitioner’s
assertion in his original interview and sworn-declaration that at the time he
received the April 2015 e-mails from Moussa, he had no idea that Moussa,
Samantha, and/or Abdelhadi had left the U.S. Decision, ECF No. 13-2 at 84,
90-92. The Court finds that Moussa’s April 2015 e-mails contained no
explanation as to where he was at the time. In the e-mail, Moussa asks
Petitioner not to include Atlasmart income after March 23, 2015, stating, “I
haven’t helped with orders[,] but I did bring 3 pallets of items to the small
warehouse,” which “should keep them listing for a month.” CAR, ECF No. 13-3 at
15. To the extent Moussa’s comments suggest he may have stopped working by
asking Petitioner to exclude income after March 23, 2015, as he had not helped
with orders, they equally suggest he was continuing to work by simultaneously
discussing bringing in pallets to keep items listing for the coming month. In
fact, the same e-mail states, “I am helping as much as possible,”
and “[w]e are only selling on Amazon low ticket items that are
very simple to fulfill and no one wants to returns.” CAR, ECF No. 13-3 at 16.
The use of the present tense gives no indication that Moussa is no longer
working for Petitioner. Thus, this e-mail does not conclusively indicate Moussa
had resigned or left the U.S. Although March 22, 2015 ended up being the date
Moussa and Samantha left the U.S., there is nothing in the record, beyond
speculation, to prove Petitioner knew that they left the U.S. on that date. At
the October 30, 2019 interview, Petitioner stated that he realized they left
around the third week of April, after speaking with Yassine. Transcript II at
4. During the hearing, Petitioner again testified that he stated he had no
contact with his brothers after they left the U.S. in his original September
10, 2018 interview because he was unaware, until after the interview, that they
were not in the U.S. when they exchanged e-mails in April 2015. See TT
at 31:24-32:4, 120:24-122:14. When asked whether Moussa’s request to not
include accounting after March 23, 2015 caused him to suspect Moussa had
resigned or left the U.S., Petitioner testified that he did not pay attention
to that as he was more focused on Moussa’s comments about the Amazon account
being suspended. Id. at 35:8-23.
*22 Before an item of evidence may be considered, Federal Rule of
Evidence 901(a) requires a proper foundation be laid to authenticate
the item by “evidence sufficient to support a finding that the item is what the
proponent claims it is.” See Canada v.
Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). Such
a foundation may be laid by testimony of a witness who has personal knowledge. FED. R. EVID.
602, 901(b)(1).
Here, Respondent failed to lay the foundation to establish that Petitioner lied
about having contact with Moussa. Had Respondent established that Petitioner
knew Moussa departed the U.S. on March 23, 2015, then his testimony denying
contact with Moussa could be proven as intentionally false testimony in light
of the April 2015 e-mails.
Later, the interviewer asked Petitioner, “What about your
brother Yassine[,] who looked after their property, what was his understanding
about what he was supposed to do for Samantha and Moussa?” Transcript I at 43.
Petitioner responded, “It was just that after they had been gone for a few days
... Yassine started to look after their property.” Id. The USCIS
Decision notes that because Moussa and Samantha left on March 22, 2015, “[e]ven
if Yassine was in fact the person who first informed you of their departure, it
is not credible that Yassine, as a brother and employee of your wife’s company,
would have waited one month before he informed you Moussa and Samantha had
left.” Decision at 91. Respondent argues that if it was only a few days after
they left that Yassine started to look after Moussa’s property (i.e.,
sometime in late March 2015), then, it is not credible for you to claim that
Yassine did not tell you they left until after your April 2015 e-mails with
Moussa, especially given Yassine also worked for GWG. Id. However,
Respondent again did not ask Petitioner when Yassine told Petitioner that he
learned Moussa and Samantha left. At the hearing, Petitioner testified that “[a]fter
the 17th (i.e., April 17, 2015), that weekend[,] I
remember talking to my brother Yassine, and he told me that he hasn’t seen them
in a few days.” TT at 43:24-44:1. Thus, even though Moussa and Samantha left on
March 23, 2015, it appears Yassine did not discover this and inform Petitioner
until after Petitioner had finished e-mailing with Moussa regarding the
accounting and transferred the amounts Moussa had been owed for his work for
Atlasmart.
The USCIS Decision also stated that “[i]t is also
implausible that your wife, as owner of the warehouse where Moussa and Samantha
worked, would not have known—and immediately informed you—that your brother
Moussa and sister-in-law Samantha failed to report for work at the warehouse on
our around March 22, 2015.” Decision at 91. However, Petitioner consistently
testified at the September 10, 2018 interview, October 30, 2019 interview, and
August 30, 2021 hearing that Moussa and his wife were independent contractors
who were not responsible for clocking in and clocking out. Transcript I at 42;
Transcript II at 5-6; TT at 28:16-22. Thus, as independent contractors, who had
no duty to clock in or clock out, their lack of doing so would not necessarily
have triggered cause for concern.
At the hearing, Petitioner testified that once Yassine
told him Moussa had left, Petitioner “started calling him and texting him.” TT
at 44:24-45:3; but see Transcript I at 42 (“I never talked to them”). He
stated that he never e-mailed him to ask where he was because they usually only
e-mailed for business but texted and called for personal conversations, which
is why he texted and called Moussa numerous times without a response. Id.
at 44:24-45:16. Petitioner also explained that this was not the first time
Moussa had disappeared as he struggled with drug addiction and would relapse
and disappear from time to time. Id. at 45:18-25. He also stated that
Moussa and Samantha had been talking about trips to Florida, and Samantha had
family in Oklahoma, so he thought they might have been in Florida or Oklahoma. Id.
at 46:1-11.
*23 The record shows that Moussa sent an e-mail on August
20, 2015, to his family, including Petitioner, which does not indicate where
Moussa was at the time he sent it but strongly suggests wherever he was, it was
not in the U.S. CAR, ECF No. 13-3 at 17-20. While Petitioner’s initial response
of “I never talked to them” was false, he clarified and admitted to the August
20, 2015 e-mail. Transcript I at 42. However, “see[ing] a group email,” see
Transcript I at 42, is different from “responding to a group e-mail,” directly
addressing the response to Moussa and even offering to go into business with
him, see CAR, ECF No. 13-3 at 17-20. At the hearing, Petitioner offered
clarification for why he said he had not had contact with Moussa:
[W]hen I denied the fact that I never heard
from them, I believe it was referring to ... that I may have seen a group
family e-mail sent from Moussa to the entire family. I did not mean that he
sent me a contact directly, because they never did. They never sent me—an
e-mail personally directly or call me directly.
TT at 104:1-7.
While the Court finds this explanation and definition of “contract”
evasive, even giving Petitioner the benefit of the doubt and believing his
aforementioned explanation, this does not explain his repeated testimony at
hearing that he sent Moussa texts and called him repeatedly after realizing he
disappeared. See, e.g., TT at 45:14-16 (“To me, the most urgent thing to
do was just send him a text and call him. And we called again and again and
there was no answer from him.”). On the one hand, the Court bears in mind that
the interviewing officer asked Petitioner, “Did they ever contact you
while they were outside the U.S.?” as opposed to “Did you ever have contact with
Moussa while he was outside the U.S.?” or “Did you ever attempt to
contact Moussa while he was outside the U.S.?” Had the latter two
questions been asked, there could be no denying that Petitioner’s hearing
testimony that he subsequently texted and called Moussa would prove the
falseness of his initial interview testimony. On the other hand, the Court
finds Petitioner’s response that he “never talked to him” disingenuous and
evasive. Petitioner is a well-educated and well-spoken individual. The Court
suspects Petitioner had every idea what the USCIS officer intended to ask, and
his evasive responses bear on his ability to tell the truth.
Additionally, the Court notes that Petitioner referenced
calling and texting Moussa, but no screenshots of text messages or telephone
calls were ever provided to the Court. Meanwhile, Petitioner did produce his
e-mails, and stated in his Declaration, “From my past criminal history in 2006
and 2007, I am well aware that it is easy for law enforcement to access my
personal email” as “[t]he prosecution accessed and used my emails to prosecute
me.” Applicant Decl. at 150, ¶ 46. Thus, knowing the government could access
the e-mails, he produced them all. However, it is curious that Petitioner did
not produce any record of his phone calls or texts attempting to contact
Moussa, particularly when viewing that omission in light of his testimony that
he was angry with his brother for suddenly leaving on the one hand, TT at
82:2-8, against the tone of his August 20, 2015 “reply all” e-mail to Moussa,
offering to go into business with him, CAR, ECF No. 13-3 at 17-18.
The Court finds that while the USCIS officer’s
questioning lacked foundation and was potentially meant to “trap” Petitioner
into providing a false answer, his subsequent testimony at the second interview
and hearing attempting to “explain away” his earlier response was not credible
and intentionally false, at least with respect to omitting mention of the
August 20, 2015 e-mails as well as his texts and calls to Moussa.
2. Intentional False Statements Regarding Money
Transfers to Moussa After He Ceased Working for GWG and Left the U.S.
*24 Respondent also argues that Petitioner provided
intentionally false testimony for the purpose of obtaining an immigration
benefit when he testified that he did not transfer money to Moussa after Moussa
left his employment with GWG and departed the U.S. Decision at 92. At the
September 10, 2018 interview, Petitioner denied transferring anything to Moussa
after Moussa departed the U.S.:
Q: Did you ever transfer money to Abdelhadi
or Moussa ... ?
A: [N]o. But when they were contractors the
company paid them checks or money transfers[, b]ut since they left the
company[,] we did not give them anything. Before they left[,] I may have
transferred money to them.
Transcript I at 42-43. There can be no disputing that
this was a false statement given Moussa and Samantha departed the U.S. on March
22, 2015, and Petitioner transferred funds to Moussa on April 6, 2015 and April
13, 2015. Decision at 94. Again, the issue is whether Petitioner knew when he
sent his early April e-mails and transferred money, that Moussa had already
departed the U.S.
Respondent argues that Petitioner provided “a separate
oral false statement concerning the purpose of your money transfers to
Moussa” because Petitioner testified he transferred the money for Moussa’s
work, but Petitioner’s “oral testimony during [his] N-400 interview regarding
Moussa’s duties at [GWG] made it appear that he served as a handyman around the
warehouse engaging in mowing trees, shoveling snow, and other work around the
warehouse,” which contradicts his testimony that Moussa was also involved in
online sales. Decision at 95-97. Respondent argues this “constitutes evidence
that he intentionally provided oral false testimony under oath for purposes of
obtaining naturalization.” Id. at 96-97.
The Court disagrees that Petitioner provided intentional
false statements about transferring funds to Moussa after his departure
because, as outlined above, Respondent did not establish when Petitioner
believed his brother departed the U.S., which would have established the
foundation for proving that his denial of transferring funds to his brother
after his departure was intentionally false in light of his April 2015
transfers. As stated, nowhere in the April 2015 e-mails between Petitioner and
Moussa regarding the accounting does Moussa ever state that he left Indiana,
much less the U.S. CAR, ECF Nos. 13-2 at 204-09, 13-3 at 13-15. The record
confirms that the amount of money transferred to Moussa was the exact amount he
was owed under the profit-sharing agreement detailed by Petitioner in his
testimony at both of the interviews as well as the hearing (i.e., 30% of
the Amazon and eBay sales after deducting expenses for payroll for the W-2 employees
and shipping). See TT at 28:28-29:6.
The Court notes that when examining the joint bank
account from which the funds were transferred, $2,000.00 and $2,135.01 were
transferred from an account ending in 0821 on April 13, 2015, into the joint
account that Petitioner alleges was used for the Atlasmart business. CAR, ECF
No. 13-2 at 183, 185. That same day, the same amounts (i.e., $2,000.00
and $2,135.01) were transferred out of the joint account to Moussa’s account.
This suggests that the $4,135.01 transferred to Moussa may not have been for
Atlasmart earnings and might have been transferred from Petitioner to the joint
account, so that he could transfer the funds out of the joint account as a
cover. Further, the Court was also unable to locate the February 16, 2015
transfer to Moussa in the bank statements produced, suggesting that perhaps,
that transfer did not come from the business account and came from his personal
account instead. See id. at 173-(showing the February 10, 2015 to March
12, 2015 Bank of America Statement for Petitioner and his wife, which does not
show a transfer on February 16, 2015, or even a transfer on one day in February
amounting to $1,000.00). However, Petitioner was never questioned on this at
his two interviews or the hearing, and the Court finds that given the
substantial amount of back up supporting the fact that the transfers related to
Moussa’s work, the Court does not find enough evidence in the record to find
that Petitioner intentionally lied about the purpose of the transfers.
*25 Rather, the record also confirms that—at least for the
months of November 2014 through March 2015—Petitioner paid Moussa and Yassine
for two to three months at a time. Compare Transcript II at 6 (testifying
that “sometimes when sales [are] low I would probably just group one or two
months or three months together and do the math”) with CAR, ECF No. 13-2
at 204-07 (showing an accounting reconciliation for November and December 2014
incomes with Moussa being entitled to $1,556.34 [or net sales of $5,187.8918 multiplied by 30%]); id. at 208-09 (showing an
accounting reconciliation for January, February, and March 2015 Quarter 1
incomes with Moussa being entitled to $7,0578.67 [or net sales of $25,262.2219 multiplied by 30%]). These numbers are supported by the
record, which includes support for postage expense amounts, see CAR, ECF
No. 13-2 at 206 (showing $1,099.70 in shipping expenses for November and
December 2014), 209 (showing $3,572.92 in shipping expenses for January through
March 2015), as well as a payroll summary, see id. at 207 (showing
$3,511.87 in payroll from October 15, 2015 through December 31, 2014), 210
(showing $2,829.01 in employee pay for February 13, 2015 through March 31,
2015). The record also includes a 2014 1099 form for Moussa showing $19,287.21
in nonemployee compensation from WLS. Id. at 212. Because this amount
exceeds the mere $1,556.34 income paid by Petitioner and transferred to Moussa
in April 2015 for 2014 earnings, the Court finds the payment to Moussa is
substantiated not just by the backup for the calculations of the amount paid to
him but also by the $17,730.87 in additional income paid to Moussa in the year
2014 for his work.
Petitioner also testified that “his wife handled the
payroll” at the September 10, 2018 hearing. See Transcript I at 42, and
August 30, 2021 trial, see TT at 89:4-18, 92:25-93:3. Respondent
attempts to suggest that because Petitioner repeatedly stated that his “wife
handled the payroll,” there could be no reason for him to transfer money to
Moussa. Courts may look to the dictionary definition of a word, or in this
case, idiom, to help determine the plain meaning of the phrase or word. See Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1484-85 (2021). “Payroll” is defined as, inter
alia, “[a] list of employees to be paid and the amount due to each of them,”
or “[a] business’s financial records of employees’ wages.” Garner, Brian A.,
PAYROLL, Black’s Law Dictionary (11th ed. 2019). Thus, on the one hand,
Petitioner’s consistent testimony that his wife handled the payroll for the W-2
employees does not cast doubt onto the reason for him transferring Moussa money
given Petitioner also constituently testified that his brothers, Moussa and
Yassine, were independent contractors rather than employees. Generally,
independent contractors are not part of a “payroll,” so they would not be part
of the payroll handled by his wife. However, at the September 10, 2018
interview, Petitioner was asked whether he or his wife transferred money to
Moussa or Samantha since they stopped working with GWG and responded, “I do not
really recall. I did not handle payroll.” Transcript I at 43. If his brothers
were independent contractors, as he testified, then, it appears his wife
handling payroll did not impact his ability to tell the USCIS officer whether
Moussa had been paid.
Petitioner also testified at the September 10, 2018
hearing that “when they [Moussa and Samantha] were contractors[,] the company
paid them checks or money transfers.” Transcript I at 42. At trial, when
confronted about why he would wire transfer money to Moussa in April 2015 if
Moussa was paid by check, he testified that he and his wife used dedicated
accounts for GWG’s Amazon and eBay sales, and they would mostly send wire
transfers, so he was unsure if they were writing checks. TT at 93:8-17. The
Court finds this to be a minor inconsistency given his testimony at the first
hearing where he said the contractors were paid by “checks or money
transfers.” Transcript I at 42 (emphasis added). Although Petitioner’s
false statements or inconsistencies thus far did not qualify as intentionally
false statements preventing a finding of good moral character, two additional
major inconsistencies do demonstrate that Petitioner provided intentional false
statement to gain an immigration benefit.
First, as stated, the record shows a 2014 Form 1099 for
Moussa showing $19,287.21 in nonemployee compensation from WLS. CAR, ECF No.
13-2 at 212. Yet, at his September 10, 2018 interview, Petitioner testified
that Moussa “was a contractor for GWG.” Transcript I at 41. In his February 25,
2019 declaration, he tried to explain this discrepancy by stating that even
though Moussa’s Form 1099 was issued by WLS, the work he performed was around
the warehouse, which both WLS and GWG shared. Applicant Decl. at 148, ¶ 35; see
also TT at 25:3-9 (testifying that Moussa “was working as an independent
contractor at one of my companies .... Global Warehousing Group and World
Logistics”). However, Petitioner also testified that WLS has W-2 employees, and
his wife does the payroll for those employees, who get paid twice a month,
while he takes care of the independent contractors, which were mainly his two
brothers, and who were paid on a profit-sharing basis from the sales of GWG. TT
at 89:4-18; but see Transcript I at 42 (testifying that his brothers
were paid “[o]n a 1099 basis,” and that his “wife handled the payroll” when
asked “[h]ow did you pay for their salaries?”). Given Petitioner clearly
testified that his brother was an independent contractor and not
an employee in both of his interviews as well as at the hearing, see
Transcript I at 41; Transcript II at 5-620; TT at 25:3-9, it is unclear why WLS, which paid the
employees, would issue a Form 1099. The Court suspects that this is simply a
case of two interrelated companies not maintaining enough corporate separation.
Given the substantiation behind the exact money amounts transferred to Moussa
as well as the back-up for the amounts transferred to him, the Court does not
find that Petitioner transferred the amounts to Moussa in an attempt to fund
ISIS.
*26 On a related note, Respondent argues that “[u]nder the
circumstances, it appears that Petitioner may have been using Global
Warehousing and the email communications as a cover to send money to Moussa.”
RFFCL at 22:18-19. It points out that Petitioner knew the government could access
his e-mails. Id. at 22:19-24; see also Applicant Decl. at 150, ¶
46. Respondent suggests that because Petitioner testified that GWG dissolved in
2015, he may have used the dissolved entity to transfer funds to Moussa as a
cover to fund ISIS. RFFCL at 22:24-23:3. However, at his September 10, 2018
interview, Petitioner stated that GWG “ceased operations in 2015,” although he
could not “recall the month. Transcript I at 40. Secretary of State records
show that GWG was administratively dissolved on April 16, 2015, after
transferring the funds to Moussa. See https://bsd.sos.in.gov/PublicBusinessSearch/BusinessInformationFromIndex.
Thus, at the time Petitioner transferred funds to Moussa, GWG had not yet been
dissolved. Id. Accordingly, the Court does not find that the fact of the
transfer being from GWG proves that Petitioner intended to lie about the funds
being for Moussa’s services rendered.
Second, Petitioner testified very inconsistently
regarding Moussa’s duties. At his September 10, 2018 interview, Petitioner
described Moussa’s job duties as including “doing work around the warehouse and
shoveling snow with a truck.” Transcript I at 41. At the October 30, 2019
interview, he expanded on Moussa’s duties saying that he also broke pallets,
put pallets together, pulled boxes, put boxes together, brought overstocked
items from one warehouse to another, and got them listed on eBay and Amazon to
sell. Transcript II at 7, 21:12-22:11; see also CAR, ECF No. 13-3 at 19
(describing in Moussa’s August 20, 2015 e-mail that one of the many reasons he
left the U.S. was major spine “problems from working in the cold[,] lifting
heavy stuff (heavy boxes, lifting garage doors, pallets, attaching and
detaching towing trailers, shoveling snow”). At the August 30, 2021 hearing,
Moussa’s duties were described as expanding further still to the point that he
suddenly became a supervisor and manager. See TT at 87:25-88:2 (“Q. So
you’re saying now that your brother Moussa, was a supervisor at the warehouse?
A. Yes. He had employees that he was supervising.”). Petitioner elaborated:
Q. ... I’m just asking you why were angry
with your brother for having left when all he did was bill you for work that he
had done when he was at the warehouse .... He didn’t try to bill you for
anything he did after he left; correct?
A. Yeah. The reason I was angry with him, I’m
living here ... in California. He lives in Indiana. He was managing. He had
employees working under him. He was supervising them. He was the manager of
that little warehouse, and he was responsible for moving boxes from World
Logistics’ warehouse to the warehouse next door to sell on Amazon and eBay. And
he had so many responsibilities. That, also including doing maintenance inside
and outside the warehouse. He ... had really a lot of responsibility. So I was
angry with him for just picking up and leaving and leaving us hanging with
employees that no one is supervising. And that’s the main reason why I said I
was angry with him.
TT at 87:6-24.
In other words, initially, Petitioner testified that his
brother was performing manual labor, but once he was questioned about
transferring money to his brother, the Court concludes he changed his testimony
to increase Moussa’s level responsibility as an attempt to justify why he
transferred money to Moussa.
Finally, as shown by the below accounting, even though
the accounting reflects that Moussa was owed a total of $9,135.01,
Petitioner never transferred the full amount owed to Moussa:
Atlasmart Quarter: November, December 2014 Q4
Income: January, February, and March 2015 Q1 Income: TOTAL: February 16, 2015
(Advance on Profits): April 6, 2015 (Amount Transferred at Moussa’s Request):
April 12, 2015 (Partial Payment of Amount Owed): Remainder to be Transferred:
Balance Owed: Moussa’s Owed Income:
$1,556.34 $7,578.67 $9,135.01 ($2,000.00) ($1,000.00) $4,135.01 $7,135.01
$2,000.00
*27 CAR, ECF No. 13-2 at 183, 185; ECF No. 13-3 at 13-14.
When asked why he only transferred part of the balance owed to Moussa,
Petitioner testified that he only transferred part of the balance owed because “cash
flow was low at the time,” and he “knew it was right around tax payments season
... and ... needed to make large payments for [his] taxes before the April 15th
deadline.” TT at 40:20-24. He stated that he “paid him as much as [he] could
and left a rounded amount to remember, $2,000, and ... told him that [he] would
transfer it the following Monday.” Id. at 40:24-41:2. Petitioner made
the $4,135.01 transfer on Monday, April 13, 2015, meaning the following Monday
was April 20, 2015.
When questioned at his October 30, 2019 interview about
the above transfers,21 Petitioner testified that he never transferred the
$2,000.00 balance because “as soon as [he] heard they disappeared,” he “didn’t
send Moussa his last payments.” Transcript II at 4, 6. This aligns with his
other testimony that he learned about Moussa’s departure “after the 17th (i.e.,
April 17, 2015),” TT at 43:24-44:1, and explains why the transfer, which was
set to be made on April 20, 2015, was never made. But see RFFCL at
22:8-11 (suggesting that the final installment was never paid because
Petitioner likely attempted to transfer the money, but Moussa was already in
Syria and unable to receive bank transfers).
When asked about his reasoning for refraining from
transferring Moussa the money if he was owed that amount for his work
regardless, at first Petitioner testified that he did not contact Moussa
further because he was mad at him. TT at 83:11-23. Yet, at the first sign of
communication from Moussa, on August 20, 2015, Petitioner—who claimed to be
angry with Moussa for leaving without explanation—replied all to the family
e-mail chain, suggesting that he and Moussa go into business together. Id.
at 53:1-5. This conflicts with his own testimony that he was upset with his
brother and thought he was a lost cause. Id. at 81:9-82:1. When pressed
on why he would want to go into business with someone he was so angry with,
Petitioner stated that he sent this e-mail at his mother’s encouragement
because she had been pleading with Petitioner to encourage Moussa to move back
to Morocco. Id. at 123:3-20. Later, when questioned further as to why he
would not transfer Moussa amounts he was, in fact, owed, Petitioner testified
that he refrained from making the final transfer because “if I don’t make ...
the transfer, [Moussa] will probably try to reach out to me again asking for
that money.” Id. at 43:9-21. In other words, he claims it was a way to
provoke contact from Moussa.
The Court disagrees with USCIS’ conclusion that
Petitioner transferred funds to Moussa either knowing Moussa was outside of the
U.S. or intending to fund ISIS. However, the Court finds that Petitioner’s
subsequent false or inconsistent testimony at his October 30, 2019 interview
and August 30, 2021 hearing was not credible. Petitioner appears to have
exaggerated Moussa’s role for WLS or GWG in order to attempt to post hoc
bolster his reasons for transferring Moussa money. Further, although the Court
finds that nothing in the record suggests Petitioner knew—as opposed to suspecting
Moussa may have been in Turkey in August 2015—where Moussa was when he made the
transfers, the inconsistency between saying Petitioner failed to make the final
transfer because he was upset with Moussa for abandoning their business and
offering to start a new business with Moussa as soon as he heard from him
suggest that perhaps, Moussa did respond to some of those phone calls or texts
Petitioner sent Moussa. Thus, the Court finds that Petitioner made intentional
false statements regarding Moussa’s job duties.
3. Intentional False Statements Regarding Suspicions
of Abdelhadi’s Affiliation with ISIS
*28 USCIS argues that during his N-400 interview, Petitioner
provided intentionally false testimony about his brothers’ affiliation with
ISIS. Decision, ECF No. 13-2 at 97. At his September 10, 2018 interview,
Petitioner testified that he had no reason to know or suspect his brothers had
any involvement with ISIS. First, when he was asked, “do you know why your brothers
might have wanted to go and fight for ISIS?,” Petitioner testified that his
brothers “never told us they were planning to go and join any organization,”
Transcript I at 43. Second, even though Petitioner acknowledged that he
eventually heard they went to Turkey, which is close to where ISIS was
operating, he stated that he “may have suspected something at some point, but
nothing concrete,” and “when they were here, they never showed any feelings or
any desire to join any organization[,] [s]o, when they left for Hong Kong, it
was just sudden.” ECF No. 14 at 68-69. Third, Petitioner also testified that
based on his brothers’ lifestyles, “they were not the typical person who
sympathizes with those organizations,” as “[t]hey were not practicing, you
know, religion.” Id. at 69.
Respondent argues that Petitioner’s e-mail to Abdelhadi
asking not to be included on e-mails about ISIS, the Sunna, the Shi’ia, etc.,
demonstrates the falsity of his testimony about not having reasons to suspect
his brothers would join ISIS. Decision at 97-98. It contends that this evidence
suggests Petitioner was “aware that [his] brother Abdelhadi had radicalized and
that [he was] concerned that his interest in ISIS could cause trouble for
[him].” Id. It also points out that Petitioner’s e-mail to Abdelhadi “warning
that he should not include [Petitioner] on any email messages ‘regarding ISIS’ ”
was sent “fifteen days before Moussa and Samantha left their jobs at
your wife’s warehouse and departed the United States with their children, and twenty-two
days before Abdelhadi departed the United States.” Id.
In response to the Notice of Intent to Deny’s accusation
that his e-mail showed he had reason to suspect Abdelhadi had radicalized,
Petitioner submitted a declaration explaining that “Abdelhadi had a habit of
sending group emails about topics of interest to him at any given time.”
Applicant Decl. at 149, ¶ 40. Indeed, the record contains evidence that on
February 10, March 23, April 4, and June 14, 2014, Abdelhadi sent e-mails not
just to Petitioner but to various other family members regarding a variety of
topics including Facebook ad revenue, GMOs and their danger to children, the
coral reef, and watching World Cup games online on ESPN 3. CAR, ECF No. 13-2 at
214-221.
Petitioner stated that although he did not recall when, “at
some point, [Abdelhadi] started sending emails about Muslim religious groups,
including fundamentalists,” but “as was [Petitioner’s] habit, [he] did not read
them.” Applicant Decl. at 149, ¶ 41. He states that while he was not worried
about Abdelhadi becoming radicalized from those e-mails at the time, with
hindsight, he realizes he was wrong. Id. at 149, ¶ 42. He explained that
the reason he e-mailed Abdelhadi to ask him to stop sending e-mails about
religious groups was because “[f]rom [his] past criminal history in 2006 and
2007, [he was] well aware that it is easy for law enforcement to access [his]
personal email” as the prosecution had used his e-mails against him. Id.
at 150, ¶ 46. As a result, he stated that he “did not want anything in [his]
email to suggest that [he] was interested in Abdelhadi’s emails” and was concerned
about “the appearance that [he] was involved in any religious or sectarian
groups.” Id. at 150, ¶ 47.
Respondent argues that Petitioner’s “assertions in [his]
February 25, 2019 sworn-declaration, ... are materially inconsistent with [his]
September 10, 2018 N-400 oral testimony.” Decision at 97. It contends that his
testimony that his brothers did not practice religion and were not the types of
persons to sympathize with ISIS is contradicted by his e-mail to Abdelhadi
asking him to stop sending e-mails regarding ISIS. Id. at 97-98. It
argues that as a result, Petitioner made an intentional false statement for
purposes of obtaining an immigration benefit because “[t]he evidence suggests
that [he was] concerned that [his] association with [his] brothers Abdelhadi
and Moussa, as well as [his] money transfers to Moussa, would render [him]
ineligible for naturalization.” Id.
*29 At the September 30, 2018 interview, Petitioner stated
that “[t]heir life-style was not typical of someone who would join those
organizations.” Transcript I at 43. He continued saying that “[t]hey22 did not practice religion.” Id. The interviewer
commented that Petitioner did not seem surprised at hearing the news that
Moussa and Abdelhadi had joined ISIS, and Petitioner responded that “[a]fter
they went to Hong Kong[,] we heard rumors that they went to Turkey and just by
the close proximity we thought maybe they might have gone to join some of those
organizations.” Id. He stated that they “were suspecting that it was a
possibility.” Id. At his October 30, 2019 interview, when asked about
his previous testimony of “suspecting that it was a possibility,” Petitioner
stated that he “suspected they may have gone over there because someone asked
them to come or join some religious group,” but he “did not exactly know which
group or if they were just religious or fundamentalists or militant.” Transcript
II at 10.
When asked about Moussa specifically, Petitioner has been
steadfast in reiterating at both interviews and the hearing, that he had no
reason to suspect that Moussa—a drug user living a life of luxury, including
BMWs and Dodge Vipers—would ever become involved with ISIS. Transcript I at 43;
Transcript II at 10; TT at 108:20-109:2. At the hearing, he reiterated that
when he learned of Moussa’s disappearance, it never crossed his mind that
Moussa would have joined a fundamentalist or terrorist groups because he never
showed any signs that would suggest that. TT at 53:11-20. Indeed, the
government has admitted in the subsequent case brought against Samantha related
to aiding and abetting ISIS that it has “little or no documentation of Moussa’s
support of ISIS’s ideology or the Caliphate before they moved to Syria.” Elhassani II, 2020 WL
7230627 (N.D. Ind. Sept. 4, 2020).
When asked about Abdelhadi, however, Petitioner
acknowledges that he had suspicions he was becoming more religious but did not
suspect he would join a militant group. Transcript I at 43; Transcript II at
10; TT at 53:21-54:4, 108:20-109:2. He stated that Abdelhadi was going to turn
thirty in 2015, was working as a software engineer, had a master’s degree, and
earned a six-figure income, so he could not fathom how someone like that would
leave to join a militant group. TT at 96:21-97:1; see also Transcript II
at 10 (same). Yet, in Elhassani II, the government stated that Abdelhadi
was “[t]he only member of the conspiracy who openly discussed his support for
ISIS before traveling to Syria.” 2020 WL 7232419;
see also id. at 2020 WL
7230627.
The Court finds that the record supports Petitioner’s
testimony that Abdelhadi was the type of person that frequently forwarded
e-mails regarding a variety of topics to those in his address book. On the one
hand, Petitioner’s March 7, 2015 e-mail clearly states that Petitioner does not
want to be sent information regarding those organizations. CAR, ECF No. 13-3 at
9. That he would refer to those organizations as a “waste” of time suggests he
also did not support or sympathize with their beliefs. On the other hand,
Petitioner’s March 7, 2015 e-mail seemingly came out of nowhere (i.e.,
it was not in response to some e-mail sent by Abdelhadi), which suggests some
event—whether a phone call, text, or e-mail from his brothers or even news
about them from someone else—that triggered Petitioner to send his e-mail to
Abdelhadi asking him to stop forwarding religious e-mails. This is bolstered by
the fact that Petitioner’s declaration acknowledges he knew the government
could access his e-mail and would likely see his e-mail to Abdelhadi.
*30 Thus, the Court disagrees with the USCIS decision that
Petitioner provided intentional false testimony when he stated that his both of
his brothers had nothing to do with ISIS. The record does not include evidence
suggesting Petitioner knew of Moussa’s involvement with ISIS, and if Petitioner
had been aware of either brother’s involvement, the Court suspects the
government would have spoken with him by now. See TT at 56:12-14.
However, the Court does find Petitioner’s testimony that he never suspected
Abdelhadi would join a militant group, or even ISIS specifically, is not
credible and is intentionally false. The Court finds that Petitioner “bent the
truth” regarding his suspicions about Abdelhadi because he believed if he had
been honest about his suspicions concerning Abdelhadi, it would jeopardize
Petitioner’s Application.
4. Accused Intentional False Statements Regarding
Petitioner’s Knowledge that Moussa, Abdelhadi, and Samantha Went to Syria
USCIS accuses Petitioner of making intentional false
statements when he testified that he was unaware of where Moussa, Samantha, and
Abdelhadi were living other than rumors based on a phone call with parents that
they were going to Turkey. Decision at 91.
At the September 10, 2018 interview, October 30, 2019
interview, and August 30, 2021 hearing, Petitioner reiterated that he while he
did not know for sure where his brothers went, he had heard they may have gone
to Hong Kong and were potentially planning to go to Morocco or Turkey
afterwards. Transcript I at 42; Transcript II at 5, 7 (elaborating that in May
or June 2015, he may have heard from his parents that they may have left Hong
Kong and were thinking of going to Turkey); TT at 100:17-101:12 (testifying
that at the time of the initial interview, he thought Moussa may have been
living in Turkey, and that he later heard from his parents that they might pass
by Turkey on their way back to Morocco). The USCIS Decision states, “Your
testimony affirmatively obfuscated the truth of the matter which was that on
August 20, 2015, Moussa emailed you personally as the primary recipient
(with other family members copied on the email) and disclosed that he and
Abdelhadi were in Syria.” Decision at 91. USCIS argues that “once [Petitioner]
acknowledged that they ‘were thinking of going to Turkey’, [he] also gave false
and/or misleading information by failing to also acknowledge the fact that on
August 20, 2015 Moussa personally emailed [him] (copying other family
members) and identified his location in unmistakable terms that he was in
Syria, not Turkey.” Decision at 98. The Court disagrees. Nothing in the August
20, 2015 e-mail disclosed where Moussa, Samantha, and Abdelhadi were living. To
the extent the e-mail suggests they were in Syria, as outlined below, it
equally suggests they were not in Syria.
The August 20, 2015 e-mail was not just a personal e-mail
to Petitioner and it did not explicitly state where Moussa was or where he was
going. CAR, ECF No. 13-3 at 17-20. In fact, the e-mail stated that Moussa’s
family (1) should not worry about the war, when if he had been in Syria, the
war would likely be a concern; (2) assured that he was not involved in the war,
also suggesting Moussa was neither in Syria nor fighting for ISIS; and (3)
indicated his support for Americans, which also suggests he was not involved
with ISIS. Id. In fact, USCIS acknowledges that “Moussa never mentioned
Syria by name,” but argues that “there could be no mistake that he was
identifying their location as Syria based on the fact that Moussa referenced
the ‘ongoing war’ and assured you that he had nothing to do with this ‘ongoing
war’ and had seen no sign of it.” Decision at 99. Respondent contends that “[i]t
was also abundantly clear that Moussa was identifying Syria as his location
when he referenced media hype about the ongoing war, his hope that the borders
would soon open up, as well as his hope to ‘get rid of Bashar’, the well-known
president of Syria.” Id.
*31 The Court does not find that Petitioner made an
intentionally false statement regarding whether he knew where his brother was
living based on an e-mail that Respondent acknowledges never mentions where
Moussa was. The e-mail does state, “Please don’t be mad at us for leaving ...
soon the borders will open up ... new American president and ... they will get
rid of bashar and things will become even better.” CAR, ECF No. 13-3 at 22.
However, this does not prove Moussa was in Syria given that in 2015, Turkey,
Lebanon, and Israel had also closed their borders. See Beth Persky,
Federica Dell’Orto, The Return of Asylum Seekers to Unsafe Third Countries
in Contravention of the Principle of Non-Refoulement, Fed. Law., May/June
2020, at 15, 16 (noting that “[t]o manage the migrants, Turkey has closed its
borders to Syrian refugees,” which has been in place since 2015); E. Tendayi
Achiume, Syria,
Cost-Sharing, and the Responsibility to Protect Refugees, 100 Minn. L.
Rev. 687, 726 (2015) (noting that as of 2015, Israel had closed its
borders to Syrian refugees) (citing Michael Kagan, Must Israel Accept Syrian
Refugees?, 50 T EX. INT’ L L.J. F. 1 (2014)); Melissa Phillips, Refugees and
Migrants at Sea: Another View from the Middle East and North Africa Region, 110 Am. Soc’y
Int’l L. Proc. 169, 170 (2016) (noting that “Lebanon imposed strict
visa renewal measures and closed its borders in an effort to reduce the number
of refugees in its territory”); see also https://www.nytimes.com/2015/03
/30/world/europe/turkey-moves-to-close-all-gates-at-border-with-syria.html
(noting that “Turkish officials have said that the decision to keep the
crossings closed was necessary because of intelligence pointing to a terrorist
plot orchestrated by the government of Syria’s president, Bashar al-Assad”).
Further, Turkey has been active in condemning Syria’s president, Bashar
al-Assad, suggesting that Moussa’s hope for Bashar’s removal could equally
suggest he is in Turkey. See, e.g., Joseph Klingler, Counterintervention
on Behalf of the Syrian Opposition? An Illustration of the Need for Greater
Clarity in the Law, 55 Harv. Int’l L.J. 483, 516 (2014) (noting
that “[a]ccording to an October 27 New York Times report, .... Turkey is
hosting an armed opposition group waging an insurgency against the government
of President Bashar al-Assad”) (citing Liam Stack, In Slap at Syria, Turkey
shelters Anti-Assad fighters, N.Y. Times, Oct. 27, 2011, http:// www.nytimes.com/
2011/10/28/world/europe/turkey-is-sheltering-antigovernment-syrian-militia.html);
but see Justin M. Ndichu, “Plugging A
Leak”: A Preliminary Step in Establishing A Nuanced Approach to Govern
Intervention in the New Age, 49 Cornell Int’l L.J. 201, 215 n.124 (2016)
(noting that in 2015, “ISIS ... expanded its presence to eastern Syria, where
there was large support from several groups opposed to the al-Assad regime, and
continues today to increase its prominence in that region”) (citing Liam Stack,
How ISIS expanded its threat, N.Y. TIMES (Nov. 14, 2015), http://www.nytimes.com/interactive/2015/11/14/
world/middleeast/isis-expansion.html)). Thus, the facts relied on by the
government to prove the e-mail was sent from Syria do not provide conclusive
proof of Moussa’s location. Rather, as with most evidence relied upon by
Respondent, the facts cut both ways.
On the one hand, the Court acknowledges that Petitioner
never asked Moussa where he was, which potentially suggests he knew or thought
he might be in Syria but did not want to admit it. On the other hand, Moussa’s
e-mail assures Petitioner there were no signs of the war, and that he and his
family were safe, which suggests he was not, in fact, in Syria, which was rife
with war at the time.
The Court acknowledges that it was telling for Petitioner
to recommend that Moussa “[u]se a Bitcoin wallet when you travel overseas,
[because] no one can confiscate that from you.” CAR, ECF No. 13-3 at 20.
However, in Moussa’s e-mail preceding Petitioner’s e-mail, Moussa discusses how
Samantha had items confiscated at the airport in Morocco:
Going back to morocco was not easy ...
Sending money to morocco by wire was impossible since the IRS was gonna take it
before it leaves the US. Sam went to morocco to see if taking cash/gold was
easy but those guys in the Mohamed V airport were very scary! They went through
her luggage like crazy and confiscated many many things! I was not about to go
and have them confiscate the Porsche money and give me a receipt instead!!
CAR, ECF No. 13-3 at 22. This supports Petitioner’s
testimony at his October 30, 2019 interview, during which he testified that he “was
just trying to help [Moussa] not to get his money stolen when he was traveling
because [he] knew the whole reason was in conflict.” Transcript II at 12. He
elaborated that he recommended Bitcoin because he was “familiar with Bitcoin,”
and “it is not something ... people can just come and ste[a]l from you.” Id.
Finally, much ado was made during the trial over the fact
that Moussa’s e-mail referenced that he and Samantha “live in what they call
the reef,” which he explained is “like farmlands far away from any village or
city.” CAR, ECF No. 13-3 at 18. Petitioner explained why he did not believe
this to indicate Moussa was in any particular country:
*32 Q. And isn’t there a place called “The Reef” in Syria?
A. There is a reef in every country. We have
a reef in Morocco. When we say the reef in Morocco, meaning the outback, behind
the mountains, the empty lands.
Q. ...[A]re you aware of the fact that there
is a place called “The Reef” in Syria?
A. I don’t know about the exact geography of
Syria, but my understanding is that there is a reef in every country. Like the
reef in the United States would be probably the midlands, like the Midwest,
that would be the empty lands.
Q. Have you ever heard of the Syrian province
Reef Dimashq?
A. Dimashq is the capital, so that wouldn’t
be called “The Reef.”
Q. Have you ever heard of a province called
Reef Dimashq?
A. Never heard of it.
....
Q. Did you try Googling “the reef” and “Syria,”
to see what hits you got?
A. No. As I explained, “The Reef” means the
country in Arabic. That’s the exact translation.
Q. So you never tried Googling the words “the
reef” and “Syria” and see what the first hit is when you did that?
A. No. I never looked up the word “reef,”
because I understand that it means the country.
TT at 63:14-65:2.
Later, Petitioner reiterated that because he interprets “reef”
as a general, rather than specific term, Moussa’s reference did not indicate to
Petitioner that Moussa was in Syria:
Q. To clarify, Mr. Elhassani, when you read “the
reef” in the August 20th, 2015 e-mail, what did you interpret that to mean?
A. The reef in the language—in the Arabic
language literally means countryside. If you go to Google and just type Arabic
to English translation and type the word “reef,” you will see a translation
saying countryside or—or outback, or something like that. But that’s what it
means in Arabic. You ask anyone who speaks Arabic, tell them, I’m from the
Reef, he really would not know which country you’re talking about. And he’ll
ask you, Which country, reef of which country? It just literally means the
countryside, that’s all.
TT at 114:10-24.
Respondent asks the Court to take judicial notice of the
fact that “Rif Dimashq” is a governorate in Syria. RFFCL at 17:24-18:1. The
Court does so because Petitioner does not dispute this fact as he acknowledge
at the hearing that Dimashq was the capital of Syria. TT at 63:24-64:2. The
Court also acknowledges that there is a Rif region in northern Morocco. See
Nora Elmubarak, How A Fisherman’s Murder Revealed Morocco’s Police Brutality
and Ethnic Discrimination, Hum. Rts. Brief, Winter 2020, at 106; see
also Michael Tonry, Catrien Bijleveld, Crime, Criminal
Justice, and Criminology in the Netherlands, 35 Crime & Just. 1, 6 (2007)
(“The Moroccans mainly came from the poor rural area called the Rif.”).
Further, according to Wikipedia, “Rif” or “Riff,” which is written in Arabic as
‘‘ ” https://en.wikipedia.org/wiki/Rif, translates to “country” or “outskirts,”
https://translate.google.com/?sl=auto&tl=en&text=%D8%A7%D9%84%D8
%B1%D9%8 A%D9%81&op=translate&hl=en.23 Thus, while the Court was unable to locate anything
discussing a reef region in Turkey, it was also unable to locate anything
contradicting Petitioner’s testimony that in Arabic, reef can refer to a
countryside or region, suggesting Moussa’s use of the term did not prove he was
in Syria.
*33 Finally, Respondent argues that the Court should find
that Petitioner intentionally falsely testified that “[t]hey never went
anywhere near that region,” when asked whether he knew why his “brothers might
have wanted to go and fight for ISIS,” Transcript I at 43, because he testified
at the same hearing that he “heard rumors they went to Turkey,” and Syria is
near Turkey. RFFCL at 18:19-19:2. Respondent also argues that Petitioner falsely
testified that “that he thought Turkey was nowhere near Syria.” Id.
However, Petitioner did not, in fact, testify that he was unaware Turkey was
near Syria. In fact, he stated, “I know Turkey was bordering Syria, and from
what he said he was in a farmland.” TT at 52:1-6. Instead of what Respondent
accused him of stating, he actually testified that he does not follow the news
much and did not “think Turkey had a problem with ISIS,” which is why he “said
[Moussa] never went near the region where ISIS was.” Id. at 113:2-10.
In sum, although the one can infer that Petitioner had
suspicions about his brothers, the Court does not find that he provided
intentionally false testimony when he stated at the September 10, 2018
interview that he did not know the location of Moussa, Samantha, their
children, and Abdelhadi given the absence of evidence in the record
demonstrating he had any definitive information regarding their location.
5. Accused Intentional False Statements Regarding
Petitioner’s Indirect Association with ISIS
As stated, Respondent argues that Petitioner failed to
qualify pursuant to 8 U.S.C. §
1424(a)(4)(C) because he affiliated with a terrorist organization,
and affiliation includes giving or lending money, 8 C.F.R. § 313.1.
As the Court noted above, involuntary affiliation with an organization
described in 8 U.S.C. §
1424(a) does not disqualify a person from naturalization. 8 U.S.C. §
1424(d); see also 8 C.F.R. §
313.3(d). USCIS contends that “the evidence establishes that you are
affiliated with the tier 1 terrorist group ISIS as evidence by the fact that on
March 7, 2015, you personally emailed your brother Abdelhadi (and copied
Moussa) warning him to stop emailing you regarding the subject ‘ISIS group.’ ”
Decision at 100-101.
Respondent also contends that Petitioner “intentionally
provided false testimony during [his] September 10, 2018 N-400 interview when
[he] orally answered “no” to the question on the N-400 application ‘have you
ever been a member of, or in any way associated (either directly or indirectly)
with a terrorist organization.’ ” Decision at 100. It argues that the evidence
demonstrates that (1) his “brother Moussa personally contacted [Petitioner] on
August 20, 2015 and disclosed to you that he and Abldehadi were in Syria and
pleaded with [him] not to view their departure as being ‘against the U.S. or
Americans’ ”; (2) “the national and international news media widely reported
that [his] brother Moussa was an ISIS sniper who had been killed in a drone
strike in 2017, and that Moussa’s step-son was used in an ISIS propaganda video”;
and (3) “the national and international news media widely reported that [his]
sister-in-law Samantha had been detained by Kurdish forces in Syria and was
recently extradited back to the United States with her children where she has
being charged with lying to law enforcement prior to her departure from the
U.S. and also with providing material support to ISIS.” Id. at 100.
Thus, USCIS argues that he intentionally provided false testimony by (1) “affirming
[his] answer ‘no’ to question 10 of the N-400” and (2) testifying “to the
immigration services officer that ‘just by the close proximity [i.e., Turkey to
Syria] we thought maybe they might have gone to join some of those
organizations.” Id.
The Court disagrees with the USCIS Decision that
Petitioner provided intentionally false testimony regarding his own affiliation
with ISIS. Thus, it does not find Petitioner is disqualified from citizenship
on the basis of providing intentional false testimony regarding his affiliation
with ISIS. Rather, the Court finds that Petitioner’s testimony that he was not
affiliated with ISIS was truthful.
6. Intentional False Statements Regarding Moussa’s
Death
*34 Respondent argues that “Petitioner likely learned,
before the September 10, 2018 interview, that his brother[,] Moussa[,] had died
fighting for ISIS in Syria and therefore falsely stated to the USCIS
interviewer that he was unaware of Moussa’s whereabouts.” RFFCL at 15:25-27.
Respondent contends that if Petitioner knew of Mousa’s death before the
September 10, 2018 interview from an article, which would have stated that
Moussa died in a drone strike fighting for ISIS in Syria, then, Petitioner also
lied to the interviewer about being unaware of his brothers’ affiliations with
ISIS. Id. at 17:11-15.
As noted, the Court has taken judicial notice that the
fact of that Moussa having been killed was in the public realm before the date
of Petitioner’s September 10, 2018 interview. See Exhibits 1-3 to
Respondent’s RJN, ECF No. 22 at 2. Petitioner adamantly denies following the
news. TT at 113:2-10.24 He also testified that he learned that Moussa was killed
at the September 10, 2018 interview when the interviewer showed him an article,
but that before the interview, he had not seen any news articles on the topic.
TT at 54:24-55:11. While the Court does not take judicial notice of the fact
that Petitioner read any of the articles that the Court has taken judicial
notice of prior to his first interview, it does find Petitioner’s testimony
that he was unaware Moussa had been killed until the September 10, 2018
interview lacks credibility. Petitioner testified that his parents told him in
late 2018 that Abdelhadi had been killed. TT at 24:1-3; see also
Transcript II at 13 (same). The Court finds it difficult to believe that if his
parents knew Abdelhadi had been killed and told Petitioner, that his parents
either did not know that Moussa had been killed, or if they did, that they did
not tell Petitioner.
D. Failure to Establish Good Moral
Character Pursuant to 8 C.F.R. § 316.10(a)(2)
“An applicant who has committed or admits the commission
of two or more crimes involving moral turpitude during the [five
year] statutory period is precluded from establishing good moral character,
even though the conviction record of one such offense has been expunged.” 8 C.F.R. §
316.10(c)(3)(ii) (emphasis added). Here, Petitioner’s felony
convictions do not preclude the Court from finding good moral character. The
crimes fall outside the statutory period because they took place in 2006 and
2007, over eight years before Petitioner filed his Application for
Naturalization on November 27, 2015. See Compl. at 5, ¶ 11, 11, ¶ 36.
However, both USCIS and the Court are “not limited to reviewing the applicant’s
conduct during the five years immediately preceding the filing of
the application.” 8 C.F.R. §
316.10(a)(2) (emphasis added); see also 8 U.S.C. §
1427(e). Courts may consider “conduct and acts at any time prior to
that period, if the conduct of the applicant during the statutory period does
not reflect that there has been reform of character from an earlier period or
if the earlier conduct and acts appear relevant to a determination of the
applicant’s present moral character.” Id.; see also 8 U.S.C. §
1427(e).
The USCIS Decision raised Petitioner’s two felony
convictions, while acknowledging they fall outside the five-year statutory
period, but arguing their relevance because Petitioner made false statements
during his naturalization interview, and at least one of his criminal
convictions “involved deception,” a that deception is “a common theme shared”
between his convictions and the instant conduct. Decision at 101-02. Respondent
argues Petitioner does not acknowledge the seriousness of his expunged
felonies, fails to admit responsibility, and fails to express any regret for
his criminal conduct. RFFCL at 23:15-23. USCIS aptly notes that “[a]fter
hearing Petitioner’s description of what happened, one is left with the
impression that the criminal charges, including the ones to which he plead
guilty, were based on a misunderstanding and not based on blameworthy conduct.”
Id. at 23:23-26.
*35 Petitioner’s two previous convictions for using personal
identifying information, see CAL. PEN. CODE §
530.5(a), and grand theft, see id. at § 484/487(a), are not
within the relevant statutory period and do not disqualify him from citizenship
on that basis. 8 C.F.R. §
316.10(c)(3)(ii). However, the conduct underlying the convictions is
relevant to this Court’s determination. Both convictions arose from deceitful
and dishonest conduct, such as using someone else’s information as his own or
not promptly providing a refund for a customer who never received goods. This
is the same conduct (i.e., dishonesty) that relates to Petitioner’s
intentionally false testimony at the hearing.
While the fact of Petitioner’s previous convictions in
and of themselves does not prevent the Court from finding Petitioner has good
moral character under 8 U.S.C. §§
1101(f), 1427(a),
1427(e),
the fact that the conduct underlying those convictions is consistent with his
intentionally false testimony at the hearing and demonstrates a lack of reform,
which does demonstrate that he lacks good moral character.
V. CONCLUSION
For the above reasons, the Court ORDERS as
follows:
1. Petitioner’s Application for Naturalization is DENIED,
and the Clerk of the Court is directed to enter judgment in Respondent’s favor
and against Petitioner. ECF No. 1. This denial is without prejudice to
Petitioner re-applying at a later date. The Court notes that Petitioner is
currently a lawful permanent resident of the U.S. “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(20) (emphasis added). While lawful permanent residents must
reapply for replacement I-551 cards as those cards expire every ten years, that
“expiration date has no bearing on the individual’s continued permanent
residence, but rather only affects the validity of the card.” Austin T.
Fragomen, Jr., Careen Shannon, Daniel Montalvo, Immigr. Proc.
Handbook § 21:9 (November 2021 Update). Thus, this denial does not
mean removal or deportation proceedings would be initiated against Petitioner:
A naturalization proceeding is also
fundamentally different from a removal proceeding. If a naturalization
application is denied by a hearing officer, LPRs are not threatened with
removal or required to voluntarily surrender to immigration authorities to
obtain judicial review. They maintain permanent resident status, and again may
apply for naturalization.
De Dandrade v.
United States Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 185 (S.D.N.Y.
2019), aff’d sub nom. Moya v. United
States Dep’t of Homeland Sec., 975 F.3d 120 (2d Cir. 2020); see also
TT at 5:5-15. Given this Court’s finding that Petitioner did not knowingly
fund terrorism or condone his brothers’ decisions to join a terrorist
organization, it does not believe initiating removal proceedings against
Petitioner would be appropriate, especially given Petitioner’s wife and three
children reside here with him in the U.S. However, initiation of removal and
deportation proceedings as well as the discretion to waive such proceedings
falls under the Attorney General’s jurisdiction. See 8 U.S.C. §§ 1182,
1229,
1229a.
Thus, the Court makes no express ruling on that matter.
2. Petitioner’s Request for Judicial Notice is DENIED-IN-PART
and GRANTED-IN-PART. ECF No. 18
3. Respondent’s Request for Judicial Notice is DENIED-IN-PART
and GRANTED-IN-PART. ECF No. 22
4. Petitioner’s Unopposed Motion to Extend the Deadline
for Submission of the Parties’ Proposed Findings of Fact and Conclusions of Law
is DENIED. ECF No. 28.
*36 5. After the entry of judgment, the Clerk is directed to
terminate any pending motions and deadlines and close this case.
IT IS SO ORDERED.
Slip Copy, 2022 WL 168631
|
Footnotes |
|
|
|
Unless otherwise indicated, all
page number references are to the ECF-generated page number contained in the
header of each ECF-filed document. This includes any references to the
Certified Administrative Record, ECF No. 13 (“CAR”), which contains three
sets of page numbers: two sets on the bottom right-hand corner of most pages
and the ECF-generated header. Although the parties referred to one of the two
numbers on the bottom right-hand corner in their briefing, to avoid confusion
(given the duplicate page numbers), the Court refers to the page numbers in
the header. |
|
|
The acronym “ISIS” refers to “The
Islamic State of Iraq and Syria,” which is a foreign terrorist organization. Gonzalez v.
Google LLC, 2 F.4th 871, 880-82 n.1 (9th Cir. 2021).
Occasionally, ISIS is also referred to as “The Islamic State of Iraq and the
Levant.” Id. Both names are derived from the Arabic “ad-Dawlah
al-Islamiyah fil-‘Iraq wash-Sham.” Id. |
|
|
An applicant for naturalization
must prove good moral character “for a period of at least five years after
having been lawfully admitted for permanent residence.” See 8 C.F.R. §§
316.2(a)(3), (7), 316.10(a).
“An applicant who has committed or admits the commission of two or more
crimes involving moral turpitude during the statutory period is
precluded from establishing good moral character, even though the conviction
record of one such offense has been expunged.” 8 C.F.R. §
316.10(c)(3)(ii) (emphasis added). Here, Petitioner’s felony
convictions do not preclude the Court from finding good moral character. The
crimes fall outside the statutory period because they took place in 2006 and
2007, over eight years before Petitioner filed his Application for
Naturalization on November 27, 2015. See Compl. at 5, ¶ 11, 11, ¶ 36; see
also Khamooshpour
v. Holder, 781 F. Supp. 2d 888, 893 (D. Ariz. 2011) (“The
only contested issue here is Mr. Khamooshpour’s ability to demonstrate his
good moral character for the relevant statutory period, which runs from the
five years immediately preceding the filing of his naturalization application
until the oath of allegiance is administered”) (citing 8 C.F.R. §
316.10(a)(1); United States
v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007)). However, the Court
may still consider the crimes, but they do not preclude a finding of good
moral character as a matter of law. See id. at 893-94
(“The Court must make a determination regarding the applicant’s moral
character during the statutory period, but it “may take into consideration,
as a basis for its determination, the applicant’s conduct and acts at any
time prior to [the statutory period].”) (citing 8 C.F.R. §
316.10(a)(2)). |
|
|
He suspects the negative balance
arose because a customer may have disputed a shipment that arrived late,
which would have resulted in money in the account being transferred to the
customer for a refund. TT at 20:3-8. Petitioner testified that while he was
ordered to pay restitution to PayPal and eBay for the negative account
balance but was not ordered to pay any restitution to Mr. Benhiba because he
did not “take any money from him.” Id. at 19:10-16. |
|
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This crime does not
categorically qualify as crime of moral turpitude and is outside the
statutory period. See, e.g., Linares-Gonzalez
v. Lynch, 823 F.3d 508, 516, 519 (9th Cir. 2016)
(holding that “[g]iven ... no fraudulent intent is required and the fact that
a person may violate CPC §§ 530.5(a)
.... without obtaining any tangible benefit, we reject the government’s
argument that violations of these subsections are categorical fraud-based
CIMTs)”). |
|
|
“[T]he federal generic
definition of a CIMT [crime involving moral turpitude] is a crime involving
fraud or conduct that 1) is vile, base, or depraved and 2) violates accepted
moral standards.” Linares-Gonzalez
v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016). The
Ninth Circuit has “consistently held that a conviction under CPC § 484(a) is
for a CIMT.” Silva v.
Garland, 993 F.3d 705, 716 (9th Cir. 2021). |
|
|
The Court takes judicial notice,
sua sponte, of the relevant Indiana Secretary of State filings,
publicly accessible at https://bsd.sos.in.gov/PublicBusinessSearch,
for the corporations discussed. See, e.g., Fed. R. Evid.
201(c)(1) (allowing courts to take judicial notice sua sponte);
see also Indian Hills
Holdings, LLC v. Frye, 337 F.R.D. 293, 300 n.4 (S.D. Cal. 2020)
(Benitez, J.) (taking judicial notice, sua sponte, of records from the
California Secretary of State website). |
|
|
As noted, the court “[m]ay take
judicial notice on its own,” or sua sponte, FED. R. EVID.
201(c)(1), including of court records on the docket, see, e.g.,
Rand v.
Rowland, 154 F.3d 952, 961 (9th Cir. 1998) (noting that “[f]or
example, judicial notice by the district court of its own records, either at
the behest of the defendant or sua sponte, may disclose that the
plaintiff had recently been served ...”); United States
v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)
(providing that “a court may take judicial notice of its own records in other
cases, as well as the records of an inferior court in other cases”). Thus,
the Court takes judicial notice of the proceedings against Samantha
Elhassani, which were referenced in Plaintiff’s Complaint. See Compl.
at 14, ¶ 53. The Court notes that there were
two federal prosecutions against Samantha: United States v. Samantha
Elhassani, Case No. 18-cr-00033, which the Court will refer to as Elhassani
I, and United States v. Samantha Elhassani, Case No.
19-cr-00159-PPS-JEM, which the Court will refer to as Elhassani II. As
the Court noted at the hearing in this matter, these facts are not admitted
as evidence that Petitioner knew any of these facts on or before his
September 10, 2018 interview. TT at 80:6-81:6 (sustaining Petitioner’s
objection to the Court taking judicial notice of facts discussed in
Samantha’s prosecution as evidence of what Petitioner knew). Rather, they
provide context to the events relevant to this case, and as stated, were
referenced by Plaintiff in his complaint. Compl. at 14, ¶ 53. |
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|
“Unlike Turkey, Hong Kong was
not a common staging point for Westerners to travel through en route to
joining ISIS and thus less likely to arouse suspicion.” Elhassani II, 2020 WL
7232419. |
|
|
Because the subject line does
not contain “Re:” or “Fwd:” in front of it, this e-mail appears to be unprovoked
and not in response to any particular e-mail. |
|
|
The record confirms that on
February 10, March 23, April 4, and April 23, 2014, Abdelhadi sent e-mails to
various members of his family—sometimes, copying as many as eight family
members—regarding everything from how Facebook generates its ad revenue to
the impact of genetically modified organisms (“GMOs”) on children. See
CAR, ECF No. 13-2 at 215-21. On May 18, 2014, Abdelhadi sent Mohamed,
Salaheddine, Petitioner, Fattah, Yassine, and Zahra an e-mail entitled “Two
Worlds, world of khal9 (creation) and world of amr(command),” which appeared
to discuss religious issues. Id. at 219-21. Yet, almost one month
later, on June 14, 2014, Abdelhadi sent Petitioner, Moussa, Fattah, and
Yassine an e-mail about watching World Cup games. Id. at 214. |
|
|
This message was originally
written in French. The above translation was provided through Petitioner’s
own testimony at the hearing when he was asked to translate the e-mail. See
TT at 61:15-24. Although the Court acknowledges the questionable accuracy
of Google Translate services, it also notes that the Google Translate version
of the original French e-mail results in roughly the same translation as the
one provided by Petitioner at trial. But see Novelty
Textile, Inc. v. Windsor Fashions, Inc., 2013 WL 1164065 at *3 (C.D. Cal.
Mar. 20, 2013) (“The court notes, first, that a translation by
Google Translate is not sufficiently reliable to make it admissible.”).
However, neither party has disputed Petitioner’s translation, and this e-mail
is tangentially relevant and not determinative of the Court’s decision. See,
e.g., Novelty
Textile, Inc. v. Windsor Fashions, Inc., No. 2:cv-12-05602-DDP-MANX, 2013
WL 1164065, at *3 (C.D. Cal. Mar. 20, 2013) (“The court therefore
cannot rely on any of the translated website information in determining the
services offered by KAMA and its membership benefits.”). |
|
|
At trial, Petitioner testified
that the word “reef” in Arabic is a general word for “farmlands,” “the
country,” or “the countryside,” and that every country has a “reef.” PFFCL at
11:4-6. He elaborated that the word does not refer to a specific, precise
geographical location, and that Morocco also has an area known as the “reef,”
while in the United States, the Midwest would likely be considered the “reef.”
PFFCL at 11:5-10. |
|
|
Although Petitioner had set up a
filter to block Abdelhadi’s e-mails, based upon Moussa’s comments regarding
Abdelhadi’s e-mails, which Petitioner states he had not seen, Petitioner
suspected Abdelhadi had joined a religious or fundamentalist group. PFFCL at
12:22-25. |
|
|
Al Jazeera is an English
television news channel. |
|
|
Moussa’s reference to getting
rid of Bashar refers to Bashar al-Assad, the President of Syria at the time. See
Jan González Vega, Syrian Refugee
Crisis and National Security, 60 Rev. Der P.R. 275, 284 (2020) (“As
of today, Syria is controlled by ISIS and Bashar al-Assad.”). |
|
|
The Court notes that this record
confirms Samantha “received compensation for her information, but her
assistance ended in mid-November 2014, just before Moussa told her about his
desire to join ISIS.” Elhassani II, 2020 WL
7232420 (N.D. Ind. Sept. 4, 2020). It is unclear if the reference
to “her brother-in-law’s business” is to GWG. That being said, “the FBI ...
was using Samantha to surveil the El Hassani warehouse during the same time.”
Elhassani II, 2020 WL
7232418. To the Court’s knowledge, no charges have been filed
against Petitioner related to any malfeasance with any packages shipped from
GWG. This indicates that to the extent Moussa may have shipped packages from
the GWG warehouse to facilitate his efforts to join ISIS, the government did
not find evidence showing Petitioner had knowledge of it. |
|
|
$9,799.36 (Gross Sales) -
$3,511.57 (Employee Pay) - $1,099.70 (Shipping Expenses) = $5,187.89
(Net Sales) |
|
|
$31,664.15 (Gross Sales) -
$2,829.01 (Employee Pay) - $3,572.92 (Shipping Expenses) = $25,262.22
(Net Sales) |
|
|
While at one point in the
October 30, 2019, Petitioner stated that Moussa “worked for me” and “was my
employee,” Transcript II at 3, his description of Moussa during that same
interview of Moussa setting his own hours without being required to clock-in
or clock-out suggest that this was merely an accidental use of the wrong term
given he consistently testified in his September 10, 2018 interview and
August 30, 2021 hearing that Moussa was an independent contractor. |
|
|
The e-mail chains discussing the
amounts owed and accounting had not been discussed at the September 30, 2018
hearing, so there is no testimony regarding the dates and amounts of
transfers from that hearing. |
|
|
At the hearing, Petitioner was
questioned regarding the fact that he said that “they did not
practice religion,” Transcript I at 43 (emphasis added), but that Petitioner
also acknowledged that Abdelhadi had shown signs of becoming increasingly
more religious. Petitioner testified that at the time of the interview, he “didn’t
pay exact attention if he said which of my brothers.” TT at 69:14-70:1. He
also testified that English is his third language, and as such, he often
confuses his past tense and pronouns. Id. at 115:10-116:2. |
|
|
Again, the Court acknowledges
the questionable accuracy of electronic translation tools but notes that the
definition of “reef” has no impact on the Court’s decision in this matter
given the Court’s conclusion that Petitioner’s testimony on so many other
matters was intentionally false. |
|
|
Petitioner testified that after
he read the article that was shown to him at the interview for his
naturalization, he was curious, and only then did he begin searching internet
“researching whatever was on the web at the time” while at the hospital with
his wife, who was delivering their third child. TT at 77:13-78:3. |
|
End of Document |
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