United States District Court, N.D. California
ORDER RE: ECF NOS. 67, 89, 90
TIGAR United States District Judge
Hussein seeks de novo review of the denial of his
application for naturalization filed November 2, 2011,
pursuant to 8 U.S.C. § 1421(c). This case is now before
the Court on remand from the Court of Appeals, which set
aside this Court's judgment and remanded for further
proceedings. ECF No. 67. Having considered the Court of
Appeals' opinion and the parties' post-remand
briefing, the Court will deny the petition because Petitioner
has failed to satisfy his burden of establishing good moral
a trial on the merits, this Court denied Petitioner Sameh
Hussein's petition seeking de novo review of the
United States Citizenship and Immigration Services'
(“USCIS”) denial of his naturalization
application. ECF No. 63. The basis for this Court's
denial was its conclusion that Mr. Hussein failed to satisfy
the good moral character requirement. Id. The Court
found that Mr. Hussein lied under oath about his marital
status during a custody proceeding in the Sacramento Superior
Court because he thought the misrepresentation would benefit
him in that dispute. Id. The Court also found that
Mr. Hussein repeatedly lied to law enforcement officials
about his marital status for the same reason. Id.
Based on these misrepresentations, the Court concluded that
Mr. Hussein had committed an unlawful act (perjury) that
adversely reflected on his moral character. Id. The
Court also noted that Mr. Hussein had not submitted any
evidence of extenuating circumstances that would justify the
Court of Appeals subsequently held that this Court erred in
two respects: first, by failing to make specific findings as
to whether Mr. Hussein's false statement to the
Sacramento Superior court was material to the custody
proceedings, and second, by failing to consider all relevant
factors regarding Mr. Hussein's moral character. ECF No.
67. With respect to the first error, the Court of Appeals
noted that Mr. Hussein's false statement to the
Sacramento Superior Court could not be perjurious if it was
not material to the custody proceeding. Id. With
respect to the second error, the Court of Appeals held that
commission of an unlawful act under 8 C.F.R. §
316.10(b)(3)(iii) is not a per se bar to
naturalization, and therefore this Court was required to
consider all evidence relevant to Mr. Hussein's moral
character, including any counterbalancing factors.
Id. The Court of Appeals vacated the order lie
denying Mr. Hussein's naturalization application and
remanded to this Court for further proceedings. Id.
remand to this Court, the parties agreed that no factual
issues are in dispute and that no additional discovery is
needed. ECF No. 84. Each party submitted a post-trial brief
and a reply in which they addressed the remaining legal
issues. ECF Nos. 89˗92.
order to become a naturalized citizen, an applicant must
demonstrate that they satisfy the statutory criteria of the
Immigration and Naturalization Act, including the requirement
that the applicant “has been and still is a person of
good moral character” during the statutorily defined
period of residency. 8 U.S.C. § 1427(a); United
States v. Dang, 488 F.3d 1135, 1138-39 (9th Cir. 2007).
The statutory period for good moral character begins five
years before the naturalization application is filed and
continues until the applicant becomes a U.S. citizen. 8
U.S.C.A. § 1427(a)(3). An applicant “bear[s] the
burden of establishing by a preponderance of the evidence
that he or she meets all of the requirements for
naturalization.” United States v. Hovsepian,
359 F.3d 1144, 1168 (9th Cir. 2004) (quoting 8 C.F.R. §
1101(f) governs the determination of good moral character.
See 8 U.S.C. § 1101(f). The statute lists
specific characteristics that preclude a finding of good
moral character and act as a per se bar to
naturalization. 8 U.S.C. § 1101(f); Torres-Guzman v.
INS, 804 F.2d 531, 533 (9th Cir. 1986). The statute also
contains the following “catch-all” provision:
“The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for other
reasons such person is or was not of good moral
character.” 8 U.S.C. § 1101(f); Dang, 488
F.3d at 1139. “If the person has not committed acts
bringing them within the enumerated categories, and instead,
the question is whether the person meets the catch-all
provision, the adjudicator must consider all of the
petitioners' evidence on factors relevant to the
determination of good moral character.” ECF No. 67
(citing Torres-Guzman, 804 F.2d at 534) (explaining
that the fact finder must “weigh and balance the
favorable and unfavorable facts or factors, reasonably
bearing on character, that are presented in evidence”).
Those factors include education, family background,
employment history, financial status, and lack of criminal
record. Id. at 533.
agency regulation, Section 316.10, also offers
“guidance to officials making moral character
determinations.” Dang, 488 F.3d at 1139; 8
C.F.R. § 316.10. That regulation provides that moral
character determinations are made “on a case-by-case
basis taking into account the elements enumerated in this
section and the standards of the average citizen in the
community of residence.” Id. §
316.10(a)(2). That regulation further provides that,
“[u]nless 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 . . .
” 8 C.F.R. § 316.10(b)(3).
remand, the government argues that Mr. Hussein committed
three unlawful acts during the statutory
period: (1) perjury and/or attempted perjury under
California law; (2) making a false statement to the police in
violation of the Elk Grove Municipal Code; and (3) perjury
under federal law. ECF No. 91 at 22. The government also contends
that each of these unlawful acts adversely reflects adversely
on Mr. Hussein's moral character, that there are no
extenuating circumstances that lessen his guilt, and that
positive factors related to Mr. Hussein's moral character
do not outweigh these unlawful acts.
Hussein responds that he did not commit any of these unlawful
acts and/or that the laws prohibiting the alleged conduct are
unconstitutionally vague and overbroad. ECF No. 90 at
8˗23. Even if he did commit an unlawful act, he argues
that “it is clearly explained by the extenuating
circumstances and does not adversely reflect on his moral
character.” ECF No. 92 at 5. Mr. Hussein also contends
that, “[a]fter considering the extenuating
circumstances and weighing them along with the positive
factors in this case, it is clear that [he] has established
that he is a person of good moral character.”
Court now addresses whether Mr. Hussein has committed any
unlawful acts that adversely reflect on his moral character,
whether any extenuating circumstances mitigate Mr.
Hussein's guilt for those unlawful acts, and whether
favorable factors related to Mr. Hussein's moral
character outweigh those unlawful acts.
Perjury and/or Attempted Perjury under California
the government argues that Mr. Hussein committed perjury
and/or attempted perjury under California law when he lied
about his marital status in a sworn declaration submitted to
the Sacramento Superior Court during a custody dispute. ECF
No. 89 at 8˗12.
California law, the elements of perjury are: ‘a willful
statement, under oath, of any material matter which the
witness knows to be false.'” Chein v.
Shumsky, 373 F.3d 978, 983-84 (9th Cir. 2004) (quoting
Cabe v. Sup. Ct., 63 Cal.App.4th 732 (1998)); Cal.
Penal Code § 118(a). A statement is material if it
“could probably have influenced the outcome of the
proceedings.” Chein, 373 F.3d at 984 (internal
quotation marks omitted). “[W]hen applying the
materiality test, California law focuses not on whether, as a
matter of historical fact, the false statement probably did
influence the ...