United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Petitioner, Alex Kwaku Peprah, a native and citizen of Ghana, attempted to enter the United States in 1996 using a fake Canadian passport. That effort failed, but Peprah was admitted for permanent residence in 2004. When Peprah sought naturalization years later, in October 2009, immigration officials concluded he had made false statements earlier. The Department of Homeland Security has denied Peprah's naturalization application and initiated removal proceedings. Peprah seeks relief from these decisions, but he has not met his burden to show that he is eligible for citizenship. On the parties' cross-motions for summary judgment, the court enters judgment in favor of the United States.
The facts relevant to these motions are essentially undisputed. Alex Kwaku Peprah, a native and citizen of Ghana, first attempted to enter the United States on December 5, 1996, using a falsified Canadian passport bearing the name Bernard Osei Adjei. (Def.'s Statement of Undisputed Material Facts [39-1], hereinafter "Def.'s Statement of Material Facts, " ¶¶ 1-2.) During a secondary inspection interview at the airport, Peprah signed a sworn statement declaring that his real name was Issac Bonsu and that his father had bought him the Canadian passport. ( Id. ¶ 4.) Rather than voluntarily departing the United States, Peprah requested a hearing and was detained at Berks County Prison in Leesport, Pennsylvania. ( Id. ¶¶ 5, 6.) After the hearing, the judge found Peprah was excludable pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), as an alien attempting to gain entry through fraud or misrepresentation (a charge Peprah conceded); and under 8 U.S.C. § 1182(a)(7), for failure to have proper documentation. ( Id. ¶¶ 7-8.) The Immigration and Naturalization Service removed Peprah to Ghana in 1997. ( Id. ¶ 9.)
On September 26, 2003, Peprah filed an application for an Immigrant Visa and Alien Registration with the U.S. Embassy in Ghana. ( Id. ¶ 10.) Under penalty of perjury, Peprah swore on his June 2, 2004 Visa Application that the only alias he had ever used was Peprah Mensah Alex; that he had never before visited the United States; that he had never sought entry into this country through fraud or misrepresentations; and that he had never been refused admittance into the United States. ( Id. ¶¶ 11-12.) On November 14, 2004, Peprah was admitted to the United States as a lawful permanent resident. ( Id. ¶ 13.)
On October 16, 2009, Peprah filed a Form N-400 naturalization application with the United States Citizenship and Immigration Services ("USCIS"). ( Id. ¶ 14.) In the application form, Peprah stated under oath that he had never been arrested, cited, or detained; that he had never been to jail or prison; that he had never been removed, excluded, or deported from the United States; and that he had never been ordered to be removed, excluded, or deported from the United States. ( Id. ¶¶ 16-17.) Peprah appeared for an interview on February 2, 2010, where he was sworn and was asked the same questions as those that appeared on the Form N-400, and again responded in the negative to each of them. ( Id. ¶¶ 18-27.)
At some point, Immigration Services Officer Hearold Lacy, who conducted the interview, learned that there was a "second alien file" on Peprah. ( Id. ¶ 28; Hearold Lacy Decl., Ex. J to Def.'s Cross-Mot. for Summ. J. [39-12] ¶ 17.) Then, on August 2, 2011, USCIS denied Peprah's application on the grounds that he was of poor moral character pursuant to 8 C.F.R. § 316.10(b)(2)(iv) and had not been lawfully admitted for permanent residency as required by 8 C.F.R. § 316.2(a)(2). (Def.'s Statement of Material Facts ¶¶ 29-30; Aug. 2, 2011 USCIS Decision, Ex. K to Def.'s Cross-Mot. for Summ. J. [39-13].) Peprah requested a review hearing on this decision, and on December 5, 2011, another Immigration Services Officer interviewed him. (Def.'s Statement of Material Facts ¶¶ 31-32.) Again Peprah was put under oath. When asked if he had ever lied to any U.S. government officials, Peprah responded, "apparently when I applied for the immigrant visa - it was not my intention." ( Id. ¶¶ 33-38.) He again denied ever having been in jail or prison, and failed to disclose the circumstances in which he had been denied entry in 1996. ( Id. ¶¶ 37, 39.) The Chicago Field Officer Director of USCIS affirmed the denial of Peprah's application for naturalization. ( Id. ¶ 40; Dec. 14, 2011 USCIS Decision, Ex. O to Def.'s Statement of Material Facts [39-17].)
On April 8, 2012, Peprah filed this action, challenging USCIS's decision to deny naturalization. (Def.'s Cross Mot. for Summ. J.  at 6.) While this case was pending, on June 20, 2012, the Department of Homeland Security issued a Notice to Appear, effectively initiating proceedings to remove Peprah from the United States. (Def.'s Statement of Material Facts ¶ 41; Notice to Appear, Ex. P to Def.'s Statement of Material Facts [39-18], hereinafter "Notice to Appear.") An immigration judge ordered Peprah removable under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who sought to procure admission to the United States by fraud or willful misrepresentation. (Def.'s Statement of Material Facts ¶ 43.) Specifically, the Notice to Appear cited Peprah's failure to disclose, in his 2004 Visa Application, his earlier attempted entry into the United States; his failure to disclose his use of a fraudulent Canadian passport; his failure to disclose his use of aliases; and his failure to disclose the 1997 order excluding and deporting him. (Notice to Appear at 3.) Peprah then applied to the immigration judge for a waiver of his inadmissibility. (Def.'s Statement of Material Facts ¶ 44.) That application remained pending as of the filing of the parties' cross-motions for summary judgment ( id. at ¶ 45), but was denied on August 22, 2014. (Aug. 22, 2014 Immigration Judge Decision, Ex. A to Notice of Immigration Judge's Decision Denying Waiver of Inadmissibility [48-1].) The Immigration Court denied Peprah's application for a waiver because 8 U.S.C. § 1227(a)(1)(H) only permits the waiver of fraud committed at the most recent admission-in Peprah's case his 2004 entry-and therefore could not, now, excuse the fraud committed in 1996. (Aug. 22, 2014 Immigration Judge Decision, Ex. A to Notice of Immigration Judge's Decision Denying Waiver of Inadmissibility [48-1] 9-10.) Therefore, even excusing his misrepresentations in 2004, the Immigration Court concluded, Peprah was not "otherwise admissible, " as required by statute, due to his earlier misrepresentations in 1996. The Immigration Court ordered Peprah removed to Ghana, but granted Peprah voluntary departure if he departs on or before October 22, 2014. ( Id. at 12.)
To qualify for naturalization, an individual must first demonstrate that he has:
resided continuously in the United States for at least five years immediately prior to applying for naturalization "after being lawfully admitted for permanent residence"...;
resided continuously within the United States from the date of the application up to the time of admission to citizenship; and
during all of these periods "has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States."
Babatunde v. Napolitano, No. 09-C-2600, 2011 WL 332523, at *6 (N.D. Ill. Jan. 31, 2011) (quoting 8 U.S.C. § ...