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United States of America v. Safee Ayub Salama

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 24, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
SAFEE AYUB SALAMA,
DEFENDANT.

TONY WEST Assistant Attorney General J. MAX WEINTRAUB Senior Litigation Counsel KIRSTEN L. DAEUBLER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 616-4458 E-mail: Kirsten.Daeubler@usdoj.gov Attorneys for Plaintiff United States of America

AMENDED COMPLAINT TO REVOKE NATURALIZATION

I. JURISDICTION AND VENUE

1. This is an action under 8 U.S.C. § 1451(a) to revoke and set aside the order admitting Defendant Safee Ayub Salama ("Salama") to United States citizenship and to cancel his certificate of naturalization.

2. Attached as "Exhibit A" is the amended affidavit of Kurt E. Blackwelder, a Special Agent with United States Immigration and Customs Enforcement, of the United States Department of Homeland Security ("DHS"), showing good cause for this action.

3. Plaintiff is the United States of America, and this Court has jurisdiction pursuant to 28 U.S.C. § 1345 and 8 U.S.C. § 1451(a).

No. 1:11!CV!00145-OWW-MJS Amended Complaint to Revoke Naturalization

4. Salama is a naturalized United States citizen whose last known residence is in Selma, California; therefore, venue is proper in this district under 8 U.S.C. § 1451(a).

II. FACTUAL BACKGROUND

A. Admission to the United States as a Permanent Resident

5. Salama was born in Israel, and he entered the United States on November 4, 1985, as a non-immigrant visitor.

6. Before he entered the United States, Salama was married to Khitam Salim El-Mimi ("Khitam") in Israel. Salama provided the INS with evidence of their divorce, which occurred on December 11, 1985.

7. On February 4, 1986, Salama married Renee Keys ("Renee"), a United States citizen.

8. On April 23, 1986, Renee filed a Form I-130 Petition for Alien Relative with the United States Immigration and Naturalization Service ("INS"),*fn1 / seeking a spousal visa for Salama. The INS approved Renee's Form I-130 on April 29, 1986.

9. Concurrent with Renee's filing of the Form I-130, on April 23, 1986, Salama filed a Form I-485 Application for Status as a Permanent Resident with the Fresno, California office of the INS.

10. On November 4, 1987, the INS adjusted Salama's application to CR-6, making Salama a conditional resident.

11. On or around January 1990, Salama and Renee filed a Form I-751 Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status based on their continuing marriage. The INS approved the Form I-751 on January 12, 1990, removing the conditional basis and making Salama a lawful permanent resident.

B. Naturalization

12. On February 18, 1995, Salama filed a Form N-400 Application for Naturalization with the Fresno, California office of the INS.

13. Salama's Form N-400 sought United States citizenship based upon his eligibility as a lawful permanent resident for at least five years, pursuant to 8 U.S.C. § 1427.

14. Part 7, Question 15(a) of the Form N-400 asks, "Have you ever . . . knowingly committed any crime for which you have not been arrested?"

15. In response to Part 7, Question 15(a), Salama checked the box next to "No." 16. Part 7, Question 15(b) of the Form N-400 asks, "Have you ever: . . . been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations?"

17. In response to Part 7, Question 15(b), Salama checked the box next to "Yes." Next to the "Yes" box, Salama noted, by hand, his 1988 arrest and his "no contest" plea for arson.

18. On January 20, 1995, Salama signed his Form N-400 under penalty of perjury, thereby swearing or affirming that the contents of the Form N-400 were true and correct.

19. On February 12, 1996, William Quigley ("Officer Quigley"), who was then a District Adjudications Officer with the INS, interviewed Salama under oath regarding his Form N-400.

20. At the February 12, 1996 interview, Officer Quigley placed Salama under oath and asked him whether he had ever been arrested by police.

21. At the February 12, 1996 interview, Salama disclosed that, in 1993, he was arrested and convicted in Arizona for selling merchandise without a license and that he paid a fine and received probation for this crime.

22. Salama also stated during the February 12, 1996 interview that he had been convicted of arson, but that the conviction was later expunged.

23. At the conclusion of the February 12, 1996 interview, Salama signed a sworn statement affirming that the contents of his corrected Form N-400 (which now contained this new information regarding his prior arrests and convictions) were true and correct.

24. On February 12, 1996, the INS continued Salama's Form N-400 to conduct a reexamination on history and government and to permit Salama to submit documents relating to his 1993 arrest and conviction in Arizona.

25. On June 6, 1996, a different INS District Adjudications Officer, John Sturdivant ("Officer Sturdivant"), conducted a second naturalization interview.

26. At the June 6, 1996 interview, Officer Sturdivant placed Salama under oath and asked him whether he had been arrested, stopped by the police, fingerprinted, or appeared in court since his first interview.

27. Salama responded at the June 6, 1996 interview that he had not been arrested, stopped by the police, or appeared in court since his first interview.

28. On June 6, 1996, the INS approved Salama's Form N-400 based on his written application and his testimony during both of his naturalization interviews.

29. The INS mailed Salama a Form N-445 Notice of Naturalization Oath Ceremony, informing him that he was to appear for his naturalization hearing on August 5, 1996.

30. Question 3 on the reverse side of that Form N-445 asked, since the date of the initial naturalization interview, "Have you knowingly committed any crime or offense, for which you have not been arrested; or have you been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic violations?"

31. In response to Question 3, Salama checked the box next to "No."

32. On July 10, 1996, Salama signed the reverse side of the Form N-445, certifying that his answers to the questions contained therein were true and correct.

33. On August 5, 1996, Salama attended a naturalization ceremony in the United States District Court for the Eastern District of California in Fresno, California. At the ceremony, Salama presented his completed and certified Form N-445 to the INS, took the oath of allegiance, and received Certificate of Naturalization number 22871805.

C. Undisclosed Criminal Record

34. On or about February 21, 1996 -- between his first and second naturalization interviews -- Salama appeared in court in Fresno, California, to respond to charges of felony perjury in violation of California Penal Code § 118. The judge ordered Salama remanded to custody and the police then arrested him.

35. On May 15, 1996 -- also between Salama's first and second naturalization interviews -- the Fresno District Attorney's Office filed an amended criminal complaint against Salama to include four felony charges of presenting a false or fraudulent claim for the payment of a loss or injury, including payment of a loss under a contract of insurance, in violation of California Penal Code § 550(a)(1), and three charges of felony perjury, in violation of California Penal Code § 118.

36. On November 4, 1996, following his naturalization, Salama pled guilty to one felony count of presenting a false or fraudulent claim for the payment of a loss or injury in or about February 1995.

37. On November 4, 1996, the court entered a conviction against Salama for presenting a false or fraudulent claim for the payment of a loss or injury, a felony offense, and sentenced him to 90 days in jail. The court also placed Salama on formal probation for three years and later ordered him to pay restitution in the amount of $10,000.

D. Fraudulent Marriage to Renee

38. Contrary to the representations he made throughout his immigration process, Salama entered into a fraudulent marriage with Renee to obtain immigration benefits.

39. Salama and Renee never lived together as husband and wife.

40. The marriage between Salama and Renee was not a valid marriage; it was a sham marriage used solely to circumvent the immigration laws and to enable Salama to obtain immigration status.

41. Salama and Renee obtained a divorce on August 8, 1996, three days after Salama naturalized.

III. THE DENATURALIZATION STATUTE

42. Under 8 U.S.C. § 1451(a), the Court must revoke Salama's naturalization and cancel his Certificate of Naturalization if Salama either:

(a) illegally procured his naturalization, or

(b) procured his naturalization by concealment of a material fact or by willful misrepresentation.

COUNT I

Illegal Procurement of United States Citizenship: Salama lacked the good moral character necessary to naturalize because he provided false testimony to obtain an immigration benefit.

43. The United States realleges and incorporates by reference paragraphs 1 through 42 of this complaint.

44. Congress has mandated that no person shall naturalize unless the person "during all the periods referred to in this subsection has been and still is a person of good moral character . . . ." See 8 U.S.C. § 1427(a)(3).

45. The statutory period for which good moral character is required begins five years before an applicant files the Form N-400 and extends until the applicant takes the oath of allegiance and becomes a United States citizen. See 8 U.S.C. § 1427(a)(3).

46. Salama was required to establish that he was a person of good moral character from February 18, 1990, through August 5, 1996.

47. Congress has barred a finding of good moral character for any person who, during the time in which he must establish good moral character, provides false testimony for the purpose of obtaining any benefit under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101(f)(6).

48. As set forth in paragraph 27, Salama testified under oath at his second naturalization interview on June 6, 1996, that he had not been to court since his first naturalization interview on February 12, 1996. This statement was false.

49. As set forth in paragraph 34, Salama appeared in court to respond to charges of felony perjury on February 21, 1996.

50. As set forth in paragraph 27, Salama testified under oath at his second naturalization interview on June 6, 1996, that he had not been arrested, stopped by police, or fingerprinted since his first naturalization interview on or about February 12, 1996. This statement was false.

51. As set forth in paragraph 34, a Fresno County, California, Superior Court judge ordered Salama remanded to custody, and the police arrested Salama for felony perjury, on February 21, 1996.

52. Given his appearance in court and his arrest, both of which occurred during the period between his first and second naturalization interviews, Salama lied under oath during his second naturalization interview on June 6, 1996. Accordingly, Salama provided false testimony to obtain naturalization -- a benefit under the INA.

53. Because Salama provided false testimony to obtain naturalization, and because he did so during the period during which he needed to establish good moral character, 8 U.S.C. § 1101(f)(6) statutorily barred him from establishing good moral character.

54. Accordingly, Salama's lack of good moral character made him ineligible for naturalization under 8 U.S.C. § 1427(a)(3).

55. Because he was ineligible to naturalize, Salama illegally procured his naturalization, and this Court must therefore revoke it pursuant to 8 U.S.C. § 1451(a).

COUNT II

Illegal Procurement of United States Citizenship: Salama lacked the good moral character necessary to naturalize because he committed unlawful acts that adversely reflected on his moral character.

56. The United States realleges and incorporates by reference paragraphs 1 through 55 of this complaint.

57. As set forth in paragraph 46, Salama was required -- as a prerequisite to naturalization -- to establish that he was a person of good moral character from February 18, 1990, through August 5, 1996.

58. Congress included a catch-all provision providing that "[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such a person is or was not of good moral character." See 8 U.S.C. § 1101(f).

59. Congress has barred a finding of good moral character for any person who was convicted of a crime involving moral turpitude, or admits to having committed a crime involving moral turpitude, during the time period in which he was required to show good moral character, if the maximum penalty possible for the crime exceeds one year imprisonment. See 8 U.S.C. §§ 1101(f)(3) & 1182(a)(2)(A)(i)(I).

60. Regulations further define the good moral character requirement. Under these regulations, "Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant . . . [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts." See 8 C.F.R. § 316.10(b)(3)(iii).

61. Congress permits the government to consider conduct and acts that took place before the statutory period when determining whether an applicant has established good moral character. See 8 U.S.C. § 1427(e).

62. Presenting a false or fraudulent claim for the payment of a loss or injury in violation of California Penal Code § 550(a)(1) is a felony crime involving moral turpitude; thus, it adversely reflects on Salama's moral character.

63. As set forth in paragraph 36, Salama pleaded guilty on November 4, 1996 -- following his naturalization -- to one count of presenting a false or fraudulent claim for the payment of a loss or injury in violation of California Penal Code § 550(a)(1) in February 1995. The date Salama committed this crime falls within the time period during which he was required to establish good moral character.

64. Marriage fraud in violation of federal law is a crime involving moral turpitude; thus, it reflects adversely on Salama's good moral character.

65. As set forth in paragraphs 38 through 40, Salama and Renee married each other solely to permit Salama to obtain immigration benefits. Salama and Renee's marriage was a sham, and they never lived together as husband and wife. Salama continued to perpetrate his marriage fraud throughout his adjustment and naturalization process.

66. Because Salama committed crimes that reflect adversely on his moral character, either during the period in which he was required to show good moral character, or before that period but where his unlawful conduct was ongoing, 8 U.S.C. §§ 1101(f)(3) & 1101(f)(8) and 8 C.F.R. § 316.10(b)(3)(iii) barred him from establishing good moral character. 67. Because Salama was not a person of good moral character as required by law, he was ineligible for naturalization under 8 U.S.C. § 1427(a)(3).

68. Because he was ineligible to naturalize, Salama illegally procured his naturalization, and his naturalization must be revoked pursuant to 8 U.S.C. § 1451(a).

COUNT III

Procurement of United States Citizenship by Willful Misrepresentation or Concealment of a Material Fact: Salama concealed his criminal history and marriage fraud for the purpose of obtaining an immigration benefit.

69. The United States realleges and incorporates by reference paragraphs 1 through 68 of this complaint.

70. As set forth in paragraphs 14 and 15, Part 7, Question 15(a) of the Form N-400 asks, "Have you ever . . . knowingly committed any crime for which you have not been arrested?" In response to Part 7, Question 15(a), Salama checked the box next to "No."

71. As set forth in paragraph 23, Salama signed a sworn statement at the conclusion of his first naturalization interview on February 12, 1996, affirming that the contents of his corrected Form N-400 (which now contained this new information regarding his prior arrests and convictions) were true and correct. This statement was false.

72. As set forth in paragraph 36, Salama pled guilty on November 4, 1996 -- following his naturalization -- to presenting a false or fraudulent claim for the payment of a loss or injury in or about February 2005. Salama had committed, but had not been arrested for, this crime when he first filed and signed his Form N-400, and when he signed his Form N-400 again at the conclusion of his first naturalization interview.

73. Additionally, as set forth in paragraphs 31 through 33, Salama entered into a marriage with Renee, a United States citizen, solely to obtain immigration status in the United States.

74. Entering into a fraudulent marriage is a federal felony. See 8 U.S.C. § 1325(c).

75. Salama had committed, but had not been arrested for, this crime when he first filed and signed his Form N-400, and when he signed his Form N-400 again at the conclusion of his first naturalization interview.

76. As set forth in paragraph 27, Salama testified under oath at his second naturalization interview on June 6, 1996, that he had not been to court since his first naturalization interview on February 12, 1996. This statement was false.

77. As set forth in paragraph 34, between the dates of his first and second naturalization interviews, Salama appeared in court to respond to charges of perjury.

78. As set forth in paragraph 27, Salama testified under oath at his second naturalization interview on June 6, 1996, that he had not been arrested, stopped by police, or fingerprinted since his first naturalization interview on February 12, 1996. This statement was false.

79. As set forth in paragraph 34, a Fresno County, California, Superior Court judge ordered Salama remanded to custody and the police arrested Salama for perjury on February 21, 1996, following his appearance in court.

80. As set forth in paragraphs 30 through 32, in response to Question 3 on the reverse side of his Form N-445, Salama represented and certified that, since his first interview on February 12, 1996, he had not been charged with, or arrested or imprisoned for, breaking or violating any law. This statement was false.

81. As set forth in paragraph 34, between the dates of his first and second naturalization interviews, Salama was arrested and charged with felony perjury. As set forth in paragraph 35, also between the dates of his first and second naturalization interviews, the District Attorney's Office amended Salama's criminal complaint to charge him with four felony counts of presenting a false or fraudulent claim for the payment of a loss or injury and three counts of felony perjury.

82. Salama voluntarily made these misrepresentations, knowing they were false and misleading. Accordingly, Salama made these misrepresentations willfully.

83. The facts that Salama had committed marriage fraud and insurance fraud, appeared in court, was arrested, and had criminal charges pending against him are material because they would have the natural tendency to influence the INS's decision whether to approve his Form N-400 and to grant him United States citizenship. See 8 U.S.C. §§ 1101(f)(3) & 1182(a)(2)(A)(i)(I); 8 C.F.R. § 316.10(c)(1).

84. Salama thus procured his naturalization by willful misrepresentation and concealment of material facts.

85. Because Salama procured his naturalization by willful misrepresentation and concealment of material facts, this Court must revoke his naturalization pursuant to 8 U.S.C. § 1451(a).

COUNT IV

Illegal Procurement of United States Citizenship: Salama was not lawfully admitted as a permanent resident because he was not in possession of a valid document for admission.

86. The United States realleges and incorporates by reference paragraphs 1 through 85 of this complaint.

87. To be eligible for naturalization, an alien must be lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the INA. See 8 U.S.C. §§ 1427(a)(1) & 1429.

88. An alien who is not in possession of a valid unexpired immigrant visa or other valid entry document is inadmissible to the United States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).*fn2/

89. A United States citizen may seek to classify his or her alien spouse as an immediate relative for purposes of obtaining a visa by filing a Form I-130 Petition for Alien Relative. See 8 U.S.C. §§ 1151(b)(2)(A)(i) & 1154(a)(1)(A)(i). Upon approval of the Form I-130, the alien spouse becomes eligible to apply for resident status by filing a Form I-485 Application for Status as a Permanent Resident. See 8 U.S.C. § 1255(i)(1).

90. If an alien spouse and a United States citizen spouse have been married for less than two years when the government grants residency, the alien may only become a conditional resident upon approval of the Form I-485. See 8 U.S.C. § 1186a(a)(1). The federal government grants conditional residence for a period of two years. See 8 U.S.C. § 1186a(d)(2)(a).

91. At the end of the two-year period for conditional residence, the conditional resident and the United States citizen spouse must file a Form I-751 Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status. See 8 U.S.C. § 1186a(c)(1). If the agency grants the Form I-751, the alien then becomes a lawful permanent resident, effective as of the second anniversary of the alien's obtaining conditional resident status. See 8 U.S.C. § 1186a(c)(3)(B).

92. A marriage entered into to circumvent the immigration laws (also known as a sham or fraudulent marriage), however, is invalid for immigration purposes and cannot confer immigration benefits. An individual who enters into a sham marriage is therefore not a spouse for immigration purposes. Accordingly, such a person is not eligible for classification as an immediate relative and is not eligible for conditional or permanent resident status based on that marriage. See 8 U.S.C. § 1154(c).

93. As set forth in paragraphs 8 through 10, Renee filed a Form I-130 on Salama's behalf on April 23, 1986, based on their purported marriage. Because of this Form I-130, the INS approved Salama's I-485 and admitted Salama to the United States as a conditional resident.

94. As set forth in paragraph 11, Salama and Renee jointly filed a Form I-751 in January 1990, seeking to remove the conditional basis of Salama's permanent resident status based on their continuing marriage. The INS approved this Form I-751.

95. As set forth in paragraphs 38 through 40, Salama and Renee married each other solely to permit Salama to obtain immigration benefits. Salama and Renee's marriage was a sham, and they never lived together as husband and wife.

96. Because Salama's marriage to Renee was invalid for immigration purposes, Salama was not eligible for classification as Renee's immediate relative and was not eligible for an immigrant visa or permanent resident status (conditional or otherwise) based on that marriage. Accordingly, at the time of his application for an immigrant visa, Salama was inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).

97. Because Salama was inadmissible to the United States, he was not lawfully admitted when he filed his Form N-400. Accordingly, Salama illegally procured his naturalization, and this Court must revoke his naturalization pursuant to 8 U.S.C. § 1451(a).

COUNT V

Illegal Procurement of United States Citizenship: Salama was not lawfully admitted for conditional or permanent residence because he procured his conditional and permanent resident status by fraud and willful misrepresentation.

98. The United States realleges and incorporates by reference paragraphs 1 though 97 of this complaint.

99. As stated in paragraph 87, to be eligible for naturalization, an alien must be lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the INA. See 8 U.S.C. §§ 1427(a)(1) & 1429.

100. Congress has provided that an alien who seeks to procure or has procured a visa, other documentation, or admission into the United States by fraud or by willfully misrepresenting a material fact is inadmissible to the United States. See 8 U.S.C. § 1182(a)(6)(C)(i).*fn3 /

101. As set forth in paragraphs 8 through 11, Salama applied for a spousal visa, conditional resident status, and lawful permanent resident status based on his marriage to Renee, a United States citizen. In fact, Salama married Renee solely to circumvent immigration laws, and they never lived together as husband and wife.

102. Salama applied for and obtained his immigration status knowing that his marriage to Renee was fraudulent. Accordingly, Salama willfully misrepresented his fraudulent marriage as a legitimate one.

103. Salama's misrepresentations were material to his Form I-485 and his Form I-751 because they would have had the natural tendency to influence the INS's decision whether to approve those applications.

104. Accordingly, Salama obtained his conditional resident status and his lawful permanent resident status by fraud and by willfully misrepresenting a material fact, and was thus inadmissible to the United States under 8 U.S.C. § 1182(a)(6)(C)(i).

105. Because Salama was inadmissible to the United States, he was not lawfully admitted in accordance with all applicable provisions of the INA. Accordingly, Salama illegally procured his naturalization, and this Court must revoke his naturalization pursuant to 8 U.S.C. § 1451(a).

WHEREFORE, the United States demands:

(1) Judgment revoking and setting the order admitting Salama to United States citizenship, and canceling Certificate of Naturalization number 22871805.

(2) Judgment forever restraining and enjoining Salama from claiming any rights, privileges, or advantages under any document evidencing United States citizenship obtained as a result of Salama's naturalization.

(3) Judgment requiring Salama to immediately surrender and deliver his Certificate of Naturalization and any other indicia of United States citizenship (including his United States passport, voter registration card, and any other voting documents) and any copies thereof in his possession, and to make good faith efforts to recover and surrender any copies thereof that he knows are in the possession of others, to the Secretary of Homeland Security or her designated representative, including undersigned counsel; and, (4) Judgment granting the United States any other lawful and proper relief.

Respectfully Submitted,


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