Hossain v. Tarango et al, Civil Action No. 3=15-CV-0359-N (N.D. TX 09-14-2016) Natz Denied No Proof of GMC
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
MOHAMMED ZAHID HOSSAIN, §
v. § Civil Action No. 3:15-CV-0359-N
TRACY TARANGO, et al., §
This Order addresses Plaintiff Mohammed Zahid Hossain’s motion for summary
judgment  and the motion for summary judgment  and motion for leave to file
corrected appendix 1
of Defendants Tracy Tarango, Director, United States Citizenship
Department of Homeland Security; Eric Holder, Jr., Attorney General, United States
Department of Justice; and Leon Rodriguez, Director, USCIS (collectively, “Government
Defendants”). The Court denies Plaintiff’s motion for summary judgment and grants the
Government Defendants’ motion for summary judgment.
The motion for leave to file is unopposed. The Court grants the motion.
ORDER – PAGE 1
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I. THE ORIGIN OF THE MOTION
Hossain, a native and citizen of Bangladesh, was admitted to the United States as a
nonimmigrant student on August 6, 2000. This case arises from the denial of Hossain’s N-
400 Application for Naturalization (“N-400") filed on February 17, 2011.
Hossain signed a Form I-9 Employment Eligibility Verification (“I-9") for Payless
Shoe Source on February 4, 2001, on which he attested under penalty of perjury that he was
a “citizen or national of the United States.” On October 3, 2003, Hossain signed an I-9 for
EZ Mart and again attested under penalty of perjury that he was a “citizen or national of the
During the year 2003, Hossain was put in removal proceedings by United States
Immigration and Customs Enforcement (ICE) for being employed without authorization. At
this time, ICE presented Hossain’s I-9 for EZ Mart against him as a false claim to citizenship.
An immigration judge denied ICE’s petition for Hossain’s removal, finding that the
government failed to establish that Hossain had made the alleged false claim. ICE moved
to reopen the removal proceedings after finding Hossain’s I-9 for Payless Shoe Source, but
the immigration court denied the motion on the grounds that the government failed to file an
appeal and thus should most appropriately issue a new Notice to Appear.
On January 14, 2008, Hossain filed an N-400 under 8 U.S.C. § 1430 based on his
marriage to a United States citizen. While being interviewed in connection with his N-400
on June 27, 2008, Hossain denied in writing that he had ever claimed to be a United States
citizen. In 2010, USCIS denied Hossain’s N-400 because Hossain was no longer living with
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his spouse. On February 17, 2011, USCIS received a new N-400 filed by Hossain under 8
U.S.C. § 1427. USCIS denied the N-400 on November 8, 2011.
Hossain filed a Form N-336 requesting a hearing on the 2011 N-400 decision. USCIS
issued a notice withdrawing the 2011 N-400 and stating that a new decision would be issued.
The USCIS Dallas Field Office issued a new decision again denying the N-400 due to a
failure to prove good moral character. Hossain filed an N-336 requesting a hearing on the
N-400 decision. On April 30, 2014, during an interview in connection with the N-336,
Hossain chose to remain silent in response to questions asked by the Immigration Services
Officer regarding false claims to citizenship. The government reaffirmed its denial of the N-
400, citing false claims to citizenship, written denials of such false claims to citizenship, and
Hossain’s silence in response to his interviewing officer’s questions as reasons for its denial.
On February 18, 2015, Hossain filed this lawsuit, requesting the Court to issue an
order naturalizing Hossain as a citizen of the United States.
II. THE SUMMARY JUDGMENT STANDARD
Courts “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED.R.CIV.P.56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making
this determination, courts must view all evidence and draw all reasonable inferences in the
light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). The moving party bears the initial burden of informing the court of
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the basis for its belief that there is no genuine issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
When a party bears the burden of proof on an issue, “he must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment in his
favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). When the nonmovant
bears the burden of proof, the movant may demonstrate entitlement to summary judgment
either by (1) submitting evidence that negates the existence of an essential element of the
nonmovant’s claim or affirmative defense, or (2) arguing that there is no evidence to support
an essential element of the nonmovant’s claim or affirmative defense. Celotex, 477 U.S. at
322–25. Once the movant has made this showing, the burden shifts to the nonmovant to
establish that there is a genuine issue of material fact so that a reasonable jury might return
a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986). Moreover, “[c]onclusory allegations, speculation, and unsubstantiated
assertions” will not suffice to satisfy the nonmovant’s burden. Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Indeed, factual controversies are
resolved in favor of the nonmoving party “‘only when an actual controversy exists, that is,
when both parties have submitted evidence of contradictory facts.’” Olabisiomotosho v. City
of Hous., 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCallum Highlands, Ltd. v.
Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995)).
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III. THE COURT DENIES THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
GRANTS THE GOVERNMENT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
must currently be and for all relevant time periods have been “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). The
applicant “bears the burden of proving by a preponderance of credible evidence that he
qualifies for naturalization and the court must ‘resolve all doubts in favor of the United States
and against those seeking citizenship.’” Kamara v. Lynch, 786 F.3d 420, 425 (5th Cir. 2015),
quoting Bustamente-Barrera v. Gonzales, 447 F.3d 388, 394–95 (5th Cir. 2006). Because
the undisputed facts and record show that Hossain has not met his burden of proving good
moral character by a preponderance of the evidence, the Court denies Plaintiff’s motion for
summary judgment and grants the Government Defendants’ motion for summary judgment.
A. Plaintiff Is Not Entitled to Summary Judgment Because He Has Failed to Prove
Good Moral Character by a Preponderance of the Evidence
Hossain bears the burden of demonstrating that, for the statutory period, he has been
and continues to be a person of good moral character. See 8 C.F.R. § 316.10(a)(1). Claims
of good moral character are evaluated by reference to the “standards of the average citizen
in the community of residence.” 8 C.F.R. § 316.10(a)(2). The government may consider an
applicant’s conduct during the five years immediately preceding the filing of the application
when determining then applicant’s moral character. The government may also consider an
applicant’s conduct prior to that five-year period if “the conduct of the applicant during the
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statutory period does not reflect that there has been reform of character” or if “the earlier
conduct and acts appear relevant to a determination of the applicant’s present moral
character.” 8 C.F.R. § 316.10(a)(2).
It is undisputed that on his I-9s for Payless Shoe Source and EZ Mart, Hossain
checked boxes under penalty of perjury attesting that he was a citizen or national of the
United States. Although the I-9s in question fall outside of the statutory five-year period, the
Court may consider the I-9s insofar as they may serve as evidence of Hossain’s truthfulness
in the June 27, 2008 N-400 interview in which Hossain swore that he had never claimed to
be a United States citizen. Hossain contends that he has always denied the charge of false
claim of United States citizenship and that the record lacks evidence to support the allegation
of false claim of United States citizenship. See Pl. Mot. for Summ. J. at 9. Although “it is
theoretically possible that an alien who has checked the ‘citizen or national’ box has not
represented himself to be a citizen . . ., the significance of the form may depend on the
credibility of the alien’s testimony concerning his intent in checking the box.” Hashmi v.
Mukasey, 533 F.3d 700, 703–04 (8th Cir. 2008). The Government Defendants are correct
in asserting that Hossain bears the burden of proving that he has good moral character,
including evidence of his intent or credibility in checking the box. Hossain has not provided
any such evidence or testimony. At best, Hossain’s N-400 interview in which he denied ever
having claimed to be a United States citizen brings into question whether Hossain intended
to falsely claim to be a United States citizen or a United States national. However, such
evidence fails to amount to an explanation of Hossain’s intent in checking the box nor does
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it provide any evidence of good moral character. At worst, the N-400 interview is evidence
of false testimony that statutorily prevents Hossain’s naturalization. See 8 C.F.R. §
The government may, but need not, draw a negative inference from the silence of a
naturalization applicant. See United States v. Posada Carriles, 541 F.3d 344, 357, n.3 (5th
Cir. 2008). On April 30, 2014, during an interview in connection with his N-336, Hossain
remained silent in response to questions from an Immigration Services Officer regarding
Hossain’s alleged false claims to citizenship. Hossain argues that his silence was due to the
behavior of the officers at the Dallas Field Office who “tried to strong arm and coerce
Hossain into admitting that he had falsely claimed to be a US citizen.” Pl. Mot. for Summ.
J. 11. Hossain, however, fails to explain why he responded to the officers’ questioning with
silence rather than by answering in the negative. For this reason, USCIS could legitimately
draw a negative inference from Hossain’s silence in the April 30 N-336 interview.
Even if Hossain’s arguments create doubt as to the adequacy of the Government
Defendants’ arguments that Hossain lacks good moral character, the burden remains on
Hossain to affirmatively establish his good moral character beyond peradventure as required
by section 1427. Hossain has failed to provide any such evidence. Pleadings do not suffice
to meet this burden – “the party who seeks a summary judgment must show by affidavit or
other evidentiary materials that there is no genuine dispute as to any fact material to
resolution of the motion.” Fontenot, 780 F.2d at 1194 (emphasis added). Hossain relies
largely on arguments that the Government Defendants have not proved beyond a doubt that
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Hossain falsely represented himself as a citizen and that the Government Defendants have
not sufficiently proved his bad moral character, but Hossain fails to provide evidence of his
good moral character.2
To the extent Hossain does attempt to prove his good moral
character, he does so through assertions in his motion but fails to provide any evidence to
substantiate those assertions. For the foregoing reasons, the Court denies Hossain’s motion
for summary judgment.
B. The Government Defendants Are Entitled to Summary Judgment
The Government Defendants have established that Hossain has failed to prove an
essential element of his claim – that he is of good moral character. For the foregoing reasons,
the Court grants the Government Defendants’ motion for summary judgment.
Defendants’ motion for summary judgment.
Signed September 14, 2016.
David C. Godbey
United States District Judge
Hossain states that he has met his burden of proof in the context of the N-400 because
the Government Defendants have not established that Hossain falsely claimed citizenship.
This mischaracterizes Hossain’s burden, which is to affirmatively prove every element of his
claim for naturalization, including his good moral character.
ORDER – PAGE 8
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