United States v. Phattey

          ORDER AND OPINION [RE: MOTIONS AT DOCS. 23 AND 25]

          JOHN W. SEDWICK SENIOR JUDGE.

         I. MOTIONS PRESENTED

         At docket 23 defendant Phoday Baba Phattey, a/k/a Foday Fatty (“Fatty”), moves for summary judgment. The motion is supported by a memorandum at docket 24. At docket 25 the United States of America (“the United States”) opposes the motion and cross moves for summary judgment. At docket 26, Fatty opposes the United States' motion and replies in support of his motion. The United States replies at docket 27. Oral argument was not requested and would not assist the court.

         II. BACKGROUND

         The United States seeks to denaturalize Fatty pursuant to 8 U.S.C. § 1451(a). The United States contends that Phoday Baba Phattey and Foday Fatty are the same person. To support this assertion, the United States relies on comparison of fingerprints obtained from Phattey and from Fatty. The comparison shows that Phattey and Fatty are the same person.^[1] Rather than admitting or denying allegations in the Complaint that Phattey and Fatty are the same person, in his Answer Fatty invokes his Fifth Amendment privilege against self incrimination. In his motion papers, Fatty concedes that invocation of the privilege permits drawing negative inferences.^[2] Fatty's position in the litigation relies on the application of a statute of limitation, not on the proposition that Phattey and Fatty are different individuals. The court concludes on the basis of the fingerprint comparison and the negative inference that may be drawn from the invocation of the Fifth Amendment that Phattey and Fatty are the same person.

         The record before the court shows that in September of 1995 Fatty (using that name) entered the United States in New York. He presented a passport issued by The Gambia and a non-immigrant United States visa giving a birth date in 1969. Fatty sought asylum and withholding of deportation by filing a Form I-589 with the INS. Eventually, his effort to obtain asylum was denied An immigration court granted Fatty's request for voluntary departure, ordering him to depart by July 4, 1996. Fatty did not voluntarily depart, and the government's efforts to find and deport him were unsuccessful.

         In September of 1996 Fatty (using the name Phattey) submitted Form I-589 to the INS seeking asylum and withholding of deportation. On that Form I-589 Fatty represented that his name was Phoday Baba Phattey, that he was born in 1968, and that he was a national of Mauritania who had last arrived in the United States in Miami. This time Fatty was successful in obtaining asylum. An immigration judge granted his application in September of 1997.

         In November of 2004 Fatty (using the Phattey name) submitted a Form I-485 to USCIS to register as a permanent resident or adjust status. In support he submitted a Form G-235A setting out biographical information. On that form Fatty stated that he was born in 1968 in Mauritania and that he had never used any other name.

         Fatty (using the Phattey name) submitted a Form N-400 Application for Citizenship in April of 2010. On that form Fatty repeated that he was born in Mauritania in 1968. He left blank the space for listing other names he had used. His response to the inquiry whether he had ever given false or misleading information to any U.S. official while applying for any immigration benefit was “No.”^[3] Question 24 on the N-400 Form asked, “Have you ever lied to any U.S. government official to gain entry or admission into the United States?” Fatty answered “No.”^[4] Fatty also responded in the negative to the question asking if he had ever been ordered to be removed or deported. Fatty signed the Form N-400 indicating under penalty of perjury that his application was true and correct.

         Fatty was interviewed about his citizenship application on July 27, 2010. At that time he again averred that his N-400 application was true and correct.^[5] His application for citizenship was then approved. He took the citizenship oath on August 20, 2010, and was issued a naturalization certificate on that date.^[6]

         III. STANDARD OF REVIEW

         A. Motions for Summary Judgment

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”^[7] The materiality requirement ensures that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”^[8] Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party.”^[9] However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”^[10]

         The moving party has the burden of showing that there is no genuine dispute as to any material fact.^[11] Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.^[12] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.^[13] All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.^[14] However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.^[15]

         B. Revocation of Citizenship

         The burden of proof applicable to the motion at docket 25 is very high. The Supreme Court has held:

[T]he Government “carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship.” The evidence justifying revocation of citizenship must be “‘clear, unequivocal and convincing'” and ...