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Annan v. Lynch

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

August 23, 2016

PETER KOFI ANNAN, Plaintiff,
v.
LORETTA LYNCH, Attorney General of the United States of America, et al., Defendants.

          MEMORANDUM OPINION

          Anthony J. Trenga United State District Judge

         Peter Kofi Annan (the "plaintiff) has appealed the decision of the United States Citizenship and Immigration Services ("USCIS") denying his application for naturalization.[1]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.

         For the 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 rulings.

         I. BACKGROUND

         Unless otherwise indicated, the following facts are undisputed.[2]

         Plaintiff 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.

         Obeng 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.[3] 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 immigrant" status.[4]

         Thereafter, 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 proceedings.

         Plaintiff 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.[5] 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, 2005.

         On May 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).

         On 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).[6]

         II. STANDARD OF REVIEW

         Summary 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).[7]

         When 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).

         In 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.").

         As 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 ...


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