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Ros v. Napolitano

United States District Court, Third Circuit

July 10, 2013

SORAKHA ROS, Petitioner,



Before this Court are Petitioner’s Motion in Limine (Doc. No. 17), Defendants’ Response in opposition thereto (Doc. No. 19), and Defendants’ Cross-Motion for Summary Judgment (Doc. No. 15). These motions were filed in connection with the Petitioner’s Amended Petition for De Novo Review of Naturalization Denial (Doc. No. 7), which she filed after her application to become a naturalized citizen was denied by United States Citizenship and Immigration Services. For the reasons set forth in this Memorandum, the Petitioner’s Motion in Limine will be denied and Defendants’ Motion for Summary Judgment will be granted.


The majority of the material facts in this case are not in dispute.[1] Sorakha Ros (“Ros” or “the Petitioner”) was born in Phnom Penh, Cambodia and is a Cambodian citizen. On January 1, 1990, she married Sam An Ly (“Ly”) in Cambodia. Ros sought to obtain a divorce from Ly in Cambodia sometime in 2001. The Petitioner possesses a Cambodian divorce decree allegedly issued on July 7, 2001, prior to September 9, 2001 when she departed Cambodia to come to the United States.[2] Ros met Phay Tong (“Tong”), currently a naturalized United States citizen, [3] shortly after arriving in the United States. Ros and Tong were married in Philadelphia on April 13, 2002.

On July 18, 2005, Tong filed an I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services (“USCIS”) on behalf of Ros. On November 14, 2005, following a “Stokes” interview[4] with Ros and Tong to verify the authenticity of their marriage, the USCIS approved Tong’s petition, and granted Ros status as a Lawful Permanent Resident (“LPR”).[5]

Ros filed a pro se N-400 Application for Naturalization with the USCIS on September 18, 2008, [6] seeking to obtain United States citizenship. Tong and Ros had another “Stokes” interview with immigration officers in connection with her naturalization application. Due to alleged misrepresentations by Ros and Tong in their separate interviews, the suspicions of immigration officials were triggered. Accordingly, on April 27, 2009, the USCIS denied Ros’ naturalization application despite her provision of various requested evidence supporting the validity of her marriage to Tong. The reasons given for the initial denial were Ros’ failure to respond to a request for her to explain discrepancies that arose between her and Tong’s interview statements and giving misleading information to create the appearance of a marital union. At no point in the 2009 denial of her application did the USCIS suggest that their reason for denial was related to the validity of her 2001 divorce from Ly.

On May 22, 2009, Ros filed an N-336 Request for Hearing on a Decision in Naturalization Proceedings under section 336 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. This hearing is essentially an administrative appeal of the initial denial of an N-400 naturalization application. USCIS Officer Gayle Burroughs conducted an N-336 hearing on January 14, 2010. More than two years later, the USCIS issued a final decision denying her Application for Naturalization. The denial of Ros’ naturalization application was based upon her failure to meet the strict statutory requirements for naturalization under 8 U.S.C. § 1427.

Unlike the initial denial in 2009, the 2012 denial of Ros’ naturalization application was based upon the fraudulent nature of the Cambodian divorce decree Ros put forth to support her initial I-130 petition for LPR status. According to an investigation conducted by the Fraud Prevention Unit at the American Embassy in Bangkok in 2006, there were a large number of fraudulent divorce decrees allegedly issued by the Phnom Penh Municipal Court. The consular investigative report found that this large-scale production of sham divorce decrees was aimed at conferring U.S. immigration benefits upon otherwise ineligible Cambodian applicants. The report included a list of specific Cambodian divorce decrees that were confirmed as fraudulent. The findings in the consular report were verified by the President of the Phnom Penh Municipal Court, the same court that had allegedly issued the documents. The Phnom Penh Municipal Court confirmed that the decree submitted to the USCIS by Ros as proof of her divorce from Ly was one of the fraudulent decrees identified by the State Department.

The USCIS issued a Notice of Intent to Deny Ros’ administrative appeal on March 16, 2012, apprising Ros for the first time of the government’s suspicions about her divorce decree. On April 12, 2012, Ros submitted a sworn affidavit in response to the Department of State’s determination that her Cambodian divorce decree was a fraud.[7] The affidavit states that she told Ly she wanted a divorce after arriving in the United States, and “he said right away he would file the divorce in Cambodia, and he did.” (Ex. F to Def.’s Mot., 1, Doc No. 15-3). She further stated, “I know my divorce paper from Cambodia is real, I was born there and I know my ex-husband wanted to get a divorce from me as much as I wanted to be divorced, ” and later repeats, “I am divorced from Sam An Ly... I know in my heart this is true.” (Id. at 2).

The USCIS found that the affidavit only further supported their belief that the divorce degree was fraudulent. The USCIS concluded in the April 2012 denial that Ros was not legally divorced from Ly in 2002 when she married Tong. Accordingly, the USCIS determined that under the laws of Pennsylvania, Ros was not free to legally marry Tong. As such, she had failed to establish that she was lawfully admitted to the United States for permanent residence when she obtained her LPR status, a requirement for naturalization. Given that the basis of her previously obtained LPR status and her alleged eligibility for naturalization was based solely on her marriage to Tong, Ros’ application to become a naturalized citizen was denied under 8 U.S.C. § 1427. Ros filed a petition for de novo review before this Court of the USCIS denial of her application for naturalization, pursuant to 8 U.S.C. § 1421(c).[8] Named Defendants are Janet Napolitano, Secretary for the Department of Homeland Security, Alejandro Mayorkas, Director of the USCIS, and Evangelia Klapakis, Field Office Director of the USCIS (“Defendants” or “the Government”).

On January 20, 2012, prior to the April USCIS decision to deny the Petitioner’s naturalization application, the Petitioner filed her original Petition (Doc. No. 1) with this Court seeking to compel agency judgment on her naturalization application. After the April 2012 decision, the Petitioner filed an Amended Petition for Review of Naturalization Denial (Doc. No. 7) on July 31, 2012, with the Court’s leave. The Government submitted an Answer (Doc. No. 9) to the Petition on August 17, 2012. After discovery, the Government filed a Cross-Motion for Summary Judgment[9] (Doc. No. 15) on the Petition for Review. The following day, the Petitioner filed a Motion in Limine (Doc. No. 17), seeking to preclude the Court’s consideration of evidence submitted by the Government regarding her divorce decree. On February 8, 2013, the Government filed a Response (Doc. No. 19) to the Petitioner’s Motion in Limine. These motions are currently before the Court for resolution.

II. The Petitioner’s Motion in Limine

Before we turn to the Petitioner’s eligibility to naturalize, we must first address the Petitioner’s Motion in Limine. The Petitioner seeks to preclude this Court’s consideration of the consular report and other evidence put forth by the Government disputing the authenticity of her divorce decree. The Petitioner’s Motion alleges that: 1) the specific evidence is not relevant to the resolution of the issue before the Court; and 2) the introduction of such evidence would be improper under Federal Rule of Evidence 403.

First, the Petitioner puts forward no cognizable legal argument as to why the evidence regarding the authenticity of her divorce decree is irrelevant. Resolution of this petition for review depends on whether the Petitioner has satisfied the statutory naturalization requirements. One of these Congressionally mandated prerequisites for eligibility for naturalization is that the applicant must have been “lawfully admitted for permanent residence.” 8 U.S.C. § 1427(a). The Petitioner obtained LPR status in November 2005 based solely upon her marriage to Tong. Accordingly, the authenticity of her divorce from her first husband prior to her marriage to Tong is vitally relevant to any determination as to whether she lawfully obtained her LPR status in 2005, and thus whether she is eligible for naturalization under § 1427(a). If the Petitioner was not legally divorced from Ly under the laws of Cambodia, [10] she was not eligible to marry Tong in 2002 under Pennsylvania law, which forbids bigamous marriages. See 23 Pa. Cons. Stat. Ann. ยง 1702. Since determination of the ...

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