Following a 7th Circuit decision, an Alexandria U.S. District Court adopts a magistrate judge’s report and says correspondence can constitute an informal appearance in court, but defendant’s letter in this government action to revoke naturalization does not show an intention to defend the action, and the court enters default judgment against defendant.
The government filed a complaint against defendant seeking to revoke naturalization pursuant to 8 U.S.C. § 1451(a), alleging that defendant procured naturalization by willful concealment or misrepresentation of material fact. Plaintiff has moved for default judgment against defendant. The statute normally requires plaintiff to provide defendant with 60 days personal notice, but it does authorize service by publication under the laws of the state where the action is filed when a defendant is outside the U.S. Virginia law provides for service by publication to a nonresident individual.
The initial summons issued listed an address for defendant in Amman, Jordan, but plaintiff did not complete service. On Dec. 20, 2013, the court granted plaintiff’s motion to notify defendant by publication according to Virginia law, in the manner provided for by Va. Code § 8.01-317. On Jan. 17, 2014, plaintiff filed a notice and supporting affidavit that it had complied with the order of publication. Plaintiff noted in its notice that defendant’s Amman, Jordan address had insufficient detail to complete delivery. Notwithstanding the incomplete address, defendant acknowledged receipt of the order to appear when she sent a letter to this court dated Feb. 17, 2014. Plaintiff and Homeland Security Investigations received copies on March 4 and 6, 2014, respectively. Defendant’s acknowledgment of the order indicates that service of process was completed.
In order for the court to enter default judgment, a defendant who has appeared in court must be notified seven days before a default judgment hearing. Circuits are split on whether appearance in court may also be informal, such as by correspondence, but courts agree that the defaulting party must show a clear intention to defend this action. The 4th Circuit has not ruled on this issue, but the Eastern District of Virginia has followed the formal standard adopted by the 7th Circuit.
Defendant’s letter does not show an intention to defend the action. She explained she has not been in possession of her U.S. passport since March 19, 2013, and could not otherwise obtain the requisite authorization from her employer to leave Syria for personal reasons. Entry of default was proper because defendant failed to lead or otherwise defend the action.
Contrary to affirmations in her naturalization application, which listed “Homemaker” as her only employment for the last five years, defendant told Homeland Security Investigations (HSI) in an April 11, 2013, interview that she had worked for the Atomic Energy Commission of Syria since 1986, first as an administrative assistant, then as Head of Safeguards. Defendant also told HSI that she was paid 30,000 Syrian pounds per month at AECS, with an extra 10,000 Syrian pounds for attending conferences. Defendant listed AECS under employment on her 1996 immigration form. Defendant is listed as an attendee representing AECS on a program for a 1997 nuclear nonproliferation seminar in Vienna, Austria. Defendant is also listed as an attendee from AECS at UN International Atomic Energy Agency conferences in Austria in 1998, 2001 and 2002. Two conference programs from 1998 and a publication from a 2003 symposium in Cairo, Egypt, identify defendant as Head of Safeguards for AECS.
Plaintiff argues that defendant procured naturalization by the concealed or misrepresented facts. Plaintiff argues that plaintiff concealed her ongoing employment for an agency of the Syrian government, which the State Department has designated a state sponsor of terrorism. Plaintiff raises a fair inference that defendant was ineligible for citizenship in that it is difficult to perceive a set of circumstances under which USCIS would approve a naturalization application for someone employed by a state sponsor of terrorism. Defendant has not rebutted the presumption of ineligibility by a preponderance of evidence.
There is sufficient basis to revoke and set aside defendant’s naturalization order and cancel defendant’s certificate of naturalization.
U.S. v. Rahim (Davis, Cacheris) No. 1:13cv718, July 25, 2014; Aug. 21, 2014; USDC at Alexandria, Va. VLW 014-3-454, 16 pp.