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Mercy Tayo Babatunde v. Janet Napolitano

January 31, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Mercy Babatunde ("Babatunde") has petitioned the Court pursuant to 8 U.S.C. § 1421(c) to review the denial of her application for naturalization. The Court conducted a bench trial. This constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).


1. Babatunde's entry into the US and her relationship with Olufemi Babatunde

Babatunde was born in Nigeria. She first entered the United States in 1989 on a visitor's visa. She remained in the United States after her visa expired.

In 1991, Babatunde met Olufemi Sunday Babatunde ("Olufemi"). In 1992, while living in the United States, Babatunde gave birth to Michael Babatunde ("Michael"), the first of three children she had with Olufemi. Babatunde lived with Olufemi when Michael was born, and she continued to live with him until sometime in 1993.

Babatunde left the United States for a brief period in August 1993 and re-entered the country later that month. She admitted at trial that she re-entered the United States using someone else's passport. In May 1994, while in the United States, Babatunde gave birth to Samuel Babatunde ("Samuel"), her second child with Olufemi.

2. Babatunde's marriage to Reginald Banks

Babatunde married Reginald Banks ("Banks"), a U.S. citizen, in May 1995. The government contends the marriage was a sham that Babatunde entered into in order to obtain immigration benefits.

Banks and Babatunde each testified that they loved each other when they got married. Babatunde denied that she married Banks to get a green card or other immigration benefits, and Banks likewise testified that their marriage was legitimate. Banks testified that they had joint bank accounts and bills, and documentation confirming this was admitted in evidence.

Babatunde and Banks lived together for about three years. Banks was in and out of jail during this period. Babatunde testified that it was difficult for her when Banks was in jail and that at some point, she resumed a relationship with Olufemi. She had a third child with him, Emmanuel, in 1997.

During 1997, Banks lived with his mother for a period of time while recovering after he was the victim of a shooting. When he moved back in with Babatunde, she was pregnant. Unsurprisingly, the fact that Babatunde had a child with another man disrupted her marriage with Banks. Banks testified that he lost trust in her. He moved out for the last time in December 1998. They later obtained a divorce.

3. Babatunde's 1995 application for adjustment of status

In June 1995, one month after Babatunde married Banks, he filed a petition for alien relative (Form I-130) on her behalf, asking the immigration authorities to adjust her status to legal permanent resident. Babatunde filed a corresponding I-485 application requesting adjustment of status.

In her I-485 application, Babatunde truthfully disclosed that she had entered the country using someone else's passport. Together with her application, Babatunde submitted a form called a "Supplement A," which she understood to be the form she had to submit because she had entered the country using someone else's passport.

In the space on the I-485 application that required Babatunde to list her spouse and all of her children, she listed only Banks and made no mention of her two children. When asked at trial why she had not listed her children, Babatunde testified that she did not think she needed to list them because they were already U.S. citizens, having been born in this country.

An immigration officer named Timothy Esbrook interviewed Babatunde and Banks in connection with their applications in July 1998. Esbrook, who is currently an asylum officer, handled adjustment applications for only six months in 1998. He did not recall his interview of Babatunde and Banks and testified based on his regular practice and notations he had made on the applications.

Esbrook stated that he would typically adjudicate an I-130 application at the same time as an I-485 application if they were submitted (as in this case) as part of a package and that he would typically interview both the applicant and the applicant's spouse.

Babatunde testified credibly that she disclosed during the interview, as she had on the application itself, that she had entered the country on someone else's passport. Her application reflects that she paid an extra fee and submitted a "Supplement A" stating that she had entered the U.S. without inspection. Esbrook stated that he would have considered an applicant's entry into the United States on someone else's passport as an entry "without inspection," and he testified that this would not bar the applicant from obtaining permanent resident status.

Esbrook stated that when conducting an interview, he would go through the application with the applicant. Using a red pen, he would check off the questions he asked and make any necessary corrections to the application.

Esbrook testified that he always asked an applicant about family members. Specifically, on an application like Babatunde's, he would ask whether she was still married to the person who had filed the I-130 and whether they were still living together. He would also ask whether the applicant had children and had ever had children. If an applicant had children with someone other than her spouse, he would inquire further about the relationship with the other person to assess whether it affected the validity of the applicant's marriage. On cross-examination, Esbrook conceded that having a child out of wedlock would not be a bar to adjustment of status.

On Babatunde's application, Esbrook had drawn a red line through the empty spaces below where the application directs the applicant to identify her children. Esbrook said this indicated that the applicant told him she had no children.

Banks testified that he recalled going to an interview with an immigration official regarding the application he had filed, but he did not recall the official asking any questions about whether Babatunde had children. Babatunde testified that ...

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