United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
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.
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.
Defendant was born in 1964 in Pakistan and married Kaneez
Fatima in Pakistan in December 1995. He and Fatima have three
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.
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.
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.
Defendant did not tell his new wife he had an ex-wife and
children in Pakistan.
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.
Eventually, in 2007, defendant and McIntosh divorced.
Defendant then remarried Fatima in Pakistan.
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.
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.
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.
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.
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.
Defendant's Lawful Permanent Resident
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.
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.
visa forms did not list defendant as having any ex-wife or
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