United States District Court, E.D. Missouri, Eastern Division
JAMES E. MWAIPUNGU, Plaintiff,
SALLY Q. YATES, Acting U.S. Attorney General, Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
Introduction and Background
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.
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) (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.
Findings of Fact
Plaintiff was born on September 28, 1975 (Transcript of
Evidentiary Hearing (“Tr.”) 8:10).
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).
Plaintiff testified that he returned to Tanzania when he was
approximately 6 and grew up there (Tr. 24:20-25:4,
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;
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).
Plaintiff came to the United States in 1994 via his Tanzanian
passport (Gov't Ex. 9).
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
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
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).
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).
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;
Immigration and Naturalization Service placed Plaintiff in
removal proceedings on November 5, 1999 (Tr. 43:16-44:3;
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.
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).
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
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).
U.S. Embassy denied Plaintiff the visas on January 21, 2000
(Gov't Exs. 14-16).
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).
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;
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.).
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).
January 30, 2009, Plaintiff pled guilty to having made a
false statement in an application for a United ...