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Mwaipungu v. Yates

United States District Court, E.D. Missouri, Eastern Division

January 27, 2017

JAMES E. MWAIPUNGU, Plaintiff,
v.
SALLY Q. YATES[1], Acting U.S. Attorney General, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         I. Introduction and Background

         Removal proceedings were initiated against Plaintiff James E. Mwaipungu (“Plaintiff”) on August 20, 2008, charging him with removal as an alien who falsely represented himself to be a United States citizen under Section 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii); as an alien present in the United States without being admitted or paroled under Section 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i); and as an alien not in possession of a valid entry document at the time of application of admission under Section 212(a)(7)(A)(i), 8 U.S.C. § 1182(a)(7)(A)(i). Plaintiff challenged his removal claiming to be a United States citizen by birth.

         Following a hearing, an Immigration Judge found Plaintiff was removable as charged and ordered him removed to Tanzania. Plaintiff appealed the decision to the Board of Immigration Appeals (“BIA”) which dismissed the appeal. Plaintiff filed a Petition for Review with the Eighth Circuit Court of Appeals alleging the BIA erred in upholding the Immigration Judge's determination that he is not a citizen of the United States. Mwaipungu v. Holder, 8th Cir. Case No. 14-2214. On the Parties' joint motion, the Eighth Circuit transferred the matter to this Court for a hearing on Plaintiff's nationality claim pursuant to 8 U.S.C. § 1252(b)(5)(B)[2] (Doc. 1). The Court held an evidentiary hearing on Plaintiff's nationality claim, and at the Court's direction, the Parties have submitted proposed findings of fact and conclusions of law (Docs. 19, 20). Pursuant to Federal Rule of Civil Procedure 52(a), the following constitute the Court's Findings of Fact and Conclusions of Law. The Court finds and concludes Plaintiff has failed to produce substantial credible evidence of U.S. citizenship, and Defendant has shown by clear and convincing evidence that Plaintiff is not a U.S. national.

         II. Findings of Fact

         1. Plaintiff was born on September 28, 1975 (Transcript of Evidentiary Hearing (“Tr.”) 8:10).

         2. Plaintiff testified that he was born in the United States after his biological parents came to New York from Tanzania to visit friends (Tr. 16:15-20).

         3. Plaintiff testified that he returned to Tanzania when he was approximately 6 and grew up there (Tr. 24:20-25:4, 96:8-97:23).

         4. On July 25, 1994, Plaintiff applied to New Hampshire College (now Southern New Hampshire University) as an international student (Gov't Ex. 2). On his application, Plaintiff indicated that he was born in Dar es Salaam, Tanzania (Id. at 1). Plaintiff signed his name to the application, attesting, “I certify that the information contained in this application and in all documents I forward to you is true and complete to the best of my knowledge.” (Id.; Tr. 25:2-26:11; 97:18-102:14).

         5. Plaintiff obtained an F-1 multiple entry visa on August 29, 1994 so that he could travel to the United States to attend New Hampshire College (Gov't Ex. 9). Plaintiff testified that, in so-doing, he presented to the United States Embassy a passport issued by the government of Tanzania that documented his place of birth as “D'Salaam, ” Tanzania (Tr. 102:15-103:14).

         6. Plaintiff came to the United States in 1994 via his Tanzanian passport (Gov't Ex. 9).

         7. On September 4, 1994, Plaintiff filed an application for an original Social Security number (Gov't Exs. 3, 4). On his application, Plaintiff indicated his place of birth as “D'Salaam Tanzania” (Gov't Ex. 4). In support of his application, Plaintiff provided his Tanzanian Passport and I-94 Stamp (Id.). Plaintiff signed the application under the warning, “Deliberately furnishing or causing to be furnished false information on this application is a crime punishable by fine or imprisonment, or both” (Id.).

         8. On February 15, 1997, Plaintiff married a U.S. citizen, Laura Mwaipungu (nee Morse). (Gov't Ex. 7). A certified copy of Plaintiff's 1997 marriage certificate lists his birthplace as “Disalaam, Tanzania” (Gov't Exs. 12).

         9. On September 16, 1997, Plaintiff's daughter was born. A certified copy of the certificate of birth, reflects that Plaintiff's birthplace is “Dar Es Sacaam [sic], Tanzania” (Gov't Ex. 13).

         10. Records from the Department of Homeland Security reflect that Plaintiff's wife signed an I-130 Petition for Alien Relative on May 15, 1998, indicating that Plaintiff was born in Tanzania (Gov't Ex. 7). The I-130 Petition was submitted to the Immigration and Naturalization Service together with an I-485 Application to Register Permanent Residence or Adjust Status (Gov't Ex. 8). Plaintiff attached to the I-485 a birth certificate from the United Republic of Tanzania indicating that, on September 28, 1975, a son named “James” was born to Mr. Edward James Mwaipungu (“Mr. Mwaipungu”) and Ms. Chiku Mfaume, both citizens of Tanzania, in a maternity home in Dar es Salaam Tanzania (Gov't Ex. 10). Plaintiff also submitted a signed biographical form indicating that he was born in D'Salaam, Tanzania, and containing a warning that “[s]evere penalties are provided by law for knowingly and willfully falsifying or concealing a material fact” (Gov't Ex. 11).

         11. Plaintiff and his wife did not appear for an interview on their applications, and on October 25, 1999, the INS denied the applications as abandoned (Tr. 43:16-44:3; 122:11-123:25).

         12. The Immigration and Naturalization Service placed Plaintiff in removal proceedings on November 5, 1999 (Tr. 43:16-44:3; 122:11-123:25).

         13. In December 1999, Plaintiff's mother died. Plaintiff traveled back to Tanzania in December 1999 for the funeral (Tr. 44:4-9;124:11-22). He traveled on his Tanzanian passport reflecting his birth in Tanzania (Id.; Gov't Ex. 9).

         14. In 2000, Plaintiff applied for non-immigrant tourist (B1/B2) visas at the U.S. Embassy in Tanzania in the hopes of returning to the United States (Gov't Exs. 14-16).

         15. The State Department records reflect that Plaintiff identified himself as someone who was born in Tanzania, who presented a Tanzanian passport reflecting the same, and who certified in his application for a visa that the information he provided was true and correct to the best of his belief (Id.).

         16. Plaintiff testified at the evidentiary hearing that he informed the U.S. Embassy that he was a Tanzanian national by virtue of his providing his Tanzanian passport (Tr. 48:22-24; 125:7-15). However, in an April 15, 2015 deposition, Plaintiff testified under oath that he identified himself to the U.S. Embassy as a U.S. citizen who was born in the United States (Tr. 126:1-128:22; 136-137).

         17. The U.S. Embassy denied Plaintiff the visas on January 21, 2000 (Gov't Exs. 14-16).

         18. Thereafter, on April 19, 2000, Plaintiff was apprehended by an Immigration Inspector as he attempted to enter the United States from Canada (Tr. 50:7-23; 131:12-20). Plaintiff was returned to Canadian Immigration where he was taken into custody and jailed for one week (Tr. 51:16-52:1). A search revealed he had a photo-substituted (fake) U.S. Passport with another individual's name on it (Tr. 132:2-133:22).

         19. After being released from Canadian custody, Plaintiff again attempted to enter the United States and successfully did so sometime before Easter in 2000 (Tr. 52:12-53:12; 134:6-135:25).

         20. On February 19, 2004, Plaintiff filed an application for a replacement Social Security card (Gov't Exs. 3, 5). On his application, Plaintiff indicated his place of birth as, “DSALAAM, TZ” (Gov't Ex. 5). Plaintiff signed his application under the warning, “Deliberately furnishing (or causing to be furnished) false information on this application is a crime punishable by fine or imprisonment or both” (Id.).

         21. On June 20, 2008, Plaintiff was indicted in the U.S. District Court for the Eastern District of Missouri for “knowingly mak[ing] a false statement in an application for a [U.S.] passport” in violation of 18 U.S.C. § 1542 (Gov't Exs. 18, 19).

         22. On January 30, 2009, Plaintiff pled guilty to having made a false statement in an application for a United ...


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