Petition for Writ of Certiorari — Mohamed Idris Ahmed, Petitioner v. United States

Supreme Court briefAug 22, 2018

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NO.

In the Supreme Court of the United States

MOHAMED IDRIS AHMED,

aka Maxamad Idiris, aka Mahamoud Ahmed,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

D. Wesley Newhouse

Counsel of Record

NEWHOUSE, PROPHATER,

KOLMAN & HOGAN, LLC

5025 Arlington Centre Blvd.

Suite 400

Columbus, Ohio 43220

Telephone: (614) 255-5441

Facsimile: (614) 255-5446

wnewhouse@npkhlaw.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

1. Whether the plurality decision in Kungys v.

United States, 485 U.S. 759, 108 S. Ct. 1537, 99 L. Ed.

839 (1988) addressing the procurement element of a

claim based on 8 U.S.C. § 1451(a) has caused such

confusion and varied and conflicting interpretations by

lower courts as to merit a reexamination of the legal

test for the proof of procurement.

2. Whether the courts below failed to require that

the United States prove, by clear, unequivocal and

convincing evidence that Petitioner illegally procured

naturalized citizenship by the willful concealment of

information during the naturalization process, as

required by Kungys, 485 U.S. 759, 108 S. Ct. 1537, 99

L. Ed. 839 (1988) and as addressed in Maslenjak v.

United States, 582 U.S. ____, 137 S. Ct. 1918, 198 L.

Ed. 2d 460 (2017).

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE

Petitioner (defendant-appellant below) is Mohamed

Idris Ahmed, a naturalized United States citizen, and

Respondent (plaintiff-appellee below) is the United

States.

No party to this proceeding is a corporation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT IN SUPPORT OF THE PETITION . . 9

THE NEED FOR A CLEAR LEGAL

STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II.

THE NEED FOR AN EXAMPLE OF WHAT

DOES NOT MEET THE EXISTING LEGAL

STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . . 13

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 17

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Sixth Circuit

(May 24, 2018) . . . . . . . . . . . . . . . App. 1

Appendix B Findings of Fact and Conclusions of

Law and United States District Court,

Southern District of Ohio, Eastern

Division

(September 20, 2017) . . . . . . . . . App. 18

Appendix C 8 C.F.R. § 316.5(c)(1)(A)-(D) . . . App. 49

8 U.S.C. § 1101(f) . . . . . . . . . . . . App. 50

8 U.S.C. § 1427(a) . . . . . . . . . . . App. 52

8 U.S.C. § 1451(a) . . . . . . . . . . . App. 52

18 U.S.C. § 1425(a) . . . . . . . . . . App. 53

28 U.S.C. § 1254(1) . . . . . . . . . . App. 54

TABLE OF AUTHORITIES

CASES

Chaunt v. United States,

364 U.S. 350, 81 S. Ct. 147, 5 L. Ed. 2d 120

(1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Klapprott v. United States,

335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 1099 (1949)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kungys v. United States,

485 U.S. 759, 108 S. Ct. 1537, 99 L. Ed. 839

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Maslenjak v. United States,

582 U.S. ____, 137 S. Ct. 1918, 198 L. Ed. 2d 460

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Monter v. Gonzales,

430 F.2d 546 (2nd Cir. 2005) . . . . . . . . . . . . . . . 10

United States v. Latchin,

554 F.3d 709 (7th Cir. 2009) . . . . . . . . . . . . . 9, 14

United States v. Puerta,

982 F.2d 1297 (9th Cir. 1992) . . . . . . . . . . . . . . . 9

STATUTES

8 C.F.R. § 316.5(c)(1)(A)-(D) . . . . . . . . . . . . . . . . . . 15

8 U.S.C. § 1101(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8 U.S.C. § 1427(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1451(a) . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 1425(a) . . . . . . . . . . . . . . . . . . . . . . 10, 12

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

The Washington Post, June 13, 2018, Scanning

Immigrants’ Old Fingerprints, U.S. Threatens to

Strip Thousands of Citizenship . . . . . . . . . . . . . 17

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Mohamed Idris Ahmed, through his

counsel, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra

(App.), 17-4046) is not reported in the Federal

Reporter, but the opinion is available at 2018 WL

2357422. The opinion of the district court (No. 2:12-cv951) is not reported in the Federal Supplement but is

available at 2017 U.S. Dist. LEXIS 213956.

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 2018. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant statutory provisions are included in

the appendix to this petition.

STATEMENT

Petitioner Mohammed Ahmed is a prominent

Somali Imam who lawfully immigrated to the United

States from Saudi Arabia in 1996. Since then, Mr.

Ahmed travelled extensively throughout the United

States and the world lecturing and preaching

moderation and peace, and speaking out against

radicalization of Muslim youth and terrorism. His

work has been published broadly on social media.

(Trial Transcript pt. 2, Doc #59, PAGEID #1434, 1467 1468).

In May 2002, Mr. Ahmed sought United States

citizenship via naturalization.

With his limited

understanding of the English language at the time and

unfamiliarity with the immigration law processes, Mr.

Ahmed sought help from the WIN Translation Service.

The assigned translator was a man who, like Mr.

Ahmed, spoke English as a second language. (Id.,

PAGEID #1441 - 1443).

Mr. Ahmed met with the translator once, for about

15 – 20 minutes. At that meeting, the translator filled

out the Application for Naturalization, asking Mr.

Ahmed his name, where he was from, where he

worked, whether he was married, the names of his

children, and the name of his wife. (Id., PAGEID

#1442). Mr. Ahmed had brought his then-current

passport – showing his extensive foreign travel - and

his green card to the meeting, and he provided those

items to the translator. The translator looked at his

passport, but asked him no questions about his travel.

(Id., PAGEID #1486).

At the end of their meeting, the translator asked

Mr. Ahmed to sign the signature page of the

Application for Naturalization that the translator had

completed for him. The translator did not show

Defendant the completed form, and the translator kept

the form after Mr. Ahmed signed it. (Id., PAGEID

#1449 - 1450).

Unbeknownst to Mr. Ahmed, the translator had

answered questions on the form to the effect that Mr.

Ahmed had engaged in no foreign travel. (Id., PAGEID

#1443, 1486). Defendant had engaged in foreign travel

– he regularly traveled to different Somali communities

as part of his preaching and lecturing circuit, and to

visit family. (Id., PAGEID #1434 – 1436; Trial Exhibit

14). His foreign travel was recorded in the passport

that Mr. Ahmed gave to the translator for purposes of

completing the Application for Naturalization. (Id.,

PAGEID #1436 – 1437; 1442; 1450).

Although uncertain as to the number and duration

of his trips abroad when questioned at his deposition,

Mr. Ahmed, after reviewing his passports, testified

affirmatively at trial that he did not exceed the 30month limit for foreign travel during the relevant fiveyear period. (Trial Transcript pt. 2, Doc #59, PAGEID

#1454). Petitioner produced to the Government in

discovery his three Somali Democratic Republic

passports covering the time frame of May, 1998 to

March, 2003 before his deposition on December 4, 2013,

and the Government questioned him about them at the

deposition. (Ahmed Deposition, pp. 45-50, filed under

seal). The Government offered no testimony or other

evidence at trial regarding the duration and number of

trips reflected in the passports.

Nearly one year after the translator submitted his

N-400 application, Mr. Ahmed received a letter

directing him to appear at the USCIS district office in

Seattle to undergo an interview on his Application for

Naturalization. The letter stated that Mr. Ahmed

“MUST BRING” (emphasis in original) his passport

and other travel documents with him to the interview.

The interview was scheduled for February 27, 2003.

The letter stated that the interview would take about

two hours.

(Id., PAGEID #1451 – 1453; Trial

Transcript pt. 1, Doc #58, PAGEID #1298 – 1299; Trial

Exhibit 7).

Mr. Ahmed appeared for his interview as scheduled,

with his passport and other travel documents as

instructed. There, he was interviewed by USCIS

District Adjudication Officer Yvonne Jarrett, nee

Valenzuela. (Trial Transcript pt. 1, Doc #58, PAGEID

#1337; Trial Transcript pt. 2, Doc #59, PAGEID #1453).

Mr. Ahmed gave his passport to Ms. Jarrett. (Trial

Transcript pt. 2, Doc #59, PAGEID #1453 - 1454). She

left the room with the passport – which, again, showed

Mr. Ahmed’s foreign travel - then returned and gave

the original passport back to Mr. Ahmed. (Id.,

PAGEID #1487 - 1488). Whether Ms. Jarrett made a

copy of Mr. Ahmed’s passport is unknown to this date.

She cannot remember anything about Mr. Ahmed or

his interview, and no such copy was found in Mr.

Ahmed’s A-file when the Government initiated the

underlying action to revoke Mr. Ahmed’s naturalization

nearly ten years after approving Mr. Ahmed for

Citizenship. (Trial Transcript pt. 1, Doc #58, PAGEID

#1340, 1363 – 1364). It seems either Ms. Jarrett

decided not to make a copy (she testified that she often

would not make a copy of the passport if, upon review,

the travel did not appear to be an issue for the

Application for Naturalization) or the agency lost the

copy (other documents were missing from Mr. Ahmed’s

A-file, too). (Id., PAGEID #1292, 1315, 1362 – 1363,

1366-1369; Trial Transcript pt. 2, Doc #59, PAGEID

#1459 - 1460).

Ms. Jarrett spent only a few minutes interviewing

Mr. Ahmed. (Trial Transcript pt. 1, Doc #58, PAGEID

#1291, 1310 - 1312). The USCIS was experiencing a

substantial backlog of cases at that time. Ms. Jarrett

estimates that she was performing approximately

twelve interviews a day at that point; the USCIS

Reverifier assigned to Mr. Ahmed’s Application for

Naturalization estimates that he was performing 20 –

25 interviews a day at that time. (Id., PAGEID #1290

– 1292, 1363 – 1365).

In their brief time together, Ms. Jarrett was

“kindful” toward Mr. Ahmed, who was the Preacher at

a local Islamic Center at the time and wore his robe to

the interview. (Trial Transcript pt. 2, Doc #59,

PAGEID #1457 - 1458; Trial Exhibit 4, p. 3). Referring

to Mr. Ahmed’s Application for Naturalization, Ms.

Jarrett verified select information throughout the

Application. (Trial Transcript pt. 1, Doc #58, PAGEID

#1372 – 1373). She included some checkmarks

throughout the application, but no notations – she

believed she was not supposed to write information on

the application. (Id., PAGEID #1269 – 1270, 1371 –

1373; Jarrett Deposition, p. 77, l. 5 – p. 78, l. 2, filed

under seal). She did not ask about Mr. Ahmed’s foreign

travel, and she did not show him his Application.

(Trial Transcript pt. 2, Doc #59, PAGEID #1467). Like

the translator had done, Ms. Jarrett simply instructed

Mr. Ahmed to sign the Application on the last page at

the end of the interview. (Id., PAGEID # 1459).

Mr. Ahmed remembers the interview well; for him,

it was a singular moment on his path to becoming a

United States citizen. Ms. Jarrett does not remember

the interview at all. (Trial Transcript pt. 1, Doc #58,

PAGEID #1363 - 1365).

At the conclusion of the interview, on February 27,

2003, Ms. Jarrett found that Mr. Ahmed was a person

of good moral character and she recommended that his

application for citizenship be approved. CIS Reverifier

Terence Lee reviewed her recommendation and agreed

that Mr. Ahmed should be approved for citizenship.

(Id., PAGEID #1317, 1358). Mr. Ahmed was sworn in

as a United States citizen on March 3, 2003. (Trial

Exhibit A).

Mr. Ahmed lived here peacefully as a U.S. citizen,

continuing his work as an Imam and preaching against

violence. Then, the United States filed the underlying

action.

On October 16, 2012, the Government filed a

complaint under 8 U.S.C. § 1451(a) seeking to revoke

the order admitting Mr. Ahmed to citizenship.

(Complaint, Doc #1, PAGEID #1). The Government

alleged that Mr. Ahmed illegally procured citizenship

and concealed material facts and willfully

misrepresented information concerning his foreign

travel and marital status1 during the naturalization

application process. Mr. Ahmed denied those

allegations. (Answer, Doc #12, PAGEID #55). He did

not know the contents of the application until after the

Government had brought this action. (Trial Transcript

pt. 2, Doc #59, PAGEID #1459, 1487, 1497 – 1498).

A bench trial was held on April 26 – 27, 2016. Mr.

Ahmed testified, generally, that he did not know that

his Application for Naturalization stated that he had

Although presented at trial, issues related to Mr. Ahmed’s

marital status, and the question of whether he was a person of

“good moral character” pursuant to 8 U.S.C. § 1101(f) were not

addressed in the trial court’s decision. See Findings of Fact and

Conclusions of Law in the appendix to this petition.

engaged in no foreign travel during the 5-year period

leading up to his application at trial. He also gave

detailed testimony of his encounter with the translator

who completed his Application for Naturalization for

him, and his interview with Ms. Jarrett. The United

States called four witnesses: (1) Bich Truong (from the

translator service that prepared Mr. Ahmed’s

Application for Naturalization); (2) Terence Lee (the

USCIS reverifier); (3) Yvonne Jarrett (the USCIS

interviewer); (4) Justin Myers (Investigator for the U.S.

Department of Homeland Security). None of the first

three witnesses remembered Mr. Ahmed, or their

encounters with him or his Application for

Naturalization. The fourth witness had no dealings

with Mr. Ahmed, personally, as his involvement in the

case began in October, 2011, when he started

investigating Mr. Ahmed’s immigration file on a “tip”

(Trial Transcript pt. 1, Doc #58, PAGEID #1395).

(Trial Transcript pts. 1 and 2, Doc #58 and 59, PAGEID

#1218 - 1503).

With regard to the 30-month physical presence

requirement, the actual amount of time that Mr.

Ahmed spent outside of the United States was never

established. The only documentary evidence of travel

submitted by the Government (Trial Exhibit 11)

showed 11 trips within the statutory period (May 28,

1997, to May 28, 2002), not 13. The District Court

speculated that there could have been others within the

statutory period “but it is not apparent from the

record” and there was “ambiguity”. (Findings of Fact

and Conclusions of Law, Doc #65, PAGEID #1607).

The District Court did not have the benefit of any

analysis of the number and duration of the trips as

reflected in the passports because, despite having the

passports for 2 ½ years, the Government offered no

analysis of them at trial. The District Court speculated

that, based on Mr. Ahmed’s uncertain and general

deposition testimony concerning the duration of his

trips, the Government had met its burden of proving

the elements of 8 U.S.C. § 1451(a) by clear, unequivocal

and convincing evidence.

After determining that Mr. Ahmed’s travel abroad

was material, the trial court shifted the burden to Mr.

Ahmed to prove, by a preponderance of evidence, that

he in fact met the 30-month physical presence

requirement.

The District Court issued its Judgment Entry on

September 20, 2017, and ordered Mr. Ahmed to

surrender his certificate of naturalization and all other

indicia of United States citizenship, including his

United States passport. (Judgment Entry, Doc #66,

PAGEID #1633).

Mr. Ahmed filed a timely notice of appeal on

October 3, 2017. (Notice of Appeal, Doc #68, PAGEID

#1636). By its Decision of May 24, 2018, the United

States Court of Appeals for the Sixth Circuit affirmed

the decision of the District Court. (Decision, Doc #22-2,

PAGEID #1-13).

ARGUMENT IN SUPPORT OF THE PETITION

THE NEED

STANDARD.

FOR

CLEAR

LEGAL

Although several issues were contested at trial,

Petitioner seeks this Court’s review only of the

standard of proof for the procurement element of a

claim for denaturalization pursuant to 8 U.S.C.

§ 1451(a).

Case by case, fact scenario by fact scenario, lower

courts must divine whether the Government has

presented clear, unequivocal and convincing evidence

giving rise to a fair inference of ineligibility, or if the

evidence shows a mere “possibility” that an applicant

for citizenship may have been ineligible. The Ninth

Circuit, commenting on this Court’s plurality decision

in Kungys v. United States, 485 U.S. 759, 108 S. Ct.

1537, 99 L. Ed. 2d 839 (1988), stated;

[a]fter Kungys, however, it is no simple task to

divine the meaning of “material” under the

denaturalization statute. The eight Justices

who decided Kungys (Justice Kennedy did not

participate) wrote five separate opinions and

offered three distinct tests for determining when

a statement is material.”

United States v. Puerta, 982 F.2d 1297, 1302 (9th Cir.

1992). Likewise, the Seventh Circuit noted that

Kungys was “not a clean opinion. It is maddeningly

fractured.” That court then restated the Supreme Court

Reporter’s explanation of who was on what side in

Kungys, which reads like a rather famous skit

popularized by Abbott and Costello. United States v.

Latchin, 554 F.3d 709, 713 (7th Cir. 2009).

It is worth noting that the Ninth Circuit

disregarded this Court’s distinction between

materiality and procurement when it applied to the

materiality element the burden shifting analysis

apparently intended by this Court to apply only to the

procurement element:

While we agree with much of the Ninth Circuit’s

analysis, we think the dispute between Justices

Brennan and Scalia concerned the proper

interpretation of “procure” not “material”. In

other words, it involved step 4, not step 3. . . .

The discussion of a presumption arose only in

step 4 of the Court’s analysis. Thus, while

Brennan’s opinion may be controlling with

respect to interpreting the word “procure”, it in

no way conflicts with the lead opinion’s

definition of “materiality.”

Monter v. Gonzales, 430 F.2d 546, 555 (2nd Cir. 2005)

(fn. 13). The District Court in the present case made

the same mistake, for it applied the burden-shifting

presumption analysis to the materiality element of the

Government’s claim.

Last year, this Court tried to bring some clarity to

this most confusing of standards when it elaborated

upon the propriety of jury instructions given in a trial

alleging violation of the analogous criminal statute, 18

U.S.C. § 1425(a). Maslenjak v. United States, 582

U.S.___, 137 S. Ct. 1918, 198 L. Ed. 2d 460 (2017).

There, the Sixth Circuit erred when it upheld a

conviction based upon a jury instruction that

disregarded the requirement that the Government

prove “that the defendant lied about facts that would

have mattered to an immigration official, because they

would have justified denying naturalization or would

predictably have led to other facts warranting that

result.” Id. at 137 S. Ct. 1923. This Court found that

mere proof of any misrepresentation or concealment

was not enough to warrant conviction. Instead, when

the Government claims that a misrepresentation

frustrated its investigative efforts, the fact

misrepresented or concealed must 1) be sufficiently

relevant to naturalization that its disclosure would

have prompted a reasonable official to undertake

further investigation, and 2) while the government

need not prove actual ineligibility, it must prove that

the investigation “would predictably have disclosed”

some legal disqualification. Maslenjak, id. at 137 S. Ct.

1929.

With all due respect, the test adopted in Maslenjak

provides no clearer guidance in the present case as to

what evidence shows a mere “possibility” that an

alleged misrepresentation may have illegally procured

citizenship as addressed in Justice Brennan’s

concurring opinion in Kungys, and what is clear,

unequivocal and convincing evidence that a

misrepresentation gives rise to an inference of

ineligibility resulting in the rebuttable presumption as

addressed in Justice Scalia’s opinion in Kungys. As

noted by Justice Gorsuch in his concurring opinion,

joined by Justice Thomas;

In an effort to “operationalize” the statute’s

causation requirement, the Court says a great

deal more, offering, for example, two newly

announced tests, the second with two more

subparts, and a new affirmative defense—all

while indicating that some of these new tests

and defenses may apply only in some but not all

cases.

Maslenjak, id. at 139 S. Ct. 1931.

The impractical and esoteric formulations set forth

in the compilation of opinions in Kungys provide an

uncertain foundation for all the analysis that has

followed. This lack of clear direction is a disservice to

the courts below, and the parties in civil and criminal

denaturalization proceedings. As this Court noted in

Maslenjak,

The Government needs to know what

prosecutions to bring; defendants need to know

what defenses to offer; and district courts need

to know how to instruct juries. Telling them

only “§1425(a) has something to do with

causation” would not much help them make

those decisions.

Id. at 137 S. Ct. 1928 (fn 4). Error dwells in the house

of uncertainty.

A majority of this Court in Chaunt v. United States,

364 U.S. 350, 81 S. Ct. 147, 5 L. Ed. 2d 120 (1960), and

three Justices in Kungys advanced a clear and

straightforward standard of causation. As Justice

Stevens, joined by Justices Marshall and Blackmun,

wrote:

Thus the Government cannot prevail in a

denaturalization action based on a false

statement in an application for a naturalization

certificate unless it can prove by clear,

unequivocal, and convincing evidence the

existence of a disqualifying fact.

Kungys, id. at 488 U.S. 789. Whatever its faults, this

clear, simple and direct standard, or one like it, would

bring clarity to the confusion that is the law of

denaturalization.2

II.

THE NEED FOR AN EXAMPLE OF WHAT

DOES NOT MEET THE EXISTING LEGAL

STANDARD.

The burden of proof at trial was on the Government,

and its task was to prove by “clear, unequivocal, and

convincing” evidence that Mr. Ahmed illegally procured

his citizenship by concealment of a material fact or by

willful misrepresentation. 8 U.S.C. § 1451(a); Kungys,

id. (concurring opinion of Justice Brennan).

Faced with specific testimony from the Petitioner

that he disclosed his foreign travel by providing his

passport to the translator who helped him with the

application and the adjudicator who interviewed him,

the admissions of the witnesses for the Government

that they had no recollection of the interview or the

materials they reviewed, “ambiguous” testimony and

documentary evidence regarding the number of trips

taken, and no evidence as to the length of any one of

the trips, the trial court, and then the court of appeals,

Such a standard, going forward, makes more sense than it may

have in the past. The “record” of naturalization proceedings to

date has been the fading memories of immigration officials,

testimony as to their standard practices, and paper forms with red

ink checkmarks of varied completeness and reliability. Today, an

interviewer can put a GoPro on her desk and make a complete

video recording of what she asks and what the applicant says in

response, copy that to a portable storage device, and slip that into

the applicant’s file.

determined that the scant evidence the United States

presented was sufficient to justify revocation of

Petitioner’s citizenship.

In fact, Mr. Ahmed’s ineligibility was merely a

“possibility”, as addressed by Justice Brennan:

Evidence that simply raises the possibility that

a disqualifying fact might have existed does not

entitle the Government to the benefit of a

presumption that the citizen was ineligible, for

as we have repeatedly emphasized, citizenship is

a most precious right, see, e.g., Klapprott v.

United States, 335 U.S. 601, 611-612, 69 S.Ct.

384, 388-389, 93 L.Ed. 1099 (1949), and as such

should never be forfeited on the basis of mere

speculation or suspicion. I therefore would not

permit invocation of the presumption of

disqualification in circumstances where it would

not otherwise be fair to infer that the citizen was

actually ineligible.

Kungys, 485 U.S. at 784. In other words, as the

Latchin court succinctly stated; “At the end of the day,

then, the government only wins if it shows that the

citizen misrepresented a material fact and it is ‘fair to

infer that the citizen was actually ineligible’.” Latchin,

554 F.3d at 751.

Foreign travel is not disqualifying, and its existence

does not give rise to a fair inference that the applicant

is actually ineligible. In fact, the applicant can be

absent from the United States for as much as half the

relevant five-year period preceding naturalization. 8

U.S.C. § 1427(a). Further, an absence of six months at

one time also is not disqualifying if the applicant’s

employment in the United States has not been

terminated, the applicant has retained full access to his

U.S. abode, and other means.

See 8 C.F.R.

§ 316.5(c)(1)(A)-(D). To get to a fair inference of

ineligibility justifying a shift in the burden of proof, the

Government had to provide not just any evidence, but

clear, unequivocal and convincing evidence that the

duration of his absences gave rise to a reasonable

inference that he was ineligible for citizenship. The

evidence presented at trial showed a mere possibility

that Mr. Ahmed was absent from the United States for

more than 30 of the 60 months before his

naturalization.

The Government cannot claim that it lacked the

ability to meet its burden of proof due to the passage of

time and the unavailability of reliable evidence.

Although its own travel records were unreliable, the

Government obtained in discovery a full 2 ½ years

before trial Mr. Ahmed’s passports showing all of his

departures from and reentries to the United States

during the relevant 5-year period and beyond. And yet

it presented no testimony regarding the duration of the

trips apparent from the passports. Mr. Ahmed’s was

the only testimony on this point, and he stated that he

was not absent from the United States for more than

30 months. (Findings of Fact and Conclusions of Law,

Doc #65, PAGEID #1631). The failure to present such

evidence gives one pause to wonder if the Government

did not do the analysis or, if it did the analysis and did

not deem it prudent to present the evidence at trial.

When the Government presents evidence for the

purpose of revoking the most precious of rights, it

should be held to a higher standard than the

presentation of incomplete, unreliable and “ambiguous”

travel records and testimony. It should be required to

meet specific testimony regarding events with specific

testimony of reliable witnesses who either can recall

the events, or who can testify that the records reliably

reflect those events.

If the records that the

Government keeps are not reliable, the Government

should be required to keep better records, rather than

be allowed to guess as to what those records might

mean based on usual practices.

By hearing this case, the Court will have the

opportunity to address these issues, and provide some

real and valuable guidance to trial courts and parties.

Is it acceptable for the trial court to point out that

testimony and travel records are incomplete, unreliable

and ambiguous, but then to rely upon that testimony

and those records as evidence in revoking citizenship?

Must the Government, when it has on hand specific

evidence that may conclusively resolve the question of

ineligibility, present that evidence at trial rather than

rely on vague and ambiguous records and testimony?

Whether at the burden shifting phase or the rebuttal of

the presumption phase, may the trial court speculate

as to the issue of the duration of absence from the

United States when the only testimony regarding the

actual duration of the absences establishes that they

are within the statutory limits?

If this Court determines that it must maintain the

standards set forth in Kungys, it should take the

opportunity “operationalize” that decision and provide

guidance to the courts below as to what the

Government must present to establish an inference of

ineligibility, justifying the burden shifting

presumption. As the Government routinely relies on

the kinds of travel records and testimony regarding

customary practices presented in the present case, a

decision addressing these issues will have broad

application.

III.

CONCLUSION

It has been widely reported that the United States

Citizenship and Immigration Services has formed a

task force to engage in a systematic and focused review

of the records of hundreds of naturalized citizens for

the purpose of seeking the revocation of their

citizenship.3 This makes a portion of this Court’s

decision in Maslenjak prescient, for the Court warned

there that the Government should not be allowed to

scour a naturalized citizen’s paperwork in search of any

possible misrepresentation, and then use that evidence

to gain “nearly limitless leverage over newly

naturalized Americans”, leaving them with “precious

little security.” Maslenjak id. at 137 S. Ct. 1927.

Lower courts need a clear, simple and specific legal

standard for judging the coming wave of such cases.

Today they face the prospect of being mired in the

“maddeningly fractured” compilation of opinions that

is Kungys.

For these reasons, Petitioner respectfully requests

that this Court issue a writ of certiorari, and review

the present case.

The Washington Post, June 13, 2018, Scanning Immigrants’ Old

Fingerprints, U.S. Threatens to Strip Thousands of Citizenship.

Respectfully submitted,