United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ELAINE
E. BUCKLO UNITED STATES DISTRICT JUDGE
In this
action, the United States seeks a judgment revoking defendant
Nedjo Milosevic’s United States citizenship and
cancelling his certificate of naturalization. Before me is
the government’s motion for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c), which I deny for the
following reasons.
Defendant
is a former citizen of Yugoslavia and subsequently of the
Republic of Bosnia and Herzegovina. He applied for refugee
status with the former Immigration and Naturalization Service
(“INS”)[1] in September of 1998 and was admitted to
the United States as a refugee on July 20, 1999. He later
applied for an adjustment of status, and when that
application was approved in November of 2001, he became a
permanent resident retroactively as of the date of his
admission. In May of 2004, defendant applied to become a
naturalized United States citizen. That application was also
approved, and defendant was admitted to citizenship and
received a certificate of naturalization on November 2, 2004.
The
government now seeks to revoke defendant’s citizenship
and to cancel his certificate of naturalization pursuant to 8
U.S.C. § 1451(a), which authorizes such relief when
citizenship and naturalization were “illegally
procured” or were “procured by concealment of a
material fact or by willful misrepresentation.” The
complaint articulates five separate counts, but the Rule
12(c) motion seeks judgment only on Count IV, which claims
that defendant “illegally procured” citizenship
and naturalization by seeking and obtaining refugee status-a
classification from which all of the immigration benefits he
later received ultimately derives-when he did not, in fact,
meet the statutory definition of a “refugee.” As
the government observes, the statute defines a
“refugee” as “any person who is outside
any country of such person’s nationality...who is
unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of
persecution, ” 8 U.S.C. § 1101(a)(42) (emphasis
added). The complaint alleges that, “[a]t all times
relevant to determining his eligibility for refugee status,
Defendant was living in what is today the Republic of Bosnia
and Herzegovina, and specifically in Republika Srpska, an
autonomous federal entity within the Republic of Bosnia and
Herzegovina populated largely with and controlled by ethnic
Serbs.” Compl. at ¶ 17, 92. The government further
alleges that defendant “was a resident of Bosnia and
Herzegovina until at least June 1996, ” Compl.
at ¶ 37, and that he “was not residing in Serbia
(Federal Republic of Yugoslavia) during the war in Bosnia and
for at least some time thereafter, ” id. at
¶¶ 16, 91. To each of these allegations, defendant
responds that “[a]t all relevant times, Defendant has
been ethnically cleansed and displaced from his pre-war
residence in the Municipality of Zivinice, Bosnia and
Herzegovina.” Ans. at ¶¶ 16-17, 37, 92. In
the government’s view, these answers admit all that is
required for a judgment in its favor on Count IV. I disagree.
“American
citizenship is a precious right, ” and its loss may
engender severe consequences, especially “when the
person has enjoyed his citizenship for many years.”
Costello v. United States, 365 U.S. 265, 269 (1961).
Accordingly, revocation of citizenship is a “drastic
measure, ” Schneider v. Rusk, 377 U.S. 163,
168 (1964), requiring evidence that is “clear,
unequivocal, and convincing.” Fedorenko v.
U.S. 449 U.S. 490, 505 (1981) (citations omitted). The
government argues that defendant’s answers effectively
admit that he was not, “at relevant times, ”
outside the country of his nationality, rendering him
ineligible for the refugee visa that authorized his lawful
entry into the United States.
It is
true that “a naturalized citizen’s failure to
comply with the statutory prerequisites for naturalization
renders his certificate of citizenship revocable as
‘illegally procured’ under 8 U.S.C. §
1451(a).” Fedorenko v. United States, 449 U.S.
490, 513 (1981). It is also true that lawful admission to the
United States as a permanent resident is one such statutory
prerequisite, see 8 U.S.C. § 1427(a), and that
in defendant’s case, his lawful admission was premised
upon his classification as a refugee under §§
1101(a)(42), 1159(b)(3). Accordingly, if the government
establishes that defendant was ineligible for the refugee
visa authorizing his admission to the United States, his
citizenship may be revoked as “illegally
procured.” See United States v. Kairys, 782
F.3d 1374, 1376, n. 1 (7th Cir. 1986) (“[a]n applicant
must enter the United States pursuant to a valid visa to
obtain citizenship. An applicant ineligible under the
immigration laws cannot obtain a valid visa.”). But it
has not done so on the pleadings.[2]
To
begin, the government’s use of the phrase, “at
all relevant times, ” in its allegations concerning
defendant’s whereabouts raises a legal question that
the parties’ submissions do not answer: When must a
person be outside his or her country of nationality to be
properly classified as a refugee? If, as one might suppose,
the answer is, “at the time he or she applies for that
classification, ” defendant’s answer
denies the only paragraph alleging his whereabouts
at that time. See Ans. at ¶ 69 (denying that
“at the time Defendant applied for classification as a
refugee, he willfully misrepresented that during the war he
was residing in Serbia (Federal Republic of Yugoslavia), when
he was, in fact, residing in Bosnia and Herzegovina.”).
Moreover, while the complaint states that defendant filed his
application for refugee status on September 3, 1998, it is
conspicuously silent as to defendant’s residence on
that date. Indeed, the bulk of the complaint focuses on
defendant’s whereabouts and activities during the
period between December 1992 and June 1996. See
Compl. at ¶¶ 37-42. The only substantive event
alleged to have occurred in 1998 was the birth of
defendant’s son Aleksandar-in the Federal Republic
of Yugoslavia. See Compl. at ¶ 10.
In
addition, the government’s careful description of
defendant’s residence at relevant times as within
“what is today the Republika Srpska, an autonomous
federal entity within the Republic of Bosnia and Herzegovina,
” Compl. at ¶¶ 17, 92, raises further
questions. The government does not explain its choice of
words, but the terms “autonomous federal entity”
presumably have some significance. Absent some other
explanation, a reasonable inference is that while the
Republika Srpska is located within the physical boundaries of
Bosnia and Herzegovina, the individuals who live there may be
considered to live “outside” of Bosnia and
Herzegovina in some politically relevant respect. Compounding
this ambiguity, the complaint describes the geopolitical
status of the Republika Srpska “today, ” even as
the government suggests that “all relevant times”
for purposes of Count IV preceded defendant’s
application for admission as a refugee.
For the
foregoing reasons, I conclude that the record before me does
not reflect the kind of “clear, unequivocal, and
convincing” evidence that is required to establish the
government’s entitlement to judgment. Fedorenko v.
U.S,. 449 U.S. 490, 505 (1981).
---------
Notes:
[1] As the government states, the INS
ceased to exist on March 1, 2003, and many of its functions
were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No.
107-296, 110 Stat. 2135 (Nov. 25, 2002).
[2] I note in passing that while both
parties contend that the standard that applies to the
government’s motion is “the same standard as a
motion to dismiss under Rule 12(b)(6), " Mot. at 4
(quoting Gill v. City of Milwaukee, 850 F.3d 335,
339 (7th Cir. 2017)); Resp. at 2-3, it is the summary
judgment standard that governs here. See Alexander v.
City of Chicago, 994 F.2d 333, 336 (7th Cir. 1993). In
Alexander, the court explained that while the
12(b)(6) standard applies to Rule 12(c) motions that raise
“[R]ule 12(b) defenses regarding procedural defects,
” where Rule 12(c) is invoked “in its customary
application to attempt to dispose of the case on the basis of
the underlying substantive merits, ” the
“appropriate standard is that applicable to summary
judgment.”). Id . at 336. See also United
States v. Luna, No. 17 CV 1472,, at *2 (N.D. Ill. Mar.
8, 2019) (Gottschall, J.) (applying summary judgment standard
to Rule 12(c) motion in denaturalization action); United
States v. Faris, No. 17-CV-295-SMY-DGW, 2018 WL 3373982,
at *1 (S.D. Ind., July 11, 2018) (same). Because the
...