Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Asrat v. Barr
United States District Court, E.D. Virginia, Alexandria Division
August 13, 2019
TAMRAT ASRAT, Plaintiff,
WILLIAM BARR, Attorney General of the United States, et al., Defendants.
Ellis, III United States District Judge.
a national and citizen of Ethiopia, brings this action
pursuant to 8 U.S.C. § 1421(c), challenging the United
States Citizenship and Immigration Service's
("USCIS") denial of his naturalization application.
Specifically, plaintiff contends the denial was improper
because USCIS erroneously concluded that plaintiff was never
lawfully admitted for permanent residence in the United
States. In response, defendants argue that USCIS was correct
to conclude that plaintiff was never lawfully admitted for
permanent residence and that plaintiffs application fails for
the additional reason that plaintiff cannot establish that he
is a person of good moral character.
issue in this matter are the parties' cross-motions for
summary judgment. The motions have been fully briefed and
argued and are thus ripe for disposition. For the reasons
that follow, defendants' motion for summary judgment must
be granted and plaintiffs motion for summary judgment must be
judgment is appropriate only where there are no genuine
disputes of material fact. Rule 56, Fed.R.Civ.P. Accordingly,
the material record facts as to which no genuine dispute
exists must first be identified. The following undisputed
material facts are derived from the parties' respective
lists of undisputed material facts.
• Plaintiff is a national and citizen of Ethiopia.
• On September 6, 2002, plaintiff filed an application
for asylum (Form 1-589) in the United States. In the
application, plaintiff represented that he first entered the
United States on September 1, 2001 by unlawfully crossing the
Mexican-American border without inspection near San Diego,
California. Plaintiff sought asylum on the basis of his
alleged political opinion and membership in a particular
social group in Ethiopia, the Ethiopian Democratic Party
• On May 29, 2003, Immigration and Naturalization
Service ("INS") officials interviewed plaintiff
regarding his asylum application. After the interview, INS
officials rejected the application based on their conclusion
that plaintiff had filed his asylum application more than one
year after entering the United States.
• On June 10, 2003, INS filed with the Immigration Court
and issued to plaintiff a Notice to Appear, which charged
plaintiff with removal on the ground that he was present in
the United States without having been admitted or paroled and
commenced removal proceedings against plaintiff in the
Immigration Court located in Baltimore, Maryland ("the
• On May 9, 2005, Immigration Judge Dufresne issued an
oral decision and written order denying plaintiffs asylum
application as untimely and thus barred. In addition, the
Immigration Judge ordered plaintiff removed from the United
States to Ethiopia.
• On June 8, 2005, plaintiff filed a motion to reopen
his removal proceedings. The Immigration Judge granted the
motion and set a hearing for March 21, 2006 to address the
merits of plaintiff s asylum application.
• On March 21, 2006, after hearing testimony from
plaintiff and other witnesses, Immigration Judge Dufresne
issued a detailed oral decision denying plaintiffs asylum
application on two grounds. First, the Immigration Judge
affirmed her prior conclusion that plaintiff filed his asylum
application beyond the one-year statutory limitations period,
which rendered the application time-barred. Second, the
Immigration Judge denied plaintiffs asylum application on the
merits, finding (i) that plaintiff had not adduced sufficient
credible evidence that he would be subject to persecution in
Ethiopia and (ii) that plaintiff had knowingly filed a
frivolous asylum application. Accordingly, the Immigration
Judge ordered plaintiff removed to Ethiopia.
• On March 31, 2006, plaintiff noticed an appeal of the
Immigration Judge's removal order to the Board of
Immigration Appeals ("BIA").
• On November 1, 2006, plaintiff married a United States
citizen named Dejene Madhanit Metaferia. On December 7, 2006,
Metaferia filed a Petition for Alien Relative (Form I-130)
with USCIS on plaintiffs behalf, seeking to have plaintiff
classified as her spouse for immigration
purposes. USCIS approved Metaferia's petition on
April 30, 2008.
• On August 19, 2008, plaintiff transmitted an
application to adjust his status to lawful permanent resident
(Form 1-485) to USCIS based on the approval of
Metaferia's alien relative petition. Plaintiff also
filed a motion with the BIA, requesting that his removal
proceedings be remanded to the Immigration Court in light of
the approval of Metaferia's alien relative petition. The
BIA granted plaintiff's motion, and on November 25, 2008,
plaintiff filed his adjustment application in the Immigration
Court. Importantly, the BIA did not address or adjudicate the
Immigration Court's frivolousness finding on appeal.
• On January 27, 2009, Immigration Judge Dufresne held a
hearing in plaintiffs remanded removal proceedings. The
Immigration Judge continued the hearing and stated that
further proceedings in Immigration Court would focus on
whether the application for adjustment of status should be
denied based on Judge Dufresne's previous finding that
plaintiff had knowingly filed a frivolous asylum application,
• On September 21, 2011, the Immigration Court, through
another Immigration Judge, denied plaintiffs adjustment of
status application. Specifically, the Immigration Judge held:
IT IS HEREBY ORDERED that the application for adjustment of
status is denied inasmuch as the previous order of Judge
Dufresne finding that the application for asylum filed by
[plaintiff] was one in which he knowingly filed a frivolous
application. That being the case, the Court cannot approve an
application for adjustment because the finding of knowingly
filing a frivolous claim for asylum would bar [plaintiff]
forever from getting any kind of visa.
AR947-48. The Immigration Judge also ordered
plaintiff removed to Ethiopia.
• Plaintiff noticed a timely appeal of the Immigration
Judge's September 21, 2011 order to the BIA.
• On December 18, 2012, while plaintiffs second BIA
appeal remained pending, USCIS transmitted to plaintiff a
Notice of Action (Form 1-797) indicating that his application
for adjustment of status had been approved. This notice was
transmitted even though (i) plaintiff remained in removal
proceedings at the time and (ii) an Immigration Judge had
denied plaintiffs application for adjustment of status based
on Immigration Judge Dufresne's frivolousness finding.
USCIS also transmitted to plaintiff a "permanent
resident card" (Form 1-551), which stated that plaintiff
had been a permanent resident of the United States since
September 21, 2011-the exact date on which the Immigration
Court denied plaintiffs application for adjustment
• Plaintiff then filed a motion for voluntary dismissal
of his pending BIA appeal, which the BIA granted on January
• On July 18, 2016, plaintiff filed an application to
become a naturalized citizen of the United States (Form
N-400). The application required plaintiff to answer a series
of questions, including: "34. Have you ever been ordered
removed, excluded, or deported from the United States"
and "35. Have you ever been placed in removal,
exclusion, or deportation proceedings." Plaintiff
answered "No" to both questions 34 and 35.
Plaintiff signed the application, certifying under penalty of
perjury under the laws of the United States of America that
his application was true and correct.
• USCIS interviewed plaintiff on his naturalization
application on February 23, 2017. At the interview, plaintiff
again signed the application in the presence of USCIS Officer
Minah Loo, "certify[ing] under penalty of perjury under
the laws of the United States of America that [plaintiff]
know[s] that the contents of this Form N-400, Application for
Naturalization, subscribed by me ... are true and
correct." AR1434. In addition, after placing plaintiff
under oath, Officer Loo asked plaintiff to confirm orally
certain written answers that he provided in his application,
including questions 34 and 35. Plaintiff orally confirmed his
response of "No" to both questions 34 and 35. Both
answers were false.
• On March 3, 2017, USCIS issued a detailed decision
denying plaintiffs application for naturalization.
o The USCIS decision recounted the procedural history of
plaintiffs removal proceedings. In pertinent part, USCIS
noted that (i) in March 2006, an Immigration Judge ordered
that plaintiff be removed to Ethiopia and found that
plaintiff knowingly filed a frivolous asylum application
after proper notice of the consequences of doing so and (ii)
in September 2011, an Immigration Judge denied plaintiffs
application for adjustment of status and held that the
Immigration Court could not approve an application for
adjustment of status because the finding that plaintiff
knowingly filed a frivolous asylum application barred
plaintiff forever from obtaining any kind of visa.
o USCIS concluded that "despite the clear language in
the order of the Immigration Judge, a USCIS error resulted in
the production of your Permanent Resident Card without an
approved adjustment of status application." AR1408-09.
Based on this conclusion, USCIS held that plaintiff was
ineligible for naturalization because he "never obtained
lawful permanent resident status." AR1410. Instead,
USCIS explained, plaintiffs adjustment application "was
denied by an Immigration Judge on September 21, 2011,"
and plaintiffs "Permanent Resident Card was issued in
error based on a negligent mistake of USCIS."
• Plaintiff noticed a timely administrative appeal (Form
N-336) of USCIS's initial denial of his ...
Buy This Entire Record For