United States District Court, E.D. Virginia, Alexandria Division
Ellis, III, United States District Judge
Aster Yemer, an Ethiopian citizen who has resided in the
United States since November 2009, initiated this action
pursuant to 8 U.S.C. § 1421(c), challenging the United
States Citizenship and Immigration Service's
("USCIS") denial of her naturalization application.
Yemer contends the denial was improper because USCIS
erroneously concluded that Yemer was not lawfully admitted
for permanent residence. USCIS responds that its conclusion
was correct and that Yemer's application fails for the
additional reason that Yemer cannot establish that she has
good moral character.
issue now are the parties' cross-motions for summary
judgment. The parties, by counsel, have fully briefed and
argued the motions, and they are now ripe for disposition.
For the reasons set forth herein, USCIS's motion must be
granted and Yemer's motion must be denied.
judgment is appropriate only where there are no genuine
disputes of material fact, Fed.R.Civ.P. 56. Accordingly, the
record facts as to which no genuine dispute exists must first
be identified. The following undisputed facts are derived
from the parties' respective factual narratives and their
• Yemer is a native and citizen of Ethiopia.
• Yemer gave birth to a daughter, E. Y.B., in Addis
Ababa, Ethiopia in 1999. Yemer was not married to
E.Y.B.'s father. As is customary in Ethiopia when a child
is born to unwed parents, Yemer's mother cared for E.Y.B.
Yemer, Yemer's mother, and E.Y.B. lived together in Addis
• In late 2008, Yemer submitted an electronic entry for
the Diversity Immigration Visa Program ("DV
program"). Yemer did not include E.Y.B. on her
Electronic Diversity Entry Form ("eDV Form").
• Yemer was selected by lottery for further processing
in the DV program, and she completed a DS-230 Visa
Application, Application for Immigrant Visa and Alien
Registration, ("Form DS-230") in June 2009. In
response to the question instructing Yemer to "List
Names, Dates and Places of Birth, and Addresses of ALL
Children," Yemer wrote "NA."
• In connection with the process of submitting Form
DS-230, Yemer was placed under oath and interviewed by a
consular official in Ethiopia on November 4, 2009. During the
interview, Yemer stated that she did not have any children.
She also swore that "all statements which appear in [her
DS-230]... are true and complete to the best of [her]
knowledge and belief."
• The Department of State granted Yemer a diversity
immigrant visa, and Yemer was admitted into the United States
as a lawful permanent resident on November 28, 2009.
• On May 13, 2015, Yemer, seeking to become a United
States citizen, filed a Form N-400, Application for
Naturalization, with USCIS. Form N-400 instructed Yemer to
list all children, and Yemer listed E.Y.B. Additionally,
Yemer responded "no" to the following two
questions: (i) "Have you ever given any
U.S. Government official(s) any information or documentation
that was false, fraudulent, or misleading?" and (ii)
"Have you ever lied to any U.S.
Government official to gain entry or admission into the
United States or to gain immigration benefits while in the
• In connection with her application for naturalization,
Yemer was interviewed under oath on September 1, 2015. The
USCIS official asked Yemer whether she (i) had ever given a
United States government official information or
documentation that was false, fraudulent. or misleading or
(ii) had ever lied to any U.S. government official to gain
entry or admission into the United States or to gain
immigration benefits while in the United States. Yemer orally
answered "no" to both questions. Yemer also
confirmed that she knew that E.Y.B. was her daughter when she
filled out Form DS-230 in 2009 and that she has always known
her daughter. Finally, Yemer, under oath, confirmed that the
contents of her Form N-400 were "true and correct."
• USCIS sent Yemer a letter on March 7, 2016 denying her
naturalization application because she was not lawfully
admitted for permanent residence. USCIS reaffirmed its
decision to deny Yemer's naturalization application on
February 9, 2018 following a hearing.
subsequently brought this action seeking de nova
review of her naturalization application. In her motion for
summary judgment, Yemer requests remand to USCIS with
instructions to grant her naturalization application. USCIS
opposes this relief and, in its cross-motion for summary
judgment, seeks a finding that Yemer is not eligible for
summary judgment standard is too well settled to require
extensive elaboration. In essence, summary judgment is
appropriate under Rule 56, Fed. R. Civ. P., only where
"the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." A genuine factual dispute exists
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
making this determination, the court must "view the
facts and draw all reasonable inferences in the light most
favorable to the non-moving party." Glynn v. EDO
Corp., 710 F.3d 209, 213 (4th Cir. 2013). Importantly,
however, the non-movant may not rely on "mere
allegations." Id. (citation omitted). Instead,
the non-movant "must set forth specific facts that go
beyond the mere existence of a scintilla of evidence."
Id. (internal quotation marks and citation omitted).
Given these principles, it is clear the material facts
supporting summary judgment are undisputed and require that
USCIS's motion for summary judgment be granted.
Immigration and Nationality Act ("IN A") provides
for judicial review of the denial of naturalization