United States District Court, E.D. Pennsylvania
For TEMUR KADIROV, KHUSAN KADIROV, Plaintiffs: JOSEPH C HOHENSTEIN, LEAD ATTORNEY, The Law Office Of Joseph C. Hohenstein, PHILADELPHIA, PA.
For RAND BEERS, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, ALEJANDRO MAYPORKAS, DIRECTOR U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS), TONY BRYSON, DISTRICT DIRECTOR USCIS PHILADELPHIA, EVANGELIA KLAPAKIS, FIELD OFFICE DIRECTOR USCIS PHILADELPHIA, Defendants: SHEREASE R. PRATT, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, WASHINGTON, DC.
Gerald Austin McHugh, United States District Court Judge.
This is a case brought by two brothers seeking naturalization. They have held Lawful Permanent Resident (LPR) status for the requisite number of years, which they obtained derivatively from their father. Unfortunately for the brothers, their father was deported because he had obtained asylum by fraudulent means and subsequently engaged in a pattern of criminal conduct. The question presented is as old as Deuteronomy, whether the sins of the father are then visited upon his sons. For purposes of federal immigration law, I am constrained to conclude that the answer is yes, with the result that Plaintiffs are ineligible for naturalization.
I. Factual Background
Plaintiffs Temur and Khusan Kadirov seek naturalization. Their odyssey begins with their father, Akbar Kadirov, who entered the United States after having been granted asylum on September 4, 1998. Joint Statement of Facts ¶ ¶ 1, 4. Akbar then filed an application in October, 1999, to adjust his status to that of lawful permanent resident, which was approved in 2004. Id. at ¶ ¶ 5, 6. In the meantime, Akbar had claimed Temur and Khusan as his children and they entered the United States as derivative asylees in late 2000. Id. at ¶ ¶ 7, 8. Plaintiffs filed for adjustment of status seeking LPR status as derivatives of their father's status, id. at ¶ 10, and their adjustments were granted in 2005 and 2006. Id. at ¶ ¶ 11-14.
After Plaintiffs had obtained their LPR statuses, their father Akbar was charged with conspiracy, visa and asylum fraud, and conspiracy to commit money laundering stemming from his participation in a fraudulent immigration conspiracy. Id. at ¶ 15. Akbar was additionally charged with possession of an alien registration card procured by fraud. Id. at ¶ 16. Specifically, the indictment alleged that Akbar had provided false information regarding the date of his initial entry to the United States, falsely claimed to have been a member of a Jewish congregation in Brooklyn, New York, falsely claimed that his wife had been beaten and abused by Uzbekistan nationals for being a Jewish woman, and falsely claimed that his wife had resigned from work after the alleged incident. Id. at ¶ 18. As a result, Plaintiffs' father had obtained his asylum status through fraudulent means. Id. at ¶ 17.
On June 22, 2009, Akbar pled guilty to Conspiracy, Conspiracy to Commit Money Laundering, and Possession of an Alien Registration Card Procured By Fraud in the United States District Court for the Eastern District of Pennsylvania. Id. at ¶ 19. On March 16, 2011, Akbar was ordered to be removed from the United States, and an Immigration Judge sustained the removal order because Akbar had been inadmissible at the time of his entry to the United States as a result of his fraudulent application. Id. at ¶ ¶ 20-22. Despite their father's checkered history, the Government has never alleged that Plaintiffs were involved his fraudulent or criminal activities. Id. at ¶ 24.
United States Immigration and Customs Enforcement (ICE) initiated separate removal proceedings against Plaintiffs and the rest of Akbar's family in 2009. Id. at ¶ 25. Those proceedings charged that Plaintiffs were inadmissible at the time of
their entry and were therefore never lawfully entitled to asylum. Id. at ¶ 26. On January 13, 2012, a joint motion to terminate the proceedings against Plaintiffs and their family was filed by both the Government and Plaintiffs' counsel. Id. at ¶ 27. United States Citizenship and Immigration Services (USCIS) specifically stated that the termination was due to humanitarian considerations, not a failure to sustain the removal charges. Id. Regarding Temur, the motion stated that he would " be allowed to proceed currently for naturalization, these proceedings having been terminat[ed] without prejudice." Id. at ¶ 28. Regarding Khusan, the motion stated that " the proceedings [would] be withdrawn without prejudice and that for present proceedings his defense of insanity [would] not be raised." Id. at ¶ 29. Plaintiffs agreed that they would not petition for an immigrant visa for their father. Id. at ¶ ¶ 28, 29. The motion also provided that " in making this agreement no Respondent nor their counsel agree that any of the pending charges are true or correct but only that the interest of justice are well served by the terms of this agreement." Id. at ¶ 30. The motion to terminate was granted. Id. at ¶ 31. For all practical purposes, the termination of the removal proceedings simply deferred the issue of citizenship to a later time.
Plaintiffs have now filed for naturalization. Id. at ¶ 32. USCIS denied both Plaintiffs' applications. Id. at ¶ 34. The USCIS denials stated that because Akbar had obtained his permanent resident status as an asylee through fraud, neither Plaintiff was entitled to the asylum status derived from Akbar. Id. at ¶ 35. Therefore, USCIS concluded, Plaintiffs were not eligible to adjust their status to that of lawful permanent resident, and thus were not lawfully admitted as permanent residents. Id. Plaintiffs appealed the decision and USCIS affirmed the denial of Plaintiffs' naturalization applications. Id. at ¶ ¶ 36, 37. Plaintiffs have now filed the complaint in this Court seeking a de novo review of USCIS' denial of their applications for naturalization. Id. at ¶ 38. Presently, Plaintiffs and Defendants have ...