United States of America v. Sheikh Enamur Rahman, a/k/a Mohammed Enam

2022 DNH 135

• Court: District Court, D. New Hampshire
• Decided: October 25, 2022
• Docket: 19-cv-1113-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 19-cv-1113-PB Opinion No. 2022 DNH 135 Sheikh Enamur Rahman, a/k/a Mohammed Enam

MEMORANDUM AND ORDER

The United States filed this civil action to denaturalize the defendant,

Sheikh Enamur Rahman, pursuant to 8 U.S.C. § 1451(a). The government

claims that Rahman’s citizenship must be revoked because it was procured

illegally and through willful misrepresentations. The government now moves

for summary judgment. Because Rahman has not demonstrated that any fact

material to the resolution of this matter remains in genuine dispute and the

government has shown that it is entitled to prevail, I grant the government’s

motion.

I. BACKGROUND

In 1994, Rahman came to New York City from Bangladesh on a non-

immigrant visa under his true name, Sheikh Enamur Rahman. Doc. 49-1 at

1. He quickly realized that he enjoyed being in the United States and wished

to remain longer. Doc. 49-3 at 8. Rahman engaged the services of then-

attorney Sheldon Walker in hopes of securing a work authorization. Id. at 2. Upon arriving at Walker’s office, Rahman was able to communicate with one

of Walker’s employees in his native tongue, Bengali. Doc. 49-1 at 1-2. The

employee handed Rahman blank forms and told him to sign them, assuring

Rahman it was standard procedure for procuring a work authorization. Id. at

2. The employee instructed Rahman to sign the forms using a “different

name, a name in English that would be easy to write.” Id. The employee

recommended the name “Mohammed Enam,” and Rahman signed the forms

“Enam.” Id.; Doc. 45-1 at 105. Although Rahman believed the forms were a

request for work authorization, they were in fact an application for asylum

(Form I-589). Id.; Doc. 49-3 at 19.

The employee told Rahman he would next need to procure a passport

under the name Mohammed Enam. Doc. 49-1 at 3. To do so, the employee

instructed Rahman to contact the Bangladeshi consulate in New York City,

identify himself as Mohammed Enam, and state that he had lost his

passport. Id. Although Rahman had not lost his passport, he followed the

employee’s instructions and successfully obtained a Bangladeshi passport

under the name Mohammed Enam. Doc. 45-2 at 93-94. Rahman subsequently

obtained a New York State driver’s license, a New York City taxi license, a

social security number, and a work authorization card, all under the name

Mohammed Enam. Doc. 45-1 at 16-17, 64-65.

2 Walker’s office filled out the remainder of Rahman’s asylum

application, Form I-589, without any further input or review from Rahman,

falsely claiming that he was seeking asylum to avoid political persecution. Id.

at 102-103; Doc. 49-1 at 2. Besides the false name, the form misrepresented

Rahman’s dates of birth and arrival in the United States, and it made no

reference to his true name. Doc. 45-1 at 61-62, 101-106. Walker submitted the

completed Form I-589 to the U.S. Immigration and Naturalization Service

(“INS”), along with Rahman’s new passport. Id. at 105; Doc. 45-2 at 92-95.

Rahman was then assigned an “A-number” 1 under the name Mohammed

Enam. Doc. 45-2 at 109.

Rahman was later interviewed by an INS officer in connection with his

asylum application. Doc. 49-1 at 3. In the presence of the officer, Rahman

signed the Form I-589 as “Enam,” affirming that he “kn[ew] the contents of

th[e] application” and “that they [were] true to the best of [his] knowledge.”

Doc. 45-1 at 30, 164. The officer concluded that Rahman was not credible

based on material inconsistencies between his Form I-589 and statements he

made during his interview. Id. at 132. Accordingly, the INS referred the

1 An “A-number” is a unique identifier assigned by the INS to noncitizens applying for status. See Koszelnik v. Sec’y of Dep’t of Homeland Sec., 828 F.3d 175, 178 n.3 (3d Cir. 2016).

3 matter to the New York Immigration Court and issued an Order to Show

Cause charging Rahman with deportability. Id. at 130, 135-137. Although

Rahman does not recall being served with the Order to Show Cause, he

admitted that his signature appears on a portion of the document

acknowledging that it was personally served on him. Doc. 49-1 at 3; Doc. 51-2

at 8-9; Doc. 45-1 at 136.

On September 8, 1997, Rahman appeared in Immigration Court with a

new attorney, Victor Veloso. Doc. 45-1 at 143. Attorney Veloso was

substituting for Walker, who by that time had been indicted for filing over

5,000 fraudulent immigration applications. Doc. 49-1 at 4; see also United

States v. Walker, No. 96-cr-736 (HB), 1997 WL 327093 (S.D.N.Y. June 12,

1997). At the hearing, Attorney Veloso withdrew Rahman’s request for

asylum and requested voluntary departure. Doc. 45-1 at 145. The

Immigration Judge granted Rahman's request, with an alternative order for

deportation that would become final should Rahman fail to depart the United

States by March 9, 1998. Id. at 150, 157. Using a Bengali interpreter,

Rahman confirmed that he understood the judge’s order and would

voluntarily depart the United States, although he now claims that he only

made these statements pursuant to Attorney Veloso’s instructions and did

not understand their relevance. Id. at 146, 150; Doc. 49-1 at 4.

4 Following the hearing, Attorney Veloso explained to Rahman that

withdrawing his application for asylum rendered it without effect. Doc. 49-1

at 4. As such, Rahman could “go on [his] way” and “did not have to worry

about deportation.” Id. Rahman did not understand, nor did Attorney Veloso

inform him, that he was required to leave the country and would be subject to

deportation if he remained. Id.

Rahman did not leave the country, but rather moved to Atlanta,

Georgia. Doc. 45-1 at 64. Consequently, Rahman became subject to a final

deportation order on March 9, 1998. Id. at 157. Rahman claims that he never

received notice of that order and did not become aware of its existence until

the present litigation began. Doc. 49-1 at 4.

While in Atlanta, Rahman continued to occasionally go by Mohammed

Enam, but he obtained a Georgia driver’s license under his true name. Doc.

45-1 at 17-18, 170. Rahman eventually married and also obtained a marriage

certificate under his true name. Doc. 45-2 at 100.

Rahman’s wife, a United States citizen, contacted Attorney Teri

Simmons to request assistance on Rahman’s behalf. Id. at 2. Attorney

Simmons asked Rahman and his wife to fill out intake paperwork, including

a copy of a Form G-325A, which is a biographic information form submitted

alongside an application for permanent residence. Id. at 19-22. Rahman

5 completed the forms himself, with the exception of a section on one of the

intake forms that requested his employment history. Doc. 49-1 at 6. In filling

out the Form G-325A, Rahman left blank a section that requested disclosure

of “all other names used.” Doc. 45-2 at 54.

Upon meeting, Rahman showed Attorney Simmons his New York

driver’s license under the name Mohammed Enam and explained that he had

previously filed an application for asylum under that name. Doc. 49-1 at 5.

Attorney Simmons told Rahman that he “should not refer to [his] use of the

name Mohammed Enam.” Id. Rather, Attorney Simmons stated that she

would use Rahman’s true identity to adjust his status to that of a permanent

resident based on his marriage to a United States citizen. Doc. 49-5 at 12.

When discussing the relevant paperwork, Attorney Simmons advised

Rahman “[n]ot to list” his prior use of the Mohammed Enam identity in

response to “the question of whether or not he ever used any other names.”

Id. at 13. She then prepared an application for permanent residence (Form I-

485) and a biographic information form (Form G-325A) using the information

Rahman and his wife had provided on the intake paperwork. Doc. 45-1 at

121; Doc. 45-2 at 23-24, 61, 66. These forms requested disclosure of “all other

names used,” “social security #” and “A # (if any).” Doc. 45-2 at 58, 66.

Rahman’s form stated “none” in response to each question, thereby omitting

6 his prior use of the Mohammed Enam identity and its attendant social

security number and A-number. See id.

Attorney Simmons asked Rahman to review the completed forms and

let her know of any changes that should be made. Id. at 56. Rahman did not

review the forms in their entirety, but he nonetheless signed both forms

“under penalty of perjury” and returned them to Attorney Simmons for

submission. Doc. 49-1 at 7; Doc. 45-2 at 61, 66. Rahman was interviewed by a

U.S. Citizenship and Immigration Services (USCIS) 2 officer in connection

with his application, although he claims that he was not placed under oath

during the interview or asked questions about his answers on the forms. Doc.

49-1 at 7. Rahman was subsequently granted legal permanent residence on

January 17, 2004. Doc. 45-2 at 58.

Approximately two years later, Rahman contacted Attorney Kermit

Zerr for assistance in applying for naturalization. Doc. 51-3 at 2. Pursuant to

Attorney Simmons’ advice, Rahman did not inform Attorney Zerr about his

prior use of the Mohammed Enam identity or his application for asylum. Doc.

49-1 at 7. Attorney Zerr prepared an application for naturalization (Form N-

2 In March 2003, the Department of Homeland Security absorbed the INS and changed its name to USCIS. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).

7 400) on Rahman’s behalf using his true name. Doc. 45-2 at 89. The form

stated: “If you have ever used other names, provide them below,” to which

Rahman responded “N/A,” which he understood at the time to mean “not

applicable.” Doc. 45-2 at 80; Doc. 45-1 at 52. Additionally, the form asked if

Rahman had (1) “ever given false or misleading information to any U.S.

government official while applying for any immigration benefit or to prevent

deportation, exclusion or removal;” (2) “ever been ordered to be removed,

excluded or deported from the United States;” or (3) “ever applied for any

kind of relief from removal, exclusion or deportation.” Doc. 45-2 at 87-88.

Rahman responded “no” to each question and signed the form “under penalty

of perjury.” Id. at 87-89.

A USCIS officer interviewed Rahman in connection with his Form N-

400. Doc. 49-1 at 8. Although Rahman acknowledges that he was placed

under oath at some point during the interview, he is unsure whether he was

placed under oath at the beginning of the interview. Id. Regardless, Rahman

claims that the interviewer did not ask him questions about his Form N-400,

but rather tested his English language skills and knowledge of the United

States government. Id. At the conclusion of the interview, Rahman signed his

Form N-400 in the presence of the USCIS officer, affirming that he was

aware of the contents of the form and that the information therein was “true

8 and correct to the best of [his] knowledge and belief.” Doc. 45-2 at 89, 122-

123. Rahman’s application was approved, and he became a naturalized

citizen on March 16, 2007. Doc. 45-2 at 91. He currently resides in New

Hampshire with his son and has, by all accounts, remained a citizen in good

standing since his naturalization. Doc. 49-1 at 9.

On October 26, 2019, the United States filed a five-count complaint to

revoke Rahman’s naturalization pursuant to 8 U.S.C. § 1451(a). Doc. 1 at 13-

22. Each of the government’s five counts advances a different theory as to

why Rahman’s naturalization must be revoked. One count, Count V, alleges

that Rahman’s naturalization was procured through willful

misrepresentations on his Form N-400 and throughout his naturalization

interview. Id. at 21-22. The remaining four counts allege that Rahman’s

naturalization was illegally procured. Id. at 13-21. Specifically, Counts I and

II allege that his naturalization was unlawful because he cannot demonstrate

that he had good moral character at the time he was seeking naturalization,

as required by statute. Id. at 13-18. Count I alleges that his false testimony

during his naturalization interview precludes him from establishing the

requisite moral character, whereas Count II alleges that his

misrepresentations on his Form N-400 and during his naturalization

interview preclude him from establishing the requisite moral character. Id.

9 Counts III and IV allege that Rahman’s naturalization was unlawful because

he was not lawfully admitted as a permanent resident—a prerequisite to

naturalization. Id. at 19-21. Count III alleges that Rahman was inadmissible,

and therefore ineligible for permanent residence, because he misrepresented

material facts on his Form I-485 and accompanying Form G-325A. Id. at 19-

20. Count IV alleges that the grant of permanent residence was invalid

because the USCIS lacked jurisdiction to adjust Rahman’s status given that

he was subject to an unexecuted deportation order. Id. at 20-21. The

government now moves for summary judgment on all five counts. Doc. 45

at 1.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the nonmovant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a); Tang v. Citizens Bank, N.A., 821 F.3d

206, 215 (1st Cir. 2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877

F.3d 14, 23 (1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227

(1st Cir. 1996)). A “genuine dispute” exists if a factfinder could resolve the

disputed fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d

1, 7 (1st Cir. 2018).

10 The movant bears the initial burden of presenting evidence that “it

believes demonstrates the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep’t

of Agric., 890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly

presented such evidence, the burden shifts to the nonmovant to designate

“specific facts showing that there is a genuine issue for trial,” Celotex, 477

U.S. at 324, and to “demonstrate that a trier of fact could reasonably resolve

that issue in [his] favor.” Irobe, 890 F.3d at 377 (quoting Borges ex rel.

S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the nonmovant

fails to adduce such evidence on which a reasonable factfinder could base a

favorable verdict, the motion must be granted. Celotex, 477 U.S. at 324. In

considering the evidence, the court must draw all reasonable inferences in

the nonmoving party’s favor. Theriault v. Genesis HealthCare LLC, 890 F.3d

342, 348 (1st Cir. 2018).

III. ANALYSIS

The government argues that it is entitled to summary judgment on all

five counts because Rahman willfully made several material

misrepresentations on his applications for permanent residency and

naturalization, most notably concerning his prior use of the Mohammed

Enam identity. Rahman objects, arguing that his misrepresentations were

11 not willful because he made them on advice of counsel. Although the

government seeks summary judgment on all five counts, it is entitled to an

order of denaturalization if it succeeds on any one of the counts. I conclude

that the government is entitled to summary judgment on Counts IV (illegal

procurement of naturalization due to lack of jurisdiction), III (illegal

procurement of naturalization due to willful misrepresentation of a material

fact on an application for permanent residence), and V (procurement of

naturalization through willful misrepresentation).

To revoke a naturalized individual’s citizenship, the government must

demonstrate that the order of naturalization was either (1) “illegally

procured” or (2) “procured by concealment of a material fact or willful

misrepresentation.” 8 U.S.C. § 1451(a); see also Fedorenko v. United States,

449 U.S. 490, 505-506 (1981). “The Government carries a heavy burden of

proof,” Costello v. United States, 365 U.S. 265, 269 (1961), and must prove its

case by “clear, unequivocal, and convincing” evidence that does “not leave ‘the

issue in doubt.’” Fedorenko, 449 U.S. at 505 (quoting Schneiderman v. United

States, 320 U.S. 118, 125 (1943)). “This burden is substantially identical with

that required in criminal cases—proof beyond a reasonable doubt.” United

States v. Mensah, 737 F.3d 789, 809 (1st Cir. 2013) (quoting Klapprott v.

United States, 335 U.S. 601, 612 (1949)).

12 Particularly where, as here, “the attack is made long after the time

when the certificate of citizenship was granted and the citizen has meanwhile

met his obligations and committed no act of lawlessness,” the court must

“scrutinize the record with the utmost care.” Nowak v. United States, 356

U.S. 660, 663 (1958) (quoting Schneiderman, 320 U.S. at 158). If, after careful

review, it is determined that the government has satisfied its burden, the

court is required to enter a judgment of denaturalization and enjoys no

discretion in the matter. Fedorenko, 449 U.S. at 517.

A. Illegal Procurement of Naturalization – Lack of Jurisdiction (Count IV)

A certificate of naturalization is illegally procured, and therefore

subject to revocation, if the applicant failed to strictly comply with all

congressionally imposed prerequisites to naturalization. Fedorenko, 449 U.S.

at 506. One such prerequisite is that the applicant must have been lawfully

admitted as a permanent resident. See 8 U.S.C. § 1427(a). An applicant is not

lawfully admitted if, at the time USCIS adjusted his or her status, it lacked

jurisdiction to do so. See Koszelnik, 828 F.3d at 180.

Once an applicant is placed in deportation or removal proceedings, only

the Immigration Judge presiding over those proceedings has authority to

grant adjustment of status. See 8 C.F.R. § 1245.2 (2004) (“After an alien . . .

is in deportation or removal proceedings, his or her application for

13 adjustment of status . . . shall be made and considered only in those

proceedings”). Accordingly, USCIS lacks jurisdiction to adjust an applicant’s

status once deportation or removal proceedings have commenced. See Chan v.

Lynch, 843 F.3d 539, 544 (1st. Cir. 2016). Removal proceedings commence,

and jurisdiction vests in the Immigration Court, upon the filing of “charging

documents,” including an Order to Show Cause. 8 C.F.R. §§ 3.13, 3.14(a)

(1997) (currently codified at 8 C.F.R. §§ 1003.13 and 1003.14(a), respectively).

The government contends that USCIS lacked jurisdiction to grant

Rahman permanent residence because he was in removal proceedings at the

time. To supports its contention, the government produced an affidavit from a

USCIS official stating that, when Rahman applied for permanent residence,

he was subject to an unexecuted order of deportation stemming from his

withdrawn application for asylum. Thus, because Rahman had been placed in

removal proceedings, only the Immigration Court could adjust his status to

that of a permanent resident.

Rahman counters that the government is not entitled to summary

judgment for two reasons. First, Rahman states that he does not recall being

served with the Order to Show Cause, which he argues must occur before

jurisdiction can vest in the Immigration Court. He asserts that this presents

a genuine dispute as to whether jurisdiction properly vested in the

14 Immigration Court so as to deprive USCIS of jurisdiction. Second, Rahman

contends that USCIS could have properly adjusted his status if the removal

proceedings had been terminated by the Immigration Court, which the

government has not demonstrated did not occur. I conclude that Rahman’s

defenses are without merit, and the government is entitled to summary

judgment on Count IV.

Rahman’s lack of recollection about being served with the Order to

Show Cause does not create a genuine dispute of material fact, and therefore

does not preclude summary judgment. Although Rahman stated that he does

“not recall being served” with the Order, Doc. 49-1 at 3, he does not deny that

he was served. To the contrary, he admits that the signature on the Order’s

Certificate of Service, attesting that he received service of the Order before

his hearing, is his own.

Mere lack of recall about a particular event, without more, does not

create a genuine dispute as to whether the event actually occurred. See I.V.

Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 55 (1st Cir. 1999)

(noting that a witness’s “mere lack of recollection” as to whether she received

a document “does not suffice to create an issue of fact over whether or not she

received [that document]” for the purposes of summary judgment); see also To

v. U.S. Bancorp, 651 F.3d 888, 892 n.2 (8th Cir. 2011) (“An assertion that a

15 party does not recall an event does not itself create a question of material fact

about whether the event did, in fact, occur.”). This is particularly so where, as

here, the undisputed evidence indicates that the relevant event did, in fact,

occur. See E.E.O.C. v. Bob Evans Farms, LLC, 275 F. Supp.3d 635, 642 n.6

(W.D. Pa. 2017) (collecting cases and noting that “[a] failure to recall an event

without a denial that it happened coupled with affirmative evidence that the

event happened, is insufficient to create an issue of material fact preventing

summary judgment”).

Rahman’s second defense—that the government has not sufficiently

demonstrated that the removal proceedings were ongoing—fares no better.

The undisputed evidence shows that Rahman was subject to an outstanding

order of deportation when his status was adjusted to that of a permanent

resident. This evidence supports the conclusion that Rahman was in removal

proceedings and that, therefore, USCIS lacked jurisdiction to adjudicate his

application for adjustment of status. See Dar-Salameh v. Gonzales, 468 F.3d

47, 51 (1st Cir. 2006) (concluding that USCIS lacked jurisdiction to adjust the

status of a defendant who was subject to a decade-old order of deportation

because “attempts to adjust his status occurred after he was placed in

deportation proceedings and were not made within those proceedings”).

Indeed, multiple courts have concluded that the existence of an outstanding

16 order of deportation is sufficient to deprive USCIS of jurisdiction. See, e.g.,

Koszelnik, 828 F.3d at 180 (“Since [the defendant] had a final order of

deportation pending against him, INS lacked jurisdiction[.]”); Gonzalez v.

Mayorkas, No. 1:13-cv-1230, 2014 WL 585863 at *5 (E.D. Va. Feb. 12, 2014)

(concluding that an outstanding order of removal “deprieve[d] USCIS of any

power or authority to adjudicate petitioner’s adjustment application”); Nasr

v. Hogan, No. 4:08-cv-415, 2008 WL 2310940, at *3 (M.D. Pa. June 3, 2008)

(affirming USCIS decision that it lacked jurisdiction to adjust the status of a

defendant “who was in removal proceedings but is now subject to a final

administrative order of removal”); c.f., Wellington v. I.N.S., 108 F.3d 631, 635

(5th Cir. 1997) (“INS practice requires that aliens who have been found

deportable in deportation proceedings seek adjustment of status through the

mechanism of reopening their deportation proceedings.”). Rahman has not

cited any cases finding that USCIS retained jurisdiction in the face of an

outstanding order of deportation, and I have found none. This is

unsurprising, as “[m]isunderstandings can result if an alien successfully

obtains a grant of adjustment of status and is simultaneously subject to a

valid deportation order. Consolidating those actions into a single overall

proceeding helps to avoid those misunderstandings.” Dar-Salameh, 468 F.3d

at 51.

17 Thus, the government has provided sufficient evidence that the

removal proceedings were active when Rahman attained his adjustment of

status. Although Rahman contends that the Immigration Judge might have

terminated the proceedings, he does not assert that this actually occurred, let

alone supply evidence of as much. Sheer speculation, of course, is not enough

to preclude summary judgment. Therefore, Rahman has not demonstrated

that there is a genuine dispute of material fact as to whether he was in

removal proceedings when USCIS adjusted his status to that of a permanent

resident. Because there is no question that Rahman was in removal

proceedings at the time, USCIS lacked jurisdiction to adjudicate his

application as a matter of law. The government is therefore entitled to

summary judgment on Count IV.

B. Illegal Procurement of Naturalization – Willful Misrepresentation of Material Fact (Count III)

As stated before, naturalization is illegally procured if the applicant

was not lawfully admitted as a permanent resident. See Fedorenko, 449 U.S.

at 506; see also 8 U.S.C. § 1427(a). An applicant cannot be lawfully admitted

if he was inadmissible at the time of adjustment. See 8 U.S.C. § 1255(a). An

applicant is inadmissible if he sought to procure an immigration benefit

through fraud or willful misrepresentation of a material fact. See 8 U.S.C. §

1182(a)(6)(C)(i).

18 Failure to disclose relevant information in response to a specific

question on an application for permanent residence may be considered a

disqualifying misrepresentation if the omission is willful and material. See

Toribio-Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010). A

misrepresentation is material if it “ha[s] a natural tendency to influence the

[government’s] decision[].” Id. (quoting Kungys v. United States, 485 U.S.

759, 767 (1988)) (cleaned up). This is satisfied where, for example, truthful

information “would predictably have disclosed other facts relevant to [the

applicant’s] qualifications.” See Kungys, 485 U.S. at 774. Finally, the

“element of willfulness is satisfied by a finding that the misrepresentation

was deliberate and voluntary.” Toribio-Chavez, 611 F.3d at 63 (quoting

Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999)). “An intent to deceive is

not necessary; rather, knowledge of the falsity is sufficient.” Id.

The government asserts that Rahman was not lawfully admitted for

permanent residence because he made material misrepresentations on his

application forms. Specifically, the government notes that Rahman failed to

disclose his prior use of the name Mohammed Enam, as well as the social

security number and the A-number associated with that name. I conclude

that the government has shown that Rahman willfully made a material

19 misrepresentation by failing to disclose his prior use of the name Mohammed

Enam on his application for permanent residency. 3

There is no question that Rahman’s failure to disclose his past name

constitutes a misrepresentation. It is demonstrably false for Rahman to

represent that he did not use any other names when, by his own admission,

he exclusively used the name Mohammed Enam for several years. Although

Rahman states that he did not complete the form himself, he admits that he

signed the form. This is sufficient to demonstrate that he made a

misrepresentation. See Toribio-Chavez, 611 F.3d at 63.

Rahman’s misrepresentation was material because it prevented the

government from discovering potentially disqualifying information. The

government submitted an affidavit from Emily Costa, a supervisor at USCIS,

stating that, had Rahman answered truthfully, the government would have

obtained and reviewed his immigration file under the name Mohammed

Enam. Doc. 45-2 at 110. This file, Costa averred, would have revealed that

Rahman was subject to an outstanding deportation order and made material

misrepresentations on his application for asylum. Id. Rahman has not

supplied any evidence to the contrary.

3 In light of this conclusion, I need not address the other alleged misrepresentations.

20 The information that would have been discovered but for Rahman’s

misrepresentation bears directly on his eligibility for permanent residency for

at least two reasons. First, as I explained above, the outstanding order of

deportation divested USCIS of jurisdiction to adjudicate Rahman’s

application. See 8 C.F.R. § 1245.2(a)(1) . Second, Rahman’s fraudulent

asylum application may have rendered him inadmissible. See 8 U.S.C.

§ 1182(a)(6)(C)(i) (providing that applicants who seek to procure immigration

benefits through willful misrepresentation of a material fact are

inadmissible); see also United States v. Daifullah, 11 F.4th 888, 896 n.4 (8th

Cir. 2021) (holding that defendant who previously filed an asylum application

under a false identity was inadmissible and therefore had illegally procured

his permanent residency). Because the information that would have been

discovered is potentially, if not decidedly, disqualifying, Rahman’s omission is

material. See Koszelnik, 828 F.3d at 180 (quoting Matter of Kai Hin Hui, 15

I. & N. Dec 288, 289 (B.I.A. 1975)) (“A misrepresentation is material if it

‘tends to shut off a line of inquiry which is relevant to the alien’s eligibility

and which might well have resulted in a proper determination that he be

excluded.’”).

Finally, the undisputed evidence demonstrates that Rahman’s

misrepresentation was willful. Although Rahman avers that he did not

21 review the application before signing it, he does not appear to dispute that he

knew both that the application form called for disclosure of any previously

used names and that his submitted application omitted all references to his

use of the Mohammed Enam identity. Rather, the evidence offered by

Rahman indicates that he was aware of this omission. For example, Rahman

admits that he completed a “sample” Form G-325A as part of his intake

paperwork for Attorney Simmons to use in preparing his application. The

form that Rahman completed was identical to the form that is submitted

when applying for adjustment of status. Thus, in filling out this paperwork,

Rahman necessarily would have realized that the application for adjustment

of status required disclosure of “all other names used.” See Doc. 45-2 at 54.

Additionally, Rahman has repeatedly asserted that he had conversations

with Attorney Simmons about his use of the Mohammed Enam identity, and

that she had advised him “not to bring [it] up” in his application. See Doc. 49-

3 at 38. Rahman’s former wife similarly stated that Attorney Simmons

advised Rahman on filling out the paperwork and told him “[n]ot to list” the

Mohammed Enam identity on his application. See Doc. 49-5 at 13. Therefore,

Rahman was aware that his attorney intended to omit all references to the

Mohammed Enam identity, despite the application’s request for “all other

names used.” Finally, Rahman has consistently stated that, at the time he

22 submitted his application, he believed his answers were accurate. See Doc.

45-1 at 121 (“As of the time that [the application for permanent residence]

was submitted, based on my understanding and the advice and instruction of

my lawyers, I do not believe that there were corrections to be made.”); Doc.

49-1 at 6 (“Based on the advice and instruction of Mr. Veloso and Ms.

Simmons, I believed the content of the Form I-485 and G-325A were accurate

and appropriate.”). Indeed, Rahman’s primary defense, discussed in more

detail below, is that he believed the answers on the application were

appropriate given the advice of counsel. Of course, Rahman could not have

believed that the contents of his application were accurate or appropriate if

he did not know what was in the application.

Accordingly, there is no genuine dispute that Rahman knew his final

application for permanent residence did not disclose his use of the

Mohammed Enam identity. Moreover, Rahman acknowledges that he was

aware of his use of the Mohammed Enam identity at the time he submitted

his application. Thus, unless his advice of counsel defense has merit, there

can be no doubt that Rahman acted willfully because he submitted his

application knowing that it contained false statements. See Toribio-Chavez,

611 F.3d at 63.

23 In sum, the undisputed evidence shows that Rahman willfully made

material misrepresentations on his application for permanent residency. As a

result, he was not lawfully admitted as a permanent resident and therefore

he procured his naturalization illegally.

C. Procurement of Citizenship by Concealment of a Material Fact or Willful Misrepresentation (Count V)

A certificate of naturalization must be revoked if it was procured

through concealment or misrepresentation of a material fact. See 8 U.S.C.

§ 1451(a). To revoke citizenship on this basis, the government must prove

that (1) the naturalized citizen misrepresented or concealed some fact, (2) the

misrepresentation or concealment was willful, (3) the fact was material, and

(4) the naturalized citizen procured his or her citizenship as a result of the

misrepresentation or concealment. See Kungys, 485 U.S. at 767.

The first three elements mirror the elements required under Count III.

“A misrepresentation is a statement of fact that is untrue or a failure to

disclose a fact in response to a specific question.” See United States v. Hirani,

824 F.3d 741, 748 (8th Cir. 2016) (quoting Shipley v. Ark. Blue Cross & Blue

Shield, 333 F.3d 898, 904 (8th Cir. 2003)). Again, willfulness does not require

proof that the defendant had an “intent to deceive,” but only that the

“misrepresentation was deliberate and voluntary.” See Toribio-Chavez, 611

24 F.3d at 63. 4 A misrepresentation is material if it “had a natural tendency to

influence the decisions” of the government, such as where a truthful answer

“would predictably have disclosed other facts relevant to [the applicant’s]

qualifications.” Kungys, 485 U.S. at 772.

The fourth and final element requires proof that the defendant

“procured citizenship as a result of the misrepresentation or concealment.” Id.

at 767. Although the elements of materiality and procurement are related,

they are nonetheless distinct, and “satisfaction of one does not necessarily

mean satisfaction of the other.” Mensah, 737 F.3d at 808 (quoting United

States v. Latchin, 554 F.3d 709, 713-714 (7th Cir. 2009)). Once it is

established that the misrepresentation was material, it is presumed that the

misrepresentation procured the citizen’s naturalization so long as the

government (1) demonstrates that citizenship was “obtained as a result of the

application process in which the misrepresentations or concealments were

made,” and (2) “produces evidence sufficient to raise a fair inference of

4 Although Toribio-Chavez discussed the standard for willful misrepresentations under 8 U.S.C. § 1182(a)(6)(C)(i), courts have regularly applied the same standard to willful misrepresentations under 8 U.S.C. § 1451(a). See, e.g., United States v. Ahmed, 735 F. App’x 863, 868 (6th Cir. 2018); United States v. Charles, 456 F. Supp.3d 268, 283 (D. Mass. 2020); United States v. Rubalcava Gonzales, 179 F. Supp.3d 917, 925 (E.D. Mo. 2016).

25 ineligibility.” Id. (quoting Latchin, 554 F.3d at 713-714) “The standard is not

whether the application would have been denied ‘but for’ the

misrepresentation, but whether a court could fairly infer the applicant would

have been ineligible.” United States v. Charles, 456 F. Supp.3d 268, 285 (D.

Mass. 2020) (citing Kungys, 485 U.S. at 809). The presumption of

procurement can nonetheless be rebutted if the defendant shows “through a

preponderance of the evidence, that the statutory requirement as to which

the misrepresentation had a natural tendency to produce a favorable decision

was in fact met.” Kungys, 485 U.S. at 777. In other words, once the

government establishes it is entitled to a presumption of procurement, the

burden shifts to the defendant “to prove that he was in fact eligible.” Latchin,

554 F.3d at 714.

The government contends that Rahman willfully made material

misrepresentations on his Form N-400 and subsequent interview, which,

individually and collectively, procured his naturalization. Although the

government focuses on several misrepresentations, I conclude that the

government has satisfied its burden at least with regard to Rahman’s failure

to disclose his prior use of the Mohammed Enam identity on his Form N-400.

The form stated: “If you have ever used other names, provide them

below,” to which Rahman responded “N/A.” Doc. 45-2 at 78. Rahman stated

26 that “N/A” stands for “not applicable,” and he acknowledged that he was

aware of as much when he signed the form. See Doc. 45-1 at 52. This

response, viewed in context, is tantamount to a claim that Rahman has not

“ever used other names” which is, by Rahman’s own admission, false. At the

very least, the response omits reference to his prior use of the Mohammed

Enam identity and therefore constitutes a misrepresentation.

That misrepresentation was willful. Although Rahman states that his

attorney completed the Form N-400, he does not dispute that he signed it

with knowledge of its contents. Indeed, Rahman seems to take responsibility

for providing the answer “N/A.” See Doc. 45-1 at 52 (“During filling out the

information, following instructions from [Attorney Simmons] not to bring

Mohammed Enam again, I thought it would be appropriate to put not

applicable there.”); Doc. 49-1 at 7 (“Based on what Attorney Simmons told

me, I believed it would have been inappropriate to reference my past use of

the Mohammed Enam name and I thought it was appropriate to state that

use of other names was ‘not applicable.’”). Moreover, by Rahman’s own

admission, he was aware of his use of the Mohammed Enam identity when he

submitted the Form N-400. Doc. 45-1 at 66. Thus, there can be no dispute

that the misrepresentation was willful. See Toribio-Chavez, 611 F.3d at 63

27 Rahman’s misrepresentation was also material because a truthful

answer would have led to the discovery of other disqualifying information.

The government submitted an affidavit from Christina Salidzik, the USCIS

officer who adjudicated Rahman’s application for naturalization. Doc. 45-2 at

113, 119. Salidzik stated that, had she been aware of Rahman’s use of the

Mohammed Enam identity, she would have retrieved his immigration file

under that name. Id. at 124. After reviewing the information in that file, she

would have concluded that he was ineligible for naturalization because he

was not lawfully admitted as a permanent resident. Id.

Rahman nonetheless contends that his use of the “N/A” response was

not material because the government has not demonstrated “that use of an

alias alone would led [sic] to the denial of citizenship, or would have led it to

discover the withdrawn asylum application.” Doc. 49 at 32. Rahman’s

argument, however, misconstrues both the law and the evidence. It is not the

case that the government must prove that a truthful response would, in and

of itself, disqualify the defendant; rather, it is sufficient that “‘disclosure of

the true facts would have led the government to make an inquiry that might

have uncovered other facts’ that might lead to denial of the application.” See

United States v. Wu, 711 F.3d 1, 30 (1st Cir. 2013) (quoting United States v.

Fedorenko, 597 F.2d 946, 951 (5th Cir. 1979), aff’d, 449 U.S. 490 (1981)).

28 Furthermore, Salidzik’s affidavit states that she would have located

Rahman’s asylum application and subsequent order of deportation but for his

misrepresentation. Despite his protestations, Rahman has not offered any

evidence to rebut Salidzik’s averment. Accordingly, I accept her

uncontroverted statements as true. See Statchen v. Palmer, 623 F.3d 15, 18

(1st Cir. 2010). Thus, because the government has demonstrated that

truthful information would have led to the discovery of disqualifying

information, it has satisfied the element of materiality.

Finally, the government has demonstrated that Rahman procured his

citizenship as a result of his misrepresentation. It is, of course, undisputed

that the Form N-400 in question resulted in Rahman’s naturalization.

Furthermore, it is fair to infer that, had Rahman disclosed his use of the

Mohammed Enam identity, he would have been found ineligible. As I

explained before, Rahman was not lawfully admitted as a permanent

resident, both because he was inadmissible and because USCIS lacked

jurisdiction to adjust his status. Accordingly, the government is entitled to a

presumption that Rahman procured his citizenship as a result of the

misrepresentations. See Hirani, 824 F.3d at 752 (“Because [the applicant’s]

material misrepresentations concealed his statutory ineligibility to

naturalize, [he] procured his naturalization on the basis of those

29 misrepresentations”). Rahman is unable to rebut this presumption because,

as discussed, he cannot establish that he was lawfully granted permanent

residence. Therefore, the government has demonstrated that Rahman

obtained his naturalization through willful misrepresentations.

D. Defenses

Rahman asserts three defenses which he claims demonstrate a lack of

willfulness as to Counts III and V. None is sufficient to preclude the entry of

summary judgment for the government.

First, Rahman asserts that he did not know that the relevant filings

were signed under penalty of perjury. But a misstatement is willful if it was

made voluntarily with knowledge of its falsity, regardless of whether the

defendant was aware that it was made under penalty of perjury. See Toribio-

Chavez, 611 F.3d at 63 (concluding that “knowledge of the falsity is

sufficient” to demonstrate willfulness); see also United States v. Daifullah,

No. 5:18-cv-00163-JM, 2020 WL 553667 at *4 (E.D. Ark. Feb. 3, 2020), aff’d,

11 F.4th 888 (8th Cir. 2021) (rejecting argument that misrepresentations on

naturalization application were not willful because defendant did not

understand that he was signing application under penalty of perjury).

Accordingly, the government is not required to prove that the defendant was

aware the misrepresentations were made under penalty of perjury.

30 Second, Rahman appears to contend that his language barrier caused

him to misunderstand the relevant questions. The government disputes this,

arguing that Rahman had sufficient language skills to understand the

questions. But assuming Rahman had a language barrier, he does not

provide any evidence to indicate that he misunderstood or misinterpreted the

questions. Nor does he explain what he understood the questions to mean, or

how this understanding led him to believe that his answers were truthful. To

the contrary, Rahman filed an affidavit stating that, pursuant to the advice of

counsel, he “did not think [he] was supposed to or should have stated

Mohammed Enam” on the forms. Doc. 49-1 at 6-7. Thus, at bottom, Rahman’s

claim is that he understood the questions but believed that his responses

were appropriate based on the advice of counsel.

But it is no defense that an attorney advised Rahman to refrain from

referencing the Mohammed Enam identity. Good faith reliance on the advice

of counsel may, in some circumstances, negate a finding that a

misrepresentation was made willfully. See Boufford v. United States, 239

F.2d 841, 845-846 (1st Cir. 1956). Such a defense, however, is only available

where the defendant “(i) fully disclosed all material facts to his attorney

before seeking advice; and (ii) actually relied on his counsel’s advice in the

good faith belief that the conduct was legal.” United States v. Rice, 449 F.3d

31 887, 892 (8th Cir. 2006) (cited with approval in Janiero v. Urological Surgery

Pros. Ass’n, 457 F.3d 130, 140 (1st Cir. 2006)). An individual cannot,

however, have a good faith belief that his conduct was legal where it was

unambiguously unlawful. Therefore, the defense generally only succeeds

where there is some ambiguity in what the law requires.

For example, in Boufford v. United States, the First Circuit held that a

jury could reasonably conclude that a defendant did not willfully make a

misrepresentation on his application for naturalization if they believed that

he was acting pursuant to the advice of his counsel. 239 F.2d at 846. In that

case, the naturalization application asked, “How many times have you ever

been married?” Id. at 843. The defendant answered “once,” referring to his

first marriage, even though he had previously entered into a void second

marriage while still married to his first wife. Id. The court concluded that a

jury could have reasonably found that the defendant was relying on counsel’s

advice that the question was referring to “the legal state of wedlock, rather

than to a void ceremony of marriage.” Id. at 845. Thus, the jury could have

reasonably found that the defendant believed that he was answering the

question truthfully based on his attorney’s advice, and therefore did not make

a willful misrepresentation. Id.

32 The same could not be said here. Unlike the question at issue in

Boufford, there is no reasonable interpretation of the questions here that

would have led Rahman to believe that his responses were truthful, nor does

Rahman assert that his attorney offered any such interpretation. Ultimately,

Rahman was not relying on his attorney’s interpretation of an ambiguous

question, but relying on his attorney’s advice to lie. As a matter of law, a

defendant cannot rely in good faith on an attorney’s recommendation to

commit perjury. See Williamson v. United States, 207 U.S. 425, 453 (1908)

(“[N]o man can willfully and knowingly violate the law and excuse himself

from the consequences thereof by pleading that he followed the advice of

counsel.”); see also United States v. Johnson, 730 F.2d 683, 687 n.3 (11th Cir.

1984) (“if [the defendants] had claimed that they relied on [their

accountant’s] advice about lying about their criminal records, such a claim

would clearly be outside of the ‘good faith’ prong of the expert advice

defense”); United States v. Drame, No. 18-civ-11480 (AKH), 2021 WL

1226996 at *8 (S.D.N.Y. Apr. 1, 2021) (concluding that, in an action to revoke

citizenship based on material misrepresentations, a defendant cannot claim

good faith reliance on the advice of counsel where “he was counseled not to

follow the law and to lie”); S.E.C. v. Goldsworthy, No. 06-10012-JGD, 2008

WL 8901272 at *5 (D. Mass. June 11, 2008) (quoting United States v.

33 Erickson, 601 F.2d 296, 305 (7th Cir. 1979)) (“A claim of good faith reliance

on the advice of accountants or counsel is not available where,

notwithstanding the professional’s advice, the defendant ‘knowingly and

willfully filed materially false and misleading financial statements’”).

Therefore, Rahman has failed to provide any evidence to rebut the

government’s showing of willfulness.

IV. CONCLUSION

For the foregoing reasons, the government’s motion for summary

judgment (Doc. 45) is granted as to Counts III, IV, and V. The remaining

counts are dismissed as moot, and the clerk of court shall close the case.

Judgment will be entered for the government as follow:

1) The Order of the United States District Court of New Hampshire,

dated March 16, 2007, granting Rahman citizenship (“the Order”) is vacated

and Rahman’s United States citizenship is revoked.

2) Rahman’s Certificate of Naturalization No. 30151323 (“the

Certificate”), issued pursuant to the Order, is canceled and void.

3) Rahman is permanently enjoined from claiming any rights,

privileges, benefits, or advantages related to the Order.

4) Rahman shall surrender and deliver, within ten days of entry of

judgment, the Certificate and all copies thereof in his possession, as well as

34 any other indicia of U.S. citizenship, including but not limited to any U.S.

passports and voter registration cards, to the Attorney General.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

October 25, 2022

cc: Counsel of record