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United States v. Malik

United States District Court, D. Kansas

May 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
AFAQ AHMED MALIK, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         Plaintiff United States of America brought this denaturalization action, seeking to revoke and set aside defendant Afaq Ahmed Malik's citizenship and cancel his Certificate of Naturalization. The court conducted a bench trial in October 2018. The parties later submitted proposed findings of fact and conclusions of law. The court has now reviewed all of the briefing, as well as the evidence in the case, and issues the following findings of fact and conclusions of law.

         As will be demonstrated below, the overriding issue with plaintiff's case is a lack of reliable, clear, unequivocal, and convincing evidence about what happened during defendant's immigration-related interviews and what information was material to the interviewers. Defendant has conceded that his various immigration forms contained incorrect information (actually, no information) about his prior marriage and children. But what was discussed in interviews about those forms is not clear from the record. Simply put, plaintiff did not meet its high burden of showing that (1) defendant was not divorced when he married a United States citizen in 2000; (2) defendant withheld information about his ex-wife and children with the intent to gain an immigration benefit; and (3) that the adjudicators would have made different decisions had they known about plaintiff's ex-wife and children. The government must meet a high burden of proof for the court to set aside a grant of citizenship. That burden has not been not met here.

         Findings of Fact

         I. Factual Background

         A. Defendant's Background

         1. Defendant was born in 1964 in Pakistan and married Kaneez Fatima in Pakistan in December 1995. He and Fatima have three children together.

         2. Defendant divorced Fatima in 2000. He began divorce proceedings in March 2000 with the Union Council in Bhara Kahu, Pakistan. Defendant's brother Ishfaq Malik witnessed the divorce.

         3. Defendant visited the United States in 2000 on a temporary visa with no plans to stay. He met a woman named Venita McIntosh (hereinafter “McIntosh, ” although for seven years, she went by the last name “Malik”) and her adult son, Richard McIntosh, who was quadriplegic.

         4. Defendant and McIntosh married on October 23, 2000, in Raytown, Missouri. McIntosh testified that they were in love with each other. Defendant also testified in his deposition that the marriage with McIntosh was based on love. The court finds the testimony of both credible on this point.

         5. Defendant did not tell his new wife he had an ex-wife and children in Pakistan.

         6. After they married, McIntosh and defendant joined their lives together as married couples often do-filing their taxes together, leasing a home, purchasing cars and insurance together, reflecting their mutual residence on their driver's licenses, sharing responsibility for their utilities, and spending time together as a family.

         7. Eventually, in 2007, defendant and McIntosh divorced. Defendant then remarried Fatima in Pakistan.

         8. In 2011, defendant submitted forms to request that two of his children be allowed to live permanently in the United States. On those forms, defendant represented that the date and place of his present marriage were 12/17/1995 and Pakistan (instead of the 2007 date of his remarriage to Fatima). The court does not find this fact to be conclusive-or even persuasive-evidence that defendant remained married to Fatima continually from 1995. Instead, the representation appears to the court to be a reasonable misunderstanding of how defendant should answer the question, particularly since the children were born during the first marriage to Fatima.

         9. In 2014, the government notified defendant that he was the target of a denaturalization case, alleging that defendant had never gotten divorced in Pakistan. Defendant then asked his brother Ishfaq Malik to obtain a copy of his original divorce documents from the Union Council's office in Bhara Kahu, Pakistan. Ishfaq Malik did so.

         10. Plaintiff raised questions about the ongoing record-keeping by the Union Council's office in Bhara Kahu, Pakistan. In response, defendant hired an attorney to file a complaint for declaratory judgment and injunctive relief in Pakistan. The court determined the divorce was legally binding as of its execution in 2000 and compelled the Union Council in Bhara Kahu, Pakistan to keep an accurate record of the divorce.

         11. Drew Bazil testified at trial that the divorce papers were not authentic. The court does not exclude the testimony of Bazil, as requested by defendant, but considered his testimony as lay opinion testimony. That said, the court found Bazil's testimony about the age and authenticity of the documents unpersuasive. Bazil did not have extensive experience at the time he evaluated the documents and did not offer sufficient reasoning for his conclusions. Bazil also did not consider key evidence in reaching his conclusions, such as how and where the documents were stored. The court gives the testimony of Bazil very little weight in considering whether defendant divorced Fatima in 2000.

         12. Likewise, the testimony of Ryan Long was not persuasive on any relevant matters. Again, the court finds no reason to exclude the lay opinion testimony of Long, but instead has evaluated it in the context of the other evidence and finds it not persuasive and only marginally relevant. Long also did not have substantial experience at the time he worked in Pakistan. He did not speak or read Urdu, and he was not familiar with Pakistani law. His testimony on various points was inconsistent, and the court finds that he failed to establish that defendant's 2007 marriage to Fatima was not a remarriage after a prior divorce.

         B. Defendant's Lawful Permanent Resident Status

         13. After marrying in 2000, McIntosh and defendant filed immigration forms for defendant to remain in the United States as a permanent resident. McIntosh submitted an immigrant visa petition on Form I-130 and defendant filed a Form I-485 application for adjustment of status.

         14. It is unclear who completed these forms; United States Citizenship and Immigrations Services (USCIS) Officer Angela Firuccia conceded there is no way to tell from the forms themselves. Firuccia acknowledged that McIntosh may have completed these forms, and plaintiff did not ask McIntosh at trial if she had filled them out. Defendant does not remember filling out the forms. But he believes that if he did, he likely had help, given his limited English at the time.

         15. The visa forms did not list defendant as having any ex-wife or children.

         16. Having an ex-wife and children in the applicant's home country is not a reason to deny adjustment of status. The USCIS does, in fact, grant adjustment of status to divorced ...


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