United States District Court, D. Alaska
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 ...