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Yemer v. United States Citizenship and Immigration Services

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

February 12, 2019

ASTER YEMER, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III, United States District Judge

         Plaintiff 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.

         At 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.

         I.

         Summary 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 responses thereto:[1]

• 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 Ababa.[2]
• 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."[3]
• 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 United States?"
• In connection with her application for naturalization, Yemer was interviewed under oath[4] 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.

         Yemer 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 naturalization.

         II.

         The 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.

         III.

         The Immigration and Nationality Act ("IN A") provides for judicial review of the denial of naturalization applications. ...


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