Marko v. Barr

          Anthony P. Patti U.S. Magistrate Judge.

          ORDER DENYING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT [27]

          Arthur J. Tarnow Senior U.S. District Judge.

         Petitioner Frida Marko is a citizen of Albania who has been a legal permanent resident of the United States since 2008. Before her arrival in the United States, Petitioner submitted a nonimmigrant visa application on at least two occasions: first in March of 1999 and second in September of 1999. The former application was denied, but the latter was granted. Petitioner came to the United States on the approved nonimmigrant visa and remained in Michigan thereafter. In time she became a Legal Permanent Resident and applied for naturalization. After her application for naturalization was denied on the basis that she made fraudulent statements on her September 1999 application, Ms. Marko brought this suit for judicial review.

         Factual Background

         In 1999, Petitioner had two passports. One was issued in November 1998 to “Frida Marko, ” her married name, and contained the names and birthdates of her children. (Dkt. 27-10, pg. 4). Her own birthdate was listed, correctly, as June 10, 1957. (Id. at pg. 3). This passport was valid until 2003. (Id.). A second passport was issued in September of 1999 to Frida Tomco, Petitioner's maiden name. (Dkt. 27-13, pg. 3). On this passport, the page for children was blank, and Petitioner's birth date was listed as July 9, 1957. (Id. pg. 3-4). The passports also have different “personal numbers.” (Id.).

         Petitioner first applied for a nonimmigrant visa to the United States in March of 1999, as Frida Marko, to attend a relative's baptism in Michigan. (Dkt. 27-2, pg. 38-39). She paid “[m]aybe a thousand dollars” to a professional to assist her in preparing her visa, but her application was ultimately unsuccessful. (Id. at 42-44). State Department records show Petitioner, as Frida Marko, also applied for a visa in May of 1999 (Dkt. 27-9), but Petitioner denies that she applied then. In its visa section, her Marko passport bears a stamp that reads, “U.S. EMBASSY SKOPJE APPLICATION RECEIVED ON MAR 08 1999.” (Dkt. 27-10, pg. 25). Directly beneath, another stamp reads “MAY 27, 1999.” (Id.). The March visa application was denied under Section 214(b) of the Immigration and Nationality Act (“INA”) (Dkt. 34-2), which provides for a rebuttable presumption that every applicant is an immigrant unless he or she proves to be eligible for non-immigrant status. INA § 214(b).

         Petitioner applied again for a nonimmigrant visa on September 10, 1999. For this application she hired a woman who held herself out to be an employee of the U.N. Population Fund. (Dkt. 27-2, pg. 46). The woman offered to help Petitioner fill out an application to attend a seminar on business development in Washington, D.C. (Id. at 47). Petitioner paid this woman $5, 450 to register for the seminar and $550 to fill out the application. (Id. at 50). Petitioner testified that she had arranged the visit both to attend the conference and to visit her family. (Id. at 54). Her daughters and husband were already living in the United States. Petitioner now suspects that she was deceived by this woman, and that “all of this was done for money.” (Id. at 57). Petitioner remembers little of her subsequent interview at the U.S. Embassy. She testified that she understood no English at the time, and that another woman with whom she was travelling spoke to the officer at the embassy. (Id. at 59-62).

         For this visa application, Petitioner applied using her Frida Tomco passport. As a result, her date of birth is listed as July 7, 1957. (Id. at 63). Her husband's name is listed (incorrectly) as Niko Tomco (Id.). The visa indicates that Petitioner was a Finance Assistant for the U.N. Population Fund. (Id. at 67). It is undisputed that all of these facts are incorrect. Petitioner maintains, however, that she could not have read the document and that her signature at the bottom of the application is not authentic. The application was approved, and Petitioner was given a one-month nonimmigrant visa. (Id. at 105).

         A January 31, 2000 “Refusal Worksheet” noted as follows:

The applicant applied for and received a [nonimmigrant visa] at this Embassy on September 10, 1999. She stated she was a Finance Assistant for the UN Population Fund Office in Tirana travelling on official business and presented a letter to that effect. AFU Tirana investigation revealed the document to be a forgery. (Dkt. 27-8).

         The conference was to be held from October 4 to October 15th. (Dkt. 27-2 at 88). Petitioner flew to Washington D.C. on September 23, 1999 and then caught a connecting flight to Michigan, where she reunited with her husband and daughter. (Id. at 88-90). Petitioner testified that her husband was injured at the time and in the process of applying for asylum, and that her testimony could be helpful to his case. She decided to remain in Michigan, reasoning that if she returned to Albania she would not be permitted to return to the United States to testify on his behalf at his asylum interview. (Id. at 110).

         In 2009, Petitioner acquired Permanent Legal Resident status. She subsequently applied for naturalization in 2017. Her naturalization application was denied. On October 16, 2017, she petitioned for a rehearing of this denial and appeared for a hearing on December 6, 2017. (Dkt. 27-11). The Notice of Decision reaffirmed her denial and made the following findings.

On September 14, 2017, USCIS denied your form N-400 because you were not lawfully admitted for permanent residence in accordance with INA § 318…A review of USCIS records indicates that in 1999 you filed a nonimmigrant visa application on grounds that you were employed in the UN Population Fund Office (UNFPO) and that you were travelling to the United States on official business on behalf of this entity. It was later discovered that your application was fraudulently submitted and the supporting documents were forged. Your non-immigrant visa application was denied and you were deemed inadmissible to the United States pursuant to INA § 212(a)(6)(C)(i) as an alien who, by fraud, or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or who has procured) a visa, other document, or admission into the United States or other benefit under the Act. (Dkt. 27-11).

         Procedural ...