Originally published by The Intercept
AS THE JUSTICE DEPARTMENT made its closing argument on Tuesday afternoon that a federal court should strip a 62-year-old truck driver of his U.S. citizenship, one question appeared to weigh on U.S. Magistrate Judge Patricia Barksdale’s mind: If Parvez Manzoor Khan is denaturalized, will he be deported to Pakistan?
In a Jacksonville, Florida, courtroom, Justice Department attorney Aaron Petty argued that Khan became a citizen by lying to immigration officials and hiding material facts about his immigration history, and therefore, his citizenship should be taken away. Barksdale, after asking Petty about the applicable legal standard in the case, asked, “If the court revokes citizenship, what’s Khan’s status?”
Petty told Barksdale, who sits on the bench in the district court for the Middle District of Florida, that Khan would once again be a lawful permanent resident — a status he gained in 2001 based on his marriage to a U.S. citizen, which opened the door to his naturalization. Barksdale then asked whether Khan could maintain that status or whether he would be at risk of losing it. Petty said that the Justice Department could not attempt to rescind Khan’s green card — the informal name for the document establishing permanent residence — and it is unlikely that U.S. Immigration and Customs Enforcement could act on a 1992 deportation order against Khan. But, he added, it is possible that ICE could initiate new deportation proceedings.
James LaVigne, Khan’s attorney, described Petty’s answer as a “welcome surprise.”
“This is the first time I’ve heard the government say this, that it won’t affect his green card,” LaVigne said after the hearing. He noted that because Khan gave up his green card when he became a U.S. citizen in 2006, and because the Justice Department has argued that Khan illegally procured his permanent residence status as well, it has never been clear what the exact legal effect of Khan losing citizenship status would be.
The questions over Khan’s fate came in the final day of denaturalization proceedings that have consumed nearly two years of his life. In September 2017, the Justice Department marked Khan as one of three targets for denaturalization, the Trump administration’s first public declaration that it would be pursuing such cases under a Department of Homeland Security project called Operation Janus. The initiative, which started at the end of George W. Bush’s presidency and continued under Barack Obama, involved digitizing fingerprint data collected by immigration officials that was missing from a central database, and then combing through about 315,000 cases to determine whether anyone who had been issued a final deportation order later obtained legal status under a different name.
In Khan’s case, the federal government found fingerprint records belonging to Mohammad Akhtar, a Pakistani national who was ordered to be deported in 1992, that matched the fingerprints Khan gave when he applied for permanent residence and citizenship more than a decade later. After linking the two immigration files, the Justice Department accused Khan of becoming a citizen fraudulently by failing to disclose aspects of his immigration history, including the past deportation order — which Khan says he was not even aware of.
It is now up to Barksdale to decide whether the government met its burden to prove that Khan illegally procured his citizenship, or that he obtained it by concealing or willfully misrepresenting a material fact. At trial, Barksdale said she expected to make her ruling about a month following the closing arguments.
Her decision will be a bellwether of what’s to come. If Khan’s citizenship is revoked, despite the fact that he could have been eligible for citizenship even if he had been forthcoming about his history, it could embolden the government to bring more of these cases forward — which it has already indicated it intends to do.
KHAN FIRST CAME to the United States on December 7, 1991, using a Pakistani passport that bore the name Mohammad Akhtar. Immigration officials at the Los Angeles airport noticed that the photo on the passport had been tampered with. They detained Khan, who now says he bought a passport because he thought it would be too difficult to obtain a visa to the United States, where his brother, Suhail Khan, lived. Parvez Khan, whose first language is Urdu and who spoke limited English at the time, was sent to a jail, where he met with an immigration attorney named Howard George Johnson. None of Khan’s cellmates spoke Urdu, and he communicated with Johnson through an Indian cellmate who spoke only Punjabi. The result was an asylum application that incorrectly listed Khan’s name, his mother’s name, and his date of birth.
After about a month in detention, Suhail Khan bonded his brother out, and Parvez Khan traveled to Miami, where he lived with Suhail and became a taxi driver. He never heard from Johnson again, nor did he receive correspondence from ICE about proceedings related to his asylum claim. Unbeknownst to Khan, an immigration judge entered an order of deportation against him in February 1992.
Five years later, Khan met Betty Louise Pope, whom he married in 1998. Within a week of their marriage, he applied for a green card on the basis of that relationship. On his application for permanent residence, he did not disclose that he’d previously used a different name or that he’d been in deportation proceedings and applied for asylum, despite questions to that effect. He was granted permanent residence in 2001. Now, the Justice Department argues that he illegally procured that status by failing to answer honestly about his immigration history.
The Justice Department also argues that Khan became a U.S. citizen illegally because he left those parts of his immigration history out of his 2006 application and interview for citizenship. LaVigne, Khan’s lawyer, argues that the questions on the applications for permanent residence were vague and equivocal, particularly for a layperson who does not understand immigration law, and that Khan would have been eligible to become a U.S. citizen even if he’d been entirely forthcoming about his history.Khan’s lawyer argues that Khan would have been eligible to become a U.S. citizen even if he’d been entirely forthcoming about his history.
Those points get at the primary issue Barksdale will have to resolve: How material were Khan’s lies and omissions to the overall outcome of his citizenship application? On Tuesday, the judge asked probing questions about what legal standard should apply. Petty argued that Barksdale should decide how material Khan’s actions were to his eventual naturalization by looking solely at prevailing legal precedent — what is known in legal parlance as a question of law — while LaVigne’s position was that materiality is a so-called question of fact, meaning that Barksdale should weigh the evidence to make her determination.
“Our position is that this is a question of law. However, Pallechia testified at length about how Khan’s testimony resulted in a different adjudicatory path,” said Petty, who delivered his arguments in a monotone, laying out the government’s version of events and applicable law, referring to Lisa Pallechia, the U.S. Citizenship and Immigration Services officer who adjudicated Khan’s application and testified at trial.
The Bryan Simpson United States Courthouse in Jacksonville on April 1, 2019.
Photo: Maryam Saleh/The Intercept
THE DISTRICT COURT has no discretion in denaturalization cases. If Barksdale finds that the Justice Department established by clear, convincing, and unequivocal evidence that Khan illegally procured his U.S. citizenship, she will be required to enter an order canceling his certificate of citizenship. Barksdale’s pointed questions to the attorneys about the relevant case law made clear that she’s grappling with the potential consequences of ordering Khan’s denaturalization. After spending several minutes asking Petty about Khan’s future legal status, she revisited the issue during LaVigne’s closing argument. She cautioned, though, that she could not consider Khan’s future immigration status when making her ruling. “It’s not really pertinent to the decision,” she told LaVigne. “I was just curious what his status was.” Regardless of Barksdale’s ruling, the case will likely head to an appeal.
If Khan’s citizenship is revoked, he could apply for a replacement green card, though that process would be complicated if ICE decided to initiate deportation proceedings against him. A Justice Department victory will open the door for ICE to try to send Khan back to Pakistan, where he has not lived since 1991; the agency would not be obligated to do so, but the amount of resources the federal government has expended on this case, which has involved top Justice Department lawyers, mean the odds are not in Khan’s favor.
The Justice Department’s efforts to strip people of citizenship — a practice that, for the last 50 years or so, has largely been reserved for war criminals and Nazis — have also expanded significantly under President Donald Trump. In the first two years of the Trump presidency, the total number of denaturalization cases nearly doubled over the total number of cases filed between 2004 and 2016. In a January 2018 press release, the Justice Department wrote that USCIS “has stated its intention to refer approximately an additional 1,600 for prosecution.” Last summer, USCIS said it would be opening a new office in Los Angeles to focus on denaturalization.
In recent years, the Department of Homeland Security has asked Congress for large sums of money to pursue denaturalization. In the last fiscal year, ICE asked for $207.6 million to fund, among other things, an investigation into an expected 887 additional leads under Operation Janus, as well as to review another 700,000 immigrant files under Operation Second Look, a related program. ICE renewed the ask for that funding in its 2020 budget request. Homeland Security Investigations, an arm of ICE, was working with USCIS to digitize fingerprints from 650,000 immigrant files, the agency wrote in a budget justification it sent to Congress. “HSI estimates it could receive an estimated 800 referrals/leads from this upload.”
Khan is one of four defendants whose cases the Justice Department has specifically stated were borne out of Operation Janus, and his is the first of those cases to go to trial. Like Khan, the other targets — natives of India, Pakistan, and Bangladesh — are accused of lying about their immigration histories, not concealing a criminal past.
The federal government has already stripped one of those four people of citizenship, but that case was resolved pretrial because the defendant never responded to the charges against him. A third defendant also never responded to the allegations against him, and the government has asked the court to rule in its favor. The fourth case is likely to go to trial. Khan’s case, then, is the federal government’s first chance to show that it can take cases based on minor omissions by the defendant to trial — and win.
LAVIGNE, KHAN’S LAWYER, stressed that the questions Khan answered incorrectly on his applications for permanent residence and citizenship were confusing, and that it should be clear to the court that Khan remains confused by the legal technicalities of his case — something which was evident during the Justice Department’s questioning of Khan at trial.
“The plaintiff’s case is based on Monday morning quarterbacking, hindsight, and going back through reams of paper and saying, ‘Oh, you lied on your I-485,” LaVigne said emphatically at the start of his argument, referring to a form that is part of the application for permanent residence.
LaVigne, despite being comforted by Petty’s claim that Khan would revert to permanent resident status should his certificate of naturalization be canceled, said he does not trust Homeland Security to stick to that. (While the Justice Department litigates denaturalization cases, ICE, which falls under the Department of Homeland Security, initiates deportation proceedings.)
“I’m not sure how the current administration is going to interpret anything anymore,” LaVigne told Barksdale.
Khan, a truck driver who spends about 11 hours on the road every day, drove from Atlanta to Jacksonville with his wife, Betty Louise Khan, on Tuesday morning. He sat next to LaVigne during the argument and told me afterward that he’s tired of fighting for his right to stay in the United States.
“If they keep my green card,” Khan said, “I’m OK with it.”
Read more:https://theintercept.com/2019/07/31/us-citizenship-status-denaturalization-case/
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