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Hassan v. Johnson

United States District Court, E.D. Virginia, Alexandria Division

February 20, 2015

JEH CHARLES JOHNSON, Secretary of Homeland Security, and SARAH TAYLOR, District Director, USCIS Washington District Office, Defendants

For Amin Mohamed Basher Hassan, Plaintiff: Stanton Braverman, LEAD ATTORNEY, Braverman & Lin PC, Arlington, VA.

For Jeh Charles Johnson, Secretary of Homeland Security, Sarah Taylor, District Director USCIS Washington District Office, Defendants: Jill Amy Weissman, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.

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Leonie M. Brinkema, United States District Judge.

Petitioner Amir Mohamed Basher Hassan (" petitioner" or " Hassan" ),[1] an Egyptian national, has filed a motion for summary judgment in which he seeks an order reversing the decision of the U.S. Citizen and Immigration Services (" USCIS" or the " agency" ), which denied his naturalization application. The USCIS has filed its own motion for summary judgment seeking an affirmance of its decision.[2] Hassan has properly exhausted his administrative remedies, making the issues in the parties' motions ripe for adjudication. For the reasons discussed briefly in open

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court and in more detail below, the defendants' motion for summary judgment will be granted and petitioner's motion will be denied.


A. Stipulated Facts

Hassan is a citizen of Egypt who first entered the United States in 1999, Stip. Facts ¶ 1, as a nonimmigrant visitor for business, Pet., Ex. 4 at 2. He married a United States citizen, Debra Horn-Hassan (" Ms. Horn-Hassan" ), on January 21, 2003, in Maryland and they subsequently moved to Virginia.[3] Stip. Facts ¶ 2. Hassan became a lawful permanent resident (" LPR" ) of the United States on October 19, 2004, based on his wife's American citizenship. Id. ¶ 3. Both Hassan and Ms. Horn-Hassan are members of the Muslim faith and had planned to raise a family together, but they were unable to conceive a child. Pet. ¶ 8.

While visiting his family in Egypt, Hassan's family encouraged him to seek a second wife, as allowed under Egyptian law, in order to have children. Id. Hassan consulted with his American wife, who agreed to the second marriage. Id. On October 18,2007, Hassan married his second wife, Suhila Fatju Arby Hamid (" Ms. Hamid" ), in Egypt. Stip. Facts ¶ 4. They continue to be married, and they have three children together, all of whom live with their mother in Egypt.[4] Id. ¶ 5; Pet., Ex. 2 at 6. Hassan maintained relationships with both spouses by spending most of his time in the United States, although he visited Egypt five times between October 10,2007, and June 3, 2012, for a total of 515 days. See Pet. ¶ 8; Pet., Ex. 2 at 4 (listing Hassan's travel outside of the United States). The record also shows that Ms. Horn-Hassan moved out of the marital home one week after Hassan returned in January 2008 after his marriage in Egypt. See Pet. ¶ 8; Pet., Ex. 4 at 2. They divorced on March 19, 2012. Stip. Facts ¶ 6.

B. USCIS Decisions

Hassan applied for naturalization on June 6, 2012, truthfully disclosing on his application that he had previously been married to two women concurrently. Stip. Facts ¶ ¶ 7-8. He attached a letter to his application stating that when he married Ms. Hamid, he did not intend to bring her or any children they would have together to the United States but that he might decide to bring them to the United States in the future now that he was divorced from Ms. Horn-Hassan. Id. ¶ 8 (citing Pet., Ex. 2, Addendum).

His application was denied by the USCIS Washington District Office on May 30, 2013, on the ground that he had " engaged in a polygamous marriage" within the five-year statutory period,[5] which adversely reflected

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upon his moral character. Pet., Ex. 3 at 2 (initial denial letter). The denial letter explained:

Polygamy is the practice or condition of having more than one spouse, especially wife, at one time. An applicant who has practiced polygamy or is practicing polygamy during the statutory period is precluded from establishing GMC [good moral character].

Id. In support, the letter cited to § 101(f) of the Immigration and Nationality Act (" INA" )[6] and 8 C.F.R. § 316.10(b)(2)(ix).[7]

On June 28, 2013, Hassan requested a hearing on the initial denial of his application. A hearing was held in October 2013, after which the USCIS affirmed the denial of his application in a decision dated November 18, 2013. Stip. Facts ¶ 10 (citing Pet., Ex. 4). The decision mainly rested on Hassan having engaged in a polygamous marriage during the five-year period and stated that polygamy was against the public policy of the United States. See Pet., Ex. 4 at 3-4 (letter affirming the denial on appeal). The USCIS highlighted that Hassan had not presented any evidence that attitudes in the United States towards polygamy had changed or that polygamous marriages had become commonly accepted either in the United States or in Hassan's Northern Virginia community. Id. at 4. Moreover, the decision described bigamy as a crime in 49 states--including Virginia--and the District of Columbia.[8] Id. To rebut Hassan's argument that his conduct did not actually violate Virginia's law against bigamy because he neither married nor resided with Ms. Hamid in Virginia, the USCIS decision quoted case law from the Supreme Court of Virginia holding that neither the place of the second marriage nor the place of cohabitation is an element of the offense of bigamy. Id. at 3 (quoting Farewell v. Commonwealth, 167 Va. 475, 189 S.E. 321, 323 (Va. 1937)).

Finally, after explaining that the INA " sets forth a list of categories of persons who are statutorily barred from establishing good moral character," the USCIS decision emphasized that " the practice of polygamy" is explicitly listed in INA § 101(f)(3) as a statutory bar to a finding of good moral character and that 8 C.F.R. § 316.10(b) implements this prohibition. Id. at 4-5. The USCIS concluded its polygamy discussion with, " regardless of whether practiced abroad or in the United States, polygamy ...

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