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INTRODUCTION

2

1. Petitioner, Tarek HAMDI, files this Petition for Review pursuant to 8

3

U.S.C. § 1421(c), Immigration and Naturalization Act (“INA”) § 310(c),

4

seeking de novo review of the U.S. Citizenship and Immigration Service’s

5

(“USCIS”) denial of his application for naturalization and a plenary hearing on

6

that application. This Court also has jurisdiction pursuant to 28 U.S.C. § 2201

7

(Declaratory Judgment Act), 5 U.S.C. § 701 et seq. (Administrative Procedure

8

Act), and 28 U.S.C. § 1331.

9

10

2. Mr. Hamdi is a citizen of Egypt and a lawful permanent resident of the

11

United States. Mr. Hamdi meets all the requirements for naturalization, yet

12

nevertheless has endured a nine-year battle to naturalize as a U.S. citizen, the

13

country of citizenship of his wife and four children, and the country he has

14

resided in for over thirty-years – practically his entire adult life.

15

16

3. Mr. Hamdi first filed for naturalization in 2001 and was approved for

17

citizenship after passing his naturalization examination in 2002. For four

18

subsequent years, his application was lost in the administrative black-hole of

19

naturalization backlogs.1 Finally, in 2006, USCIS sent Mr. Hamdi a notice

20

scheduling him for a second naturalization interview, but by the time Mr. Hamdi

21

received the notice, upon returning home from a business trip, the interview date

22

had passed. Six days later, USCIS denied Mr. Hamdi’s naturalization

23

application for failure to appear at the interview.

24

25 1 Tens of thousands of naturalization applicants around the country suffered unreasonable and unlawful delays in the naturalization process because of pending
26 FBI “name checks,” a background check on all naturalization applicants. See, e.g., Anna Gorman, Groups Sue Over Citizenship Delays, L.A. TIMES, Dec. 5, 2007;
27 H.G. Reza, For Citizenship Delayed, 10 Taking U.S. to Court, L.A. TIMES, Aug. 1, 2006.
28

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4. In 2007, Mr. Hamdi filed a new application for naturalization. In

2

2008, he again passed the naturalization examination, but again there was no

3

further action on his application. Finally, on March 16, 2009, he filed a

4

mandamus action under 8 U.S.C. § 1447(b) to compel the agency to adjudicate

5

his application. As a result, on June 8, 2009, USCIS adjudicated Mr. Hamdi’s

6

application for the first time on the merits, but denied him naturalization

7

claiming that he gave false testimony on his application and during his

8

interviews, and is therefore ineligible for naturalization.

9

10

5. The government claims that Mr. Hamdi made a false statement by failing

11

to disclose an “association” with a charitable organization, Benevolence

12

International Foundation (“BIF”). It asserts that he was associated with BIF

13

based on a single donation made in the year 2000. The BIF is an Islamic charity

14

that the Treasury Department designated as a financier of terrorism in 2002,

15

long after the donation was made. Mr. Hamdi does not believe that he is or ever

16

was “associated” with BIF, just as he has never understood that his charitable

17

donations, whether to the BIF or to the American Cancer Society, make him

18

associated with those charities.

19

20

6. Federal immigration law renders ineligible an applicant for naturalization

21

who has made a false statement under oath with the intent to obtain

22

naturalization. See 8 U.S.C. § 1101(f)(6); 8 C.F.R. § 316.10(b)(2)(iv). Mr.

23

Hamdi spoke truthfully as to his associations and at no point intentionally

24

misrepresented his lack of an association with BIF.2 He reasonably read the

25

26

2 Indeed, even if Mr. Hamdi were actually “associated” with BIF, he would have no immigration related reason to misrepresent this fact because the alleged association

27

with BIF would not render him ineligible for naturalization. Donating money to an organization while it was legally operating, seven years prior to the filing of the

28

naturalization application, does not independently render an applicant ineligible for naturalization. See 8 U.S.C. § 1427(a)(3) (an applicant must have been “a person of

2

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question to not require that he list every organization to which he had ever made

2

a donation. In addition, the Due Process Clause of the Fifth Amendment of the

3

U.S. Constitution prohibits Respondents from applying an interpretation of

4

“association” to the question on the naturalization application in a vague

5

manner, such that an ordinary person would not know what the question intends.

6

This prohibition also protects against arbitrary and discriminatory government

7

enforcement. Interpreting the word “association” to require applicants to list all

8

organizations to which they have donated money renders the word

9

unconstitutionally vague. An ordinary naturalization applicant would not

10

understand the question about their associations to require them to list any

11

organization to which they had ever made a donation. Respondents surely do

12

not apply this interpretation of association to deny naturalization to every

13

applicant who fails to disclose, in response to questioning about their

14

organizational “associations,” all of the organizations to which they have made

15

donations.

16

17

7. Mr. Hamdi has battled for nearly a decade for the citizenship to which he

18

is legally entitled, enduring needless delays and apparent discriminatory

19

treatment. Respondent’s unlawful conduct has deprived Mr. Hamdi of the basic

20

privileges of citizenship: the right to vote, to serve on a jury, to travel abroad

21

and return to the U.S. without fear of exclusion from this country, or to receive

22

business and educational loans and benefits reserved for citizens. He now

23

petitions this Court to conduct a de novo review of his naturalization application

24

and requests a hearing pursuant to 8 U.S.C. § 1421(c), which confers on this

25

Court the authority to make its own findings of fact and conclusions of law.

26

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good moral character” for five years before the filing of the naturalization application); 8 U.S.C. § 1101(f) (listing nine grounds for a required finding that a

28

person lacks good moral character, none of which include association with an organization designated as a financier of terrorism prior to its designation).

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JURISDICTION AND VENUE

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8. This Court has jurisdiction over the present action pursuant to 8 U.S.C. §

3

1421(c) (denial of a naturalization application may be reviewed by the United

4

States District Court); 28 U.S.C. § 2201 (Declaratory Judgment Act); 5 U.S.C. §

5

701 et seq. (Administrative Procedure Act) and 28 U.S.C. § 1331.

6

7

9. Venue is properly with this Court pursuant to 8 U.S.C. § 1421(c) and 28

8

U.S.C. § 1391(e) because the Petitioner resides within the Central District of

9

California. See also 8 C.F.R. § 336.9.

10

11

10. Petitioner timely files this Petition for Review within 120 days of

12

Respondent’s April 8, 2010 final decision denying his application for

13

naturalization. See 8 C.F.R. §§ 310.5(b), 336.9(b).

14

15

PARTIES

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11. Petitioner Tarek HAMDI is a citizen and national of Egypt, and a lawful

17

permanent resident of the United States. Petitioner resides within the

18

jurisdiction of this Court.

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12. Respondent UNITED STATES CITIZENSHIP AND IMMIGRATION

21

SERVICE (“USCIS”), which is a division of the Department of Homeland

22

Security, is the federal agency responsible for the adjudication of naturalization

23

applications. The USCIS is the successor agency to the Immigration and

24

Naturalization Service (“INS”) in the area of naturalization adjudications.3 See

25

8 C.F.R. § 336.9(b) (“The petition for review shall be brought against the

26 3 The INS was abolished and replaced by the Department of Homeland Security, pursuant to the Homeland Security Act of 2002, 107 Pub. L. 296, 116 Stat. 2135
27 (Nov. 25, 2002). The enforcement arm of the former INS is now the U.S. Immigration and Customs Enforcement (“ICE”) and the adjudications arm is now
28 the U.S. Citizenship and Immigration Service (“USCIS”).

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Case 5:10-cv-00894-VAP-DTB Document 1 Filed 06/16/10 Page 6 of 15 Page ID #:6

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Immigration and Naturalization Service”).

2

3

13. Respondent DEPARTMENT OF HOMELAND SECURITY (“DHS”) is

4

the federal parent agency of the USCIS and agency responsible for the

5

administration and enforcement of the country’s immigration and naturalization

6

laws.

7

8

14. Respondent Irene MARTIN is the Director of the San Bernardino Field

9

Office of the USCIS, which is a division of the DHS, and is the official in

10

charge of the Service office where Petitioner’s hearing was held pursuant to 8

11

C.F.R. §336.2. See 8 C.F.R. § 336.9(b) (“The petition for review shall be

12

brought against the . . . . official in charge of the Service office where the

13

hearing was held pursuant to § 336.2”).

14

15

15. Respondent Jane ARELLANO is the Director of the Los Angeles District

16

Office of the USCIS, which oversees the San Bernardino Field Office, and is

17

responsible for the adjudication of naturalization applications.

18

19

16. Respondent Alejandro MAYORKAS is the Director of USCIS, which is a

20

division of the DHS and is responsible for the administration and adjudication of

21

naturalization applications.

22

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17. Respondent Janet NAPOLITANO is the Secretary of the DHS, and is

24

responsible for the administration and enforcement of the immigration and

25

naturalization laws.

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27

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LEGAL FRAMEWORK FOR NATURALIZATION

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18. To naturalize as a U.S. citizen, an applicant must be a lawfully admitted

3

permanent resident alien, 8 U.S.C. § 1429, who has continuously resided in the

4

United States for at least five years prior to the filing of his or her naturalization

5

petition; has been physically present for at least half of that time; and between

6

the filing of his petition and his admission to citizenship, has resided

7

continuously in the United States. 8 U.S.C. § 1427(a)(1), (2).

8

9

19. An applicant must also have been “a person of good moral character,

10

attached to the principles of the Constitution of the United States, and well

11

disposed to the good order and happiness of the United States” for five years

12

before the filing of the petition and up to the time of admission to citizenship.

13

Id. § 1427(a)(3). Finally, he must not fall into any of the categories described in

14

8 U.S.C. § 1424(a) (listing categories such as membership in the Communist

15

Party or those who advocate opposition to organized government).

16

17

20. Under the statute and the governing regulations, an applicant for

18

naturalization is precluded from establishing “good moral character” if he or she

19

intentionally provides false testimony “for the purpose of obtaining any

20

[immigration] benefits.” 8 U.S.C. § 1101(f)(6); 8 C.F.R. § 316.10(b)(2)(iv) (“an

21

applicant shall be found to lack good moral character if during the statutory

22

period the applicant [ ] [h]as given false testimony to obtain any benefit from the

23

Act, if the testimony was made under oath or affirmation and with an intent to

24

obtain an immigration benefit.”). To constitute false testimony under 8 U.S.C. §

25

1101(f)(6), it is not sufficient that a given statement be incorrect. Rather, an

26

applicant gives false testimony only where he or she provides an intentionally

27

misleading response, and only when it is done for the specific purpose of

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obtaining immigration benefits, not where the misrepresentation is made for

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other reasons. See Kungys v. United States, 485 U.S. 759, 780 (1988) (“‘Willful

2

misrepresentations made for other reasons, such as embarrassment, fear, or a

3

desire for privacy’” do not constitute false testimony because they lack the

4

invalidating intent) (quoting from the Government’s Brief); see also id. at 781

5

(“the false testimony provisions of § 1101(f)(6) do not apply to

6

‘concealments.’”). Although § 1101(f)(6) does not contain a materiality

7

requirement, where a true answer would not render the applicant ineligible for

8

the immigration benefit, “it will be relatively rare that the Government will be

9

able to prove that [the] misrepresentation . . . . was nonetheless made with the

10

subjective intent of obtaining those benefits.” Id. at 781.

11

12

21. Form N-400 of the USCIS is the Application for Naturalization. Part

13

10(B)(8)(a) of the N-400 asks “Have you ever been a member of or associated

14

with any organization, association, fund, foundation, party, club, society or

15

similar group in the United States or in any other place?” If the applicant’s

16

answer is “yes,” Part 10(B)(8)(b) instructs the applicant to list the names of each

17

group.

18

19

FACTS

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22. Petitioner, Tarek Hamdi, age 50, is a citizen of Egypt. Mr. Hamdi came

21

to the United States as a student in 1977. He has resided in the United States

22

ever since and currently resides in Riverside, California.

23

24

23. Mr. Hamdi attended college at North Shore Community College and

25

Northeastern University in Boston, Massachusetts.

26

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24. In 1987, Mr. Hamdi married Linda Mary Carriere (maiden name), a U.S.

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born citizen. See Exh. A (marriage certificate). They have four U.S. born

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children: Nurah (age 20), Dahlia (age 17), Ameenah (age 14), and Roqayah (age

2

12). Mr. Hamdi is a practicing Muslim.

3

4

25. On February 25, 1988, Mr. Hamdi applied for Lawful Permanent

5

Residence on the basis of his marriage to Ms. Carriere. This application was

6

granted.

7

8

26. In the late 1990s, Mr. Hamdi learned about Benevolence International

9

Foundation (“BIF”) and their humanitarian relief efforts through flyers and

10

announcements he saw at the mosques he attended in and outside Boston. In

11

2000, Mr. Hamdi attended a BIF fundraiser and was given money by friends

12

who could not attend the fundraiser. He compiled the donations friends gave

13

him and wrote a check in the amount of $8,000 to the BIF. In November 2002,

14

the Treasury Department designated BIF a financier of terrorism and shut down

15

the charity.

16

17

27. As a practicing Muslim, Mr. Hamdi donates money to charitable

18

organizations every year in accordance with zakat. Zakat, the Muslim charitable

19

giving practice, is one of the five pillars of Islam and a religious obligation for

20

all observant Muslims. In fulfillment of zakat, Mr. Hamdi has lawfully donated

21

money to numerous charities for humanitarian purposes over the course of many

22

years.

23

24

28. On October 1, 2001, Mr. Hamdi applied for naturalization in

25

Massachusetts. See Exh. B (Receipt). On April 18, 2002, Mr. Hamdi attended

26

and passed his naturalization examination. The examination officer told him

27

that no further action was required on his application and that he would receive a

28

notice scheduling him for an oath ceremony in the mail.

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29. In or around May 2002, Mr. Hamdi moved to Stockton, California.

2

Before moving, an INS officer informed him that he would be scheduled for an

3

oath ceremony in California.

4

5

30. Mr. Hamdi never received a notice scheduling an oath ceremony.

6

7

31. Instead, Mr. Hamdi received a notice dated February 23, 2006 scheduling

8

him for a second naturalization interview on March 10, 2006. See Exh. C

9

(Request that Applicant Appear for Naturalization Initial Interview). Mr. Hamdi

10

was out of town on a business trip when the notice arrived and did not receive it

11

until after March 10, 2006 had passed.

12

13

32. In a letter dated March 16, 2006, Mr. Hamdi wrote to the USCIS

14

explaining that he missed the appointment because he was out of town and

15

requested that the interview be rescheduled.

16

17

33. In a notice issued March 17, 2006, six days after the scheduled interview,

18

the USCIS denied Mr. Hamdi’s application for naturalization due to his failure

19

to appear for the appointment. The decision stated that it was “made without

20

prejudice to the filing of a new application in the future.”

21

22

34. On February 15, 2007, Mr. Hamdi applied for naturalization anew with

23

the San Bernardino Field Office of the USCIS. See Exh. D (N-400 Application

24

for Naturalization). The USCIS received his application on February 23, 2007.

25

See Exh. E (Receipt with Exception). In response to the question in Part

26

10(B)(8) of the naturalization application, Mr. Hamdi listed his memberships

27

and associations as: (1) Al Hamra Academy School Board, (2) Islamic Society

28

of Greater Worchester, and (3) Islamic Society of Corona/ Norco. This

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statement was made in accordance with his understanding of the question. The

2

response was truthful, and Mr. Hamdi intended it to be entirely accurate.

3

4

35. On November 3, 2008, Mr. Hamdi passed the naturalization examination

5

but was told that a decision could not yet be made on his application. See Exh.

6

F (N-652, Naturalization Results).

7

8

36. On March 16, 2009, Mr. Hamdi filed a mandamus action pursuant to 8

9

U.S.C. § 1447(b), INA § 336(b) to compel the USCIS to finally adjudicate his

10

naturalization application.

11

12

37. On June 8, 2009, USCIS denied his application for naturalization on the

13

asserted ground that he failed to demonstrate that he is a person of good moral

14

character, as required by 8 C.F.R. § 316.10(b), § 316(a)(3), and § 316.2(a)(7),

15

because he gave false testimony on his naturalization application and during his

16

naturalization interview. The USCIS alleged that he failed to reveal his

17

“affiliation”4 with BIF, without disclosing what basis it had for believing he was

18

affiliated with that organization. It also alleged that a “source of public

19

information revealed that your last employer was LIM & Nascimento

20

Engineering Corp., Lan Engineering Corp,” stating that he had “failed to reveal

21

the aforementioned employer on your N-400 application and at your interview.

22

Furthermore, the same public source reveals that you are currently unemployed

23

and have no source of income which is contrary to your statements made during

24

the interview.”

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26 4 Respondents state that Mr. Hamdi failed to disclose his “affiliation” with BIF. However, the N-400 question at issue here does not ask about “affiliations” but
27 rather about memberships and associations. See Exh. F (N-400 Application for Naturalization). Counsel for Petitioner, therefore, assume that when Respondents
28 refer to “affiliation,” they actually mean “association.”

10

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38. Mr. Hamdi testified truthfully on his application and during his interview

2

as to all matters, including his employment. Mr. Hamdi did not begin work with

3

Lim & Nascimento Engineering Corp. until on or around January 2009, nearly

4

two years after filing his naturalization application and approximately two

5

months after his naturalization interview. At the time of the decision, June

6

2009, Mr. Hamdi was gainfully employed by Lim & Nascimento.

7

8

39. On July 13, 2009, Mr. Hamdi appealed the denial by filing a request for a

9

hearing before an immigration officer (Form N-336), as required under 8 U.S.C.

10

§ 1447(a), INA § 336. See Exh. G (N-336 Request for a Hearing on a Decision

11

in Naturalization Proceedings). On September 24, 2009, he appeared for his

12

scheduled hearing on the appeal.

13

14

40. On April 8, 2010, the USCIS again denied his naturalization request. The

15

decision states that he failed to establish “good moral character” under 8 C.F.R.

16

§ 316.10(b) and § 316.2(a)(7) because he gave false testimony during his

17

interviews when he failed to reveal his “affiliation” with BIF. It explains that

18

“[d]ocuments in your file revealed evidence, in the form of cancelled checks

19

made out by you to the BIF, that you have made monetary contributions to the

20

financial support of the Benevolent International Foundation (BIF).” The

21

second denial makes no mention of the allegedly false statements concerning

22

employment.

23

24

41. Mr. Hamdi has never been a member of the BIF or associated with it in

25

any ordinary sense of that word. Mr. Hamdi acknowledged at his interview, and

26

continues to acknowledge, that he made donations to BIF. However, he did not

27

understand his donations to BIF to constitute an “association” with that

28

organization, any more than he should be associated with any charitable

11

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organization to which he has ever given a donation.

2

3

42. Mr. Hamdi has never been arrested for or convicted of any crime. See

4

Exh. H (police reports).

5

6

43. Mr. Hamdi has exhausted all of his administrative remedies by

7

administratively appealing the denial in accordance with 8 U.S.C. § 1447(a),

8

attending the appeal hearing before an immigration officer, and receiving a

9

decision on the administrative appeal. See Exh. G (N-336 Request for a Hearing

10

on a Decision in Naturalization Proceedings). See also 8 U.S.C. § 1421(c) (“A

11

person whose application for naturalization [ ] is denied, after a hearing before

12

an immigration officer under section 336(a) [ ], may seek review of such denial

13

before the United States district court”).

14

15

CAUSES OF ACTION

16

FIRST CLAIM FOR RELIEF

17

Violation of Immigration and Naturalization Act and Administrative

18

Procedures Act

19

(false testimony)

20

21

44. The allegations contained in paragraphs 1 through 43 are repeated and

22

realleged as though fully set forth herein.

23

24

45. Respondents violated the INA in concluding that Mr. Hamdi made a false

25

statement and thus lacked the requisite “good moral character” required for

26

naturalization. In order for the statement to be false under the INA, the speaker

27

must specifically intend to give false testimony for the purpose of obtaining an

28

immigration benefit. 8 C.F.R. § 316.10(b)(2)(iv) (“an applicant shall be found

12

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1

to lack good moral character if during the statutory period the applicant [ ] [h]as

2

given false testimony to obtain any benefit from the Act, if the testimony was

3

made under oath or affirmation and with an intent to obtain an immigration

4

benefit.”); 8 U.S.C. § 1101(f)(6), INA § 101(f)(6). See also Kungys v. United

5

States, 485 U.S. 759, 780 (1988) (“§ 1101(f)(6) applies to only those

6

misrepresentations made with the subjective intent of obtaining immigration

7

benefits.”). Mr. Hamdi spoke truthfully on all matters, including his

8

associations, on his naturalization application and in his interviews. Mr. Hamdi

9

does not believe himself to be “associated” with the Benevolence International

10

Foundation and, therefore, did not intend to make a false statement at the time

11

that he failed to list BIF on his application, let alone a false statement in order to

12

obtain an immigration benefit.

13

14

46. Respondents also violated the APA because their conclusion that Mr.

15

Hamdi made a false statement is “arbitrary, capricious, an abuse of discretion, or

16

otherwise not in accordance with law” within the meaning of the APA, and there

17

is therefore no basis for concluding that he is ineligible for naturalization. 5

18

U.S.C. § 706(2)(A) (setting forth the standard for setting aside agency actions

19

under the APA).

20

21

SECOND CLAIM FOR RELIEF

22

Violation of the Due Process Clause of the Fifth Amendment

23

(vagueness)

24

25

47. The allegations contained in paragraphs 1 through 43 are repeated and

26

realleged as though fully set forth herein.

27

28

48. Respondent’s application of the N-400 question on associations to

13

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 Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 1 of 39 Page ID #:2086

1

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8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 TAREK HAMDI,

)

)

12

Petitioner,

)

)

13

v.

)

)

14 UNITED STATES

)

CITIZENSHIP AND

)

15 IMMIGRATION SERVICE; )

DEPARTMENT OF HOMELAND )

16 SECURITY; IRENE MARTIN, )

DIRECTOR, SAN BERNARDINO )

17 FIELD OFFICE, UNITED )

STATES CITIZENSHIP AND )

18 IMMIGRATION SERVICE, IN )

HER OFFICIAL CAPACITY; )

19 JANE ARELLANO, DIRECTOR, )

LOS ANGELES OFFICE,

)

20 UNITED STATES

)

CITIZENSHIP AND

)

21 IMMIGRATION SERVICE, IN )

HER OFFICIAL CAPACITY; )

22 ALEJANDRO MAYORKAS,

)

DIRECTOR, UNITED STATES )

23 CITIZENSHIP AND

)

IMMIGRATION SERVICE, IN )

24 HIS OFFICIAL CAPACITY; )

JANET NAPOLITANO,

)

25 SECRETARY, DEPARTMENT OF )

HOMELAND SECURITY, IN )

26 HER OFFICIAL CAPACITY, )

)

27

Respondents. )

________________________

28

Case No. EDCV 10-00894 VAP(DTBx)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 85)
[Motion filed on October 28, 2011]

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 2 of 39 Page ID #:2087

1

After Respondent the United States Citizenship and

2 Immigration Service ("USCIS," or "the Government") denied

3 his application for naturalization, Petitioner Tarek

4 Hamdi requested this Court grant him American

5 citizenship, pursuant to the Court's authority under 8

6 U.S.C. § 1421(c). (See generally Petition (Doc. No. 1).)

7 The Government opposes Hamdi's petition, arguing Hamdi is

8 ineligible for citizenship because he offered false

9 testimony in earlier naturalization proceedings, thereby

10 demonstrating that he lacks the requisite good moral

11 character for American citizenship. The Government now

12 moves for summary judgment, contending that undisputed

13 evidence shows Hamdi testified falsely about four things

14 in earlier proceedings before USCIS. (See Mot. for Summ.

15 J. ("MSJ") (Doc. No. 85).)

16

17

First, the Government contends Hamdi lied about where

18 his wife and children lived during his naturalization

19 interview. (See MSJ at 11-13.) Second, the Government

20 avers Hamdi lied about his employment status at the time

21 of his interview. (See id. at 14-17.) Third, the

22 Government posits Hamdi lied to USCIS about his

23 connection to the Benevolence International Foundation, a

24 charity designated a terrorist financier (albeit after

25 Hamdi's alleged involvement with it). (See id. at 17-

26 22.) Fourth, the Government contends Hamdi lied to USCIS

27 about his connection to Care International, another

28

2

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 3 of 39 Page ID #:2088

1 charity subsequently tied to terrorist organizations.

2 (See id. at 22-23.)

3

4

Though the Government raises the specter of

5 terrorism, it does not argue that Hamdi himself is a

6 terrorist, or a supporter of terrorism, or otherwise a

7 risk to national security. The Government argues only

8 that Hamdi lied in an effort to gain citizenship, and

9 therefore lacks the good moral character necessary to

10 naturalize. The evidence supporting the Government's

11 argument, however, is insufficent for the Court to grant

12 summary judgment. As discussed more fully, below, the

13 Court therefore DENIES IN PART the Government's Motion

14 for Summary Judgment.

15

16

Hamdi's Petition contains a second claim, arguing

17 that the phrase "associated with," in question 8 of part

18 10 of the application for naturalization (i.e., "Have you

19 ever been a member of or associated with and organization

20 . . . in the United States . . . ?"), is

21 unconstitutionally vague. (Pet. ¶ 48.) The Petition,

22 however, requests no relief predicated on the Court

23 finding question 8 unconstitutionally vague.

24 Consequently, any opinion rendered on the question would

25 not redress Hamdi's alleged injury; the Court's opinion

26 would thus be solely advisory. See Ursack Inc. v. Sierra

27 Interagency Black Bear Group, 639 F.3d 949, 955 (9th Cir.

28

3

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 4 of 39 Page ID #:2089

1 2011) (reciting the rule that lest they render advisory

2 opinions, federal courts may only rule upon live cases

3 and controversies); see also Lujan v. Defenders of

4 Wildlife, 504 U.S. 555, 560 (1992) (holding the doctrine

5 of standing, a "core component . . . of the case-or-

6 controversy requirement," may only be satisfied if it is

7 likely that a party's injury "will be 'redressed by a

8 favorable decision.'" (internal citation omitted)). As

9 the Court may not issue advisory opinions, Hayburn's

10 Case, 2 U.S. (Dall.) 409 (1792), the Court GRANTS the

11 Government's Motion as to Hamdi's second claim.

12

13

I. BACKGROUND

14 A. Preliminary Evidentiary Issues

15

The Court first disposes of two preliminary issues

16 related to the evidence before it. First, throughout

17 this Order, the Court will refer to exhibits proffered by

18 the Government in support of its Motion as "Gov.'s Ex.";

19 those proffered by Hamdi in opposition to the

20 Government's Motion will be referenced throughout "Pet.'s

21 Ex."

22

23

Second, the Court addresses any objections that might

24 narrow the scope of evidence before it. As to Hamdi's

25 Evidentiary Objections (Doc. No. 86-1), because it is

26 irrelevant to these proceedings that Hamdi failed to

27

28

4

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 5 of 39 Page ID #:2090

1 appear for a naturalization interview in 2006, the Court

2 sustains Hamdi's Objection No. 16.

3

4

The Court overrules the remainder of Hamdi's

5 objections, most of which lack any merit whatsoever. For

6 example, Hamdi makes a series of objections to

7 immigration service officer Roberto Osuna's competency to

8 testify to events that occurred during Osuna's interview

9 of Hamdi (see, e.g., Objection Nos. 3-15). Osuna,

10 however, is one of the two people who would have personal

11 knowledge of what occured in that interview. Hamdi

12 further objects that various documents have not been

13 authenticated, though they are either self-authenticating

14 documents – e.g., checks, see United States v. Pang, 362

15 F.3d 1187, 1192 (9th Cir. 2004) – or are authenticated by

16 testimony in the declaration to which they are attached,

17 see Fed. R. Evid. 901(b). Hamdi's objection to the

18 authenticity of his checks (Objection No. 23) is

19 particularly frivolous, because in addition to their

20 status as self-authenticating, Hamdi himself testified

21 previously that he wrote the checks at issue (Hamdi Dep.

22 221:1-9, Apr. 14, 2011 ("Gov.'s Ex. G") (Doc. No. 85-9)).

23 Hamdi goes so far as to object that a fact pled in his

24 own Petition is irrelevant, and therefore inadmissible

25 (Objection No. 30).

26

27

28

5

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 6 of 39 Page ID #:2091

1

These types of meritless objections waste the

2 parties' and the Court's time and resources, and

3 consequently diminish the credibility of attorneys who

4 make them.

5

6 B. Factual Background

7

Petitioner Tarek Hamdi is an Egyptian citizen who

8 became a lawful permanent resident of the United States

9 in 1988, after his marriage to Linda Carriere, a United

10 States citizen. (See Gov.'s Ex. A (Doc. No. 85-3);

11 Gov.'s Ex. C (Doc. No. 85-5); Carriere Dep. 24:20-22,

12 Apr. 7, 2011 ("Pet.'s Ex. C") (Doc. No. 86-6).) Hamdi

13 and Carriere met while students at Northeastern

14 University in Massachusetts; the couple are still

15 married, and have four children between the ages of 14

16 and 22. (See Pet.'s Ex. C 25:10-18; Gov.'s Ex. A.) As

17 observant Muslims, Hamdi and his family practice zakat,

18 or charitable giving.

19

20

In service of this obligation, Hamdi and Carriere

21 both donated to the Benevolence International Foundation

22 ("BIF"), an organization that first came to their

23 attention in the mid-1990s. (See Hamdi Dep. 171:3-16,

24 Apr. 14, 2011 ("Gov.'s Ex. G"); Pet.'s Ex. C 107:20-

25 116:16.) Sometime in the early spring of 2000, while he

26 was living in Westborough, Massachusetts, Hamdi wrote a

27 check to the BIF for $8,000; that sum represented

28

6

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 7 of 39 Page ID #:2092
1 contributions from Hamdi, and from others who gave Hamdi 2 money, to donate towards BIF's endeavors in Chechnya. 3 (See Gov.'s Ex. G 226:23-227:14.) The memo line on the 4 check indicated it was for "Chechnya Relief." (See 5 Caputo Decl. ("Gov.'s Ex. B") (Doc. No. 85-4); Gov.'s Ex. 6 G 223:13-20.) The check was accompanied by a message 7 stating the funds were to be directed to the "Chechnya 8 Relief fund," and "in particular the Injured Mujahadeen." 9 (Gov.'s Ex. B (emphasis in original); see Gov.'s Ex. G. 10 224:5-226:17.) Between May 2000 and January 2002, 11 smaller amounts were drawn for BIF from Hamdi's and 12 Carriere's joint checking account on twenty occasions. 13 (Pet.'s Resp. to Gov.'s First Req. for Admis. No. 3. 14 ("Gov.'s Ex. J") (Doc. No. 85-12).) In November 2002, 15 the Treasury Department designated BIF a terrorist 16 financier. (Pet. ¶ 26.;1 see Press Release, U.S. Dep't 17 of Treasury, Treasury Designates Benevolence 18 International Foundation and Related Entities as 19 Financiers of Terrorism (Nov. 19, 2002), available at 20 http://www.treasury.gov/press-center/press-releases/Pages 21 /po3632.aspx) There is no evidence that Hamdi or 22 Carriere donated money to BIF after January 2002. 23 24 25 26
1 Hamdi pled this fact in his petition and the 27 Government did not dispute it in its answer. (See Answer
(Doc. No. 10) ¶ 26.) Accordingly, the Court treats the 28 fact as admitted.
7

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 8 of 39 Page ID #:2093

1

In addition to his donations to BIF, during his time

2 in Westborough, Hamdi had some involvement with Care

3 International ("Care"), an eleemosynary entity whose

4 principals were investigated by the United States for

5 falsely securing tax-exempt status for an organization 6 that promoted violent jihad.2 (See Gov.'s Ex. G 236:2-

7 252:19; United States v. Mubayyid, 658 F.3d 35 (1st Cir.

8 2011).) Specifically, Hamdi volunteered to give out

9 newsletters and fliers for Care from time to time, and

10 occasionally made announcements of upcoming events for

11 the organization; he also stuffed envelopes with fliers

12 on how to calculate zakat. (See Gov.'s Ex. G 238:3-7;

13 242:7-16.) Additionally, Hamdi made financial donations

14 to Care. (Id. 242:23-25.)

15

16

Hamdi also attended various functions at which some

17 of Care's principals were present. (See id. 247:25-

18 248:6.) He became acquainted with Suheil Lahir (a 19 president of the organization),3 Emad Aldeen Muntsar (the

20 incorporator and also a past president of the

21 organization, see Mubayyid, 658 F.3d at 42), and Mohamed

22

23 2 In recounting the evidence on which a jury
24 convicted several of Care's principals, the United States Court of Appeals for the First Circuit referred to the
25 form of jihad advocated by Care as "violent jihad," Mubayyid, 658 F.3d at 43, as distinguished from jihad,
26 defined broadly, which could include more benign forms of struggle or resistance.
27 3 See Care International, Inc., Annual Report (M.G.L
28 Ch. 180 Corp. Annual Report) (Nov. 20, 2001).

8

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 9 of 39 Page ID #:2094

1 Mubayed (a past treasurer, see Mubayyid, 658 F.3d at 2 43).4 (See Gov.'s Ex. G 248:13-25.) Hamdi testified

3 that he has not "really communicat[ed]" with Lahir, since

4 leaving Massachusetts in 2002, but Lahir "was a friend";

5 he further testified that while volunteering for Care, he

6 saw Lahir "once a month at most." (Id. 249:1-17; see id.

7 250:14-20.) Hamdi then testified that he no longer knows

8 Muntsar, and that he was closer to Lahir than to Muntsar

9 – though he visited Muntsar's home "a couple times" and

10 attended his wedding as a member of the Islamic

11 community. (Id. 250:21-251:8.) As for Mubayed, Hamdi

12 testified that they also lost contact in 2002, but that

13 Hamdi knew him as "a neighbor." (See id. 252:11-15.)

14

15

In mid-2002, Hamdi – a civil engineer – moved from

16 Westborough to Stockton, California, for work. (See

17 Gov.'s Ex. A; Gov.'s Ex. G. 44:1-15.) In January 2003,

18 FBI agents visited Hamdi at his Stockton residence, and

19 arranged to interview him at a local coffee shop. (See

20 Gov.'s Ex. G 214:4-215:4.) Acting on a request that they

21 interview Hamdi about "his associations and/or

22 fundraising efforts related to the Benevolence

23

24 4 These names appear here as spelled in the
25 transcript of Hamdi's deposition. In the criminal proceedings against them, Muhmaed Mubayyid's and
26 Emadeddin Muntasser's names are spelled differently. See Mubayyid, 658 F.3d at 40. Likewise, Suheil Laher's name
27 is spelled differently in Care's corporate filings. See Care International, Inc., Annual Report (M.G.L Ch. 180
28 Corp. Annual Report) (Nov. 20, 2001).

9

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 10 of 39 Page ID #:2095

1 International Foundation," the two agents, Michael Caputo

2 and Leticia Lucero, met with Hamdi on January 8, 2003.

3 (Caputo Dep. 31:5-32:18 ("Gov.'s Ex. I") (Doc. No.85-

4 11).) Caputo later testified that in the interview,

5 Hamdi "claimed that . . . he had only ever done

6 fundraising for children, children's causes, and that his

7 amounts had only ever been small amounts. His terms, a

8 couple of hundred dollars." (Gov.'s Ex. I 49:22-50:3.)

9

10

Caputo then confronted Hamdi with copies of the

11 $8,000 check and accompanying message, suggesting that

12 Hamdi had contributed more than a couple of hundred

13 dollars, and to something other than a children's cause.

14 (See id. at 65:17-66:17.) Hamdi admitted to Caputo that

15 the message looked like a document he drafted, and that

16 the checks were his – but he did not recall sending so

17 large an amount, and did not recall sending anything

18 specifically for the benefit of mujahadeen. (Id. 66:9-

19 17.) There is no evidence before the Court that Hamdi

20 had any subsequent interactions with the FBI.

21

22

Hamdi found the climate in Stockton disagreeable, and

23 obtained a job in Southern California, so he moved to

24 Corona with his family in early 2006. (See Gov.'s Ex. A;

25 Gov.'s Ex. G 156:1-157:15; Carriere Dep. 144:1-7, Apr. 7,

26 2011 ("Gov.'s Ex. H") (Doc. No. 85-10).) On February 15,

27 2007, Hamdi completed an application for naturalization.

28

10

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 11 of 39 Page ID #:2096

1 (See Gov.'s Ex. A.) Several entries on the application

2 are central to the dispute now before the Court:

3

4

• When asked to list "where [he] has worked . . .

5

during the last five years," Hamdi wrote that

6

between June 28, 2005, and the time of his

7

application, he was working for Harris &

8

Associates. (Id.)

9

10

• When asked his spouse's "home address," Hamdi

11

wrote the address of the family's house in

12

Corona. (Id.)

13

14

• When asked for the "current address" of his

15

children, Hamdi wrote, for each child, "WITH

16

ME." (Id.)

17

18

• When asked if he has "ever been a member of or

19

associated with any organization, association,

20

fund, foundation, party, club, society or

21

similar group in the United States or in any

22

other place," Hamdi answered "yes," and then

23

listed three groups: (1) Al Hamra Academy

24

School Board; (2) Islamic Society of Greater

25

Worcester, and; (3) Islamic Society of

26

Corona/Norco. (Id.)

27

28

11

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 12 of 39 Page ID #:2097

1

At the end of the 2008 school year, Carriere and

2 Hamdi's four daughters flew to Egypt, on one-way tickets.

3 (See Pet.'s Ex. C 151:24-153:6; Gov.'s Ex. G 311:14-19.)

4 Carriere testified the family went because "Tarek's

5 mother . . . was ill and we hadn't seen her in awhile,

6 and we have never been to Egypt." (Pet.'s Ex. C 152:1-

7 10.) Hamdi then moved from Corona to a one-bedroom

8 apartment in Riverside. (See Gov.'s Ex. G 311:20-

9 313:11.) By the end of October, Hamdi was laid off from

10 his job at Harris & Associates. (See Hamdi Dep. 169:2-5,

11 Apr. 14, 2011 ("Pet.'s Ex. F") (Doc. No. 86-7).)

12

13

On November 3, 2008, immigration service officer

14 Roberto Osuna interviewed Hamdi in connection with his

15 application for naturalization. Osuna testified that

16 during the interview, he went over Hamdi's application

17 and asked him to verify his responses to various

18 questions. (See Osuna Decl. ¶¶ 5-7 (Doc. No. 85-1).)

19 Osuna further declared that as he went through the

20 application, he "made a check mark . . . indicating that

21 [he] asked a particular question" (id. ¶ 6), and "where

22 Mr. Hamdi's answers differed from the written responses .

23 . . or where particular information needed to be updated

24 from the time Mr. Hamdi filed his . . . [a]pplication,"

25 Osuna "wrote the updated information in the corresponding

26 sections on [Hamdi's application] contemporaneous[ly]

27

28

12

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 13 of 39 Page ID #:2098

1 with Mr. Hamdi['s]" responses to Osuna's questions (id. ¶

2 7).

3

4

It is those responses the Government now alleges are

5 false. Osuna declares he asked Hamdi whether Hamdi was

6 employed at Harris & Associates at the time of the

7 interview, and that Hamdi responded he was. (Id. ¶ 10.)

8 Osuna further states he asked Hamdi where his wife and

9 children lived, and Hamdi replied that they lived with

10 him. (Id. ¶¶ 12-13.) Osuna also declares that when

11 asked whether "he is or was a member of or associated

12 with any other organization that he did not report,"

13 Hamdi answered that he was not. (Id. ¶ 14.) When asked

14 specifically whether he had ever made any donations to

15 BIF, Osuna recalls that Hamdi responded "no," and further

16 answered that he had never "given any false or misleading

17 information to any U.S. government official while

18 applying for any immigration benefit." (Id. ¶¶ 14-17.)

19

20

For his part, as the Court will discuss at greater

21 length below, Hamdi argues that he told Osuna he was

22 unemployed at the time of the interview. (Pet.'s Ex. F

23 291:2-15.) Hamdi further explains that he may have told

24 Osuna that his wife and children lived with him, because

25 the family still considered Hamdi's address in the United

26 States their permanent address. (See Gov.'s Ex. H

27 144:25-145:2.) Further, Hamdi does not recall Osuna ever

28

13

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 14 of 39 Page ID #:2099

1 asking him whether he contributed to BIF. (See Pet.'s

2 Ex. F 293:8-10.)

3

4

USCIS rejected Hamdi's application for naturalization

5 on June 8, 2009. (See Gov.'s Ex. F (Doc. No. 85-8).) In

6 the letter denying Hamdi's application, USCIS wrote:

7

8

You failed to reveal your affiliation with the

9

Benevolent Internat ional Foundation, an

10

organization based in Chicago, IL. In addition,

11

a source of public information revealed that your

12

last employer was LIM & Nascimento Engineering

13

Corp., Lan Engineering Corp.. You failed to

14

reveal the aforementioned employer on your N-400

15

application and at your interview. Furthermore,

16

the same public source reveals that you are

17

currently unemployed and have no source of income

18

which is contrary to your statement made during

19

the interview.

20 (Gov.'s Ex. F.)5

21

22

23

24 5 This passage is copied verbatim – including
25 typographical errors – from the original document.

26

The reader will observe the appearance, for the first

time in this narrative, of the name "LAN Engineering."

27 The Court will discuss Hamdi's relationship with LAN,

which appears wholly irrelevant to anything Hamdi may

28 have discussed with Osuna, in the pages to follow.

14

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 15 of 39 Page ID #:2100

1

On July 15, 2009, Hamdi appealed USCIS's decision.

2 (See Pet.'s Ex. P (Doc. No. 86-11).) Responding to the

3 charge that he failed in both his application and his

4 interview to disclose his affiliation with BIF, Hamdi

5 argued that as a mere donor to a charitable organization,

6 he had no "affiliation" with the organization to

7 disclose. (See id.) Further responding to the charge he

8 failed to disclose his employment with LAN Engineering

9 Corporation, Hamdi argued that he could not have

10 disclosed that employment because he did not work for LAN

11 until January 2009, while his interview took place in

12 November 2008. (See id.) Finally, Hamdi contraverted

13 USCIS's allegation that he was unemployed at the time

14 USCIS denied his application. (See id.)

15

16

On April 8, 2010, USCIS again denied Hamdi's

17 application. (Pet.'s Ex. T (Doc. No. 86-11).) In sum,

18 USCIS found the following:

19

20

• Hamdi made a false statement in his November 8,

21

2003, interview, "in that [he] failed to reveal

22

[his] affiliation with . . . BIF . . . ." (Id.)

23

24

• Hamdi made a false statement during the hearing

25

on his appeal, when he first "stated, under

26

oath, that [he] had no knowledge that the BIF

27

had been involved in the financial support of

28

15

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 16 of 39 Page ID #:2101

1

terrorist groups and activities," but "later in

2

the interview, revealed that [he was] indeed

3

aware that the BIF had been accused of financing

4

terrorism . . . ." (Id.)

5

6

• Hamdi's "testimony and responses did not include

7

any voluntary mention of the BIF until [he was]

8

shown a copy of [his] cancelled personal check .

9

. . ." (Id.)

10

11

USCIS therefore concluded Hamdi's "omission of the

12 material facts, both on [his] N-400 application and

13 during [his] interview, that [he is] associated with and

14 [has] made monetary contributions to the Benevolence

15 International Foundation compromised the credibility of

16 your testimony and made it impossible for you to

17 establish that you are a person of good moral character .

18 . . ." (Id.)

19

20

Following USCIS's denial of his appeal, Hamdi

21 petitioned this Court for naturalization. The Government

22 now moves for summary judgment on the ground that Hamdi

23 lacks the good moral character required to naturalize.

24 (See generally MSJ.) Hamdi filed a timely Opposition

25 (Doc. No. 86), and the Government filed a Reply (Doc. No.

26 88).

27

28

16

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 17 of 39 Page ID #:2102

1

II. LEGAL STANDARD

2 A. Naturalization

3

Under 8 U.S.C. § 1421(c), a district court may

4 conduct a de novo review of a denied application for

5 naturalization, making its own findings of fact and

6 conclusions of law. A court may order a person

7 naturalized if the person meets the criteria set forth in

8 8 U.S.C. § 1427. See United States v. Hovsepian, 359

9 F.3d 1144, 1165 (9th Cir. 2004); see, e.g., Attala v.

10 Kramer, No. CV09-1610-PHX-NVW, 2011 WL 2457492, at *13

11 (D. Ariz., June 20, 2011). The statutory criteria must

12 be applied strictly, as "Congress alone has the

13 constitutional authority to prescribe rules for

14 naturalization, and the courts' task is to assure

15 compliance with the particular prerequisites to the

16 acquisition of United States citizenship . . . to

17 safeguard the integrity of this 'priceless treasure.'"

18 Fedorekno v. United States, 449 U.S. 490, 506-07 (1981)

19 (quoting Johnson v. Eisentrager, 339 U.S. 763, 791 (1950)

20 (Black, J., dissenting)).

21

22

As outlined in Section 1427, the criteria for

23 naturalization are:

24

25

• An applicant must have resided continuously, as

26

a lawful permanent resident, in the United

27

States for five years immediately preceding his

28

17

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 18 of 39 Page ID #:2103

1

application to naturalize; must have been

2

physically present in the United States at least

3

half of that time, and; must have resided within

4

the state or USCIS district in which he filed

5

his application for at least three months. 8

6

U.S.C. § 1427(a)(1); see 8 C.F.R. § 316.5.

7

8

• An applicant must reside in the United States

9

from the time of his application until the time

10

of his "admission to citizenship." 8 U.S.C. §

11

1427(a)(2); see 8 C.F.R. § 316.5.

12

13

• An applicant must have been, and remain, "a

14

person of good moral character, attached to the

15

principles of the Constitution of the United

16

States, and well disposed to the good order and

17

happiness of the United States." 8 U.S.C. §

18

1427(a)(3); see 8 C.F.R. §§ 316.10-316.11. "In

19

determining whether the applicant has sustained

20

the burden of establishing good moral

21

character," during the five year period prior to

22

his application, the United States "may take

23

into consideration . . . the applicant's conduct

24

and acts at any time," including before and

25

after the five year period. 8 U.S.C. § 1427(e);

26

see United States v. Hovsepian, 422 F.3d 883,

27

886 (9th Cir. 2005) (en banc) ("Conduct

28

18

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 19 of 39 Page ID #:2104

1

occurring outside the regulatory period [i.e.,

2

the five year period in Section 1427(a)(1)] is

3

relevant only insofar as it bears on [an

4

applicant's] present moral character.").

5

6

The burden is on an applicant to show that he meets

7 all of the criteria set forth in Section 1427 and

8 expounded upon in 8 C.F.R. §§ 316.1 et seq. See Berenyi

9 v. Dist. Dir., Immigration & Naturalization Serv., 385

10 U.S. 630, 671 (1967) ("[I]t has been universally accepted

11 that the burden is on the alien applicant to show his

12 eligibility for citizenship in every respect."). Any

13 doubts about an applicant's eligibility should be

14 resolved against the applicant. Id.

15

16 B. Summary Judgment

17

A motion for summary judgment shall be granted when

18 there is no genuine issue as to any material fact and the

19 moving party is entitled to judgment as a matter of law.

20 Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,

21 477 U.S. 242, 247-48 (1986). The moving party must show

22 that "under the governing law, there can be but one

23 reasonable conclusion as to the verdict." Anderson, 477

24 U.S. at 250.

25

26

Generally, the burden is on the moving party to

27 demonstrate that it is entitled to summary judgment.

28

19

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 20 of 39 Page ID #:2105

1 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998);

2 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707

3 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears

4 the initial burden of identifying the elements of the

5 claim or defense and evidence that it believes

6 demonstrates the absence of an issue of material fact.

7 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

8

9

When the non-moving party has the burden at trial,

10 however, the moving party need not produce evidence

11 negating or disproving every essential element of the

12 non-moving party's case. Celotex, 477 U.S. at 325.

13 Instead, the moving party's burden is met by pointing out

14 there is an absence of evidence supporting the non-moving

15 party's case. Id.

16

17

The burden then shifts to the non-moving party to

18 show that there is a genuine issue of material fact that

19 must be resolved at trial. Fed. R. Civ. P. 56(e);

20 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The

21 non-moving party must make an affirmative showing on all

22 matters placed in issue by the motion as to which it has

23 the burden of proof at trial. Celotex, 477 U.S. at 322;

24 Anderson, 477 U.S. at 252; see also William W. Schwarzer,

25 A. Wallace Tashima & James M. Wagstaffe, Federal Civil

26 Procedure Before Trial, 14:144. "This burden is not a

27 light one. The non-moving party must show more than the

28

20

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 21 of 39 Page ID #:2106

1 mere existence of a scintilla of evidence." In re Oracle

2 Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir.

3 2010) (citing Anderson, 477 U.S. at 252). "The

4 non-moving party must do more than show there is some

5 'metaphysical doubt' as to the material facts at issue."

6 In re Oracle, 627 F.3d at 387 (citing Matsushita Elec.

7 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

8 (1986)).

9

10

A genuine issue of material fact exists "if the

11 evidence is such that a reasonable jury could return a

12 verdict for the non-moving party." Anderson, 477 U.S. at

13 248. In ruling on a motion for summary judgment, the

14 Court construes the evidence in the light most favorable

15 to the non-moving party. Barlow v. Ground, 943 F.2d

16 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac.

17 Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.

18 1987).

19

20

III. DISCUSSION

21

The Government contends it is entitled to summary

22 judgment on the question whether Hamdi lacks the good

23 moral character necessary to naturalize. (See generally

24 MSJ.) As the Court set forth previously, the Government

25 presents four areas in which it argues Hamdi lacked

26 candor during the administrative process, thereby

27 presenting an insurmountable obstacle to his

28

21

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 22 of 39 Page ID #:2107

1 naturalization.6 (See id. 11-13, 14-17, 17-22, 22-23.)

2

3

To carry its burden on summary judgment, the

4 Government therefore must prove there is no genuine issue

5 of material fact as to whether, in the course of his

6 application, Hamdi testified falsely about: (1) where

7 his wife and children lived; (2) whether he was

8 unemployed; (3) his involvement with BIF, and; (4) his

9 involvement with Care. This is no mean feat, however,

10 because Hamdi's allegedly false testimony only undermines

11 his good moral character if given "for the purpose of

12 obtaining [immigration benefits]." 8 U.S.C. §

13 1101(f)(6). Hamdi therefore must have made any culpable

14 misrepresentations with the subjective intent of

15 obtaining immigration benefits. Kungys v. United States,

16 485 U.S. 759, 779-80 (1988). Thus, to prevail on summary

17 judgment, the Government must demonstrate that a

18 reasonable factfinder could not conclude that Hamdi made

19 the alleged misrepresentations for some other reason,

20 "such as embarrassment, fear, or a desire for privacy."

21 Kungys, 485 U.S. at 780 (internal quotation omitted).

22 With these principles in mind, the Court examines each of

23 Hamdi's four alleged misrepresentations, in turn.

24

25

26

27

6 The Government does not argue that any of Hamdi's

actions outside the context of the naturalization process

28 evidence a lack of a good moral character.

22

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 23 of 39 Page ID #:2108

1 1. Did Hamdi testify falsely about where his wife and

2

children lived?

3

4

The Government argues Hamdi lacks good moral

5 character because he falsely told Osuna that his wife and

6 children lived with him, even though they flew to Egypt –

7 on one-way tickets – months before Hamdi's interview with

8 Osuna. (See Pet.'s Ex. C 151:24-153:6; Gov.'s Ex. G

9 311:14-19.) Hamdi counters that he did not lie, because

10 he did not believe his wife and children had "moved," and

11 still considered them domiciled at his house. Presented

12 with this conflicting evidence, a reasonable factfinder

13 could conclude that Hamdi's testimony about where his

14 wife and children lived was not meant to deceive USCIS

15 into granting Hamdi an immigration benefit, because Hamdi

16 did not intend to testify falsely.

17

18

Hamdi wrote on his application for naturalization

19 that both he and Carriere lived at "1000 Trailview Lane"

20 in Corona. (See Gov.'s Ex. A.) While interviewing

21 Hamdi, Osuna marked through Hamdi's address, and wrote in

22 "1112 Linden St," in Riverside; he marked through

23 Carriere's address and wrote "SAME." (Osuna Decl. ¶¶ 9,

24 12; see Gov.'s Ex. A.) Osuna testified that he made the

25 changes after first asking Hamdi whether he was still

26 living in Corona, and then asking Hamdi "where his wife

27 lived." (Osuna Decl. ¶¶ 9, 12; Osuna Dep. 181:8-15, Apr.

28

23

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 24 of 39 Page ID #:2109

1 13, 2011 ("Gov.'s Ex. L") (Doc. No. 85-14).) Hamdi also

2 wrote on his application that the "current address" of

3 all four of his children was "WITH ME." (See Gov.'s Ex.

4 A.) Osuna testified that Hamdi confirmed, at the time of

5 the interview, his children lived with him. (Osuna Decl.

6 ¶ 13; Gov.'s Ex. L 183:13-23.)

7

8

Courts regularly draw a "distinction between

9 individuals who are physically present without intending

10 to stay in a locale" – visitors – "and those who are

11 present with an intent to remain" – domicilaries. United

12 States v. Jackson, 480 F.3d 1014, 1023-24 (9th Cir.

13 2007). "[O]ne can reside in one place but be domiciled

14 in another," Miss. Band of Choctaw Indians v. Holyfield,

15 490 U.S. 30, 48 (1989), for example, one can reside in a

16 place for the purpose of attending college while lacking 17 the intent to remain after graduation.7 In this case,

18 the Government avers that Hamdi's wife and children

19 traveled to Egypt with the intent to remain there, thus

20 changing both their residence and domicile, and

21 categorically belying Hamdi's statements to Osuna. (See

22 MSJ at 11.)

23

24

25

26 7 For Hamdi himself, however, the rule is different:
27 "an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without
28 regard to the alien's intent . . . ." 8 C.F.R. § 316.5.

24

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 25 of 39 Page ID #:2110

1

In support of its argument that Hamdi's wife and

2 children intended to stay in Egypt, the Government points

3 to Hamdi's testimony that when his family left for Egypt,

4 Hamdi moved from a five-bedroom house to a one-bedroom

5 apartment, and that Hamdi planned to go to Egypt

6 eventually to join them. (Gov.'s Ex. G 311:20-313:18,

7 314:18-20.) Hamdi also testified that he "was certainly

8 going to try to see my hand at finding work [in Egypt]

9 because [he] knew the economy was getting worse in the

10 United States and things were getting expensive." (Id. 11 314:21-315:2.)8

12

13

Hamdi disputes telling Osuna anything regarding the

14 residency of his wife and children (Opp'n at 15), but

15 assuming he did, he admits he would have told Osuna they

16 lived at his address, because his family considered (and

17 considers) it their permanent address. (Id.) Thus, when

18 asked whether she ever lived in Riverside (where Hamdi

19 resides currently), Carriere testified "[t]hat's where my

20 husband – that's our permanent address now." (Gov.'s Ex.

21

22

8 The Government also cites the testimony of

Carriere's sister, who when asked whether "it was [her]

23 understanding when [Carriere and the children] moved to

Egypt that they were moving to Egypt on a permanent

24 basis," responded: "Pretty permanent, well, for awhile.

I didn't know if it was going to be permanent, but I knew

25 it was going to be for a little while." (Dragon Dep.

22:7-12, May 16, 2011 ("Gov.'s Ex. K") (Doc. No. 85-13).)

26 Without responses to further questions, e.g., "how long

is 'a little while,'" or "why did you understand the move

27 was 'pretty permanent,'" the Court cannot credit this

testimony either in favor of, or against, the

28 Government's argument.

25

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 26 of 39 Page ID #:2111

1 H 144:25-145:2.) When asked whether she intended to stay

2 in Egypt for three years, Carriere testified she did not.

3 (Pet.'s Ex. C 152:19-24.) While Carriere testified the

4 family planned to stay "for awhile," and that Hamdi would

5 join them (id. 152:25-153:3), she also agreed with the

6 propositions that she and the children "were just going

7 to figure out how long [they] were going to stay and

8 purchase one-way tickets back" (id. 153:7-10), and that

9 the family is waiting for Hamdi to complete his

10 naturalization proceedings before making any further

11 decisions (id. 153:18-22).

12

13

Given this evidence, a reasonable factfinder could

14 conclude either that Hamdi's wife and children changed

15 their domicile to Egypt, or that they had taken an

16 extended trip and would be returning in the indefinite

17 future. Consequently, the same factfinder could

18 determine that Hamdi did not intend to testify falsely

19 about where his family lived, because he considered them

20 on an extended, but not permanent, trip. There thus

21 remains a genuine dispute about whether Hamdi testified

22 falsely in his interview with Osuna, with the intent of

23 misleading USCIS into granting him an immigration

24 benefit.

25

26

27

28

26

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 27 of 39 Page ID #:2112

1 2. Did Hamdi testify falsely regarding his employment

2 status?

3

4

The Government further argues that Hamdi

5 misrepresented his employment status during his interview

6 with Osuna. Specifically, the Government contends Hamdi,

7 though unemployed at the time of his interview, told

8 Osuna that he remained employed with Harris & Associates.

9 (MSJ at 14.) Hamdi testified, however, that he recalls

10 telling Osuna he was unemployed. (Pet.'s Ex. F 291:2-

11 15.) The remainder of the evidence before the Court on

12 this question is inconclusive; consequently, the Court

13 cannot find, as a matter of law, that Hamdi

14 misrepresented his employment status.

15

16

On his application for naturalization, Hamdi wrote

17 that as of February 15, 2007, he was employed at Harris &

18 Associates. (See Gov.'s Ex. A.) Osuna declares that

19 when he interviewed Hamdi on November 3, 2008, he "asked

20 Mr. Hamdi if he was still presently employed by Harris &

21 Associates," and that "Mr. Hamdi testified that he was."

22 (Osuna Decl. ¶ 10.) Osuna also declares he made a check

23 mark next to the employment question on Hamdi's

24 application at the same time, "[b]ased on Mr. Hamdi's

25 response to my question." (Id.)

26

27

28

27

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 28 of 39 Page ID #:2113

1

Osuna then testified alternately that (1) during the

2 interview, he had a "gut feeling" that Hamdi was lying

3 about being employed (Osuna 30(b)(6) Dep. 72:7-73:15,

4 Sept. 23, 2011 ("Pet.'s Ex. A") (Doc. No. 86-6)), and

5 that (2) he came to believe Hamdi was unemployed after

6 having a discussion with another immigration service

7 officer (Gov.'s Ex. L 73:20-22). In any event, Osuna

8 disbelieved Hamdi's purported testimony regarding his

9 employment at Harris & Associates.

10

11

USCIS did not issue a decision explaining that Hamdi

12 testified falsely about his employment with Harris &

13 Associates; instead, it issued a decision relying on

14 Hamdi's failure to mention his employment with LAN

15 Engineering in his interview. (See Gov.'s Ex. F.) It is

16 undisputed, however, that Hamdi did not start work for

17 LAN Engineering until approximately two months after his

18 interview. (See Pet.'s Ex. P.)

19

20

USCIS's seemingly incongruous conclusion raises

21 questions about the content of Osuna's and Hamdi's

22 discussions of Hamdi's employment during Hamdi's

23 interview. While Osuna states unequivocally that Hamdi

24 told him in the interview he was still employed by Harris

25 & Associates, Hamdi testified unequivocally that he said

26 no such thing (Pet.'s Ex. F 290:25-291:6).

27

28

28

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 29 of 39 Page ID #:2114

1

Osuna wrote contemporaneous notes on Hamdi's

2 application form, but these shed little light on what

3 occurred during their interview. Deciphering Osuna's

4 notes requires determining the meaning of various marks

5 he made on Hamdi's application – specifically, check

6 marks. In his sworn declaration, however, Osuna

7 attributes two different meanings to the markings.

8 First, Osuna states he "made a check mark on Mr. Hamdi's

9 Form N-400 Application for Naturalization on or near Mr.

10 Hamdi's written response on his Form N-400, indicating

11 that [he] asked that particular question." (Osuna Decl.

12 ¶ 6.) Later, however, Osuna declares that based on

13 Hamdi's response to his question about Harris &

14 Associates, he "contemporaneously made a check mark next

15 in the row of Part 6.B. on page 3 of Mr. Hamdi's Form N-

16 400 indicating that Mr. Hamdi testified that he was

17 presently employed by Harris & Associates." (Id. at 10.)

18

19

20

It makes a substantial difference whether Osuna's

21 check mark means merely that Osuna asked a question, or

22 that Hamdi answered the question in the affirmative.

23 Moreover, if the check mark means Osuna asked a question,

24 the precise question he asked is lost to history, because

25 he did not otherwise record his interview with Hamdi.

26 Given Hamdi's and Osuna's conflicting testimony, the

27 incongruous USCIS decision that came approximately seven

28

29

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 30 of 39 Page ID #:2115

1 months after the interview in question, and Osuna's own

2 conflicting remarks about what his notes on Hamdi's

3 application mean, the Government is not entitled to

4 summary judgment on the question whether Hamdi's moral

5 character was besmirched by his allegedly false testimony

6 about his employment status.

7

8 3. Did Hamdi testify falsely regarding his connection to

9

BIF?

10

11

The Government contends Hamdi testified falsely about

12 his connection to BIF, an organization implicated in

13 financing terrorism, in both his interview with Osuna and

14 in his subsequent appeal interview before immigration

15 service officers Cecil Clark and Elias Valdez. (See MSJ

16 at 17-18, 20-21.) Hamdi argues that he was asked about

17 his "association with" BIF, and based on his

18 understanding of the word "associate," he truthfully

19 denied being associated with an organization to which he

20 donated money and for which he did some insubstantial

21 volunteer fundraising. (See Opp'n at 7-10.) He further

22 notes that whenever he was asked specifically whether he

23 donated money to BIF, he answered that he did. (See id.)

24 Here again, the Government's evidence that Hamdi

25 testified falsely about his association with BIF is

26 insufficient to warrant summary judgment in the

27 Government's favor.

28

30

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 31 of 39 Page ID #:2116

1

As discussed above, Hamdi's application for

2 naturalization lists three entities of which Hamdi claims

3 to be a member or with which he claims to be associated.

4 (See Gov.'s Ex. A.) Hamdi did not list BIF. Osuna

5 states that as he interviewed Hamdi, he asked whether "he

6 is or was a member of or associated with any other

7 organization that he did not report," and Hamdi answered

8 he was not. (Osuna Decl. ¶ 14.) Hamdi's file contained

9 a declaration from Caputo, the FBI agent who interviewed

10 Hamdi in 2003. (Id. ¶ 16.) Based on Caputo's

11 declaration, Osuna "asked Mr. Hamdi several questions

12 about BIF, including whether he had ever made any

13 donations to BIF." (Id.) Osuna recalls "Mr. Hamdi

14 responded, 'No.'" (Id.)

15

16

If Hamdi actually told Osuna he had never donated to

17 BIF, it is undisputed that Hamdi's testimony would have

18 been false. Osuna's declaration is the only evidence the

19 Government offers to support its claim that Hamdi denied

20 donating to BIF. Osuna made no notes on Hamdi's

21 application reflecting any questions about donations to

22 BIF, or Hamdi's answers. (See Gov.'s Ex. A.) When asked

23 in his deposition "how . . . the subject of BIF ar[o]se

24 in the course of the interview" with Hamdi, Osuna

25 testified: "I didn't mention the BIF. I don't recall I

26 mentioned the BIF at the time. Actually, it – I think

27 after – after I asked him, 'Are there any other[]

28

31

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 32 of 39 Page ID #:2117

1 [affiliations],' I wrote, 'Claims; no others.'" (Osuna

2 Dep. 71:20-25, Apr. 13, 2011 ("Pet.'s Ex. H") (Doc. No.

3 86-10).) Osuna then testified that Hamdi said he had

4 never even heard of BIF, nor donated to it. (Id. 72:5-

5 13.) However, later in the same deposition, the

6 following colloquy took place:

7

8

Q:

But you said in this case that [Hamdi] did

9

not admit that he had given money to BIF;

10

right?

11

Osuna: When I mentioned BIF, he mentioned that they

12

were a charitable organization.

13

Q:

Oh. So when you said – when you asked him

14

if he had heard of the BIF, he said it was a

15

charitable organization?

16

Osuna: Yes.

17

Q:

And then at that point, did he say that he

18

had given money to BIF?

19

Osuna: No.

20 (Pet.'s Ex. H 152:19-153:4.)

21

22

In addition to Osuna's inconsistent testimony on BIF,

23 when Hamdi appealed USCIS's decision, Hamdi submitted a

24 brief in which he wrote:

25

26

. . . as to [BIF] which is a charitable

27

organization the applicant has sent the

28

32

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 33 of 39 Page ID #:2118

1

organization charitable donations like anybody

2

else Islamic Organization which helps the poor and

3

needy people and for that the application believed

4

there is no need to list such organization on his

5

application just for giving charitable donations.

6 (Pet.'s Ex. P.)9

7

8

Hamdi therefore admitted freely, in writing, that he

9 had given money to BIF. Based on the evidence before it,

10 the Court could find Hamdi admitted his donations to BIF

11 in his written brief because he realized USCIS knew about

12 them, and wanted to preempt any claim that he previously

13 testified falsely to obtain an immigration benefit. Cf.

14 Paredes-Urrestarazu v. U.S. Immigration & Naturalization

15 Serv., 36 F.3d 801, 817-20 (9th Cir. 1994) (holding that

16 it would be reasonable to conclude that a witness

17 intended to deceive an immigration judge, rather than

18 avoid embarrassment, when the witness lied about his

19 military service and dishonorable discharge until he

20 thought the judge had information belying his original,

21 false, testimony). Alternately, the Court could find –

22 given Osuna's inconsistent testimony, the lack of a

23 contemporaneous record of Osuna's questions about BIF,

24 Hamdi's previous discussion of his BIF donations with

25 Caputo, and his subsequent acknowledgment of the

26

27 9 Typographical errors are reproduced as they appear
28 in the original.

33

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 34 of 39 Page ID #:2119

1 donations in his appellate brief – that Hamdi was

2 forthcoming with USCIS about donating to BIF. As the

3 non-moving party, Hamdi is entitled to the benefit of

4 reasonable inferences. Consequently, the Court cannot

5 now conclude as a matter of law that Hamdi testified

6 falsely about his donations to BIF.

7

8

The testimony of officers Clark and Valdez does

9 nothing to alter this result. Clark testified that

10 during Hamdi's appeal, he questioned Hamdi about BIF.

11 (Clark Dep. 116:13, May 3, 2011 ("Gov.'s Ex. N") (Doc.

12 No. 85-16).) Clark further testified that while he could

13 not remember the exact questions he asked Hamdi, Clark

14 and Valdez did ask Hamdi "if he, in fact, had ever

15 donated money to [BIF]," and Hamdi said he did not –

16 until he was presented with the canceled checks. (Id.

17 116:16-22.) Valdez, while testifying that his memory of

18 the interview was limited, recounted that Hamdi never

19 denied donating to BIF, but instead said he did not

20 recall making such a donation until he was shown the

21 checks. (Valdez Dep. 127:13-20, May 11, 2011 ("Pet.'s

22 Ex. K") (Doc. No. 86-10).) To be sure, it is odd that

23 Hamdi would not recall a donation he made to BIF about

24 which he had been questioned previously by the FBI.

25 Nonetheless, Hamdi admitted to making donations to BIF in

26 the brief he filed before Clark and Valdez interviewed

27 him. It is curious that Hamdi would prevaricate about

28

34

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 35 of 39 Page ID #:2120

1 making donations to BIF after already admitting having

2 done so. Thus, a reasonable factfinder could conclude

3 Hamdi did not testify falsely to Osuna, Clark, or Valdez

4 about donating money to BIF.

5

6

The remaining question is whether Hamdi testified

7 falsely if he denied being associated with any

8 organizations, e.g., BIF, other than the three he listed.

9 The answer turns on the meaning of the word "associate,"

10 or more precisely, whether a reasonable factfinder could

11 conclude Hamdi lacked the intent to deceive when he

12 denied being associated with BIF, because he did not

13 believe his interactions with BIF (discussed above) made

14 him an "associate" of the organization.

15

16

The Government attempts to sidestep this argument,

17 labeling it "self-serving" and insufficient to create a

18 triable issue of fact. (MSJ at 18.) It notes that his

19 deposition transcript shows "Hamdi has little trouble

20 with the English language" (MSJ at 20), and therefore

21 should have either known the meaning of the word

22 "associate," or known to consult a dictionary or attorney

23 to learn it.

24

25

In the last six months (approximately), the Ninth

26 Circuit Court of Appeals and the United States Supreme

27 Court have turned to at least 15 different dictionaries

28

35

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 36 of 39 Page ID #:2121

1 to clarify the meaning of a word. To pick just one, the

2 Oxford English Dictionary offers several definitions of

3 the verb "associate," including "to join in common

4 purpose . . . ," "to keep company or consort with . . .

5 ," or "to make oneself a partner in." Oxford English 6 Dictionary (2d ed. 1989; online version Sept. 2011).10

7 Which of these definitions, or any definitions in other

8 dictionaries, ought Hamdi have applied? Any person, in

9 the course of his life, "associates" with many groups;

10 some limiting term is required to make sense of the term

11 used in the naturalization application. The only clue

12 Hamdi, or the Court, can take from the application itself

13 as to how "associate" should be limited is that to be

14 "associated with" a group is similar to being "a member

15 of" that group, but not exactly the same thing. See

16 United States v. Williams, 553 U.S. 285, 295 (2008)

17 (explaining "the commonsense canon of noscitur a sociis –

18 which counsels that a word is given more precise content

19 by the neighboring words with which it is associated");

20

21

10 Choosing among even these three definitions could

alter the outcome as to Hamdi. Asking whether Hamdi

22 joined in common purpose with BIF would require Hamdi to

distill one, or a few, purposes for which he donated to

23 BIF, then to consider whether by making such donations,

he "joined with" BIF toward that purpose. Asking whether

24 he kept company or consorted with BIF would require an

analysis of the corporate form of the organization, and

25 then questions about whether Hamdi kept company with or

consorted with agents of the entity – or would attending

26 a function sponsored by the entity be enough? Asking

whether Hamdi made himself a partner in BIF requires a

27 similar analysis: would Hamdi have to partner with BIF

in the legal sense? If not, when would a donor to an

28 organization become its partner?

36

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 37 of 39 Page ID #:2122

1 Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) ("[T]he

2 Court will avoid a reading which renders some words

3 altogether redundant.").

4

5

Nor does the Government offer a definition of the

6 word "associate." Indeed, when deposed as to its meaning

7 as he applies it, Osuna first said the definition he uses

8 "came from the English dictionary" (Pet.'s Ex. H 30:17-

9 18), then said he did not have to look it up because it

10 is a word he knows (id. 30:19-23), and then said he

11 learned it in grade school (id. 31:9-10). He did not,

12 however, give much by way of a substantive definition.

13 Indeed, the Government went so far as to assert a

14 privilege to cloak the definition Osuna used in

15 adjudicating naturalization applications:

16

17

Q:

And what definition of association do you

18

apply in processing and adjudicating those

19

applications?

20

Bauer: Object to the extent it calls for privileged

21

information that's covered by the

22

deliberative process privilege. You don't

23

have to answer that question.

24 (Pet.'s Ex. H 26:18-23.)

25

26

In sum, given the lack of an authoritative definition

27 of the word "associate," and indeed, the Government's

28

37

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 38 of 39 Page ID #:2123

1 assertion that the definition it uses is so sensitive as

2 to be subject to a privilege, a factfinder could conclude

3 Hamdi lacked the intent to deceive when he denied having

4 any associations other than the three he listed on his

5 naturalization form.

6

7 4. Did Hamdi testify falsely regarding his connection to

8

Care International?

9

10

Finally, the Government argues Hamdi testified

11 falsely by also omitting Care International from the list

12 of organizations with which he was associated, and then

13 telling Osuna that the list was complete. For at least

14 the same reasons applicable to Hamdi's alleged

15 association with BIF, the Court finds the Government has

16 not presented evidence sufficient to foreclose the

17 conclusion that Hamdi lacked the intent to deceive USCIS

18 when he testified he had no associations other than those

19 listed on his naturalization application.

20

21

IV. CONCLUSION

22

In moving for summary judgment, the Government seeks

23 to establish that Hamdi lacked the necessary moral

24 character to naturalize, because he allegedly gave false

25 testimony in earlier naturalization proceedings. On the

26 evidence before the Court, however, a reasonable

27 factfinder could conclude that even if Hamdi's testimony

28

38

Case 5:10-cv-00894-VAP-DTB Document 93 Filed 12/14/11 Page 39 of 39 Page ID #:2124

1 differed from the facts as the Government understood

2 them, his testimony was not given with the intent to

3 deceive, and therefore was not culpably false.

4 Consequently, the Court DENIES the Government's Motion as

5 to Hamdi's naturalization claim.

6

7

The Government also seeks summary judgment as to

8 Hamdi's second claim, i.e., that a question on the

9 application for naturalization is unconstitutionally

10 vague. As Hamdi sought no relief tied to his second

11 claim, the Court cannot adjudicate it summarily.

12 Accordingly, the Court GRANTS the Government's Motion as

13 to Hamdi's vagueness claim.

14

15

16 Dated: December 14, 2011 17

VIRGINIA A. PHILLIPS United States District Judge

18

19

20

21

22

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24

25

26

27

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 Case 5:10-cv-00894-VAP-DTB Document 130 Filed 02/25/12 Page 1 of 24 Page ID #:2756

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 TAREK HAMDI,

)

)

12

Petitioner, )

)

13

v.

)

)

14 UNITED STATES CITIZENSHIP )

AND IMMIGRATION

)

15 SERVICES, et al.,

)

)

16

Respondents. )

_________________________ )

17

Case No. EDCV 10-894 VAP (DTBx) FINDINGS OF FACT & CONCLUSIONS OF LAW [FED. R. CIV. P. 52]

18

19

United States Citizenship and Immigration Services ("USCIS") denied

20 Tarek Hamdi's application for naturalization, and he petitioned this Court for

21 review. The matter was tried to the Court on February 1 and 2, 2012, and the

22 Court then took the matter under submission.1 Having considered all the

23 evidence admitted at trial, the arguments of counsel, and the briefing

24 submitted by the parties, the Court GRANTS the Petition, issues the following

25

26

27

1On February 2, 2012, Petitioner filed a Request for Judicial Notice,

asking the Court to take judicial notice of eight items. Respondents' counsel

28 had no objection as to item numbers 7 and 8 of the Request, but objected to

item numbers 1 through 3 as irrelevant and 4 through 6 as cumulative. The

Court overrules the objections. See Fed. R. Evid. 201.

Case 5:10-cv-00894-VAP-DTB Document 130 Filed 02/25/12 Page 2 of 24 Page ID #:2757

1 Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil

2 Procedure 52, and issues its decision below.

3

4

FINDINGS OF FACT2

5 1. Petitioner Tarek Hamdi ("Petitioner") is a natural born citizen of Egypt.

6

Am. Joint Pretrial Conference Order ("PTCO") ¶ 5 ("Admitted Facts")

7

(1).

8 2. Petitioner entered the United States in 1977 on a student visa. Id. He

9

studied civil engineering at several colleges and universities, including

10

Northeastern University, where he met Linda Carriere in 1979.

11 3. Ms. Carriere is a natural born United States citizen. PTCO ¶ 5(2). She

12

and Petitioner married in 1987. Id. They have four daughters, all born

13

in the United States and hence U.S. citizens. PTCO ¶ 5(3).

14

15 A. Proceedings

16 4. Petitioner applied for Lawful Permanent Resident status in 1988, and

17

his application was granted on May 16, 1988. PTCO ¶ 5(5)-(6). He has

18

been a lawful permanent resident since that date. PTCO ¶ 5(7).

19

Petitioner has returned to Egypt only twice since 1977.

20 5. Petitioner first filed a naturalization application in 2001; his application

21

was approved by the Immigration and Naturalization Service.

22

PTCO ¶ 5(1)-(3). On March 15, 2003, the USCIS notified Petitioner it

23

had reopened his case, and on February 23, 2006, scheduled a

24

naturalization interview for March 10, 2006. PTCO ¶ 5(5)-(6).

25

26

27

2 To the extent any of the Findings of Fact should more properly be

28 considered Conclusions of Law, they shall be deemed as such.

2

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1 6. 2 3 4 5 7. 6 7 8. 8 9 9. 10 11 10. 12 13 14 15 16 11. 17 18 19 20 21 22 23 12. 24 25 26 27 28

Petitioner did not appear at the March 10, 2006, interview because he did not receive the notice, and the USCIS denied his naturalization application for failure to appear at the scheduled interview. PTCO ¶ 6(7)-(8); Ex. 103. On February 15, 2007, Petitioner filed a second Form N-400 Application for Naturalization ("Application"). PTCO ¶ 5(9); Ex. 8. Petitioner passed the Naturalization Examination on November 3, 2008. PTCO ¶ 5(11). USCIS Immigration Service Officer Robert Osuna interviewed Petitioner on November 8, 2008, in connection with Petitioner's Application. On March 19, 2009, Petitioner filed a lawsuit in the U.S. District Court, Central District of California, seeking, pursuant to 8 U.S.C. § 1447(b), to compel the USCIS to adjudicate his Application. The Court granted the relief sought and ordered the USCIS to adjudicate Petitioner's Application no later than June 15, 2009. PTCO ¶ 6(10). The USCIS denied Petitioner's Application on June 8, 2009, on the basis that he lacked the requisite good moral character. PTCO ¶ 5(12). Specifically, Officer Osuna denied the Application on the basis that Petitioner gave false testimony during his interview on November 8, 2008, regarding his alleged affiliation with Benevolence International Foundation ("BIF"), the identity of his last employer, and his employment status. PTCO ¶ 5(13). Petitioner filed an "N-336 Request for a Hearing on Decision in Naturalization" ("N-336 Request") on July 13, 2008, appealing the USCIS decision denying his Application. PTCO ¶ 5(14); Ex. 106.
3

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1 13. 2 3 4 14. 5 6 7 8 B. 9 15. 10 11 12 13 14 15 16 17 18 19 16. 20 21 17. 22 23 24 25 26 27 28

USCIS Officers Elias Valdez and Cecil Clark interviewed Petitioner on September 24, 2009, in connection with his N-336 Request. PTCO ¶ 5(15). The USCIS denied Petitioner's N-336 Request on April 8, 2010, on the basis that he gave false testimony on his application and during his interviews regarding with BIF. PTCO ¶ 5(16)-(17).
Residence of Petitioner's Family Beginning in February 2006, Petitioner and his family lived in a house in Corona, California. In May 2008, Ms. Carriere traveled to Cairo, Egypt with the couple's four daughters, on one-way airline tickets. Petitioner and Ms. Carriere testified that when Ms. Carriere and the couple's daughters left, they planned to stay in Egypt for an indefinite period of time, to care for Petitioner's elderly and ailing mother and to give the Hamdi daughters an opportunity to become better-acquainted with Petitioner's family and culture. Their departure also coincided with the U.S. economic downturn, which was affecting Petitioner's employment in the construction industry. Petitioner moved from the Corona house to a small apartment in Riverside shortly after his family left for Egypt. Both Petitioner and Officer Osuna testified that at the November 8, 2008, interview, Petitioner told Officer Osuna that his address had changed from Corona to Riverside, and Officer Osuna wrote the current Riverside address onto the Application. According to Petitioner, Officer Osuna only asked him generally if everything else on the section of the Application dealing with residence was correct, and Petitioner answered that it was. Part 9 (B) on page 6 of the Application seeks the current
4

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1 2 3 4 18. 5 6 7 8 9 10 11 12 13 14 19. 15 16 17 18 19 20 21 22 20. 23 24 25 26 27 28

address of an applicant's children; Petitioner had typed "with me" next to the name of each of his daughter's names, and the Corona address next to his wife's name. Ex. 4. Petitioner testified that at the time of the interview, he and his wife had not decided how long she and their daughters would stay in Egypt, nor where the family would settle next; hence, they considered the visit to Egypt to be a temporary affair, and the family's permanent residence to be the place he resided, i.e., Riverside. He also testified that at the end of his interview, he asked Officer Osuna when he would learn if his naturalization application had been approved, and when the officer responded he needed to investigate further, Petitioner volunteered that his family was then in Egypt waiting to reunite once his naturalization application was approved. Officer Osuna testified that Petitioner told him during the interview that the Corona address listed on the Application was not current, and gave his current Riverside address. Officer Osuna testified the check mark he placed next to this section of the Application meant that he asked Petitioner where each of his daughters was living; if Petitioner had told him his daughters were then in Egypt, he would have asked more questions, including questions about how long they had been in that country. The Court finds Petitioner's testimony on this issue credible for several reasons. At the time of the interview in 2008, Petitioner's daughters ranged in age from 14 to 19 and all were his dependents. It would have been natural for Petitioner to consider his wife's and daughters' permanent residence to be the same as his, even if they were visiting his family for an extended period of time in another country. Petitioner's
5

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 21. 19 20 21 22 23 24 25 26 27 28

testimony that he asked Officer Osuna at the end of the interview about when he could expect a decision is consistent with his deposition testimony on this point. Furthermore, Petitioner's testimony that he offered the information that he was anxious to receive a decision so he could join his family in Egypt was not inconsistent with his deposition testimony that he "asked no other questions" except those regarding the timing of an expected decision, and also is supported by Ms. Carriere's testimony that the family hoped to reunite within six months or so, as soon as Petitioner had completed the naturalization process. On the other hand, Officer Osuna admitted he conducts approximately 400 immigration interviews per year, and during his career with the USCIS had conducted over 4,000 such interviews. The only notation Officer Osuna made on Petitioner's Application regarding the residence of his children is a checkmark; it simply is more plausible that Officer Osuna merely confirmed the information on the form, as Petitioner testified, than that he holds an independent recollection of asking in this one interview where Petitioner's wife and daughters lived. Officer Osuna's credibility on this point is further undermined by his inconsistency regarding the marks he made on the Application. He testified on direct examination that it is his practice – a practice he followed in the case of Petitioner's interview – to ask the applicant each and every question on the N-400 form, and place a check mark on the applicant's answer if there is no change; he writes in any new or changed information received during the interview. On crossexamination, however, he admitted there were several questions on the N-400 form he had not asked Petitioner, including questions regarding his military service and affiliations with Nazi organizations, and also
6

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admitted he had not put check marks in areas where he had asked Petitioner the questions on the form, and had placed marks in areas where he had not asked the question. Furthermore, even if the Court credits Officer Osuna's testimony that Petitioner did not disclose – in response to a direct question – that his wife and daughters were in Egypt at the time of the interview, the Court finds the record contains no credible evidence that Petitioner thus testified falsely for the purpose of obtaining an immigration benefit. There is no evidence that the presence of his family in Egypt would have affected Petitioner's Application. As the Government admits, Petitioner satisfied all the requirements for naturalization, such as five years continual residence, physical presence for at least half that time, lack of arrests or convictions, and lack of removal or deportability proceedings or findings. Petitioner and his wife had been married over 20 years at the time of the November 8 interview and their union had borne four children. Petitioner himself testified that he did not believe that his family's presence in Egypt would have any bearing on his Application's approval. Thus, the Court finds Petitioner did not give false testimony regarding his family's residence with the subjective intent to obtain immigration benefits.
Memberships and Associations Part 10 (B) of the Application requires an applicant to list all organizations "or similar groups" that he has ever been a "member of" or "associated with." The Application provides no definition for any of these terms. In response to this inquiry, Petitioner listed three organizations: Al Hamra Academy elementary school in
7

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1 2 3 4 5 6 7 8 9 24. 10 11 12 25. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Massachusetts, on whose Board of Directors he served; and two mosques where he prayed and was a member, the Islamic Society of Greater Worcester (Massachusetts) and the Islamic Society of CoronaNorco (California). Ex. 4. He testified during trial that he listed these organizations because he understood the terms "associated with" or "member of" to mean he had applied for membership in them, paid membership fees or dues to belong to them, or had been elected to a position with them. Petitioner and his family are practicing Muslims. PTCO ¶ 5(4). "Zakat," or the practice of charitable giving to the needy, is one of the tenets of Petitioner's Muslim faith. While living in Massachusetts during the 1990s, Petitioner contributed money to BIF, Care International ("Care"), the Bosnian Committee for Humanitarian Relief, Global Relief, and Holy Land Foundation ("HLF"), as well as other humanitarian and charitable organizations. BIF and Care were registered charitable organizations with tax exempt status under chapter 501(c)(3) of the U.S. Internal Revenue Code at the time Petitioner donated to them. He learned about BIF and Care when representatives of each organization came to the mosques Petitioner attended, and sought donations for humanitarian and relief work purportedly done for Muslims in Bosnia, Chechnya, and other areas affected by natural or man-made disasters. Petitioner also helped collect contributions from other members of his mosque, and from time to time, at the request of his mosque, made announcements about Care's and BIF's fund-raising efforts. He also assisted in those efforts by stuffing envelopes and distributing newsletters. During the same time, Petitioner assisted other charitable organizations by, for example,
8

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1 2 3 4 5 6 7 8 9 26. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 27. 24 25 26 27 28

collecting and sorting goods for clothing drives for those suffering in Bosnia. From 1998 through 2001, Ms. Carriere sponsored an orphan in Chechnya through BIF by making monthly payments of $35.00 through the couple's joint checking account. Exs. 6, 7, 32. When Petitioner's father died during the 1990s, Petitioner inherited approximately $200,000, and he donated some of that money to charity in keeping with the principles of zakat. For example, in 1998, he made a $6,000 donation to Holy Land Foundation. Ex. 9. In February, 2000, Petitioner sent a check for $8,0000 to BIF. Ex. 8. The first check he sent for that amount was not honored by the bank, and when he learned of this, Petitioner sent a second check for the same amount, accompanied by a separate check for $50.00, also made out to BIF. In a note he enclosed with the two checks, he wrote:
Alsalamu alikum, Enclosed please find a check in the amount of $8000[.] This check is to go for Chechnya Relief fund, in particular the Injured Mujahadeen. This check is to replace the one I had previously sent U [sic]. U nfortunately the old check was deposited a little late and it was not honored due to lack of funds. Find the old check under your receipt # 33606 [¶] Sorry for any inconvenience this may have caused U [sic]. I have enclosed another check in the amount of $50 to cover any expenses U [sic] may have incurred. May Allah accept and hasten w ith H is victory and mercy to the brothers and sisters of Chechnya. [¶] Jazakum Allahu khyran for your effort and [best] of salams to U [sic] all. [¶] Your brother in Islam, Tarek Hamdi Ex. 8 (emphasis in original). On the "Memo" line of the $8,000 check, Petitioner wrote: "Chechnya Relief". Id. Petitioner testified that shortly before he sent these funds to BIF, he had watched a televised report on CNN about current conditions in Chechnya, and the portrayal of civilian casualties, worsened by rudimentary medical care in makeshift hospitals, horrified him. Thus, by his reference in the cover letter to "injured mujahadeen" and on the
9

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1 2 3 4 5 28. 6 7 8 9 10 11 29. 12 13 14 15 16 17 30. 18 19 20 21 22 23 24 25 26 31. 27 28

memo line of the check to "Chechnya Relief," he intended to direct the donated funds to humanitarian programs for those injured in the region. He never intended that the money he sent would be used to supply equipment to those fighting. The United States Department of the Treasury designated BIF a terrorist financier on November 19, 2002. PTCO ¶ 5(58). One of its leaders, Enaam Arnaout, pled guilty in 2003 to racketeering conspiracy, based on charges he had misled donors that BIF was a charitable organization devoted only to humanitarian work for refugees, when in fact it supported insurgent fighting forces in Chechnya. PTCO ¶ 5(57). Federal Bureau of Investigation Special Agent Michael Caputo interviewed Petitioner in January, 2003, as part of the FBI's investigation into BIF and its leaders, including Arnaout. The interview was an informal one, conducted at a doughnut shop near Petitioner's residence in Stockton, California, and SA Caputo did not place Petitioner under oath (or affirmation) before questioning him. When SA Caputo questioned Petitioner about his connections to BIF, Petitioner initially denied making any financial contributions to the organization. Once SA Caputo showed Petitioner a copy of the two checks drawn on his bank account, however, Petitioner admitted he had written the checks and the note quoted above, that he had collected donations from members of his mosque, as well as donating some money himself, for humanitarian aid for Chechnya. SA Caputo wrote a declaration describing the information obtained from Petitioner. Ex. 17. Petitioner did not list Care, BIF, HLF, Global Relief, or the Bosnian Committee for Humanitarian Relief in Part 10 on the Application, nor
10

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1 2 3 4 32. 5 6 7 8 9 10 11 12 13 14 15 16 17 33. 18 19 20 34. 21 22 23 24 25 26 27 28

any other group to whom he had donated money or for whom he occasionally had done volunteer work of the sort described above, but had not formally joined. Ex. 4. Officer Osuna testified he asked Petitioner whether he had donated money to BIF and Petitioner denied doing so; Petitioner testified he did not recall being asked any questions about BIF or Care during the N400 interview. On the Application, Officer Osuna wrote only "claims no" next to the section inquiring about other associations than those listed, but did not write that Petitioner had denied fundraising or donating money to BIF (contrary to his testimony that he always wrote down any additional information received during an interview). Moreover, in Officer Osuna's decision denying Petitioner's Application, Officer Osuna made no mention of this subject. Accordingly, the Court finds Petitioner's testimony on this point credible, and concludes the evidence does not demonstrate that Petitioner testified falsely regarding his connections to BIF or Care during the N-400 interview. On September 24, 2009, USCIS Officers Cecil Clark and Elias Valdez interviewed Petitioner in connection with his N-336 Appeal. PTCO ¶ 5(15). USCIS Officer Clark testified that when he asked Petitioner whether he had donated funds to BIF during the N-336 interview, Petitioner initially denied doing so and denied being associated with BIF; Petitioner only admitted donating and doing volunteer work for the organizations when Officer Clark showed him the checks and note described in paragraph 26, above. Petitioner, on the other hand, testified he identified BIF as a humanitarian organization when Officer Clark first asked about it, and stated he initially denied donating to the organization because he did
11

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1 2 3 35. 4 5 6 7 8 36. 9 10 11 12 13 14 15 16 17 18 19 20 21 37. 22 23 24 25 26 27 28

not recall it until his memory was "refreshed" when he was shown the checks and note. Officer Clark, like Officer Osuna, has conducted thousands of immigration interviews. He took no notes of Petitioner's N-336 hearing, nor was it recorded in any manner. Moreover, he admitted during his deposition that he did not recall much about the hearing, stating only that he "probably" had asked Petitioner about BIF during the hearing. USCIS Officer Elias Valdez also attended Petitioner's N-336 hearing. According to Officer Valdez, Petitioner testified during that hearing that he was not affiliated with BIF and had not donated money to it, but when shown a copy of SA Caputo's declaration and the checks and note, admitted he had indeed donated to and raised money for BIF. Again, this testimony generally is consistent with Petitioner's own testimony regarding the questioning regarding BIF at the N-336 hearing. The Court finds, to the extent there is a conflict in the testimony regarding the N-336 interview, Petitioner's testimony was credible. Hence, the Court concludes the evidence does not demonstrate that Petitioner testified falsely regarding his connections to BIF or Care during the N-336 interview, much less falsely with the intent to obtain an immigration benefit. Taken as a whole, the evidence revealed the following connections between Petitioner and BIF: a. He donated money to the organization on more than one
occasion; b. On one occasion, he collected donations to BIF from other
members of his mosque, deposited those donations into his
12

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1 2 3 4 5 6 7 8 9 38. 10 11 12 13 14 15 16 17 39. 18 19 20 21 22 23 40. 24 25 26 27 28

banking account, and sent a check for $8,000 to BIF, an amount that included his own and others' donations; c. At the request of others in his mosque, he made announcements and distributed newsletters or fliers regarding BIF's "relief" efforts; and d. Petitioner and Ms. Carriere made modest monthly financial contributions to BIF to support a Bosnian war orphan from approximately 1998 until 2001. Taken as a whole, the evidence revealed the following connections between Petitioner and Care: a. Petitioner donated money to Care on more than one occasion; and b. At the request of others in his mosque, Petitioner made announcements at his mosque regarding Care's relief efforts and assisted in those efforts on more than one occasion by stuffing envelopes with fundraising and informational literature. All of the contributions and efforts described in paragraphs 37 and 38, above, occurred before January 2002, when the U.S. government designated BIF a terrorist financier, and before 2003, when the BIF's leader pled guilty to, inter alia, fraud, racketeering and money laundering charges, alleging he had misrepresented the organizations as humanitarian and charitable ones when soliciting donations. Petitioner testified he believed his contributions to and volunteer efforts for both organizations were on behalf of charitable, humanitarian causes. He also testified that in keeping with the Muslim practice of zakat, he made these contributions and efforts not only to BIF and Care, but also to other groups such as the Bosnian Committee for
13

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 41. 16 17 18 19 D. 20 42. 21 22 23 24 25 43. 26 27 28

Humanitarian Relief, Global Relief, and HLF and to individual persons in need, and submitted evidence of a $6,000 donation he made in 1998 to HLF. Ex. 9. In light of the credible evidence that Petitioner regularly gave money to many charitable causes and that his other efforts in connection with Care and BIF were sporadic and limited, the Court finds credible his testimony that he did not immediately remember his donation to BIF when questioned by SA Caputo during the latter's investigation of BIF, nor when questioned by Agents Valdez and Clark during the appeal interview. Moreover, the Court finds credible Petitioner's explanation that he did not list BIF or Care on Part 10 (B) of the Application – just as he did not list the other organizations to whom he had donated money and for whom he done volunteer work – because he was not a dues-paying member, and had not applied for membership nor regularly attended meetings of the organizations. Accordingly, the Court concludes Petitioner did not give intentionally false testimony regarding his connections to BIF or Care for the purpose of obtaining an immigration benefit at any time.
Petitioner's Employment Petitioner completed the Application form on or about February 15, 2007. On the section of the Application asking "where have you worked . . . during the last five years?," Petitioner answered that between June 28, 2005, and the time of his application he worked for Harris & Associates as a construction project engineer. Ex. 4. In late October of 2008, Harris & Associates laid Petitioner off; Petitioner's interview with Officer Osuna took place on November 8, 2008.
14

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Petitioner testified that during the N-400 interview, he told Officer Osuna Harris & Associates had laid him off, and that the Officer asked no follow-up questions. Officer Osuna gave a different account. He testified he remembered asking Petitioner if he currently was working at Harris & Associates and that Petitioner responded "yes;" if Petitioner had revealed his unemployed status, Officer Osuna would have asked additional questions about how Petitioner would be able to support himself. The Court finds credible Petitioner's version of this line of questioning. First, as noted above, Petitioner has only attended one such interview – his own – and therefore is more likely to remember it clearly than Officer Osuna, who has attended thousands and thousands. Second, Officer Osuna also testified he immediately had a "gut feeling" that Petitioner was lying about his employment, which tends to confirm Petitioner's testimony regarding the hostility he felt Officer Osuna displayed toward him throughout the interview. Finally, Officer Osuna admitted he only placed one mark on the section containing Petitioner's employment information, although he had questions regarding the gaps in his employment. It seems unlikely that Officer Osuna would have questioned Petitioner regarding the gaps in his employment, but yet not written anything down on the Application form regarding Petitioner's answers. It is equally implausible that if Osuna had immediate concerns about whether Petitioner was being truthful about his employment, and the Officer had concerns about the gaps in Petitioner's employment, he would not have questioned Petitioner about those lapses in employment status. Shortly after the November 2008 interview, LAN Engineering hired Petitioner as a construction manager.
15

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1 2 E. 3 46. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 47. 20 21 22 23 24 25 26 27 28

Other Issues Officer Osuna testified he asked Petitioner no questions about his family's prior welfare application, because in his mind "it was a dead issue." To the extent Defendants contend Petitioner gave false information to anyone in the San Joaquin County, California, District Attorney's office regarding his family's application for public benefits, both Petitioner and Ms. Carriere testified the reason they withdrew their application for such aid was their embarrassment at revealing the financial assistance they had found themselves forced to accept from friends when Petitioner was unemployed due to a downturn in the construction industry. The Court found this testimony sincere and credible. Thus, to the extent the negative answer to Part 22 (g) on the N-400 Application can be considered "testimony," the Court finds it was not made for the purpose of gaining an immigration benefit, nor were any statement made by Petitioner in connection with his family's public assistance application made with the requisite intent for purposes of § 1101(f)(6). Petitioner has satisfied all of the requirements for naturalization, i.e., there have been no findings of deportability or removability against Petitioner; there is no pending removal proceeding against Petitioner; Petitioner has continuously resided in the United States for at least five years immediately preceding the date of the filing of his application for naturalization in 2007; he has not been absent from the United States for more than six months from at least five years immediately preceding the date of filing of his Application in 2007 until the present; Petitioner has been physically present in the United States for a period totaling at
16

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1 2 3 4 5 48. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1. 21 22 2. 23 24 25 3. 26 27 28

least half of the five years immediately preceding the date of filing his Application; and Petitioner has resided continuously in the United States from the time of his first application for naturalization to the present. PTCO ¶ 5(18)-(55). Petitioner presented the following uncontradicted evidence of his good moral character: a. His former employer, Ashraf Mohamed, supervised Petitioner
during the latter's employment with LAN Engineering, where Petitioner worked as a field inspector on a large highway project. Based on his regular observations of Petitioner's work, as well as information received from Petitioner's coworkers, Mohamed testified that Petitioner was an outstanding employee in all respects: extraordinarily diligent, honest and able. b. Constance Dragon and Karen Wakeling, Petitioner's sister-in-law and niece by marriage, respectively testified that they have known Petitioner for approximately 30 years, and regard him as a devout, generous man who is a good father and husband.
CONCLUSIONS OF LAW The Court has jurisdiction over this action pursuant to 8 U.S.C. § 1421(c), 28 U.S.C. § 2201, and 28 U.S.C. § 1331. Petitioner resides within the Central District of California, and the events giving rise to this claim arose within this district. Hence, venue is properly laid in the Central District. 28 U.S.C. § 1391(e)(1)(B), (C). In order to obtain the relief he seeks under the Immigration and Nationality Act ("INA"), Petitioner bears the burden of showing that he meets each of the eligibility criteria for naturalization. Berenyi v. Dist.
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Dir., 385 U.S. 630, 637 (1967); 8 U.S.C. § 1427(a). "[I]t has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect. This Court has often stated that doubts 'should be resolved in favor of the United States and against the claimant.'" Berenyi, 385 U.S. at 637 (quoting United States v. Macintosh, 283 U.S. 605, 626 (1931) (overruled on other grounds)). Section 1427 of the INA sets forth the following requirements for naturalization: a. An applicant must have resided continuously, as a lawful
permanent resident, in the United States for five years immediately preceding his application to naturalize; must have been physically present in the United States at least half of that time, and; must have resided within the state or USCIS district in which he filed his application for at least three months. 8 U.S.C. § 1427(a)(1); see 8 C.F.R. § 316.5. b. An applicant must reside in the United States from the time of his application until the time of his "admission to citizenship." 8 U.S.C. § 1427(a)(2); see 8 C.F.R. § 316.5. c. An applicant must have been, and remain, "a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. § 1427(a)(3); see 8 C.F.R. § 316.10-316.11. Petitioner has satisfied his burden as to the first two requirements of § 1427(a), i.e., he has resided continuously within the United States as a lawful permanent resident for at least five years before February 15, 2007, the date he filed the Application, has been physically present in
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the United States at least half of that time, has resided within California for at least three months before the date he filed the Application, and has resided continuously within the United States from the date of the Application. Petitioner has satisfied his burden as to the third requirement of § 1427(a), that of "good moral character," as well. Petitioner must meet this burden by a preponderance of the evidence. United States v. Hovsepian, 359 F.3d 1144, 1168 (9th Cir. 2004); 8 C.F.R. §§ 312.6(a)(7) and (b). Defendants argue in vain that a "clear and convincing" standard of proof applies to the good moral character requirement; in Berenyi, the U.S. Supreme Court unequivocally held that standard applies to the United States when it seeks to strip a person of citizenship, but did not intimate it should be imposed on a naturalization applicant. The out-of-Circuit authorities Defendants cite are unpersuasive, particularly in light of the clear wording of the regulation and the Ninth Circuit authority cited above. Section 1101(f) sets out a nonexclusive list of persons who shall not be regarded as having good moral character; the parties have stipulated the only pertinent subparagraph of this statute is 8 U.S.C. § 1101(f)(6): "one who has given false testimony for the purpose of obtaining any benefits under this chapter." The United States has conceded in previous litigation that "false statements," for this purpose, include "only oral statements made under oath," and not '"other types of misrepresentations or concealments, such as falsified documents or statements not made under oath.'" Kungys v. United States, 485 U.S. 759, 780 (1988) (quoting Supp. Br. for U.S. at 3). For purposes of
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1

§ 1101(f)(6), however, a false statement need not be material. Id. at

2

779-80.

3 8. Petitioner is not disqualified as a person lacking "good moral character"

4

pursuant to § 1101(f)(6). In particular:

5

(a) Petitioner did not give "false statements" regarding his family's

6

residence; the Court found credible his testimony that his answer

7

to the question on the Application reflected the permanent

8

residence of his wife and children, despite their temporary stay in

9

Egypt caring for Petitioner's mother.3 Moreover, to the extent

10

Petitioner's answer to any questions during his interview with

11

Officer Osuna was inaccurate on this point, it was not an

12

intentionally "false statement" within the meaning of § 1101(f)(6)

13

for two reasons. First, Petitioner did not answer inaccurately for

14

the purpose of gaining an immigration benefit. Petitioner testified

15

credibly that he did hold the subjective belief that the temporary

16

absence of his family from the United States would affect his

17

naturalization application, and he also testified credibly that at the

18

end of the N-400 interview with Officer Osuna he volunteered that

19

he hoped to join his family soon in Egypt. He hardly would have

20

offered that information if he had misrepresented their permanent

21

residence in order to obtain approval of his Application.

22

Secondly, the Court finds Petitioner did not give any intentionally

23

false answer to questions about his family's residence, because

24

inadvertently inaccurate answers to vague questions do not

25 3As noted above, the term "false statement" includes only oral
26 testimony given under oath. The Court discusses Petitioner's written answers because Defendants may be contending that by swearing under oath at the
27 conclusion of the N-400 interview that his answers on the Application were truthful, Petitioner has testified as to those answers as well.
28
20

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1

satisfy the subjective intent required under § 1101(f)(6). United

2

States v. Hovsepian, 422 F.3d 883, 888 (9th Cir. 2005)

3

("Hovsepian II"). In other words, at most Petitioner

4

misunderstood the inquiry on the Application form regarding the

5

permanent residence of his wife and dependents, and therefore

6

his answer did not constitute an intentional false statement.

7

(b) Petitioner did not give intentionally false testimony regarding his

8

connections to BIF or Care International. The Court found

9

credible and convincing Petitioner's trial testimony regarding his

10

answer on Part 10 of the Application. Petitioner listed three

11

organizations he considered himself a member of or associated

12

with, consistent with his understanding of those terms, i.e., he had

13

some token of formal membership or association, such as dues

14

payment, regular meeting attendance, or election to office. This

15

was a reasonable interpretation of the terms "membership" and

16

"associated with," i.e., it was reasonable for Petitioner to

17

conclude that "membership" and "association" did not include

18

donations or sporadic charitable volunteer work.4 In any event, if

19

Petitioner answered a vaguely worded question inaccurately, he

20

did not do so with the requisite intent. Hovsepian II, 422 F.3d at

21

887-88. Furthermore, that Petitioner did not list the other

22

charitable organizations in his response supports the lack of any

23

intent to answer the question falsely. Petitioner's answers in his

24

25

4Otherwise, one who merely donated used books and magazines to a

local public library, and collected like goods from friends and coworkers

26 during an annual book drive, would be considered a "member" or "associated

with" the library for the purposes of the N-400 Application form. It is unlikely

27 that most persons would interpret the terms "member" or "associated with" so

broadly.

28

21

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1

informal interview with SA Caputo do not constitute "false

2

statements" either; first, they were not given under oath.

3

Moreover, given his practice of generous charitable giving and

4

volunteer work on behalf of many humanitarian organizations, the

5

Court finds credible Petitioner's explanation that he did not at first

6

remember his contribution to BIF when asked about it by SA

7

Caputo. Finally, the same logic applies to the sworn testimony

8

Petitioner gave during his N-336 Interview with Officers Valdez

9

and Clark; his initial response when asked about donations to BIF

10

is explicable in the context of his pattern of charitable giving to

11

many organizations. A misstatement or inaccurate answer that

12

results from faulty memory or innocent mistake does not

13

constitute an intentionally false statement for purposes of

14

§ 1101(f)(6). Hovsepian II, 422 F.3d at 888.

15

(c) Petitioner did not give intentionally false testimony regarding his

16

employment. The Court found credible Petitioner's testimony that

17

he told Officer Osuna he had been laid off from his employment

18

with Harris & Associates shortly before the N-400 Interview. See

19

supra Findings of Fact Nos. 44-45.

20

(d) To the extent Defendants are contending Petitioner's answer to

21

Part 22 (g) on the Application constitutes "false testimony," see

22

supra Note 3, that contention lacks merit. Officer Osuna testified

23

he asked Petitioner no questions about the prior welfare

24

application, because in his mind "it was a dead issue." To the

25

extent Defendants contend Petitioner gave false information to

26

anyone in the San Joaquin County, California, District Attorney's

27

office regarding his family's application for public benefits, both

28
22

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1

Petitioner and Ms. Carriere testified the reason they withdrew

2

their application for such aid was their embarrassment at

3

revealing the financial assistance they had found themselves

4

forced to accept from friends when Petitioner was unemployed

5

due to a downturn in the construction industry. The Court found

6

this testimony sincere and credible. And, as the Government has

7

conceded previously, "'It is only dishonesty accompanied by this

8

precise intent [to obtain an immigration benefit] that Congress

9

found morally unacceptable. Willful misrepresentations made for

10

other reasons, such as embarrassment, fear, or a desire for

11

privacy, were not deemed sufficiently culpable to brand the

12

applicant as someone who lacks good moral character.'" Kungys,

13

485 U.S. at 780 (quoting Supp. Br. for U.S. at 12). Thus, to the

14

extent the negative answer to Part 22 (g) on the Application can

15

be considered "testimony," the Court finds it was not made for

16

the purpose of gaining an immigration benefit, nor were any

17

statement made by Petitioner in connection with his family's public

18

assistance application made with the requisite intent for purposes

19

of § 1101(f)(6).

20

For the reasons set forth above, the Court orders that judgment shall be

21 entered in favor of Petitioner Tarek Hamdi.

22

23 Dated: February 25, 2012

24

25

_______________________

26

VIRGINIA A. PHILLIPS

United States District Judge

27

28
23

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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PRIORITY SEND

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. EDCV 10-00894 VAP(DTBx)

Date: August 29, 2012

Title:

TAREK HAMDI -v- UNITED STATES CITIZENSHIP AND IMMIGRATION

SERVICE, et al.

===============================================================

PRESENT:

HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard Courtroom Deputy

None Present Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:

ATTORNEYS PRESENT FOR DEFENDANTS:

None

None

PROCEEDINGS:

MINUTE ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEYS' FEES (DOC. NO. 145) (IN CHAMBERS)

Pursuant to 8 U.S.C. § 1421(c), Petitioner Tarek Hamdi sued to be naturalized as a citizen of the United States of America; after Hamdi prevailed in this suit against Respondents United States Citizenship and Immigration Services, and several government officers in their official capacities (collectively, "USCIS"), the Court ordered him naturalized. Hamdi now seeks his attorneys' fees and costs, in the amount of $957,497.16, under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

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EDCV 10-00894 VAP(DTBx) TAREK HAMDI v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, et al. MINUTE ORDER of August 29, 2012
EAJA requires courts to grant fees and costs to any party that prevails in litigation against the United States (in all but tort cases), unless the United States' position was "substantially justified" or "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). USCIS presses both these exceptions, arguing first that it was substantially justified in denying Hamdi citizenship in administrative proceedings, and then in defending this lawsuit. It further argues that special circumstances would make a fee award unjust, and in any event, $957,497.16 is an excessive sum. The Court will GRANT Hamdi's attorneys' fees, subject to the constraints discussed below, for the following reasons.

I. BACKGROUND The Court sets forth, briefly, the background – drawn largely from the Court's Findings of Fact and Conclusions of Law ("FFCL") (Doc. No. 130) – necessary to place the current dispute in context. Where the Court draws its facts from another source, it so indicates in the text.

Hamdi, an Egyptian citizen by birth, first came to the United States in 1977. In 2001, after having lived lawfully in the United States for approximately 14 years, marrying a United States citizen, and becoming the parent of four daughters (all citizens), Hamdi sought to naturalize. Hamdi failed to appear for the requisite interview, however, because he never received notice of its date and time. USCIS denied Hamdi's application because he failed to appear; Hamdi therefore reapplied on February 15, 2007, and the process began anew.

After reapplying, Hamdi passed the necessary examination, and on November 8, 2008, sat for an interview with USCIS Immigration Service Officer Robert Osuna. This interview proved to be a pivotal event in Hamdi's naturalization proceedings, because of conclusions Osuna reached after reading information in Hamdi's file. Hamdi and his wife had, in keeping with the tenets of Islam, made various charitable donations ("zakat"). Unfortunately, one organization to which they made their donations – Benevolence International Foundation ("BIF") – was used by one of its leaders, Enaam Arnaout, to funnel money to Chechen insurgents. The Treasury Department designated BIF a terrorist financier in 2002, and Arnaout was convicted of racketeering conspiracy in 2003; he was charged with, among other things, misleading donors into believing that BIF was doing only humanitarian work for

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refugees. Hamdi was one such donor. In 2001, he collected money from members of his mosque's congregation, amassing $8,000 that he sent to BIF. He wrote on the memo line of the check that the $8,000 was to be used for "Chechnya Relief," and sent it with a letter indicating it was for the "Injured Mujahadeen" (emphasis in original). Hamdi later testified that he decided to donate to BIF's Chechen relief program after seeing images of civilian casualties in Chechnya on CNN, and that the BIF program to which he was donating was called "Injured Mujahadeen."

On top of his interaction with BIF, Hamdi also had some involvement with an organization called Care International ("Care"), to which he donated money, and on behalf of which he made announcements at his mosque. Care's principals also ran afoul of the criminal laws of the United States, however, and were prosecuted for obtaining a tax exemption fraudulently for an organization that used charitable contributions "to finance mujahideen overseas." United States v. Mubayyid, 658 F.3d 35, 40 (1st Cir. 2011).

These details of Hamdi's interactions with BIF and Care were unknown to Osuna when he interviewed Hamdi. Osuna did, however, possess a declaration executed on May 12, 2005, by FBI Special Agent Michael Caputo; in it, Caputo recounted how on January 8, 2003, he interviewed Hamdi informally regarding his support of BIF. (See Decl. of Robert Osuna (Doc. No. 85-1) ¶ 16; Ex. B to Osuna Decl. (Doc. No. 85-4).) According to Caputo, Hamdi admitted donating to BIF, but initially denied sending money to Chechnya; Caputo then showed him the $8,000 check for "Chechnya Relief," and the accompanying letter. (Ex. B to Osuna Decl.) Caputo stated that Hamdi then recalled sending the check and letter. (Id.) Caputo concluded by noting, based on those facts alone, that "the FBI has been unable to rule out the possibility that Mr. Hamdi may be a threat to the security of the United States." (Id.)

Osuna read Caputo's declaration, and then observed that Hamdi did not list BIF on his N-400 naturalization application when responding to the prompt: "Have you ever been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group in the United States or in any other place?" (See Ex. A to Osuna Decl.) Osuna continued through Hamdi's application, making check marks in various places as he went along. As proved particularly

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EDCV 10-00894 VAP(DTBx) TAREK HAMDI v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, et al. MINUTE ORDER of August 29, 2012
relevant later in this case, Osuna made a check mark next to a question that asked Hamdi the current address of his wife and children (Hamdi wrote on the application that they lived with him) and a check mark next to a question that asked Hamdi to name his employer (Hamdi wrote that he worked for Harris & Associates). There is no other record of Hamdi's interview with Osuna to indicate what questions were asked or what answers were given.
Seven months after his interview with Osuna, USCIS denied Hamdi's application, explaining its decision – that Hamdi lacked the good moral character required to naturalize, see 8 U.S.C. § 1427(a)(3) – as follows:
You failed to reveal your affiliation with the Benevolent International Foundation, an organization based in Chicago, IL. In addition, a source of public information revealed that your last employer was LIM & Nascimento Engineering Corp., Lan Engineering Corp.. You failed to reveal the aforementioned employer on your N-400 application and at your interview. Furthermore, the same public source reveals that you are currently unemployed and have no source of income which is contrary to your statement made during the interview.
(Ex. F to Decl. of Jeffrey Bauer (Doc. No. 85-8).)1
Hamdi appealed the decision administratively, submitting a brief in which he argued he did not disclose an affiliation with BIF because he did not believe donating to a charity sufficed to make him its affiliate. (Ex. P to Decl. of Belinda Escobosa Helzer (Doc. No. 91).) Hamdi also noted that he failed to disclose his employment with LAN Engineering Corporation because he did not work there at the time Osuna interviewed him; Hamdi started working for LAN in January 2009. (See id.) Finally, Hamdi contended he was not, as USCIS wrote, unemployed when USCIS denied his application. (See id.) In connection with his appeal, Hamdi was interviewed on September 24, 2009, by USCIS Officers Elias Valdez and Cecil Clark. Again,

1 This statement is copied, with any errors, from the document Hamdi received denying his application.

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USCIS did not record the interview, and again, on April 8, 2010, USCIS denied Hamdi's application.
On June 16, 2010, Hamdi filed this suit, seeking a de novo hearing on his application for naturalization, and after a period of discovery, USCIS filed a Motion for Summary Judgment (Doc. No. 85) on October 28, 2011. In it, USCIS contended it denied Hamdi's naturalization properly, because in his interviews with Osuna, Clark, and Valdez, Hamdi told four lies for the purpose of obtaining his citizenship, each of which undermined his good moral character. First, based on Osuna's recollection and check marks he made on Hamdi's application, USCIS argued Hamdi lied about the whereabouts of his family: though Hamdi's N-400 application said they lived with him, his wife and children traveled to Egypt on one-way tickets at the end of the 2008 school year. Second, USCIS argued, Hamdi lied about his employment status, because at the time of his interview with Osuna, he was unemployed. Third, USCIS averred Hamdi lied about his connection to BIF. Finally, USCIS contended Hamdi lied about his connection to Care.
The Court denied USCIS's motion on all four grounds, determining that based on the evidence a reasonable factfinder could conclude, for each of Hamdi's four alleged lies, that Hamdi did not actually lie at all. (See Order ("MSJ Order") (Doc. No. 93) at 23-26 (regarding Hamdi's family), 27-30 (regarding his employment), 3038 (regarding BIF), and 38 (regarding Care).) On February 25, 2012, after a two day trial, the Court reached that conclusion. Thus finding that Hamdi met the criteria for naturalization, the Court ordered USCIS to prepare the materials necessary for the Court to administer the oath of allegiance.
Having prevailed in this litigation, on June 22, 2012, Hamdi filed a Motion for Attorneys' Fees (Doc. No. 145), seeking to recover his attorneys' fees and costs under the EAJA.2 USCIS filed an Opposition (Doc. No. 148) on July 20; Hamdi filed

2 On June 25, 2012, Hamdi filed an extensive Errata (Doc. No. 143) to his fee request; the Court therefore ordered Hamdi to correct the request and re-file it (see Minute Order (Doc. No. 144)), which Hamdi did on June 29. It is the June 29 filing
(continued...)

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a Reply (Doc. No. 155) on August 10. The Court analyzes the parties' filings under the following standard.
II. LEGAL STANDARD Under the EAJA, a court "shall award" attorneys' fees, costs, and "other expenses" to a party who prevails against the United States in a civil action – other than for a tort claim, but including proceedings for review of an agency action – unless the United States' position was justified substantially, or special circumstances dictate that awarding fees would be unjust. 28 U.S.C. § 2412(d)(1)(A).
The EAJA thus creates a presumption that a prevailing plaintiff is entitled to fees from the United States ("a court shall award"), but also offers two ways for the United States to rebut that presumption. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001); Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir. 1991); Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988). First, the United States may rebut the presumption that a prevailing plaintiff is entitled to fees by showing the United States' position was "substantially justified," meaning its position had "a reasonable basis in both law and fact." Gutierrez, 274 F.3d at 1258 (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). When the litigation in question involves the review of an agency action, the United States must demonstrate both that it "'was substantially justified in taking its original action[] and . . . was substantially justified in defending the validity of the action in court.'" Gutierrez, 274 F.3d at 1259 (quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).3
The United States may also avoid liability for a prevailing plaintiff's fees by

2(...continued) the Court considers here.

3 Even if the United States' behavior in the underlying agency action was not substantially justified, the EAJA normally allows the plaintiff to recoup only those fees and costs incurred in seeking judicial review of the action. W. Watersheds Project v. U.S. Dep't of the Interior, 677 F.3d 922, 926 (9th Cir. 2012).

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demonstrating that special circumstances would make such an award unjust. The "special circumstances" exception to the EAJA's rule is somewhat more enigmatic than the substantial justification exception, and appears generally to have evaded explication by the Ninth Circuit Court of Appeals. It seems, however, that Congress intended the exception to "provide[] a safety valve where unusual circumstances dictate that the government is advancing in good faith a credible, though novel, rule of law." Grason Elec. Co. v. Nat'l Labor Relations Bd., 951 F.2d 1100, 1103 (9th Cir. 1991) (internal quotation marks omitted).4
Even if the United States fails to controvert the plaintiff's entitlement to attorneys' fees, however, those fees are capped by law at $125 per hour – barring a finding by the court "that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A)(ii). The special factors a court may consider in increasing an EAJA award are limited, though, and may not be factors of "broad and general application." Pierce, 487 U.S. at 573.
Consequently, a court may not increase the statutory rate in reliance on factors such as the "'novelty and difficulty of the issues,' . . . 'undesirability of the case,' . . . 'work and ability of counsel,' and 'the results obtained,'" which "are factors applicable to a broad spectrum of litigation," and "are little more than routine reasons why market rates are what they are." Id. (citation omitted). Likewise, the court ought not increase the statutory rate out of consideration of "'customary fees and awards in other cases.'" Id. (citation omitted). But exceeding the statutory rate is

4 In United States v. Gavilan Joint Community College District, 849 F.2d 1246 (9th Cir. 1988), the court of appeals indicated the special circumstances exception could apply in a case involving "an issue on which 'reasonable minds could differ,'" or one dealing with "'an important and doubtful question.'" 849 F.2d at 1249 (quoting League of Women Voters v. Fed. Commc'ns Comm'n, 798 F.2d 1255, 1260 (9th Cir. 1986) and Minor v. United States, 797 F.2d 738, 739 (9th Cir. 1986)). However, both cases on which the court in Gavilan relied – League of Women Voters and Minor – interpreted the substantial justification exception to the EAJA, not the special circumstances exception.

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permitted when a plaintiff employs attorneys with "some distinctive knowledge or specialized skill needful for the litigation in question – as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation." Id. at 572. "Examples . . . would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language." Id.
Having thus established the framework under which it evaluates Hamdi's Motion, the Court now turns to that task.
III. DISCUSSION Hamdi prevailed in this civil action by obtaining his United States citizenship after administrative proceedings in which USCIS twice denied it. USCIS now bears the burden of demonstrating both: (A) that it had a substantial justification for denying Hamdi citizenship during its administrative proceedings – i.e., that it had a reasonable legal and factual basis for doing so; and (B) that it likewise had a reasonable legal and factual basis for litigating against Hamdi in this Court. Failing that, USCIS must show, (C), that special circumstances apply, such that awarding Hamdi his attorneys' fees would be an injustice. The Court examines these exceptions in turn, and concludes that USCIS fails to carry its burden as to either the substantial justification exception or the special circumstances exception to the EAJA. The Court therefore GRANTS Hamdi's Motion.
A. USCIS Lacked a Substantial Justification for Denying Hamdi's Application for Naturalization USCIS twice denied Hamdi's application to naturalize, though its precise
reasons for denying the application were themselves disputed in this case (and remain disputed in the litigation over the instant Motion). Hamdi argues that his application was denied because USCIS was following a closely guarded policy, which required he receive extra-legal treatment as a "national security risk." (See Mot. at 10-11.) USCIS takes the position that "Hamdi . . . testified . . . he had not heard of BIF, but later acknowledged that BIF was a charitable organization," thereby revealing himself as a simple prevaricator lacking the good moral character necessary for citizenship, without regard to the sensitivity of the matter about which he lied. (Opp'n at 7.)

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The easy – and correct – way to determine why USCIS denied Hamdi's application is to look at the reasons it gave when it did so. See Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (holding that the propriety of an agency's action should be judged "solely by the grounds invoked by the agency," which "must be set forth with such clarity as to be understandable"); Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008) ("Post hoc explanations of agency action . . . cannot substitute for the agency's own articulation of the basis for its decision.") (citing Fed. Power Comm'n v. Texaco, Inc., 417 U.S. 380, 397 (1974)). USCIS gave three reasons for denying Hamdi's application on the first go-round: (1) Hamdi failed to disclose his affiliation with BIF; (2) Hamdi failed to list his last employer as LIM & Nascimento Engineering Corp.; and (3) Hamdi allegedly was unemployed, contrary to a statement made during his interview. (See Ex. F to Bauer Decl.)
Hamdi appealed, and the second time USCIS denied his application, it offered the following additional reasons (while abandoning those related to Hamdi's employment status): (4) Hamdi "stated, under oath" that he lacked knowledge that "BIF had been involved in the financial support of terrorist groups and activities," and lacked knowledge that Enaam Arnaout "had been arrested and indicted for terrorism related charges," but later "revealed that [he] was indeed aware that the BIF had been accused of financing terrorism and that . . . Enaam Arnaout had been . . . convicted of racketeering;" (5) Hamdi "indicated that [he] had received money from various individuals who were unable to attend BIF meetings or did not attend due to fear of authority;" and (6) Hamdi failed to indicate he was associated or affiliated with BIF in either his interview with Osuna or his interview with Clark and Valdez,

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only mentioning BIF in the latter interview when shown a copy of the $8,000 check he wrote to BIF. (See Ex. T to Helzer Decl.) USCIS lacked a substantial justification for denying Hamdi's application on any of these six grounds.5
1. Hamdi's Failure to List BIF on His Naturalization Application USCIS argues that its denial of Hamdi's application was justified by Hamdi's failure to list BIF as an organization with which he was associated on his N-400 application – and compounded by his testimony that his N-400 contained a full list of such organizations.6 (See Opp'n at 8-9.) As the Court observed previously, however, the question to which Hamdi responded on his N-400 is susceptible to such a variety of interpretations that an applicant cannot fairly be branded a liar for

5 Typically, courts reviewing an administrative agency's final decision ignore the agency's preliminary decisions, and concentrate solely on the reasoning given for its final action. Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1133-34 (9th Cir. 2011) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659-60 (2007)). Here, USCIS's final action was its denial of Hamdi's administrative appeal, not its initial denial of his application. See 8 U.S.C. § 1421(c) (allowing judicial review only after an applicant for naturalization has the "appeal" hearing prescribed by 8 U.S.C. § 1447(a)); De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1044 (9th Cir. 2004) (describing the decision issued after a Section 1447(a) hearing as the agency's "final decision"). Courts may, however, consider an agency's preliminary actions in some contexts. Barnes, 655 F.3d at 1134. As USCIS must provide a justification for its treatment of Hamdi at each step in the proceedings, the Court considers both USCIS's initial and final rejections of Hamdi's application. Even if the Court considered only USCIS's final rejection of Hamdi's application, however, the result here would be the same.

6 The actionable "lie" cited by USCIS for the purpose of denying Hamdi's United States citizenship was not Hamdi's failure to list BIF in response to the N400's question about affiliations; it was instead his sworn testimony that the list he wrote on the N-400 was complete and accurate. See Kungys v. United States, 485 U.S. 759, 780 (1988) (holding that to undermine an applicant's good moral character a lie must be stated orally, under oath).

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failing to disclose his charitable donations when answering it. (See FFCL at 21; MSJ Order at 35-38.)
For example, a father who solicits colleagues at his office to purchase large quantities of Girl Scout cookies from his daughter would likely be surprised to learn that, under the standard USCIS applied in this case, he would be required to list the Girl Scouts as an "organization, association, fund, foundation, party, club, society or similar group" with which he was affiliated. Hamdi responded, reasonably, by listing organizations of which he was a dues-paying member or on the boards of which he sat. He then answered truthfully, or at least, intended to answer truthfully, when he "stated, under oath, that [he was] not a member of, or associated with any organization or group other than those listed on [his] N-400 application." (Ex. T to Helzer Decl.)
USCIS nevertheless contends it had a substantial justification for denying Hamdi's application, because reasonable minds can differ over a definition of "associated," which could include Hamdi's relationship with BIF (or the cookiehawking parent's relationship with the Girl Scouts). (Opp'n at 8 (citing Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005)).) Perhaps USCIS and Hamdi could differ as to what the phrase "associated with" means, but for USCIS to call Hamdi a liar because he did not adopt its definition of the term requires USCIS to disclose first what its definition is. Two parties do not have a reasonable disagreement as to the meaning of an ambiguous phrase if one of them proposes an absurd definition, cf. Lezama-Garcia v. Holder, 666 F.3d 518, 525 (9th Cir. 2011) (noting that deference is due only to agencies' reasonable interpretations of regulatory language), or fails to propose any definition at all. In the entire course of this litigation, including the administrative proceedings, USCIS never defined the phrase "associated with" – at one point even claiming the definition is subject to a privilege. (See MSJ Order at 37.) Indeed, this is not the first time a court has pointed out the ambiguity of the phrase as it appears on the N-400, see Atalla v. Kramer, No. CV09-1610-PHX-NVW, 2011 WL 2457492, at *15 (D. Ariz. June 20, 2011), and it remains undefined in the instructions given to naturalization candidates, see Dep't of Homeland Sec., Instructions for Form N-400, available at http://www.uscis.gov/files/form/n-400instr.pdf (last visited Aug. 28, 2012).

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At bottom, all of this stands for the common sense proposition that USCIS cannot have a reasonable basis in law to claim that Hamdi lied about whether he was "associated with" BIF if, to this day, it cannot say what type of relationship an applicant must have with an organization to be "associated with" it.7
2. Hamdi's Failure to Disclose His Employment with LIM & Nascimento Engineering Corp.
The next reason USCIS gave when it first denied Hamdi's application was that he did not list "LIM & Nascimento Engineering Corp." as his previous employer. As it turns out, Hamdi did not list LIM & Nascimento Engineering Corp. as his previous employer, and failed to mention it to Osuna in his interview, because Hamdi did not start his employment with that firm until after his interview with Osuna. (FFCL ¶ 45.) USCIS cannot argue plausibly that it had a reasonable basis for denying Hamdi's application just because Hamdi failed to tell Osuna about an event that had yet to occur.
3. Hamdi's Failure to Disclose His Unemployment USCIS's initial denial of Hamdi's application also stated that Hamdi failed to tell Osuna he was then unemployed. When later deposed, Hamdi claimed that he did, in fact, tell Osuna he was unemployed at the time of the interview. (See FFCL ¶ 44; MSJ Order at 27-30.)
Given these conflicting accounts of Hamdi's discussion with Osuna, the question is whether USCIS had a reasonable basis in fact for denying Hamdi's application on the grounds that he lied about his employment history. Though the

7 Moreover, because an applicant lacks the good moral character necessary to naturalize only if he lies with the subjective intent of misleading USCIS into granting him an immigration benefit, Kungys, 485 U.S. at 780; United States v. Hovsepian, 422 F.3d 883, 888 (9th Cir. 2005) (en banc), even if USCIS actually set forth a definition of "associated with," unless Hamdi could have known that definition encompassed his relationship with BIF before answering USCIS's questions, it would be unreasonable for USCIS to argue he omitted BIF from his responses for the purpose of obtaining an immigration benefit.

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Court credited Hamdi's recollection of this interview, and not Osuna's (as offered by USCIS), the Court must determine whether USCIS had a reasonable basis in fact to deny the application at the time it made the decision – not with the benefit of hindsight. See United States v. First Nat'l Bank of Circle, 732 F.2d 1444, 1447 (9th Cir. 1984) (observing that courts cannot presume the United States' position was unjustified because it lost in court); see, e.g., Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010) (holding that an administrative law judge's decision to deny a plaintiff benefits was justified based on evidence in the administrative record, even if the decision itself was ultimately incorrect).
The sole contemporaneous evidence of Hamdi's interview with Osuna is a copy of Hamdi's N-400 on which Osuna made some marks – mostly check marks. As the Court noted elsewhere, however, the meaning of those marks is unknown, and Osuna's account of why he made them is inconsistent. (See MSJ Order at 2830.) Reflecting on the interview nearly three years later, Osuna claimed alternately that he had a "gut feeling" that Hamdi was unemployed, and that a conversation with another officer led him to believe that Hamdi was unemployed (see id. at 28; FFCL ¶ 44). There is no evidence in the record, contemporaneous or otherwise, recording a conversation between Osuna and any other officer.
On the basis of that evidence, and not the Court's subsequent weighing of it, the Court cannot conclude that USCIS had a reasonable basis in fact for concluding that Hamdi lied about his current employment, and therefore claiming he lacked the good moral character necessary to naturalize. The Court's conclusion is bolstered by an additional fact: when Hamdi appealed USCIS's initial decision, its lengthier final decision made no mention at all of Hamdi's employment history as a basis for denying his application. See Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1134 (9th Cir. 2011) (noting that courts are not prohibited flatly from considering agency's preliminary determinations, though it is typical to review only agency's final decisions). It is to the reasons offered by USCIS in denying Hamdi's appeal to which the Court now turns.

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4. Hamdi's Knowledge of BIF and Enaam Arnaout When it denied Hamdi's appeal, USCIS claimed Hamdi contradicted himself regarding his knowledge of BIF and its chief executive officer, Enaam Arnaout. First, USCIS claimed, Hamdi "stated . . . [he] had no knowledge that the BIF had been involved in the financial support of terrorist groups and activities," and that he "denied knowledge of the fact that [Arnaout] had been arrested and indicted for terrorism related charges." (Ex. T to Helzer Decl.) Hamdi belied his own statement, according to USCIS, by then "reveal[ing]" that he was "aware that the BIF had been accused of financing terrorism" and that he also knew that "Arnaout had been . . . convicted of racketeering in 2003 . . . ." (Id.)
Like Osuna, Clark and Valdez failed to record the interview with Hamdi that formed the basis of the USCIS decision that followed it; nor did they take contemporaneous notes of the interview. Looking to the resulting decision only, the Court concludes that USCIS lacked a reasonable basis for its conclusion that Hamdi lied in the interview.
The substance of the decision gives lie to its conclusion, for it demonstrates no contradiction between Hamdi's initial statements and what he later "revealed." For example, one may both lack knowledge that a group financed terrorism and know, simultaneously, that the group had been accused of financing terrorism – if the two were equivalent, a juror who knew that a defendant had been accused of a crime would have nothing left to do to conclude that the accused committed the crime. Indeed, if Hamdi made both statements to Clark and Valdez, it would have been consistent with what he said when Caputo interviewed him years earlier, i.e., that he had "heard of allegations" against BIF, but "did not believe these charges were true." (Ex. B to Osuna Decl.)

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Likewise, knowing someone has been "arrested, indicted, tried and convicted of racketeering"8 is not the same as knowing that person "has been arrested and indicted for terrorism related charges," unless, of course, all racketeers are terrorists or terrorist-related, but see, e.g., United States v. Pica, --- F.3d ---, 2012 WL 3289824, at *1 (2d Cir. 2012) (affirming a racketeering charge predicated on extortion); United States v. Mouzone, --- F.3d ---, 2012 WL 3039215, at *1 (4th Cir. 2012) (affirming a racketeering charge predicated on cocaine distribution); see generally 18 U.S.C. § 1961(1) (listing racketeering activities, including sports bribery, counterfeiting, embezzlement from pension funds, peddling obscene material, murder-for-hire, and trafficking in contraband cigarettes).
Given the illogic of the claim that Hamdi changed his story regarding what he knew about BIF and Arnaout, the Court concludes USCIS acted unreasonably in relying on that rationale to label Hamdi a liar so base as to be morally unworthy of citizenship.
5. Hamdi's Aggregation of Funds for BIF Next, USCIS averred that Hamdi aggregated $8,000 in donations from others in his bank account, and then donated the whole amount to BIF. It does not contend that Hamdi ever denied making those donations. What is unclear, then, is why this is a basis for alleging Hamdi testified falsely, and thus a basis for denying his application to naturalize. Nothing about this statement is alleged by anyone to be false, or to belie anything else Hamdi said. Accordingly, it provides no substantial justification for denying Hamdi's application.

8 It is worth noting that the racketeering activity of which Arnaout was convicted involved "conceal[ing] from donors, potential donors, and federal and state governments that a material portion of the donations received by BIF were being used to support soldiers overseas." United States v. Arnaout, 431 F.3d 994, 998 (7th Cir. 2005). (See FFCL ¶ 28.) When USCIS faulted Hamdi for claiming not to know that BIF was involved in financing terrorism, it faulted him for not knowing exactly that which Arnaout was convicted of concealing successfully.

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6. Hamdi's Failure to Make "Voluntary Mention" of BIF The final reason USCIS gave for denying Hamdi's application administratively was that his N-400 did not mention his affiliation with BIF, and he failed to volunteer that he was "associat[ed] or affiliat[ed]" with BIF in his interview with Clark and Valdez. USCIS alleges Hamdi made no "voluntary mention of the BIF" until he was shown a copy of the $8,000 check, "which [he] admitted to having written and signed." (Ex. T to Helzer Decl.)

This rationale is no more persuasive when asserted as to the denial of Hamdi's appeal than it was when asserted as to the initial denial of his application. In fact, it is less persuasive, because in the interim Hamdi submitted a brief in which he admitted donating to BIF. (Ex. P to Helzer Decl.) Hamdi did not disclose BIF on his N-400, he wrote, because he saw no need to list BIF as an organization with which he was "associated" just because he made a charitable donation to it years earlier. For USCIS to fault Hamdi for failing to volunteer in his interview something he argued explicitly in his brief borders on frivolous. It makes no difference that Hamdi failed to mention orally what he had written previously, until Clark or Valdez gave him reason to mention it by asking about the $8,000 check – which Hamdi then admitted to having written (as he had already, when Caputo interviewed him six years earlier).

In sum, throughout the administrative process, USCIS denied Hamdi's application to naturalize without a reasonable basis in law or fact, and thus did so without substantial justification. The Court therefore must consider USCIS's conduct in the litigation that followed.

B. USCIS Lacked a Substantial Justification to Litigate Against Hamdi in this Court After USCIS denied his application, Hamdi sought de novo review of his
application in this Court; because of the scope of the Court's review, the parties were entitled to argue facts outside the meager administrative record assembled previously. See United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004) ("[T]he district court has the final word and does not defer to any of [USCIS's] findings or conclusions." (emphasis omitted)); see also Chan v. Ganter, 464 F.3d 289, 291 (2d Cir. 2006) (citing Hovsepian, 349 F.3d at 1162); Aparicio v. Blakeway,

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302 F.3d 437, 445 (5th Cir. 2002) (holding that judicial review of naturalization "is not limited to any administrative record"). In these proceedings, USCIS advanced several bases on which it argued Hamdi failed to carry the burden of demonstrating his entitlement to citizenship, see Berenyi v. Dist. Dir., 385 U.S. 630, 637 (1967) (holding that the burden is on the applicant "to show his eligibility for citizenship in every respect"), and now argues that given that burden, under which "doubts 'should be resolved in favor of the United States,'" id. (quoting United States v. Macintosh, 283 U.S. 605, 626 (1931)), USCIS's litigation positions were reasonable ones. (See Opp'n at 10.)
As evidence of Hamdi's alleged lack of good moral character, USICS offered four sets of facts about which it claimed Hamdi testified falsely in administrative proceedings, or which otherwise cast doubt on his good moral character. Though the Court does not defer to USCIS's administrative findings and conclusions, Hovsepian, 349 F.3d at 1162, evidence that Hamdi lied to USCIS during the administrative process would have been evidence of a failure of moral character the Court could consider in its review. See Kim v. United States, 121 F.3d 1269, 1272 (9th Cir. 1997) (reciting that in an appeal de novo from an administrative decision, the reviewing court may consider "'any relevant evidence available . . . whether or not it has been previously submitted to the agency.'" (quoting Redmond v. United States, 507 F.2d 1007, 1011-12 (5th Cir. 1975))). First, in addition to relying on Hamdi's alleged failures to tell Osuna, Valdez, and Clark about BIF, USCIS contended Hamdi also failed to disclose to those interviewers his affiliation with Care. Second, although Hamdi wrote on his N-400 that his wife and children lived with him – and Osuna claimed that Hamdi confirmed that orally – in fact, USCIS argued, Hamdi's wife and children moved to Egypt in 2008. Third, USCIS also renewed its allegation that Hamdi lied to Osuna about his employment, adding, fourth, that Hamdi also had been investigated previously in San Joaquin County, California, for committing benefits fraud. To meet its burden under the EAJA, USCIS must show that it had a reasonable basis in fact and law for asserting each of these "defenses" to Hamdi's naturalization.

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1. Hamdi's Failure to Disclose Affiliations with BIF and Care Before this Court, USCIS amplified its position regarding Hamdi's failure to disclose his alleged affiliation with BIF by claiming that Hamdi not only failed to mention such an affiliation, but actually denied having such an association when Osuna, Clark, and Valdez asked about it specifically. Further, USCIS argued, Hamdi also failed to mention his affiliation with Care.
As an initial matter, Hamdi's omission of Care from either his N-400 or from any testimony about his organizational affiliations is as weak a reason to doubt his moral character as was his omission of BIF: if Hamdi did not sully his moral character by failing to list BIF, he likewise did not do so by failing to list Care – a charity to which he (years prior) made a few donations and for which he performed a few other voluntary tasks (e.g., stuffing envelopes with mailers about zakat). (See FFCL ¶ 38.)
More substantial is the allegation that Hamdi not only omitted BIF from his N400, but that he denied, orally, to Osuna, Clark, and Valdez, that he donated to it: at trial, Osuna testified that Hamdi denied ever having heard of BIF, let alone having donated to it. In his deposition as USCIS's Federal Rule of Civil Procedure 30(b)(6) witness, however, Osuna made no mention of such a lie, testifying that the only reasons USCIS believed Hamdi testified falsely about his relationship with BIF were that Hamdi "didn't reveal his association with BIF" on his N-400; that in his interview with Clark and Valdez he failed to "reveal that [association] initially;"9 and that Hamdi claimed not to "kn[o]w a person by the name of Arn[a]out," but "it was later discovered in the hearing that he actually did know" Arnaout. (Ex. A to Helzer Decl. at 121:25-122:24.)
Osuna's malleable recollection of his interview with Hamdi, contrasted with Hamdi's clear recollection of it, in part drove the Court's conclusion that Osuna's testimony about the interview was not very credible. (See FFCL ¶ 32.) Moreover, in

9 Of course, as the Court noted above, Hamdi already admitted to donating to BIF, in writing, in a brief he filed with USCIS before his interview with Valdez and Clark.

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addition to their spotty recollections of one interview among the hundreds that took place months before Osuna, Valdez, and Clark testified either in their depositions or at trial, the Court had before it the decisions USCIS issued in connection with its denial of Hamdi's application. While the Court was not bound by USCIS's earlier findings of fact or its conclusions in undertaking a de novo review, the Court would have been remiss to overlook the agency's failure even to mention, when denying Hamdi's application, the outright mendacity its agents attributed to him months later. (See id. ¶ 32.)
Given the weakness of its evidence that Hamdi lied to USCIS about BIF or Care – and the requirement that if he lied, USCIS must show he did so for the subjective purpose of obtaining an immigration benefit, Kungys v. United States, 485 U.S. 759, 780 (1988) – the Court concludes that USCIS lacked a reasonable basis in fact to litigate the issue through trial. The Court does so with the recognition that the burden of proving Hamdi's good moral character fell, in the first instance, to Hamdi, and that USCIS did not bear the burden of proving Hamdi a liar. That said, if Hamdi needed to carry his burden by only a preponderance of the evidence, Hovsepian, 359 F.3d at 1168, for USCIS to oppose Hamdi's naturalization with such wan evidence that he lied about his relationships with BIF and Care was simply not reasonable.
2. The Whereabouts of Hamdi's Wife and Children USCIS then argued that Hamdi lied when, in November 2008, he confirmed verbally to Osuna that his wife and children lived with him, though they had flown to Egypt with one-way tickets several months earlier. This accusation troubled the Court particularly during the summary judgment proceedings, a fact USCIS takes to mean it had a substantial justification for making it. (See Opp'n at 11.) In the end, however, USCIS fails to demonstrate that it was justified substantially in arguing that Hamdi lacked good moral character because he lied about the whereabouts of his family.

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As a general matter, that a plaintiff's case barely survives a defendant's motion for summary judgment does not suggest much about on the merits of the defendant's case – or the plaintiff's. It could be, for example, that a plaintiff survives a motion for summary judgment by the slimmest margin, only to proceed to a trial in which additional evidence is introduced in the plaintiff's favor. If it later turns out the defendant knew of the additional evidence not adduced in opposition to the summary judgment motion but introduced at trial, and decided to litigate anyway, the defendant would be hard pressed to justify its decision to litigate against the plaintiff by reasons other than malice, or perhaps a calculated decision to play the odds.
But USCIS is not in the business of litigating simply because the odds are reasonable that its position might prevail, for there are many reasons why a government entity, like any other litigant, could prevail in court – whether or not its position has a basis in fact and law. Instead, USCIS is in the business of litigating when the odds are reasonable that its position is correct. See Pierce, 487 U.S. at 566 & n.2 (framing the "substantially justified" standard as "the standard for Government litigation of which a reasonable person would approve," and noting that although a position can be justified even if ultimately incorrect, it is justified substantially "if a reasonable person could think it correct" (emphasis added)). This is not to imply that USCIS litigated this case with an improper motive. The Court must judge, however, whether USCIS's position had a substantial justification based on all the evidence that USCIS had before it when it decided to fight the case, Gonzales, 408 F.3d at 620, and persisted in litigating it – not just the evidence and briefing that the parties put before the Court at summary judgment.
Thus, though the Court was skeptical at summary judgment that Hamdi could prove he had been truthful with USCIS about the whereabouts of his family, the totality of the evidence adduced at trial was sufficient to demonstrate that Hamdi did not lie about his family's trip to Egypt, and moreover, that USCIS never had a basis in fact to show that if he did, he did so for the purpose of obtaining an immigration benefit. The last point is important, for while USCIS had a reasonable basis in fact and law to assert Hamdi's family moved to Egypt, it lacked evidence that Hamdi lied about where they were, and had no evidence that if Hamdi did lie, he did so to obtain his citizenship.

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Hamdi's wife and daughters flew to Egypt on one-way tickets at the end of the 2008 school year to spend time learning about Hamdi's (and his daughters') heritage, and to visit Hamdi's ailing mother. (FFCL ¶ 15.) As the Court observed previously, however, the absence – even the extended absence – of Hamdi's family from his place of residence is by itself insufficient to demonstrate that the family no longer lived with Hamdi. (See MSJ Order at 24 (citing United States v. Jackson, 480 F.3d 1014, 1023-24 (9th Cir. 2007) (distinguishing between visitors to a place, and domiciliaries of a place, based on their intent to remain)).) Nevertheless, if USCIS were litigating only the question whether Hamdi's family moved to Egypt, evidence of their extended absence would be enough to provide a reasonable basis of law and fact for its position.

But USCIS's task was not to demonstrate that Hamdi's wife and daughters moved to Egypt; instead, its task was to demonstrate that Hamdi lied about where his family lived at the time of his interview with Osuna, and if so, whether he did so because he thought it would help him gain his citizenship. At best, USCIS had evidence that Hamdi told Osuna, in November, that his family's "current address" was with him, a response Osuna recorded only by making a check mark on Hamdi's N-400. USCIS claimed that Osuna's actual question to Hamdi sought something more nuanced than his family's mailing address, but there is no credible evidence of what that question might have been. Osuna's failure (and Clark's and Valdez's) to record Hamdi's interviews, or even to take notes more thorough than a few check marks on Hamdi's N-400, left USCIS without a reasonable basis in fact to argue Hamdi lied about his family's residence (among other things). (See FFCL ¶¶ 17-21.) Further, even if Hamdi answered a question about his family's residence misleadingly, USCIS lacked any evidence he did so for the purpose of obtaining an immigration benefit. (See FFCL ¶ 22.)

3. Hamdi's Employment History At trial, USCIS again raised the issue of Hamdi's employment history, claiming he misrepresented it to Osuna. The Court dispensed with this line of argument briefly in its Findings of Fact and Conclusions of Law (see FFCL ¶¶ 42-45), and can do so again here. USCIS's case that Hamdi lied to Osuna about whether he was employed at the time of the interview was based solely on Osuna's recollection that Hamdi told him he still worked at Harris & Associates, the firm that laid him off

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shortly before his interview with Osuna.

Hamdi claims he told Osuna he had been laid off. The N-400 that Osuna marked contemporaneously with the interview reveals only one mark in the section about Hamdi's employment, even though Osuna testified he had other questions regarding gaps in Hamdi's employment – and a "gut feeling" that Hamdi was lying. Meanwhile, shortly after his interview, Hamdi was hired by another firm (the firm that USCIS later accused Hamdi of failing to disclose, never mind that it had yet to hire him). Given the paucity of the evidence it had to dispute Hamdi's employment history, USCIS lacked a reasonable basis in fact for pursuing the argument that Hamdi lied to Osuna about it.

4. Hamdi's Receipt of Public Benefits Finally, USCIS raised the issue of Hamdi's withdrawn application for public benefits. Several years ago Hamdi lost his job, and the family applied for public assistance. They also received financial assistance from friends and family, and the San Joaquin County District Attorney (Hamdi's family was then living in Stockton, California) required them to disclose that assistance, lest they be investigated or prosecuted for benefits fraud. They declined to disclose the names, and instead withdrew the application for benefits. There is no evidence that in doing this, Hamdi was dishonest with anyone. Accordingly, the Court cannot find that this episode provided USCIS with a reasonable basis in fact to claim Hamdi lacked good moral character.

USCIS did not demonstrate Hamdi lacked the good moral character to naturalize in its administrative proceedings, nor did it do so at trial. More importantly, for the purpose of deciding Hamdi's instant Motion, USCIS had no reasonable basis in fact or law to make the argument that Hamdi lacked the good moral character to naturalize. Without that substantial justification for its position both in this litigation and in the underlying administrative proceedings, USCIS either must show special circumstances exist that would make a fee award unjust, or pay Hamdi's costs and attorneys' fees under the EAJA.

C. There Are No Special Circumstances Counseling Against a Fee Award The argument that there are special circumstances counseling against a fee

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award is an afterthought in USCIS's Opposition, perhaps because there is no meaningful standard for finding such circumstances exist. Notwithstanding the brevity of the argument, the special circumstances USCIS invokes are really the crux of this entire case: USCIS argues that it made "an effort to vigorously enforce the law . . . to protect national security where there might have been potential danger." (Opp'n at 12.)
USCIS prosecuted this case vigorously because the man seeking to naturalize donated money to charitable organizations that were, after he donated to them, found to be financing terrorism. Hamdi's donations, before the fact, were not themselves culpable acts, as suspicious as they may appear in hindsight. Since USCIS could not dispel the shadow of guilt those donations cast on Hamdi, however, it looked for other reasons to deny him United States citizenship. That is not disputed; USCIS admits as much in its Opposition.10 (Opp'n at 12.)
That USCIS denied Hamdi's citizenship on pretextual grounds is not to say, necessarily, that it acted wrongfully in doing so – as long as the pretextual grounds on which it based the denial actually existed. Cf. Whren v. United States, 517 U.S. 806, 811-13 (1996). The problem here is that the evidence for the pretextual grounds on which USCIS denied Hamdi's citizenship was so thin as to make its case unsupportable in fact and law, as the Court determined above.
Furthermore, although the burden was on Hamdi to demonstrate his eligibility for citizenship, that does not mean that USCIS could render Hamdi's burden impossible to carry by suggesting, with gossamer evidence, that Hamdi lied about his donations to BIF, or the whereabouts of his family. Before this Court, Hamdi demonstrated the requisite criteria for naturalization, and the Court granted him his

10 USCIS argues "it was reasonable for the Government to withhold the granting of Hamdi's naturalization to allow for a more complete factual inquiry administratively and during this litigation." (Opp'n at 12.) There is no indication, however, that such an inquiry was made. The FBI questioned Hamdi about his donations to BIF in January 2003. The trial of this case occurred in February 2012. (See Ex. B to Osuna Decl.)

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United States citizenship. USCIS failed to show that it opposed Hamdi's naturalization, in both its administrative proceedings and before this Court, with a reasonable basis in fact and law. Nor did USCIS show that special circumstances would make a fee award unjust. Accordingly, the Court GRANTS Hamdi's Motion, and turns to the question of the amount of the fees and costs to which he is entitled.

D. Hamdi is Entitled to Fees, Capped at the Statutory Limit Hamdi argues his counsel, Mr. Arulanantham, Ms. Helzer, and Ms.
Pasquarella, are entitled to fees in excess of the EAJA's inflation-adjusted limit, because they are "specialists in constitutional immigrants' rights litigation." (Mot. at 21.) The Court has no reason to doubt the expertise of Mr. Arulanantham, who has litigated a variety of cases of constitutional import in this judicial district and circuit, or that of Ms. Helzer and Ms. Pasquarella, who acquitted themselves admirably in this matter.

The Court does, however, doubt that this case required such specialization. While de novo proceedings under 8 U.S.C. § 1421(c) may be rare, that does not mean they require special expertise to litigate. Stripped of all the national security innuendo, this case required counsel to demonstrate that Hamdi had the good moral character necessary to naturalize – a task accomplished with relative ease – and that USCIS's assertions to the contrary were based on flimsy evidence. Contrary to Hamdi's assertion, that does not require the same level of specialization as, e.g., Mr. Arulanantham's litigation of immigration detention issues, which deal with a nuanced, lengthy, and slightly archaic jurisprudence. See, e.g., Clark v. Martinez, 543 U.S. 371 (2005); Demore v. Kim, 538 U.S. 510 (2003); Zadvydas v. Davis, 533 U.S. 678 (2001); Leng May Ma v. Barber, 357 U.S. 185 (1958); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); Shaughnessy v. United States ex rel. Knauff, 338 U.S. 537 (1950); Kaplan v. Tod, 267 U.S. 228 (1924); Ekiu v. United States, 142 U.S. 651 (1892); Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006). This case involved the straightforward application of a couple of statutory provisions and a handful of regulations promulgated to effect the application of those provisions.

After completing an evaluation for reasonableness of the bills submitted by Hamdi's counsel, the Court will award fees and costs subject to the EAJA's cap on

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hourly rates, adjusted in accordance with Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). To assist the Court's determination, counsel for USCIS is directed to submit in writing, not later than September 24, 2012, objections to Hamdi's counsels' fees, in the form set out in the example appended to this Order. Hamdi's counsel may respond in writing to USCIS's objections, not later than October 8, 2012.
IV. CONCLUSION For the foregoing reasons, Hamdi's Motion for Attorneys' Fees is GRANTED; fees and costs will be awarded, subject to the hourly rate limit established in the EAJA and the Court's evaluation of the reasonableness of the time devoted to various tasks connected with this litigation.
IT IS SO ORDERED.

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APPENDIX

Atty Date

Description Time at Issue

XYZ 8/28/2012 T/c with

6.0

consultant

Reduce By 3.0

Objection Vague

ABC 8/27/2012 Prepare

3.0

2.9

"Notice of

Related

Cases"

Excessive

Reason for Objection
Fails to articulate with whom the attorney consulted and the subject of the consultation
"Notice of Related Cases" is a form document

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 Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 1 of 20 (DTBx),CLOSED,DISCOVERY,MANADR,PROTORD
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:10−cv−00894−VAP−DTB

Tarek Hamdi v. United States Citizenship and Immigration Service et al Assigned to: Judge Virginia A. Phillips Referred to: Magistrate Judge David T. Bristow
Case in other court: 9th CCA, 12−55794
Cause: 08:1446 Application for Naturalization Hearing
Plaintiff

Date Filed: 06/16/2010 Date Terminated: 02/28/2012 Jury Demand: None Nature of Suit: 462 Naturalization Application Jurisdiction: U.S. Government Defendant

Tarek Hamdi

represented by Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5236 Fax: 213−977−5297 Email: aarulanantham@aclu−sc.org ATTORNEY TO BE NOTICED

Bardis Vakili ACLU of Southern California 2100 N. Broadway Suite 209 Santa Ana, CA 92706 714−450−3962 Fax: 714−543−5240 Email: bvakili@aclu−sc.org ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer ACLU Foundation of Southern California 2100 North Broadway Suite 209 Santa Ana, CA 92706 714−450−3962 Fax: 714−543−5240 Email: bescobosahelzer@aclu−sc.org ATTORNEY TO BE NOTICED

Hector O Villagra ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5297 Email: hvillagra@aclu−sc.org TERMINATED: 03/25/2011 ATTORNEY TO BE NOTICED

Jennifer L Pasquarella ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5297 Email: jpasquarella@aclu−sc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Lucero Chavez ACLU Foundation of Southern California

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 2 of 20
2100 N. Broadway, Suite 209 Santa Ana, CA 92706 714−450−3962 Fax: 714−543−5240 Email: LChavez@aclu−sc.org ATTORNEY TO BE NOTICED

V. Defendant United States Citizenship and Immigration Service
Defendant Department of Homeland Security
Defendant Irene Martin Director, San Bernardino Field Office, United States Citizenship and Immigration Service, in her official capacity

represented by Jeffrey Michael Bauer US Department of Justice Immigration Litigation Division P O Box 868 Ben Franklin Station Washington, DC 20044 202−532−4786 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA−CV AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−2879 Email: USACAC.Civil@usdoj.gov ATTORNEY TO BE NOTICED
Christopher W Hollis US Department of Justice Office of Immigration Litigation District Court Section Ben Franklin Station PO Box 868 Washington, DC 20044 202−305−0899 Fax: 202−616−8962 Email: christopher.hollis@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jeffrey Michael Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED
Christopher W Hollis (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Michael Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA−CV (See above for address)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 3 of 20

ATTORNEY TO BE NOTICED

Christopher W Hollis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jane Arellano Director, Los Angeles Office, United States Citizenship and Immigration Service, in her official capacity

represented by Jeffrey Michael Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED

Christopher W Hollis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Alejandro Mayorkas Director, United States Citizenship and Immigration Service, in his official capacity

represented by Jeffrey Michael Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED

Christopher W Hollis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Janet Napolitano Secretary, Department of Homeland Security, in her official capacity

represented by Jeffrey Michael Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED

Christopher W Hollis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/16/2010
06/16/2010

# Docket Text
1 PETITION filed against Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service De Novo Review of Denial of Application for Naturalization and Request for a Hearing Pursuant to 8 USC 1421(c).(Filing fee $ 350.), filed by plaintiff Tarek Hamdi.(mrgo) (Additional attachment(s) added on 6/28/2010: # 1 Summons, # 2 CV−18, # 3 Civil Cover Sheet) (mrgo). (Entered: 06/18/2010)
60 DAY Summons Issued re Petition (case opening), Petition (case opening) 1 as to defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (mrgo) (Entered: 06/18/2010)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 4 of 20

06/16/2010 06/16/2010 06/16/2010 06/22/2010 06/24/2010
06/24/2010 06/25/2010 06/25/2010 06/28/2010 07/23/2010
07/27/2010 08/30/2010 09/03/2010 11/01/2010

2 NOTICE of Interested Parties filed by plaintiff Tarek Hamdi, (mrgo) (mrgo). (Entered: 06/18/2010)
3 NOTICE of Related Case(s) filed by plaintiff Tarek Hamdi. Related Case(s): none. (mrgo) (mrgo). (Entered: 06/18/2010)
4 NOTICE TO PARTIES OF ADR PROGRAM filed.(mrgo) (mrgo). (Entered: 06/18/2010)
5 APPLICATION to Seal Exhibits A−H of Plaintiff's Petition for De Novo Review of Denial of Application for Naturalization and Request for a Hearing Pursuant to 8 USC 1421(c) filed by plaintiff Tarek Hamdi. Lodged Order. (ad) (Entered: 06/24/2010)
CLERKS E−MAIL RE LOCAL RULE 3−2 TO COUNSEL on 6/24/10 addressed to aarulanantham@aclu−sc.org, hvillagra@aclu−sc.org, jpasquarella@aclu−sc.org,. COURT REQUIRES YOUR IMMEDIATE RESPONSE. Pursuant to Local Rule 3−2, you are required to e−mail, within 24 hours of filing, a Filed stamped copy of your complaint and other civil case initiating documents, in PDF format to the Court. To date, we have not received the PDF images of your filing. Please do so within 24 hours or this matter will be referred to the Chief Judge for further proceedings. (mrgo) (Entered: 06/24/2010)
PDF DOCUMENTS RECEIVED RE LOCAL RULE 3−2. The following PDF Documents were received by the Court on 6/24/10: Petition, civil cover sheet, CV−18, summons, notice of related cases and certificate of interested parties. (mrgo) (Entered: 06/28/2010)
6 ORDER by Judge Virginia A. Phillips: granting plaintiff's 5 Application for Order Sealing Exhibits A−H of Plaintiff's Petition for De Novo Review of Denial of Application for Naturalization and Request for a Hearing Pursuant to 8 USC 1421(c). (mrgo) (Entered: 06/28/2010)
7 SEALED DOCUMENT−EXHIBITS A−H Filed re Plaintiff's Petition (case opening) 1 . (mrgo) (Entered: 06/28/2010)
PDF DOCUMENTS ATTACHED TO DOCKET RE LOCAL RULE 3−2. The following PDF Documents were attached to the Court docket on 6/28/10: Petition, civil cover sheet, CV−18, summons, notice of related cases and certificate of interested parties. (mrgo) (Entered: 06/28/2010)
8 PROOF OF SERVICE Executed by Plaintiff Tarek Hamdi, upon Defendant All Defendants. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Patricia Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to illegible (receipt attached). Executed upon the officer agency or corporation by delivering a copy to Frances Adams (DHS). Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Pasquarella, Jennifer) (Entered: 07/23/2010)
9 NOTICE of Appearance filed by attorney Jeffrey Michael Bauer on behalf of Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service (Bauer, Jeffrey) (Entered: 07/27/2010)
10 ANSWER to Petition (case opening), Petition (case opening) 1 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service.(Bauer, Jeffrey) (Entered: 08/30/2010)
11 ORDER SETTING SCHEDULING CONFERENCE by Judge Virginia A. Phillips: Scheduling Conference set for 11/22/2010 at 01:30 PM before Judge Virginia A. Phillips. (am) (Entered: 09/03/2010)
12 JOINT ADR PROGRAM QUESTIONNAIRE filed by Plaintiff Tarek Hamdi.(Pasquarella, Jennifer) (Entered: 11/01/2010)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 5 of 20

11/01/2010 11/01/2010 11/03/2010
11/22/2010 11/22/2010 01/26/2011 02/11/2011 02/14/2011
02/15/2011
02/16/2011 02/28/2011

13 NOTICE AND REQUEST of Settlement Procedure Selection (Sp1); parties request to Appear Before John McDermott for settlement proceedings. Filed by Plaintiff Tarek Hamdi.(Pasquarella, Jennifer) (Entered: 11/01/2010)
14 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 3 days, filed by Plaintiff Tarek Hamdi.. (Pasquarella, Jennifer) (Entered: 11/01/2010)
15 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice/Request of Settlement Procedure Settlement (Sp 1) − (ADR−1) 13 . The following error(s) was found: Proposed Document was not submitted as a separate attachment. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo) (Entered: 11/03/2010)
16 MINUTES OF Scheduling Conference held before Judge Virginia A. Phillips. Last date to conduct settlement conference is 5/27/2011. The parties shall file a joint report no later than 10 days after the settlement conference regarding the progress of mediation. The parties elect to proceed with Settlement Procedure No. 1., to appear before Magistrate Judge Bristow.Court Reporter: Theresa Lanza. (mrgo) (Entered: 11/23/2010)
17 SCHEDULING ORDER by Judge Virginia A. Phillips.( Discovery cut−off 5/27/2011., Motions due by 7/11/2011. Last date to conduct settlement conference is 5/27/2011. Bench Trial set for 8/23/2011 at 08:30 AM before Judge Virginia A. Phillips. Pretrial Conference set for 8/15/2011 at 02:30 PM before Judge Virginia A. Phillips.) (mrgo) (Entered: 11/23/2010)
18 ORDER RE SETTLEMENT CONFERENCE by Magistrate Judge David T Bristow. ( Settlement Conference set for 5/25/2011 at 09:30 AM before Magistrate Judge David T Bristow.) (mrgo) (Entered: 01/27/2011)
19 NOTICE Of Filing of Stipulated Protective Order filed by defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 02/11/2011)
20 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other) 19 . The following error(s) was found: Proposed Document was not submitted as a separate attachment. The document attached to this entry is a proposed stipulated Protective Order and not a Notice of Filing. The proposed document should be attached to a Notice of Lodging. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo) (Entered: 02/14/2011)
21 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS by Deputy Clerk. The document is stricken and counsel is ordered to file an amended or corrected document within 24 hours of issuance of this notice. The Court ORDERS document No. 19, STRICKEN. Filer's attention is drawn to General Order 08−11, Section VI "Proposed Orders, Proposed Judgments, or Other Proposed Documents that Require a Judge's Signature." Filer may re−file its Stipulation for Protective Order and upload a proposed order to the Court's docket, that will be separately sent to the Chamber's e−mail at:vap_chambers@cacd.uscourts.gov RE: Notice (Other) 19 (am) (Entered: 02/15/2011)
22 NOTICE OF LODGING filed Stipulated (Proposed) Protective Order re Response By Court to Notice of Deficiencies (G−112B), Response By Court to Notice of Deficiencies (G−112B), Response By Court to Notice of Deficiencies (G−112B) 21 , Scheduling Conference, Set/Reset Deadlines,, 16 (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 02/16/2011)
23 MINUTE ORDER IN CHAMBERS by Judge Virginia A. Phillips: The parties proposed Stipulation and Protective Order has been referred by the District Judge to the Magistrate Judge for consideration. The parties are advised that the Court declines to issue the proposed protective order to which they have stipulated for the

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03/07/2011 03/25/2011 03/25/2011 04/01/2011 04/28/2011 04/28/2011 04/28/2011
05/05/2011
05/13/2011 05/19/2011 05/19/2011

following reasons: 1. Proposed 9 is inappropriate as phrased, since the Court shall make orders regarding the sealing of records pursuant to Local Rule 79−5.1 (as the parties note in proposed 15). As such, proposed paragraphs 8 and 9 should be revised to conform with Local Rule 79−5.1, if not stricken. (am) (Entered: 03/02/2011)
24 NOTICE OF LODGING filed (Proposed) Stipulated Protective Order re Minutes of In Chambers Order/Directive − no proceeding held,, 23 (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 03/07/2011)
25 NOTICE of Change of Attorney Information for attorney Hector O Villagra counsel for Plaintiff Tarek Hamdi.Hector O. Villagra is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by plaintiff Tarek Hamdi (Villagra, Hector) (Entered: 03/25/2011)
26 NOTICE of Change of Attorney Information for attorney Belinda Escobosa Helzer counsel for Plaintiff Tarek Hamdi. Adding Belinda Escobosa Helzer as attorney as counsel of record for Tarek Hamdi for the reason indicated in the G−06 Notice. Filed by Plaintiff Tarek Hamdi (Escobosa Helzer, Belinda) (Entered: 03/25/2011)
27 STIPULATED PROTECTIVE ORDER by Magistrate Judge David T Bristow (am) (Entered: 04/01/2011)
28 NOTICE of Appearance filed by attorney Christopher W Hollis on behalf of Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service (Hollis, Christopher) (Entered: 04/28/2011)
29 NOTICE OF MOTION AND MOTION to Compel Discovery of Withheld information, MOTION for Protective Order for From having to provide documents and testimony filed by Plaintiff Tarek Hamdi. Motion set for hearing on 5/19/2011 at 10:00 AM before Magistrate Judge David T Bristow. (Pasquarella, Jennifer) (Entered: 04/28/2011)
30 JOINT STIPULATION to MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Exhibit A − Standing Order, # 2 Exhibit B − Govt's Privilege Log, # 3 Exhibit C − Arellano Declaration, # 4 Proposed Order Plaintiff's, # 5 Proposed Order Defendant's)(Pasquarella, Jennifer) (Entered: 04/28/2011)
31 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge David T Bristow: The Court is in receipt of Plaintiffs Motion to Compel Discovery and defendants Motion for a Protective Order filed April 28, 2011. Oppositions to the Motions are due on or before May 25, 2011. Replies to the Oppositions to the Motions are due on or before June 1, 2011. The Motions will be taken under submission as of the date the Replies are due and/or filed, and will be decided on the papers without oral argument. See Local Rule 7−15. Accordingly, the hearings noticed for May 19, 2011, are ordered off calendar. 29 (am) (Entered: 05/05/2011)
32 Joint STIPULATION for Order Modifying Case Management and Scheduling Order filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 05/13/2011)
33 Joint STIPULATION for Order Re: Settlement Conference filed by defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 05/19/2011)
34 STIPULATED MODIFIED SCHEDULING ORDER by Judge Virginia A. Phillips: Theprior dates set forth in the Courts November 23, 2010 Order (Dkt. No. 17) arevacated, and the Court enters this case management and scheduling order setting the dates as follows: a. Discovery cut−off July 27, 2011; b. Summary judgment motions due August 29, 2011; c. Hearing on summary judgment motions

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05/20/2011 05/25/2011 05/25/2011 06/01/2011 06/01/2011 06/22/2011
07/05/2011 07/05/2011 07/05/2011 07/08/2011

September 26, 2011, 2:00 pm; d. Pretrial conference October 24, 2011, at 2:30 p.m.; and e. Court Trial November 1, 2011, at 8:30 a.m. before Judge Virginia A. Phillips. (am) (Entered: 05/20/2011)
35 STIPULATED ORDER by Judge Virginia A. Phillips: Good cause having been shown and for the reasons set forth in the parties Stipulation Re Settlement Conference, the Court hereby cancels the scheduling conference currently set for Thursday, May 26, 2011. The clerk is directed to remove the conference from the Courts calendar. (am) (Entered: 05/20/2011)
36 MEMORANDUM in Opposition to MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Declaration)(Bauer, Jeffrey) (Entered: 05/25/2011)
37 Opposition in opposition re: MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration Pasquarella iso)(Pasquarella, Jennifer) (Entered: 05/25/2011)
38 REPLY Re: MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 06/01/2011)
39 REPLY Opposition MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration Declaration of Belinda Escobosa Helzer in Support of Plaintiff's Reply to Defendants' Supplemental Memorandum of Law in Opposition to Plaintiff's Motion to Compel)(Escobosa Helzer, Belinda) (Entered: 06/01/2011)
40 ORDER by Magistrate Judge David T Bristow re: 29 Motion to Compel; and 29 Motion for Protective Order re MOTION to Compel Discovery of Withheld information MOTION for Protective Order for From having to provide documents and testimony 29 . In view of the foregoing rulings, plaintiffs Motion to Compel Discovery and defendants Motion for Protective Order are each granted in part and denied in part as follows: (see document for specifics). (mrgo) (Entered: 06/22/2011)
41 NOTICE OF LODGING filed (privileged documents for in camera review) re Order on Motion to Compel, Order on Motion for Protective Order,, 40 (Bauer, Jeffrey) (Entered: 07/05/2011)
42 REQUEST for Consideration of Request that, if Court finds any documents are not privileged, the Court allow an appropriate amount of time for Defendants to file a motion for review of such finding filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 07/05/2011)
43 CERTIFICATE OF SERVICE filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service, re REQUEST for Consideration of Request that, if Court finds any documents are not privileged, the Court allow an appropriate amount of time for Defendants to file a motion for review of such finding 42 served on 7/5/11. (Hollis, Christopher) (Entered: 07/05/2011)
44 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 filed by plaintiff Tarek Hamdi. Motion set for hearing on 7/21/2011 at 10:00 AM before Magistrate Judge David T Bristow. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Exhibit Dec Ex A, # 4 Exhibit Dec Ex B, # 5 Exhibit Dec Ex C, # 6 Exhibit Dec Ex D, # 7 Exhibit Dec Ex E, # 8 Proposed Order)(Pasquarella, Jennifer) (Entered: 07/08/2011)

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07/08/2011 07/13/2011
07/15/2011 07/15/2011 07/17/2011 07/18/2011 07/18/2011
07/21/2011

45 STIPULATION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 filed by plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 07/08/2011)
46 STIPULATED MODIFIED SCHEDULING ORDER FOR SHORTENED TIME ON PLAINTIFFS MOTION FOR RECONSIDERATION HEARING by Magistrate Judge David T Bristow: Good cause having been shown and for the reasons set forth in the parties Joint Stipulation to Shorten Time on Plaintiffs Motion for Reconsideration, thestipulation is hereby GRANTED. The parties shall comply with the followingbriefing schedule: a. July 15, 2011: Last day to file opposition to Plaintiffs Motion for Reconsideration b. July 18, 2011: Last day to file reply to opposition to Plaintiffs Motion for Reconsideration c. July 21, 2011: Hearing on Motion for Reconsideration. (am) (Entered: 07/13/2011)
47 MEMORANDUM in Opposition to MOTION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 MOTION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 44 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Declaration (With Exhibits), # 2 Proposed Order)(Bauer, Jeffrey) (Entered: 07/15/2011)
48 Joint STIPULATION to Reschedule Entire Case Schedule filed by plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 07/15/2011)
51 STIPULATED MODIFIED SCHEDULING ORDER by Judge Virginia A. Phillips: Second Stipulation to Modify Scheduling Order 48 is GRANTED. a. Discovery cut−off: September 27, 2011; b. Summary judgment motions due: October 28, 2011; c. Hearing on summary judgment motions: November 28, 2011, at 2:00pm; d. Pretrial conference: January 23, 2012, at 2:30pm; e. Trial: January 31, 2012, at 9:00am.IT SO ORDERED. (ad) (Entered: 07/19/2011)
49 REPLY in support of MOTION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 MOTION for Reconsideration re Order on Motion to Compel, Order on Motion for Protective Order,, 40 44 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration Pasquarella iso)(Pasquarella, Jennifer) (Entered: 07/18/2011)
50 MINUTES (IN CHAMBERS) ORDER re REVIEW OF DOCUMENTS LODGED BY DEFENDANTS FOR IN CAMERA REVIEW by Magistrate Judge David T Bristow: denying 42 Request for Consideration. In accordance with the Courts June 22, 2011 Order, defendants have lodged for in camera review documents that were withheld from discovery on the basis of the deliberative process privilege and/or the law enforcement privilege. Based on the Courts in camera review of these documents and the governing legal principles, the Court now rules as follows. (See document for specifics) (mrgo) (Entered: 07/19/2011)
55 MINUTES OF Motion Hearing held before Magistrate Judge David T Bristow: RE PLAINTIFFS MOTION FOR RECONSIDERATION OF ORDER RE: PLAINTIFFS MOTION TO COMPEL DISCOVERY AND DEFENDANTS MOTION FOR PROTECTIVE ORDER: Having reviewed and considered the contentions of the parties as reflected in the parties filings and during oral argument, the Court now rules as follows: Plaintiffs Motion is hereby GRANTED in part and DENIED in part. Specifically, the Court concludes that the policies, procedures, practices, and training that address or relate to defendants interpretation of the terms association(s), membership(s), and affiliation(s) could reasonably lead to the discovery of admissible evidence, particularly in light of defendants contention that plaintiff lacks good moral character because of his association with Benevolence International Foundation and Care International. See Fed. R. Civ. P. 26(b)(1). As such, within ten (10) days of the service date of this Order, defendants are ordered to produce to plaintiff those documents that are responsive to plaintiffs First Set of Requests for Production of Documents Nos. 7 and 11 (subcategories a, b, and i only) as each of these requests appear to directly request information regarding an applicants association with or contribution of money to organizations similar to Benevolence International Foundation and Care International. Further, plaintiff shall be permitted to seek testimony regarding this

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 9 of 20

07/25/2011 07/25/2011 07/25/2011 07/29/2011 08/01/2011
08/01/2011 08/01/2011 08/01/2011 08/04/2011 08/08/2011

information at the depositions of the Rule 30(b)(6) representative and Irene Martin. Plaintiffs Motion for Reconsideration is DENIED in all other respects. 44 Court Recorder: RS−4 7−21−11. (am) (Entered: 07/27/2011)
52 NOTICE OF MOTION AND MOTION to Compel Further answers to deposition questions &further responses to P's Interrogatories filed by Plaintiff Tarek Hamdi. Motion set for hearing on 8/11/2011 at 10:00 AM before Magistrate Judge David T Bristow. (Attachments: # 1 Joint Stipulation re MTC, # 2 Exhibit Def's Ex A − Arellano, # 3 Exhibit Def's Ex B − Kielsmeier, # 4 Exhibit Def's Ex C − Miramontes, # 5 Proposed Order P's PORD MTC, # 6 Proposed Order Def's PORD MTC)(Pasquarella, Jennifer) (Entered: 07/25/2011)
53 STIPULATION to Reschedule Hearing on Motion to Compel filed by plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order To Shorten Time)(Pasquarella, Jennifer) (Entered: 07/25/2011)
54 MINUTE ORDER IN CHAMBERS RE REVIEW OF DOCUMENTS LODGED BY DEFENDANTS FOR IN CAMERA REVIEW by Magistrate Judge David T Bristow: Accordingly, within 14 days of the service date of this Order, defendants are ORDERED to produce GOV000340 to plaintiff. However, if defendants timely object to this Order pursuant to Fed. R. Civ. P. 72(a), then compliance with it shall be stayed pending the District Courts ruling on the objections. (am) (Entered: 07/26/2011)
56 NOTICE OF MOTION AND MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Motion set for hearing on 8/22/2011 at 02:00 PM before Judge Virginia A. Phillips. (Hollis, Christopher) (Entered: 07/29/2011)
57 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 . The following error(s) was found: Hearing information is missing, incorrect, or not timely. The next available motion dates for Judge Virginia A. Phillips are 8/29/11, 9/12/11 and 9/19/11 at 2:00 PM.In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (am) (Entered: 08/01/2011)
58 NOTICE OF LODGING filed (privileged documents for in camera review) re MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 (Hollis, Christopher) (Entered: 08/01/2011)
59 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 . The hearings re Motion or Report and Recommendation deadlines originally scheduled have been rescheduled( Motion reset for hearing on 8/29/2011 at 02:00 PM before Judge Virginia A. Phillips.) (mrgo) (Entered: 08/01/2011)
60 MINUTES OF TELEPHONIC CONFERENCE held before Magistrate Judge David T Bristow: The Court ordered the parties to meet and confer regarding the pending discovery dispute and were ordered to advise the Court as to any remaining issues.Court Recorder: RS−4 8−1−11. (ad) (Entered: 08/04/2011)
61 MINUTE ORDER IN CHAMBERS by Judge Virginia A. Phillips JOINT STIPULATION TO SHORTEN TIME FOR HEARING OF PLAINTIFFS MOTION TO COMPEL DISCOVERY 53 : The Court has read and considered the parties Joint Stipulation and hereby DENIES the same. The Motion to Compel will be taken under submission as of the date the Reply is due and/or filed, and will be decided on the papers without oral argument. (ad) (Entered: 08/04/2011)
62 NOTICE OF MOTION AND MOTION for Review of July 27, 2011 Discovery Order filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 10 of 20

08/08/2011 08/08/2011 08/09/2011 08/11/2011 08/15/2011 08/15/2011 08/19/2011 08/22/2011 08/27/2011 09/01/2011
09/12/2011 09/19/2011 09/20/2011

Immigration Service. Motion set for hearing on 9/12/2011 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 08/08/2011)
63 EX PARTE APPLICATION for Discovery regarding Stay of July 27, 2011 Discovery Order Pending Motion For Review filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Entered: 08/08/2011)
64 Objection in opposition re: MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 filed by Plaintiff Tarek Hamdi. (Pasquarella, Jennifer) (Entered: 08/08/2011)
65 Joint STIPULATION for Discovery as to Plaintiffs Interrogatories and questioning of USCIS Officer Osuna filed by Plaintiff Tarek Hamdi.(Pasquarella, Jennifer) (Entered: 08/09/2011)
66 MEMORANDUM in Opposition to MOTION to Compel Further answers to deposition questions &further responses to P's Interrogatories 52 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 08/11/2011)
67 REPLY in support of MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 08/15/2011)
68 REPLY IN SUPPORT OF MOTION to Compel Further answers to deposition questions &further responses to P's Interrogatories 52 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C−E)(Pasquarella, Jennifer) (Entered: 08/15/2011)
69 ORDER by Magistrate Judge David T Bristow: granting 63 Ex Parte Application for Stay of the Court's 7/27/11, Order pending a motion for review. (mrgo) (Entered: 08/19/2011)
70 Response in Opposition re: MOTION for Review of July 27, 2011 Discovery Order 62 filed by Plaintiff Tarek Hamdi. (Pasquarella, Jennifer) (Entered: 08/22/2011)
71 REPLY in support of MOTION for Review of July 27, 2011 Discovery Order 62 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 08/27/2011)
72 NOTICE OF ERRATA filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. correcting MOTION for Review of July 27, 2011 Discovery Order 62 Joint Notice of Errata Regarding Caption of Defendants' Notice of Motion for Review of Magistrate Judge Bristow's Discovery Order Entered July 27, 2011 (Hollis, Christopher) (Entered: 09/01/2011)
73 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips RE: MOTION for Review of and Objections to Magistrate Judge's Order of July 18, 2011 56 , MOTION for Review of July 27, 2011 Discovery Order 62 . The Court issues a tentative ruling, hears oral argument and takes the matter(s) under submission. Court Reporter: Phyllis Preston. (mrgo) (Entered: 09/13/2011)
74 JOINT STIPULATION AND ORDER ON DEPOSITION SCHEDULING AND PENDING DISCOVERY MATTERS filed by Plaintiff Tarek Hamdi (Pasquarella, Jennifer) (Entered: 09/19/2011)
75 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Miscellaneous Document 74 . The following error(s) was found: Proposed Document was not submitted as a separate attachment. This is a proposed

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 11 of 20

09/20/2011
09/20/2011 09/28/2011 09/29/2011 10/11/2011
10/25/2011 10/25/2011 10/26/2011

document because there is an order contained within the stipulation. A proposed document such as this should be a separate attachment to a Notice of Lodging.. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (mrgo) (Entered: 09/20/2011)
76 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS; ORDER by Deputy Clerk: The document is stricken and counsel is ordered to file an amended or corrected document within 48 hours of issuance of this Response. Pursuant to the General Order governing electronic filing, GO 10−07, Section 6 (page 21), Proposed orders or other proposed documents that are not filed with a main document, such as a proposed judgment or proposed findings of fact, shall be electronically filed as an attachment to a Notice of Lodging. RE: Joint Stipulation and Order 74 . (ad) (Entered: 09/20/2011)
77 Joint STIPULATION for Order on Deposition Scheduling and Pending Discovery Matters filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order re Parties' Joint Stipulation re Deposition Scheduling and Pending Discovery Matters)(Pasquarella, Jennifer) (Entered: 09/20/2011)
78 MINUTES (IN CHAMBERS) ORDER by Judge Virginia A. Phillips: granting in part and denying in part defendants' 56 Motion for Review; granting defendants' 62 Motion for Review. (See document for specifics) (mrgo) (Entered: 09/29/2011)
79 ORDER RE PARTIES JOINT STIPULATION RE DEPOSITION SCHEDULING AND PENDINGDISCOVERY MATTERS by Judge Virginia A. Phillips: THE COURT, having considered the parties joint stipulation, APPROVES the parties stipulation. (am) (Entered: 09/29/2011)
80 MINUTE ORDER IN CHAMBERS by Magistrate Judge David T Bristow re: MOTION to Compel Further answers to deposition questions &further responses to P's Interrogatories 52 . Currently pending before this Court is plaintiffs Motion to Compel Further Answers to Deposition Questions and Further Responses to Plaintiffs First Set of Interrogatories (Motion) filed July 25, 2011. However, the Court notes that the District Courts September 28, 2011, Minute Order may impact the resolution of this discovery dispute. Specifically, defendants filed two Motions for Review of the Courts previous discovery Orders. On September 28, 2011, the District Court issued a Minute Order granting in part and denying in part defendants first Motion for Review and granting defendants second Motion for Review. The District Courts September 28, 2011, Minute Order appears to address many of the issues currently pending in this Motion. In light of the District Courts Minute Order, the Court hereby ORDERS further briefly solely addressing the impact of the District Courts September 28, 2011, Minute Order as it relates to the currently pending Motion. Therefore, the parties are ORDERED to file simultaneous letter briefs not to exceed six (6) pages due on October 25, 2011. No responsive briefs shall be filed. (mrgo) (Entered: 10/12/2011)
81 SUPPLEMENTAL LETTER BRIEF filed by PLAINTIFF Tarek Hamdi. regarding Minutes of In Chambers Order/Directive − no proceeding held,,,,, 80 . (Pasquarella, Jennifer) (Entered: 10/25/2011)
82 SUPPLEMENT to MOTION to Compel Further answers to deposition questions &further responses to P's Interrogatories 52 Supplement to Opposition Filed Pursuant to Court's 10/12 Order (Dkt. No. 80) filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 10/25/2011)
83 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Brief (non−motion non−appeal) 81 , Supplement(Motion related), Supplement(Motion related) 82 . The following error(s) was found: Title page is missing. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (am) (Entered: 10/26/2011)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 12 of 20

10/27/2011 10/28/2011
11/07/2011 11/08/2011 11/14/2011 11/16/2011 11/22/2011 11/27/2011
11/28/2011

84 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS. The document is accepted as filed. Pursuant to the Minutes issued by the Honorable David T. Bristow (Dkt. No. 80), the Court requested the parties to file simultaneous letter briefs as mentioned therein. RE: Brief (non−motion non−appeal) 81 , Supplement(Motion related), Supplement(Motion related) 82 . (mrgo) (Entered: 10/28/2011)
85 NOTICE OF MOTION AND MOTION for Summary Judgment as to all Counts in Petition filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Motion set for hearing on 11/28/2011 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration of Robert Osuna, # 2 Declaration Of Jeffrey M. Bauer, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit Statement Of Uncontroverted Facts and Conclusions of Law, # 18 Proposed Order (Judgment))(Bauer, Jeffrey) (Entered: 10/28/2011)
86 Opposition in opposition re: MOTION for Summary Judgment as to all Counts in Petition 85 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Evidentiary Objections, # 2 Request for Judicial Notice, # 3 Proposed Order, # 4 Statement of Genuine Issues, # 5 Declaration Belinda Escobosa Helzer Declaration, # 6 Exhibit A−E, # 7 Exhibit F pt. 1, # 8 Exhibit F pt. 2, # 9 Exhibit F pt. 3, # 10 Exhibit G − N, # 11 Exhibit O − T)(Escobosa Helzer, Belinda) (Entered: 11/07/2011)
87 NOTICE OF ERRATA filed by Plaintiff Tarek Hamdi. correcting Objection/Opposition (Motion related), Objection/Opposition (Motion related) 86 (Attachments: # 1 Request for Judicial Notice, # 2 Exhibit A − C)(Pasquarella, Jennifer) (Entered: 11/08/2011)
88 REPLY in support of MOTION for Summary Judgment as to all Counts in Petition 85 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Exhibit Defendants' Responses to Plaintiff's Evidentiary Objections Lodged in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment)(Hollis, Christopher) (Entered: 11/14/2011)
89 MINUTES (IN CHAMBERS): ORDER RE PLAINTIFFS MOTION TO COMPEL FURTHER DISCOVERY RESPONSES (DKT. NO. 52) by Magistrate Judge David T Bristow: Thus, this matter is now ready for decision. For the reasons discussed below, particularly in light of the District Judges September 28, 2011 Minute Order, plaintiffs Motion is GRANTED in part and DENIED in part. 52 (am) (Entered: 11/17/2011)
90 NOTICE of Change of Attorney Information for attorney Belinda Escobosa Helzer counsel for Plaintiff Tarek Hamdi. Changing Address to 2100 N. Broadway, Suite 209, Santa Ana, CA 92706. Changing Fax Number to (714) 543−5240. Filed by Plaintiff Tarek Hamdi (Escobosa Helzer, Belinda) (Entered: 11/22/2011)
91 NOTICE OF ERRATA filed by Plaintiff Tarek Hamdi. correcting Objection/Opposition (Motion related), Objection/Opposition (Motion related) 86 Regarding Docket Numbers 86−4 through 86−11 (Attachments: # 1 Corrected Statement of Genuine Issues of Material Fact in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment, # 2 Declaration Corrected Declaration of Belinda Escobosa Helzer in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F part 1, # 9 Exhibit F part 2, # 10 Exhibit F part 3, # 11 Exhibit F part 4, # 12 Exhibit F part 5, # 13 Exhibit G, # 14 Exhibit H, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N, # 21 Exhibit O, # 22 Exhibit P, # 23 Exhibit Q, # 24 Exhibit R, # 25 Exhibit S, # 26 Exhibit T)(Escobosa Helzer, Belinda) (Entered: 11/27/2011)
92 MINUTES OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT 85 held before Judge Virginia A. Phillips: Court issues a tentative ruling, hears oral argument and takes the matter under submission.Court Reporter: Phyllis Preston.Tape #: N/A. (ad) (Entered: 11/29/2011)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 13 of 20

12/14/2011 12/27/2011 12/29/2011 12/30/2011 12/30/2011
12/30/2011 12/30/2011
12/30/2011 12/30/2011 12/30/2011 12/30/2011
12/30/2011
01/06/2012 01/06/2012

93 ORDER by Judge Virginia A. Phillips: granting in part and denying in part defendants' 85 Motion for Summary Judgment. (See document for specifics) (mrgo) (Entered: 12/14/2011)
94 NOTICE of Change of Attorney Information for attorney Bardis Vakili counsel for Plaintiff Tarek Hamdi. Adding Bardis Vakili as attorney as counsel of record for Tarek Hamdi for the reason indicated in the G−06 Notice. Filed by Plaintiff Tarek Hamdi (Vakili, Bardis) (Entered: 12/27/2011)
95 NOTICE of Change of Attorney Information for attorney Lucero Chavez counsel for Plaintiff Tarek Hamdi. Adding Lucero Chavez as attorney as counsel of record for Tarek Hamdi for the reason indicated in the G−06 Notice. Filed by Plaintiff Tarek Hamdi (Chavez, Lucero) (Entered: 12/29/2011)
96 Witness List filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service.. (Bauer, Jeffrey) (Entered: 12/30/2011)
97 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude Testimony of Stacy Tolchin filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Motion set for hearing on 1/23/2012 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Bauer, Jeffrey) (Entered: 12/30/2011)
98 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 12/30/2011)
99 NOTICE OF MOTION AND MOTION IN LIMINE #1 to Exclude Testimony of Elias Valdez filed by Plaintiff Tarek Hamdi. Motion set for hearing on 1/23/2012 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration iso Motion in Limine #1, # 2 Exhibit Ex A − Valdez Depo, # 3 Exhibit Ex B − Valdez Exhibit, # 4 Exhibit Ex C − RFA, # 5 Proposed Order)(Pasquarella, Jennifer) (Entered: 12/30/2011)
100 Joint Exhibit List filed by Plaintiff Tarek Hamdi.. (Escobosa Helzer, Belinda) (Entered: 12/30/2011)
101 Witness List filed by Plaintiff Tarek Hamdi.. (Escobosa Helzer, Belinda) (Entered: 12/30/2011)
102 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiff Tarek Hamdi. (Escobosa Helzer, Belinda) (Entered: 12/30/2011)
103 NOTICE OF MOTION AND MOTION IN LIMINE #2 to Exclude Testimony of Michael Caputo filed by Plaintiff Tarek Hamdi. Motion set for hearing on 1/23/2012 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration Vakili iso MIL #2, # 2 Exhibit To Vakili Dec, # 3 Proposed Order)(Vakili, Bardis) (Entered: 12/30/2011)
104 NOTICE OF MOTION AND MOTION IN LIMINE (#2) to Exclude Testimony of Mustafa Umar filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Motion set for hearing on 1/23/2012 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Bauer, Jeffrey) (Entered: 12/30/2011)
105 OPPOSITION to MOTION IN LIMINE (#2) to Exclude Testimony of Mustafa Umar MOTION IN LIMINE (#2) to Exclude Testimony of Mustafa Umar 104 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration iso Opp to MIL with Exhibits)(Pasquarella, Jennifer) (Entered: 01/06/2012)
106 MEMORANDUM in Opposition to MOTION IN LIMINE #1 to Exclude Testimony of Elias Valdez 99 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Proposed

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 14 of 20

01/06/2012 01/06/2012 01/10/2012 01/13/2012 01/13/2012 01/13/2012 01/13/2012 01/13/2012 01/23/2012
01/25/2012 01/25/2012

Order)(Bauer, Jeffrey) (Entered: 01/06/2012)
107 MEMORANDUM in Opposition to MOTION IN LIMINE #2 to Exclude Testimony of Michael Caputo 103 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Declaration of Jeffrey M. Bauer, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Proposed Order)(Bauer, Jeffrey) (Entered: 01/06/2012)
108 Opposition In Opposition to Defendants' Motion in Limine re: MOTION IN LIMINE to Exclude Testimony of Stacy Tolchin 97 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration of Ahilan Arulanantham in Support of Plaintiff Opposition to Defendants' Motion in Limine to Exclude Testimony of Stacy Tolchin, # 2 Exhibit A)(Arulanantham, Ahilan) (Entered: 01/06/2012)
109 NOTICE OF ERRATA filed by Plaintiff Tarek Hamdi. correcting Witness List 101 (Attachments: # 1 Plaintiff−Petitioner's Witness List)(Escobosa Helzer, Belinda) (Entered: 01/10/2012)
110 REPLY in support of MOTION IN LIMINE to Exclude Testimony of Stacy Tolchin 97 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 01/13/2012)
111 REPLY in support of MOTION IN LIMINE (#2) to Exclude Testimony of Mustafa Umar MOTION IN LIMINE (#2) to Exclude Testimony of Mustafa Umar 104 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 01/13/2012)
112 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiff Tarek Hamdi, Defendant United States Citizenship and Immigration Service. et al., (Attachments: # 1 Proposed Order Pretrial Conference Order, # 2 Exhibit A, # 3 Exhibit B)(Escobosa Helzer, Belinda) (Entered: 01/13/2012)
113 REPLY IN SUPPORT OF MOTION IN LIMINE #1 to Exclude Testimony of Elias Valdez 99 filed by Plaintiff Tarek Hamdi. (Pasquarella, Jennifer) (Entered: 01/13/2012)
114 REPLY IN SUPPORT OF MOTION IN LIMINE #2 to Exclude Testimony of Michael Caputo 103 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration of Bardis Vakili in support of Motion in Limine No. 2, # 2 Exhibit A)(Vakili, Bardis) (Entered: 01/13/2012)
121 MINUTES OF Plaintiffs Motion−In−Limine (1) Motion To Exclude Defendants Witness Elias Valdez From Testifying At Trial (ECF 99) (2) Motion No. 2, to Exclude Oral and Written Testimony (ECF 103) Defendants Motion−In−Limine (1) Motion in Limine to Exclude the Testimony at Trial of Stacy Tolchin (ECF 97) (2) Motion in Limine to Exclude the Testimony at Trial of Mustafa Umar (ECF 104) PRETRIAL CONFERENCE WAS HELD before Judge Virginia A. Phillips: Plaintiffs Motions are both DENIED, for the reasons as stated on the record (Nos. ECF 99 and 103) Defendants Motion as to Stacy Tolchin (ECF 97) is GRANTED, and Defendants motion as to Mustafa Umar (ECF 104) is DENIED, for the reasons as stated on the record. The Pretrial Conference regularly set in this matter for today was held. Counsel for both sides announced ready to proceed in this matter, set for a Court Trial on January 31, 2012, at 9:00 a.m., in Courtroom No. 2. The estimated length of trial is approximately 3 days. Revised Findings of Fact and Conclusions of Law are due lodged by no later than January 25, 2012, at 4:00 p.m. (Pacific Time)Court Reporter: Phyllis Preston. (am) (Entered: 01/31/2012)
115 TRIAL BRIEF filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service.. (Hollis, Christopher) (Entered: 01/25/2012)
116 NOTICE filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Notice of Lodging of Defendants' Proposed Findings of Fact

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 15 of 20

01/25/2012 01/25/2012 01/25/2012 01/25/2012 02/01/2012 02/01/2012 02/02/2012
02/02/2012 02/02/2012 02/02/2012 02/02/2012 02/25/2012 02/28/2012
03/08/2012

and Conclusions of Law (Attachments: # 1 Exhibit Defendants' Proposed Findings of Fact and Conclusions of Law)(Hollis, Christopher) (Entered: 01/25/2012)
117 NOTICE OF LODGING filed re Notice (Other), Notice (Other) 116 (Attachments: # 1 Proposed Order Findings of Fact &Conclusions of Law)(Pasquarella, Jennifer) (Entered: 01/25/2012)
118 TRIAL BRIEF filed by plaintiff Tarek Hamdi.. (Escobosa Helzer, Belinda) (Entered: 01/25/2012)
119 Amended Joint Exhibit List filed by Plaintiff Tarek Hamdi.. (Escobosa Helzer, Belinda) (Entered: 01/25/2012)
120 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiff Tarek Hamdi. (Attachments: # 1 Pretrial Conference Order)(Escobosa Helzer, Belinda) (Entered: 01/25/2012)
122 REQUEST FOR JUDICIAL NOTICE AT TRIAL filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Escobosa Helzer, Belinda) (Entered: 02/01/2012)
123 MINUTES OF COURT TRIAL (1st Day) held before Judge Virginia A. Phillips: Opening statements made. Witneses called, sworn and testified. Exhibits identified and admitted. Case continued to 2/2/2012 at 9:00AM.Court Reporter: Theresa Lanza. (ad) (Entered: 02/02/2012)
124 MINUTES OF Court Trial (2nd Day) held and completed before Judge Virginia A. Phillips: Witnesses called, sworn and testified. Exhibits identified and admitted. Closing arguments made. Filed Witness and Exhibit List. Case submitted. Counsel stipulate to the return of exhibits upon the conclusion of trial. Exhibit Release Form prepared and filed. Case is submitted. Lodged deposition transcripts to be returned to the proffering party at the conclusion of the Courts ruling.Court Reporter: Theresa Lanza. (am) (Entered: 02/02/2012)
125 RECEIPT FOR RELEASE OF EXHIBITS to Counsel Upon Verdict/Judgment at Trial; Pursuant to stip of counsel and/or by Order of the Court, all exhibits listed on Joint exhibits list are returned to counsel for respective party(ies). (am) (Entered: 02/15/2012)
126 JOINT Exhibit List filed by plaintiffs and defendants Jane Arellano, Department of Homeland Security, Tarek Hamdi, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service.. (am) (Entered: 02/15/2012)
127 Witness List filed by defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service.. (am) (Entered: 02/15/2012)
128 Witness List filed by defendant Tarek Hamdi.. (am) (Entered: 02/15/2012)
130 FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Virginia A. Phillips.(See document for specifics) (mrgo) (Entered: 02/28/2012)
129 ORDER AND JUDGMENT by Judge Virginia A. Phillips, Related to: Petition (case opening) 1 . Pursuant to the Findings of Fact and Conclusions of Law issued herewith, the Court hereby finds Petitioner Tarek Hamdi statutorily eligible for naturalization under the Immigration and Naturalization Act, and ORDERS that Respondents GRANT Petitioner's application for naturalization. The Court FURTHER ORDERS Respondents to prepare the appropriate documents for the Court to administer the oath of allegiance and forward such documents to the Clerk of Court in order that the Court may administer such oath to Petitioner. (MD JS−6, Case Terminated). (mrgo) (Entered: 02/28/2012)
131 Joint STIPULATION for Extension of Time to File Motion for Attorney Fees filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 03/08/2012)

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03/14/2012
04/30/2012 05/01/2012 05/03/2012 05/03/2012 05/25/2012 05/31/2012 06/22/2012 06/22/2012

132 ORDER ON JOINT STIPULATION SETTING BRIEFING SCHEDULE FOR PETITIONERS MOTION FORATTORNEYS FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT. by Judge Virginia A. Phillips: Good cause having been shown in the parties joint stipulation, the Court orders as follows: The deadline for Petitioner to file for attorneys fees and costs will be set under the Equal Access to Justice Act (EAJA), not the Local Rules. Petitioner will notice the motion for a hearing at least sixty (60) days from the filing of the motion; Respondents will file their opposition to the motion within twenty−eight (28) days after the filing of the motion; and Petitioner will file his reply in support of the motion within fourteen (14) days after the filing of Respondents opposition. 131 (am) (Entered: 03/15/2012)
133 NOTICE OF APPEAL to the 9th CCA filed by Defendants/Respondents Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. Appeal of Judgment,, 129 , Findings of Fact &Conclusions of Law 130 (Appeal fee FEE WAIVED.) (Bauer, Jeffrey) (Entered: 04/30/2012)
134 NOTIFICATION by Circuit Court of Appellate Docket Number 12−55794, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 133 as to Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (mat) (Entered: 05/01/2012)
135 MINUTES OF TELEPHONIC STATUS CONFERENCE RE PLAINTIFFS APPLICATION FOR NATURALIZATION held before Judge Virginia A. Phillips: The Court sets the naturalization ceremony for Plaintiff Tarek Hamdi, to be held before this Court on Thursday, May 10, 2012, at 10:00am. Court Reporter: Phyllis Preston.Tape #: N/A. (ad) (Entered: 05/04/2012)
136 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 133 filed by United States Citizenship and Immigration Service, Jane Arellano, Alejandro Mayorkas, Department of Homeland Security, Irene Martin, Janet Napolitano, CCA # 12−55794. The motion filed by the government on 5/2/12 for voluntary dismissal of this appeal is granted. This appeal is dismissed. This order served on the district court shall constitute the mandate of this court. Order received in this district on 5/3/12. (car) (Entered: 05/08/2012)
137 Joint STIPULATION to Reschedule Attorneys' Fees Filing Deadline filed by plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 05/25/2012)
138 ORDER RE JOINT STIPULATION FOR FILING DEADLINE FOR PETITIONERS MOTION FOR ATTORNEYS FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT. by Judge Virginia A. Phillips: Good cause having been shown in the parties joint stipulation, the stipulation is hereby GRANTED. The deadline for Petitioner to file for attorneys fees and costs will be June 22, 2012. 137 (am) (Entered: 06/01/2012)
139 NOTICE OF MOTION AND MOTION for Attorney Fees filed by Plaintiff Tarek Hamdi. Motion set for hearing on 8/27/2012 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Arulanantham, Ahilan) (Entered: 06/22/2012)
140 DECLARATION of Hamdi, Arulanantham, Van der Hout, Sobel in support of MOTION for Attorney Fees 139 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration Hamdi, # 2 Declaration Arulanantham, # 3 Exhibit Ex 1−3 Combined CV's, # 4 Exhibit Ex 4 Attorney time Records, # 5 Exhibit Ex 5 Rate Chart, # 6 Exhibit Ex 6 Costs, # 7 Declaration Van Der Hout, # 8 Declaration Sobel, # 9 Exhibit Ex 1 − Sobel Resume, # 10 Exhibit Ex 2 − Garret, # 11 Exhibit Ex 3 − MALDEF, # 12 Exhibit Ex 4 − Skadden Rates, # 13 Exhibit Ex 5 − Skadden, # 14 Exhibit Ex 6 − Cal Dis Rights, # 15 Exhibit Ex 7 − O'Melveny, # 16 Exhibit Ex 8 − Quinn Emmanuel, # 17 Exhibit Ex 9 − Barsky Short, # 18 Exhibit Ex 10 − Eric Gibbs, # 19 Exhibit Ex 11 − Holtz Bingham, # 20 Exhibit Ex 12 − Shawn Parks, # 21 Exhibit Ex 13 − Atkins)(Pasquarella, Jennifer) (Entered: 06/22/2012)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 17 of 20

06/22/2012 06/25/2012 06/25/2012
06/27/2012 06/29/2012
07/03/2012 07/05/2012 07/20/2012

141 Supplement (Table of Contents &Table of Authorities) re: MOTION for Attorney Fees 139 (Attachments: # 1 Table of Contents and Table of Authorities)(Arulanantham, Ahilan) (Entered: 06/22/2012)
142 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Miscellaneous Document 141 . The following error(s) was found: Incorrect event selected. The correct event is: Supplement (Motion related). In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (am) (Entered: 06/25/2012)
143 NOTICE OF ERRATA filed by Plaintiff Tarek Hamdi. correcting Declaration (Motion related), Declaration (Motion related), Declaration (Motion related), Declaration (Motion related) 140 , Miscellaneous Document 141 , MOTION for Attorney Fees 139 (Attachments: # 1 Notice of Motion &Motion, # 2 Memorandum iso Atty's Fees, # 3 Proposed Order, # 4 Declaration iso Atty's Fees, # 5 Hamdi Dec, # 6 Arulanantham Dec, # 7 Exhibit Ex 1−3 CV's of 3 Attys, # 8 Exhibit Ex 4 −Atty Time Records, # 9 Exhibit Ex 5−6 Summary chart &Costs, # 10 Van der Hout Dec, # 11 Sobel Dec, # 12 Exhibit Sobel Ex1 − CV, # 13 Exhibit Sobel Ex2 − Garrett, # 14 Exhibit Sobel Ex3pt1 − MALDEF, # 15 Exhibit Sobel Ex3pt2 − MALDEF, # 16 Exhibit Sobel Ex4 − Skadden Rates, # 17 Exhibit Sobel Ex5 − Skadden, # 18 Exhibit Sobel Ex6 − CA Dis Rights, # 19 Exhibit Sobel Ex7 − O'Melveny, # 20 Exhibit Sobel Ex8 − Quinn Emanuel, # 21 Exhibit Sobel Ex9 − Barsky Short, # 22 Exhibit Sobel Ex10 − eric Gibbs, # 23 Exhibit Sobel Ex11 − Holtz Bingham, # 24 Exhibit Sobel Ex 12 − Shawn parks, # 25 Exhibit Sobel Ex13 − Atkins)(Arulanantham, Ahilan) (Entered: 06/25/2012)
144 MINUTE ORDER IN CHAMBERS REQUIRING THE RE−FILING OF PETITIONER'S MOTION FOR ATTORNEYS' FEES by Judge Virginia A. Phillips re: MOTION for Attorney Fees 139 . The Court hereby ORDERS Petitioner to re−file his Motion for Attorneys' Fees, incorporating any corrections made in his Notice of Errata, and complying with all applicable Federal Rules of Civil Procedure, Local Rules of Central District of California, and provisions of the Court's Standing Order. (mrgo) (Entered: 06/28/2012)
145 NOTICE OF MOTION AND MOTION for Attorney Fees filed by Plaintiff Tarek Hamdi. Motion set for hearing on 8/27/2012 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Memorandum Points and Authorities, # 2 Proposed Order, # 3 Declaration ISO Motion, # 4 Declaration Hamdi, # 5 Declaration Arulanantham, # 6 Exhibit AA Ex 1−3 Atty CVs Combined, # 7 Exhibit AA Ex 4 Atty time records, # 8 Exhibit AA Ex 56Summary Chart &Costs, # 9 Declaration Van der Hout, # 10 Declaration Sobel, # 11 Exhibit CS Ex 1 Resume, # 12 Exhibit CS Ex 2 Garrett, # 13 Exhibit CS Ex 3pt1 MALDEF, # 14 Exhibit CS Ex 3pt2 MALDEF, # 15 Exhibit CS Ex 4 Skadden Fees, # 16 Exhibit CS Ex 5 Skadden, # 17 Exhibit CS Ex 6 CalDisRights, # 18 Exhibit CS Ex 7 O'Melveny, # 19 Exhibit CS Ex 8 Quinn Emanuel, # 20 Exhibit CS Ex 9 Barsky Short, # 21 Exhibit CS Ex 10 Eric Gibbs, # 22 Exhibit CS Ex 11 Holtz Bingham, # 23 Exhibit CS Ex 12 Shawn Parks, # 24 Exhibit CS Ex 13 Atkins)(Arulanantham, Ahilan) (Entered: 06/29/2012)
146 NOTICE OF ERRATA filed by Petitioner Tarek Hamdi. (Attachments: # 1 Exhibit)(Pasquarella, Jennifer) (Entered: 07/03/2012)
147 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Errata 146 . The following error(s) was found: Incorrect event selected. The correct event is: "Motion and Related Filings" − Responses/Replies/Other Motion Related Documents − [Motion Related Document ]. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ad) (Entered: 07/05/2012)
148 OPPOSITION to MOTION for Attorney Fees 145 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Declaration of Jeffrey M. Bauer, # 2 Exhibit A, # 3 Exhibit B, #

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 18 of 20

07/26/2012
07/26/2012 07/26/2012 07/30/2012 07/31/2012 08/01/2012 08/10/2012 08/27/2012 08/27/2012
08/29/2012
09/24/2012
10/08/2012

4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Proposed Order)(Bauer, Jeffrey) (Entered: 07/20/2012)
149 TRANSCRIPT for proceedings held on 11/28/11. Court Reporter: Phyllis Preston, email: stenojag@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/16/2012. Redacted Transcript Deadline set for 8/26/2012. Release of Transcript Restriction set for 10/24/2012. (Preston, Phyllis) (Entered: 07/26/2012)
150 NOTICE OF FILING TRANSCRIPT filed for proceedings 11−28−11 re Transcript 149 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Preston, Phyllis) TEXT ONLY ENTRY (Entered: 07/26/2012)
151 NOTICE of Evidentiary Support filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Bauer, Jeffrey) (Entered: 07/26/2012)
153 ORDER by Judge Virginia A. Phillips. The document is accepted as filed RE: Notice of Deficiency in Electronically Filed Documents (G−112), 147 , 146 , Miscellaneous Document 141 (cys) (Entered: 08/01/2012)
152 Joint STIPULATION for Extension of Time to File Reply as to MOTION for Attorney Fees 145 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 07/31/2012)
154 ORDER by Judge Virginia A. Phillips: The deadline for Plaintiff to file his reply brief in support of his motion for attorneys' fees and costs will be August 10, 2012 152 . (cys) (Entered: 08/02/2012)
155 REPLY in support of MOTION for Attorney Fees 145 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Declaration Transmittal Dec &Ex A Caputo Dec, # 2 Declaration Ex B Pasquarella Dec &Exhibits, # 3 Exhibit Ex C − DHS yearbook Statistics, # 4 Declaration Ex D − Rubalcava Dec, # 5 Proposed Order)(Pasquarella, Jennifer) (Entered: 08/10/2012)
156 MINUTES OF Motion Hearing RE PLAINTIFFS MOTION FOR ATTORNEYS FEES (ECF No. 145) held before Judge Virginia A. Phillips: Court issues a tentative ruling, hears oral argument and takes the matter under submission Court Reporter: Phyllis Preston. (am) (Entered: 08/29/2012)
158 Notice of Electronic Filing re Order on Motion for Attorney Fees, 157 , Motion Hearing 156 e−mailed to jeffrey.bauer@usdoj.gov bounced due to 550 5.1.1 RESOLVER.ADR.RecipNotFound; not found. The primary e−mail address associated with the attorney record has been deleted. Pursuant to the General Order and Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(tyw) TEXT ONLY ENTRY (Entered: 08/30/2012)
157 MINUTES (IN CHAMBERS): ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEYS' FEES (DOC. NO. 145) by Judge Virginia A. Phillips: For the foregoing reasons, Hamdi's Motion for Attorneys' Fees is GRANTED; fees and costs will be awarded, subject to the hourly rate limit established in the EAJA and the Court's evaluation of the reasonableness of the time devoted to various tasks connected with this litigation. 145 (am) (Entered: 08/29/2012)
159 Objections Opposition re: MOTION for Attorney Fees 145 Defendants' Line−Item Objections to Plaintiff's Motion for Costs and Fees Under the Equal Access to Justice Act, 28 U.S.C. 2412 filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 09/24/2012)
160 RESPONSE IN SUPPORT of Plaintiff's Responses to Defendants' Line−Item Objections to Plaintiff''s Motion for Atty Fees filed by Plaintiff Tarek Hamdi. (Pasquarella, Jennifer) (Entered: 10/08/2012)

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 19 of 20

10/08/2012 10/11/2012
10/17/2012 12/05/2012 12/19/2012 12/20/2012 12/21/2012 01/02/2013 01/08/2013 01/10/2013
01/14/2013

161 DECLARATION re Response in Support of Motion 160 filed by Plaintiff Tarek Hamdi. (Attachments: # 1 Exhibit A through G)(Pasquarella, Jennifer) (Entered: 10/08/2012)
162 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Declaration 161 . The following error(s) was found: Incorrect event selected. The correct event is: "Motions and Related Filings" − Responses/Replies/Other Motion Related Documents. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ad) (Entered: 10/11/2012)
163 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS. ORDER by Deputy Clerk of Court: The document is accepted as filed RE: Declaration 161 . (ad) (Entered: 10/17/2012)
164 MINUTE ORDER IN CHAMBERS SETTING AMOUNT OF ATTORNEYS' FEES AWARD by Judge Virginia A. Phillips: For the foregoing reasons, Hamdi is hereby awarded $60,266.92 in fees. The Court directs Hamdi to submit a bill of costs to the Clerk for taxable costs. The Court further directs Hamdi to submit a request for non−taxable costs to the Court, within 20 days of the date of this Order. (am) (Entered: 12/06/2012)
165 RECEIPT FOR RELEASE OF EXHIBITS Rcpt of exhibits upon: AUSA; Released Exhibits:Depositions; Receiver: Fleurneua Foronda. (am) (Entered: 12/20/2012)
166 APPLICATION to the Clerk to Tax Costs against Defendants United States Citizenship and Immigration Service filed by Plaintiff Tarek Hamdi. Application set for hearing on 1/4/2013 at 10:00 AM before Clerk of Court. (Attachments: # 1 Proposed Bill of Costs, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Escobosa Helzer, Belinda) (Entered: 12/20/2012)
167 Plaintiff's Request for Non−Taxable Costs filed by Plaintiff Tarek Hamdi (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D part 1, # 5 Exhibit D part 2, # 6 Exhibit E, # 7 Exhibit F)(Escobosa Helzer, Belinda) (Entered: 12/21/2012)
168 NOTICE OF MOTION AND MOTION for Reconsideration re Minutes of In Chambers Order/Directive − no proceeding held, 164 filed by Plaintiff Tarek Hamdi. Motion set for hearing on 2/4/2013 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Pasquarella, Jennifer) (Entered: 01/02/2013)
169 NOTICE OF MOTION AND Joint MOTION to Reschedule Hearing Date on Plaintiff's Motion for Reconsideration of Minute Order Setting Amount of Attorneys' Fees Award filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Attachments: # 1 Proposed Order)(Hollis, Christopher) (Entered: 01/08/2013)
170 MINUTES (IN CHAMBERS) ORDER by Judge Virginia A. Phillips (1) VACATING FEBRUARY 4, 2012 HEARING and (2) DENYING AS MOOT JOINT MOTION TO RESCHEDULE HEARING DATE: COUNSEL ARE NOTIFIED that on the Court's own motion, Plaintiff Tarek Hamdi's Motion for Reconsideration 168 set for hearing on February 4, 2013, at 2:00pm, is hereby taken off calendar. This matter is appropriate for resolution with a hearing pursuant to Local Rule 7−15 and will stand submitted on the papers timely filed. Accordingly, the Joint Motion to Reschedule Hearing Date on Plaintiff's Motion for Reconsideration of Minute Order Setting Amount of Attorney's Fees Award from February 4, 2013 to February 11, 2013 169 is DENIED as moot. IT IS SO ORDERED. (ad) (Entered: 01/10/2013)
171 OPPOSITION to MOTION for Reconsideration re Minutes of In Chambers Order/Directive − no proceeding held, 164 MOTION for Reconsideration re Minutes of In Chambers Order/Directive − no proceeding held, 164 168 Defendants' Opposition to Plaintiff's Motion for Reconsideration of Minute Order

Case: 5:10-cv-00894-VAP-DTB As of: 02/01/2014 01:54 PM PST 20 of 20

01/18/2013 02/15/2013
04/12/2013 05/03/2013 05/20/2013

Setting Amount of Attorneys' Fees Award filed by Defendants Jane Arellano, Department of Homeland Security, Irene Martin, Alejandro Mayorkas, Janet Napolitano, United States Citizenship and Immigration Service. (Hollis, Christopher) (Entered: 01/14/2013)
172 REPLY in support of MOTION for Reconsideration re Minutes of In Chambers Order/Directive − no proceeding held, 164 MOTION for Reconsideration re Minutes of In Chambers Order/Directive − no proceeding held, 164 168 filed by Plaintiff Tarek Hamdi. (Pasquarella, Jennifer) (Entered: 01/18/2013)
173 MINUTES (IN CHAMBERS) ORDER by Judge Virginia A. Phillips GRANTING Plaintiff's 168 Motion for Reconsideration: (see document image for specifics). For the reasons set forth above, the Court GRANTS Hamdis Motion, in part. Hamdi is hereby awarded $229,823.38 in fees. IT IS SO ORDERED. (ad) (Entered: 02/19/2013)
174 BILL OF COSTS. Costs Taxed in amount of $ 12,836.76 in favor of Tarek Hamdi and against Defendants, USCIS (mb) (Entered: 04/15/2013)
175 NOTICE of Request for Order Regarding Plaintiff's Request for Non−Taxable Costs filed by plaintiff Tarek Hamdi. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 05/03/2013)
176 ORDER RE: NON−TAXABLE COSTS by Judge Virginia A. Phillips: THE COURT, having considered Plaintiffs unopposed Request for Non−Taxable Costs (Dkt. 167), awards $7, 827.09 in non−taxable costs to Plaintiff.) 175 (am) (Entered: 05/20/2013)