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Hussein v. Barrett

United States District Court, N.D. California

March 27, 2017

SAMEH HUSSEIN, Plaintiff,
v.
ROBIN BARRETT, et al., Defendants.

          ORDER RE: ECF NOS. 67, 89, 90

          JON S. TIGAR United States District Judge

         Sameh 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 character.

         I. BACKGROUND

         Following 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 perjury. Id.

         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.

         After 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.

         II. LEGAL STANDARD

         In 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. § 316.2(b)).

         Section 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.

         An 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).

         III. ANALYSIS

         On remand, the government argues that Mr. Hussein committed three unlawful acts during the statutory period:[1] (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.[2] 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.

         Mr. 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.” Id.

         The 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.

         A. Unlawful Acts

         1. Perjury and/or Attempted Perjury under California Law

         First, 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.

         “Under 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 ...


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