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United States of America v. Safee Ayub Salama

July 23, 2012

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



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 34)

I. INTRODUCTION AND PROCEDURAL HISTORY

Defendant Safee Ayub Salama became a naturalized citizen of the United States of America in 1996. Fifteen years later, in 2011, the United States initiated this action by filing a complaint to revoke and set aside the order admitting Salama to United States citizenship and canceling his Certificate of Naturalization pursuant to 8 U.S.C. § 1451(a) on the ground that naturalization was unlawfully procured by concealment of a material fact or willful misrepresentation and due to a lack of good moral character during the relevant statutory period. (Compl., ECF No. 1.) On June 24, 2011, a First Amended Complaint seeking the same relief (1st Am. Compl., ECF No. 15) was filed pursuant to stipulation (ECF No. 14). Defendant's answer to the amended complaint was filed August 4, 2011. (Answer, ECF No. 17.)

An initial scheduling conference took place on October 28, 2011, following which the Court issued its Scheduling Order providing for all discovery to end by September 4, 2012, and trial to commence November 6, 2012. (Scheduling Order, ECF No. 25.)

The parties then consented to, and the District Court Ordered, Magistrate Judge jurisdiction for the limited purpose of empowering the Magistrate Judge to hear and decide Plaintiff's anticipated motion for summary judgment. (ECF No. 30.) The parties further stipulated to a summary judgment briefing schedule and set the hearing thereon for January 20, 2011. (ECF No. 33.)

Plaintiff's said motion was argued before the undersigned on January 20, 2011. Plaintiff's counsel, Kirsten Daeubler, and Defendant's counsel, H. Ty Kharazi, both appeared in person. The Court requested and the parties provided supplemental, post-hearing briefing. (ECF Nos. 38, 42-43.) The matter was then deemed submitted.

II. FACTS

Plaintiff moved for judgment revoking Defendant's naturalization on multiple grounds and posited some fifty-two facts which it contended were material to the motion and undisputed. (ECF No 34-1.) Not all facts relate to all grounds asserted. Many are undisputed.

The following facts are undisputed except where otherwise indicated, and they set the background for the instant dispute and motion:

Defendant, an Israeli by birth, entered the U. S. as a visitor in 1985. (Plaintiff's Undisputed Material Fact ("UMF") No. 1 and Defendant's response thereto. ECF No. 35-1.) In 1986 he was issued a spousal visa and also sought permanent residence status. (UMF Nos. 2-4.) Conditional residency status was granted in November 1987. (UMF Nos. 4-5.) It was made permanent in January 1990. (UMF Nos. 6-7.)

In February 1995, defendant applied for citizenship pursuant to 8 U.S.C. § 1427 based upon his having been a lawful U.S. resident for the preceding five years. (UMF Nos. 7-9.) The February 1995 application asked if Defendant had "...ever knowingly committed a crime for which you have not been arrested?" The "No" box next to that question was checked. (UMF Nos. 10-11.) The application also asked whether Defendant had ever "...been arrested, cited, charged,...fined or imprisoned for breaking or violating any law...?'" The"Yes" box next to the question was checked and a handwritten entry noted a 1988 arrest and "no contest " plea for arson. (UMF Nos. 12-14.) The form was signed by Defendant certifying under penalty of perjury that its contents were true and correct. (UMF No. 15.) Defendant does not dispute the above facts, but he maintains that the form was filled out entirely by his attorney Steven Simonian and signed by Defendant without reading it, but he believed it had been truthfully completed. (UMF Nos. 11, 13-14.)

On an unspecified date in February 1995, Defendant engaged in activity in Fresno County, California which resulted in him being charged with (and, later, in November 1996, pleading guilty to) felony presentation of a false or fraudulent claim for the payment of a loss or injury. (UMF No. 40.)

In a February 12, 1996, sworn interview regarding Defendant's application, an Immigration and Naturalization Service ("INS")*fn1 Officer asked Defendant whether he had ever been arrested by the police. Defendant advised that in addition to the 1988 arson no contest plea described above, he had been arrested and convicted in 1993 for selling merchandise without a license. (UMF Nos. 16-18.) He disclosed no other criminal history. UMF No. 19.) Defendant's immigration application form was amended to add the information as to the 1993 arrest and Defendant signed it certifying under penalty of perjury that its contents were true and correct. (UMF Nos. 16-21.) Defendant again maintains that he merely signed when and where told to do so by his attorney and without having read the contents. (UMF No. 21.)

On February 21, 1996, nine days after the above interview, Defendant appeared in Fresno County, California, Superior Court to respond to felony perjury charges, i.e., violation of California Penal Code Section 118; he was then and there arrested and remanded into custody by order of the court. (UMF Nos. 34-35.) On May 15, 1996, the Fresno County, California, District Attorney filed an amended complaint in Defendant's criminal case charging Defendant with three counts of perjury (alleging criminal acts in 1987, 1990 and 1992) and four felony counts of presenting a false or fraudulent claim for the payment of a loss or injury (three in 1993 and one in 1995) in violation of California Penal Code 550(a)(1). (UMF No. 36; Motion for Summary Judgment ("MSJ"), Ex. 11.)

As noted, Defendant's dispute with the above facts does not relate to whether the events occurred as described by Plaintiff, but rather to Defendant's knowledge of their meaning and effect and as to the significance of his having certified the truth of the content of his immigration application when, he claims, he was unaware of those contents. The same is not true with regard to the events described in the next paragraph.

On June 6, 1996, Defendant underwent a continued naturalization interview with INS officer John Sturdivant. Officer Sturdivant does not specifically recall the meeting, but declares under penalty of perjury that he is certain he followed his standard practice and asked Salama under oath if he had been arrested or appeared in court at any time subsequent to the February 12, 1996, INS interview, and Salama answered in the negative. (UMF Nos. 23-25.) In a supplemental declaration, Sturdivant states under penalty of perjury that neither Salama nor his attorney disclosed that Defendant was then under investigation for insurance fraud. (Reply, Ex. B, ECF 36-2.) Sturdivant maintains that had Defendant or his attorney given any indication of any such investigation or of Defendant's February 1996 arrest, he would not have approved Defendant's application for naturalization (as he did), but instead would have continued the matter. (UMF Nos. 26-27.) Defendant disputes this June 1996 scenario. He maintains that the only question he was asked by Sturdivant was whether his address was still current, that his attorney answered two (undisclosed) questions, and then Defendant was told where to sign the application which he did without reading it.*fn2 (UMF Nos. 24-26.)

At or following the June 6, 1996, interview, Defendant was presented with a "Notice of Naturalization Oath Ceremony" form ("oath ceremony form"). It asked whether at any time since his initial naturalization interview Defendant had "...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 any law or ordinance...". (UMF No. 28-29.) Defendant responded to the question by checking the "No" box. (UMF No. 30.) The form was signed by Defendant on July 10, 1996, over a certification that the answers were true and correct. (UMF No. 31.) On August 5, 1996, Defendant presented the oath ceremony form at his naturalization ceremony and received a Certificate of Naturalization. (UMF No. 32.) Again, Defendant does not dispute these facts except insofar as to assert that his attorney, not Defendant, filled out the form and instructed him to sign it without reading it. (UMF Nos. 28, 30-31.)

On November 4, 1996, Defendant pled guilty in Fresno County Superior Court to, and was convicted of, one felony count of presenting a false or fraudulent claim for the payment of a loss or injury during February 1995, and he was sentenced to ninety days incarceration, ordered to pay $10,000 in restitution, and placed on probation for three and one half years. (UMF Nos. 40-42.)

In essence, Plaintiff states as additional undisputed material facts that if Defendant had at any time between his initial February 12, 1996, interview and his August 5, 1996, naturalization ceremony disclosed the February 1995 act of insurance fraud (for which he was later prosecuted and convicted) or his February 21, 1996 court appearance and arrest, he would not have been naturalized. (UMF No. 43.) Defendant 'disputes' these facts but only on the basis of lack of knowledge as to INS's and its agents' practices. (Id.)

III. PLAINTIFF'S CLAIMS

In its motion for summary judgment, Plaintiff asserts multiple grounds for revoking Defendant's naturalization and canceling his Certificate of Naturalization pursuant to 8 U.S.C. § 1451(a):

1.) Defendant illegally procured his naturalization because he was not in fact of the requisite good moral character because he committed felony insurance fraud, a crime involving moral turpitude, during the relevant statutory period;

2.) Defendant illegally procured his naturalization because he was not in fact of the requisite good moral character because by testifying on June 6, 1996, that he had not been arrested or appeared in Court (other than as previously disclosed), he provided false testimony to obtain naturalization.

3.) Defendant procured his citizenship through fraud or concealment in that he did not disclose his February 1995 insurance fraud crime; and,

4.) Defendant procured his citizenship through fraud or concealment in that he did not disclose that on February 21, 1996, he had appeared in court and been arrested and had felony charges pending against him.

IV. DEFENDANT'S RESPONSE TO PLAINTIFF'S CLAIMS

Reduced to barest essentials, Defendant's responses to Plaintiff's claims can be roughly summarized as follows:

1.) Defendant at no time withheld, but instead at all times disclosed to his attorney, all relevant facts and he believed that his attorney had honestly disclosed those facts to INS; he therefore could not be said to have had the willful, subjective intent to deceive, a prerequisite to showing bad moral character by not disclosing relevant facts;

2.) Defendant denies that on June 6, 1996, Sturdivant asked him or his attorney any questions about whether he had been in court or had been arrested creating a bona fide dispute of fact precluding summary judgment on the claim he testified falsely at that time (particularly since Sturdivant does not specifically recall the meeting).

3.) Defendant disputes that he was ever arrested for perjury or insurance fraud (but does not dispute that he appeared in court and ...


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