United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United State District Judge
Kofi Annan (the "plaintiff) has appealed the decision of
the United States Citizenship and Immigration Services
("USCIS") denying his application for
naturalization.The parties have filed cross-motions
for summary judgment. See [Doc. Nos. 10, 12]. On
March 31.2016. the Court held a hearing on the motions and
took the matter under advisement.
reasons stated herein, the Court finds that under the
doctrine of comity, as articulated by the Supreme Court of
Virginia, the Commonwealth of Virginia would recognize the
Ghanaian divorce decree terminating the Ghanaian marriage
between Mary Yaa Obeng ("Obeng") and her previous
husband, Adinkrah Kwasi Boampong ("Boampong"), and
would therefore recognize the validity of the subsequent
Virginia marriage between plaintiff and Obeng. Accordingly,
the Court concludes that USCIS erred as a matter of law when
it denied plaintiffs application for naturalization on the
grounds that Virginia would not recognize Obeng's divorce
from Boampong and that Obeng's subsequent marriage to
plaintiff was therefore invalid. Accordingly, the Court
further concludes that USCIS erred as a matter of law when it
decided that because plaintiff obtained his permanent
residence status through an invalid marriage to Obeng.
plaintiff was never "lawfully admitted to the United
States for permanent residence" and was therefore
ineligible for naturalization. See 8 U.S.C. §
1429. Plaintiff's Motion for Summary Judgment [Doc. No.
10] will therefore be GRANTED, defendants' Motion for
Summary Judgment [Doc. No. 12] DENIED, and this case REMANDED
to USCIS for further proceedings consistent with these
otherwise indicated, the following facts are
is a native and citizen of Ghana. On June 11, 1995, plaintiff
entered the United States on a three-month visitor's
visa. On September 27, 1995, plaintiff married A.W. in
Manassas, Virginia. Plaintiff and A.W. separated in April
1996 and finalized their divorce before the Prince William
County Circuit Court on December 21, 1999.
is a native of Ghana. On August 20, 1992, Obeng entered into
a customary Ghanaian marriage with Boampong. The marriage was
arranged through Obeng's parents and Boampong's
mother, and was finalized and celebrated in accordance with
tribal custom. They continued to live in Ghana as
husband and wife until 1997, when Boampong received a United
States immigrant visa through the Diversity Immigrant Visa
Program, and he and Obeng moved to Woodbridge, Virginia.
Obeng became a lawful permanent resident of the United States
on May 3, 1997, through her husband's "diversity
Obeng and Boampong separated and initiated divorce
proceedings, which, also in accordance with tribal custom,
involved arranging for a divorce through Boampong's
mother (Ernestina Gyamfuah) and Obeng's father (Albert
Lawson), who by affidavits dated October 18.1999 represented
that on August 6, 1998, the marriage was "customarily
dissolved due to misunderstanding." See [Doc.
No. 1-5]. Those affidavits were submitted to the Circuit
Court of Ghana (Accra) in support of a joint motion, entitled
"Motion Ex-Parte for Grant of Confirmation of
Dissolution of Customary Marriage between Mary Obeng and
Adinkrah Kwasi Boampong." [Id. at 1]. On
October 19, 1999, the Circuit Court in Accra, Ghana,
exercising personal jurisdiction over its citizens according
to Ghanaian law, confirmed the dissolution of that marriage
by formal decree. [Id. at 4]. Neither Obeng nor
Boampong personally appeared in Ghana during these
and Obeng married on January 16, 2001 in Prince William
County, Virginia. That union has produced six children, none
of which have reached the age of majority, and the parties
have maintained a common and continuous residence in Virginia
throughout their marriage. On February 16, 2001, Obeng filed
a Petition for Alien Relative (Form 1-130) requesting the
issuance of an immigrant visa for plaintiff. In connection
with that petition, Obeng submitted the Order issued by the
Circuit Court of Accra, Ghana, which granted the motion filed
by Albert Lawson and Ernestina Gyamfuah, requesting
confirmation of the valid dissolution of the marriage between
Obeng and Boampong. On July 23, 2003, during the pendency of
Obeng's 1-130 petition, plaintiff filed an Application to
Register Permanent Residence or Adjust Status (Form 1-485).
USCIS approved Obeng's 1-130 petition on September 13,
2004 and approved plaintiffs 1-485 application on May 18,
27, 2014, plaintiff filed an application for naturalization
(Form N-400) and was interviewed by USCIS with respect to
that application on September 11, 2014. On December 8, 2014,
USCIS issued its initial determination, which concluded that
plaintiff was not eligible for naturalization because he was
not lawfully admitted for permanent residence in 2005.
Specifically. USCIS determined that because neither Obeng nor
Boampong was domiciled in Ghana at the time of their
divorce-and because Virginia would not recognize a divorce
obtained through their parents-Obeng's subsequent
marriage to plaintiff was void. See [Doc. No. 1, Ex.
C]. For this reason, USCIS concluded that because Virginia
would not recognize the termination of Obeng's prior
marriage, her marriage to plaintiff in Virginia was invalid
for immigration purposes. [Id. at 3] (citing Va.
Code Ann. § 20-43).
February 4, 2015, plaintiff administratively appealed
USCIS' initial determination by filing a Request for a
Hearing on a Decision in Naturalization Proceedings (Form
N-336). On July 24. 2015, after a hearing on April 16, 2015,
USCIS affirmed its initial determination that plaintiff was
ineligible for naturalization because he was unable to
establish that he was lawfully admitted for permanent
residence, relying specifically on Jahed v. Acri,
468 F.3d 230 (4th Cir. 2006).
STANDARD OF REVIEW
judgment is appropriate where the record demonstrates
"that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.'" Fed.R.Civ.P. 56(a). By statute, the
Court's review of USCIS' decision "shall be de
novo, and the court shall make its own findings of fact and
conclusions of law and shall, at the request of the
petitioner, conduct a hearing de novo on the
application." 8 U.S.C. § 1421(c).
reviewing decisions rendered by USCIS, the district court
must recognize that "[a]n applicant seeking to obtain
the privilege of United States citizenship bears the burden
of proof to establish that he or she is eligible for
naturalization." Nesari v. Taylor, 806
F.Supp.2d 848, 862 (E.D. Va. 2011). This burden applies to
all eligibility requirements "and when doubts exist...
they should be resolved in favor of the United States and
against the claimant." United States v. Manzu
276 U.S. 463, 467 (1928); see also INS v.
Pangilinan, 486 U.S. 875, 886 (1988) ("it has been
universally accepted that the burden is on the alien
applicant to show his eligibility for citizenship in every
respect"). Accordingly, "[c]ourts have the power to
confer citizenship only 'in strict compliance with the
terms of an authorizing statute."' Cody v.
Casterisano, 631 F.3d 136. 142 (4th Cir. 2011) (quoting
Pangilinan, 486 U.S. at 884).
order to be eligible for naturalization, an applicant must
demonstrate that "he has been lawfully admitted to the
United States for permanent residence in accordance with all
applicable provisions of the [INA]." 8 U.S.C. §
1429. "The term 'lawfully admitted for permanent
residence' means the status of having been lawfully
accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration
laws." Id. § 1101 (a)(20). The Board of
Immigration Appeals ("BIA") has also established
that "an alien who acquires permanent resident status
through fraud or misrepresentation has not made a lawful
entry." in re Koloamatangi, 23 I. & N. Dec.
548, 549 (BIA 2003) (citing Matter of T-, 6 I. &
N. Dec. 1136 (BIA. A.G. 1954)). Importantly, "[t]he BIA
has applied this standard not only to fraud cases, but also
to instances in which the alien obtained permanent resident
status as a result of a negligent mistake by the
Government." Koszelnik v. Sec 'y o/DHS, No.
14-4816, 2016 WL 3648369, at *3 (3d Cir. July 8, 2016);
see also Injeti v. USCIS, 737 F.3d 311, 316 (4th
Cir. 2010) ("The BIA has applied this
'non-fraud' doctrine in other cases, ranging from
where a petitioner has obtained LPR status through the fraud
of third parties to those where a petitioner has received LPR
status due to an administrative oversight.").
recognized by the Fourth Circuit, "in the immigration
context, the validity of a prior divorce is addressed to
determine whether a subsequent marriage is lawful... [and] in
such situations, the BIA 'look[s] to the law of the state
where the subsequent marriage was celebrated to determine
whether or not that state would recognize the validity of the
divorce.'" Jahed, 468 F.3d at 235
(citations omitted) (quoting Matter of Hosseinian,19 I. & N. Dec. 453, 455 (BIA 1987)). As discussed below,
the doctrine of comity as applied in Virginia effectively
determines whether ...