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United States v. Agyemang

United States District Court, E.D. North Carolina, Southern Division

July 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PREMPEH ERNEST AGYEMANG, Defendant.

          ORDER

          JAMES C. DEVE III Chief United States District Judge

         On March 14, 2017, the United States of America ("United States" or "plaintiff') brought a civil action against Prempeh Ernest Agyemang ("Agyemang" or "defendant") to revoke his naturalization under 8 U.S.C. § 1451(a) [D.E. 1]. On March 19, 2018, the United States moved for summary judgment [D.E. 24], filed a memorandum in support [D.E. 25], and a statement of material facts [D.E. 26]. On April 13, 2018, Agyemang responded in opposition [D.E. 30].[1] On April 27, 2018, the United States replied [D.E. 33]. As explained below, the court grants the government's motion for summary judgment.

         I.

         On June 1, 1960, Agyemang was born in Ghana. See [D.E. 26] 1. On February 4, 1989, Agyemang was first admitted to the United States. See [D.E. 27-4] 1. On February 1, 1995, Agyemang filed an application to adjust status. See [D.E. 27-4]. On June 20, 1995, Agyemang's application was approved, and he became a lawful permanent resident of the United States. See Id. On February 24, 1999, Agyemang filed an application for naturalization in Charlotte, North Carolina. See [D.E. 27-2] 4. The application asked whether Agyemang has ever knowingly committed a crime for which he has not been arrested. See Id. at 3. Agyemang responded "no" to this question. See id

         On June 16, 2000, Agyemang appeared before Officer David Johnson, an Immigration and Naturalization Service ("INS") officer, for an interview concerning his naturalization application. See [D.E. 27-2] 4. At this interview, Agyemang took an oath and affirmed that he would answer the questions truthfully. See Compl. [D.E. 1] ¶ 17; Ans. [D.E. 7] ¶17. Officer Johnson again asked Agyemang whether he ever knowingly committed a crime for which he has not been arrested, and Agyemang responded "no." See Compl. ¶¶ 20-21; Ans. ¶¶ 20-21. At the end of the interview, Agyemang signed the attestation clause in his application for naturalization which stated that he affirmed under the penalty of perjury that the contents of the application were true to the best of his knowledge and belief. See Compl. ¶ 23; Ans. ¶ 23; [D.E. 27-2] 4. On June 21, 2000, Agyemang's naturalization application was granted. See Compl. ¶ 24; Ans. ¶ 24. On November 8, 2000, Agyemang took the oath of allegiance and was granted United States citizenship. See [D.E. 27-9].

         On November 5, 2003, Agyemang pleaded guilty to sexually assaulting his minor stepchild. See [D.E. 27-5]; [D.E. 27-6]; [D.E. 27-7]. Specifically, Agyemang pleaded guilty to two counts of sexual activity by a substitute parent or custodian in violation of N.C. Gen. Stat. § 14-27.7(a) (2003) and one count of taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1. See [D.E. 27-5]; [D.E. 27-6]; [D.E. 27-7] 3.

         II

         Summary judgment is appropriate when the record as a whole reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Ciy. P. 56(a); Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247-48 (1986). The party seeking summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson. 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists. Anderson. 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris. 550 U.S. 372, 378 (2007).

         Section 1451(a) provides for revocation of naturalization and cancellation of the order granting citizenship when "a citizen's naturalization was illegally procured or was procured by concealment of a material fact or by willful misrepresentation." United States v. Teng Jiao Zhou. 815 F.3d 639, 642 (9th Cir. 2016) (quotation and alteration omitted); see 8 U.S.C. § 1451(a). Due to the severe consequences of denaturalization, the government must prove its case by clear, unequivocal, and convincing evidence. See Fedorenko v. United States. 449 U.S. 490, 504 (1981); United States v. Hirani. 824 F.3d 741, 746 (8th Cir. 2016).

         A.

         An individual "illegally procure[s]" citizenship under section 1451(a) when the individual did not meet the statutory requirements to become a naturalized citizen. See Fedorenko. 449 U.S. at 506; Teng Jiao Zhou. 815 F.3d at 643; United States v. Mwalumba. 688 F.Supp.2d 565, 569 (N.D. Tex. 2010). The statutory requirements for naturalization include, among other things, that the individual be of good moral character for the five years immediately preceding the date of filing the application for naturalization until the date the individual takes the oath of citizenship and becomes a United States citizen. See 8 U.S.C. § 1427(a); Teng Jiao Zhou.815 F.3d at 643. Section 1101(f) lists behaviors that prevent an individual from establishing good moral character. See 8 U.S.C. § 1101(f). One such behavior includes giving false testimony in order to obtam immigration benefits. See8U.S.C. § 1101(f)(6). Section 1101(f) also contains a catch-all provision which states that "[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." 8 U.S.C. § 1101(f); see Teng Jiao Zhou. 815 F.3d at 643. Generally, good moral character is evaluated on case-by-case basis. See 8 C.F.R. § 316.10(a). However, an individual who "commits any crime of moral turpitude during the statutory period, for which he is later convicted, is barred from naturalization." United States v. Rubalcava Gonzales. 179 F.Supp.3d 917, 923 (E.D. Mo. 2016); see United States v. Suarez. 664 F.3d 655, 659-61 (7th Cir. 2011) ("[J]f the offense was committed during the statutory period when an applicant must possess good moral character, and the applicant is convicted of that offense, the applicant is statutorily barred from a finding of good moral character no matter when the conviction occurs." (emphasis omitted)); United States v. Jean-Baptiste. 395 F.3d 1190, 1193-94 (11th Cir. 2005); 8 C.F.R. § 316.10(b)(2)(i).

         Agyemang did not meet the statutory requirement of possessing good moral character because Agyemang sexually abused a minor during the statutory naturalization period. Agyemang pleaded guilty to sexual activity by a substitute parent or custodian in violation of N.C. Gen. Stat. § 14-27.7(a) (2003) for the sexual assault he committed against his minor stepchild on April 1, 2000, approximately two months before his naturalization interview and approximately seven months before he was granted citizenship. See [D.E. 27-5]; [D.E. 27-6]; [D.E. 27-7]. Sexual abuse of a minor is a crime of moral turpitude which precludes an individual from establishing good moral character. See Ashcroft v. Free Speech Coalition. 535 U.S. 234, 244-45 (2002); United States v. Santacruz. 563 F.3d 894, 896-97 (9th Cir. 2009); Rubalcava Gonzales. 179 F.Supp.3d at 923-924; United States v. Gavle. 996 F.Supp.2d 42, 49-52 (D. Conn. 2014); United States v. Okeke. 671 F.Supp.2d 744, 749 (D. Md. 2009); United States v. Ekpin. 214 F.Supp.2d 707, 714 (S.D. Tex. 2002). Accordingly, because Agyemang committed a crime of moral turpitude, he was precluded from establishing good moral character.

         Agyemang also gave false testimony concerning his criminal history during his naturalization interview. On June 16, 2000, Agyemang appeared before Officer Johnson for an interview concerning his naturalization application. See [D.E. 27-2] 4. At this interview, Agyemang took an oath and affirmed that he would answer the questions truthfully. See Compl. [D.E. 1] ¶ 17; Ans. [D.E. 7] ¶l 7. Officer Johnson asked Agyemang whether he ever knowingly committed a crime for which he has not been arrested, and Agyemang responded "no." See Compl. ¶¶ 20-21; Ans. ¶¶ 20-21. False testimony or statements "made under oath during the interview portion of the naturalization process constitute' false testimony' within the meaning of section 1101 (f)(6)." United States v. Mejia. No. 3:16-cv-00509-BEN-WVG, 2017 WL 87070, at *3 (S.D. Cal. Jan. 10, 2017) (unpublished); see Kungys v. United States. 485 U.S. 759, 780-81 (1988); United States v. Ahrasheedi. 953 F.Supp.2d 112, 115 (D.D.C. 2013). Accordingly, because Agyemang gave false testimony under oath, he was precluded from establishing good moral character.

         In opposition, Agyemang argues that he did not illegally procure his naturalization, give false testimony, or conceal material facts because the offense that led to his conviction occurred after he acquired citizenship. See [D.E. 31] 4, 8-9. In support, Agyemang cites his plea transcript ...


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