United States District Court, E.D. North Carolina, Southern Division
C. DEVE III Chief United States District Judge
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]. On April 27, 2018, the United States
replied [D.E. 33]. As explained below, the court grants the
government's motion for summary judgment.
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
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].
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.
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
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).
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).
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
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
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 ...