United States District Court, D. Arizona
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DAVID C. BURY, District Judge.
Plaintiff brings this action under 8 U.S.C. § 1451(a) to revoke and set aside the order admitting Defendant Fernando Arango (Arango) to United States citizenship and to cancel his certificate of naturalization. On December 2 and 3, 2014, this action was tried before this Court, sitting without a jury. The Court having heard the testimony and having examined the proofs offered by the parties, and having heard the arguments of counsel and being fully advised herein, the Court now finds generally in favor of Plaintiff and against the Defendant, and hereby makes the following special Findings of Fact and Conclusions of Law pursuant to the Federal Rules of Civil Procedure, Rule 52(a) and (c) which constitutes the decision of the Court herein:
FINDINGS OF FACT
To the extent these Findings of Fact are also deemed to be Conclusions of Law, they are hereby incorporated into the Conclusions of Law that follow.
A. Arango's Sham Marriage
1. Arango was born in Cali, Columbia in 1954. (Stipulation (Doc. 111) ¶ 1. He originally came to the United States in 1972 on a student visa, id. ¶ 2; he returned in 1973 to the United States for approximately two years on a new student visa to attend college in New York State and graduated in 1975, id. ¶ 3. After graduating, Arango obtained a Canadian student visa to attend Ryerson University in Toronto, Canada, for four years. Arango's Canadian student visa expired in 1980. Id. ¶ 4.
2. In 1979, while Arango was still living in Canada, Arango's sister, Amparo Valbuena, a.k.a. Amparo Arango ("Valbuena"), told Arango he could become a lawful permanent resident by marrying a U.S. citizen, and that she knew a man, Miguel Diaz ("Diaz"), who would arrange a marriage for Arango.
3. Valbuena had obtained her permanent resident status through Diaz's marriage fraud ring in May 1979. She paid Diaz and one of his associates to handle the immigration paperwork and arrange her marriage to a U.S. citizen named Eladio Santiago ("Santiago"). Valbuena was aware at the time that it was illegal to obtain her immigration status in this manner.
4. Arango knew in 1979 that Diaz would arrange his marriage to a U.S. citizen in exchange for payment, as Diaz had done for Valbuena. Around December 1979, Arango paid $2, 000 to Valbuena to give to Diaz and paid another $1500 in February, 1980. (P's Ex. 11.)
5. Diaz applied for a marriage license in New York as Arango by pretending to be Arango at the marriage license bureau and forging Arango's signature on the Affidavit and Application for License to Marry. Arango did not go to the marriage license bureau himself to apply for a marriage license. Id. ¶ 6.
6. On March 21, 1980, Arango purportedly married Vicky Tirado ("Tirado"), a U.S. citizen. Id. ¶ 7. Neither Arango nor Tirado attended the March 21, 1980, wedding ceremony. Id. ¶ 8. Arango knew that Diaz had stood in as him at the March 21, 1980, wedding ceremony. Valbuena stood in as Tirado during the March 21, 1980, wedding ceremony. Arango never met Tirado in person. Id. ¶ 9. Arango never lived with Tirado. Id. ¶ 10.
7. From 1975 through the duration of his purported marriage to Tirado, Arango was in a romantic relationship with a woman who was a Canadian citizen and who resided in Canada.
8. Arango and Tirado did not intend to establish a life together at the time of the purported marriage, therefor, Arango's marriage to Tirado was a sham.
B. Arango's Permanent Resident Status
9. On April 7, 1980, Tirado (or someone pretending to be Tirado) filed with the Immigration and Naturalization Service ("INS") a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa, Form I-130, on Arango's behalf. Id. ¶ 11.
10. Along with the Form I-130, Tirado (or someone pretending to be Tirado) submitted a putative certificate of marriage memorializing the marriage between Arango and Tirado. Id. ¶ 12.
11. On the Form I-130, Tirado (or someone pretending to be Tirado) identified Arango as her spouse, id. ¶ 13, claimed that, from March 21, 1980, through March 23, 1980 (i.e., the weekend of the purported wedding), she and Arango lived together at 82-66 159th Street, Jamaica, New York, id. ¶ 14, and claimed Tirado resided at 82-66 159th Street, Jamaica, New York, id. ¶ 15.
12. Valbuena resided at 82-66 159th Street, Jamaica, New York, in March 1980 when the I-130 Alien Relative for Issuance of Immigrant Visa form was filed with the INS; Tirado did not live at that address with Valbuena.
13. The INS approved Tirado's Form I-130 on April 22, 1980. Id. ¶ 16.
14. On November 4, 1980, Arango filed a State Department Optional Form 230, Application for Immigrant Visa and Alien Registration, Form 230. Id. ¶ 17.
15. On his Form 230, Arango claimed that he was eligible for an immigrant visa based on the approved Form I-130, as the spouse of a U.S. citizen, id. ¶ 18, listed Tirado as his wife, i d. ¶ 19, stated that his purpose in going to the United States was to join his wife, i d. ¶ 20, and stated that he lived at 82-66 159th Street, Jamaica, NY, when he really still lived in Canada, id. ¶ 21.
16. In conjunction with Arango's Form 230, Tirado (or someone pretending to be Tirado) filed an Affidavit of Support, Form I-134, with the INS, which: (1) identified Tirado's residence at the time as 82-66 159th Street, Jamaica Hills NY; (2) identified Arango as her spouse; and (3) stated that the reason she was submitting the affidavit was"[t]o enable my husband Fernando to join me permanently in the United States." (P's Ex. 3)
17. On November 4, 1980, a consular officer interviewed Arango in person in Toronto, Canada. Id. ¶ 22.
18. Arango swore under oath that all of the statements in the Form 230 were true and complete. (P's Ex. 4 at 4.)
19. The State Department approved Arango's Form 230 on November 4, 1980, and Arango was admitted to the United States as a permanent resident on December 1, 1980. Id. ¶ 23.
20. Arango divorced Tirado on March 27, 1984, by commencing a legal action in Dade County Circuit Court in Florida. Arango served Tirado with legal process by publishing a notification in a newspaper because he did not know her whereabouts. The divorce was granted by default against Tirado. Id. ¶ 24.
C. Arango's Sworn Statement to INS Re: Diaz Marriage Fraud Ring
21. Former INS Senior Special Agents Gary Hittelman ("Agent Hittelman") and Peter Candemeres ("Agent Candemeres") worked for the INS in its New York, NY, office and led an INS's investigation into the marriage fraud ring Diaz orchestrated and operated. Agents Hittelman and Candemeres were tasked with developing a criminal case against Diaz and others, including both Arango and Valbuena.
22. Former Program Manager with U.S. Immigration and Customs Enforcement("ICE") Charles Ferrigno ("Agent Ferrigno"), who in 1982 was a junior investigator in the INS's office in New York, NY, assisted Agents Hittelman and Candemeres.
23. Valbuena had worked with Diaz to further the marriage fraud ring; thus, she was an important witness in the case against Diaz. As such, Agents Hittelman and Candemeres interviewed Valbuena on multiple occasions in connection with their investigation.
24. On March 1, 1982, Valbuena met with Agents Hittelman and Candemeres at the INS office at 26 Federal Plaza, New York, NY, dictated and signed a sworn statement, admitting, inter alia, that: (1) because her student visa would soon expire, she knowingly paid a marriage broker associated with Diaz to arrange a sham marriage to Santiago;(2) she then applied for and received her permanent resident status on the basis of that sham marriage; (3) she never resided with Santiago; and (4) after she obtained her permanent resident status, she drove Diaz and other individuals around in connection with Diaz's marriage fraud ring, and she referred other individuals to Diaz to arrange sham marriages for immigration benefits.
25. On May 21, 1982, Diaz pleaded guilty to one count of conspiracy to violate 18U.S.C. § 1001 (false statement), five counts of violating 18 U.S.C. § 1001 (false statement), and one count of violating 18 U.S.C. § 1505 (obstruction). Diaz was sentenced on July 29, 1982, to 2 years' imprisonment, with 5 years' probation thereafter, and fined $30, 000. Id. ¶ 25.
26. Agent Hittelman prepared an investigation report on August 13, 1982, discussing the Diaz investigation and the marriage fraud ring conspiracy. In his report, Agent Hittelman identified the primary participants in the scheme, described the scheme generally, and explained that the INS intended to initiate administrative immigration proceedings against aliens who had either obtained permanent residence status or a visa as a result of a sham marriage to a U.S. citizen, or were in the process of doing so. (P's Ex. 14.)
27. Agent Ferrigno testified that Agent Hittelman was attempting to get the aliens who had received their status through the marriage fraud ring deported and was very frustrated because he couldn't get any action from the higher-ups who made the decision that work force requirements didn't permit that to be done.
28. On September 15, 1982, after Diaz had been convicted and sentenced, Agents Hittelman and Candemeres met with Arango and he dictated a sworn statement admitting: "My true & correct name is Fernando Arango. I was born on August 22, 1954 in Cali, Colombia. I am a native citizen of Colombia. I last entered the U.S. as a permanent resident of the U.S. on August 22 [corrected to August 26], 1982. Before I became a residence, I came as a student from Canada. In 1979 my sister Amparo told me I could become a resident by marrying a citizen. She said she knew a man who would arrange it. I'd have to pay about $2500 to him. I wouldn't have to live with the girl. Around December of 1979 I paid $2000 to Amparo to give to Miguel Diaz & around Feb, 1980 I paid another $1500. I never met Miguel or Vicky Tirado, my wife. I never got married. Somebody else took my place at the marriage bureau. My sister told me Miguel Diaz took my place at the ceremony. Amparo gave me all the Immigration papers from Miguel & I went to the American Consulate in Toronto for my green card." (P's Ex. 11.)
29. Agents Candemeres and Hittelman both remember the Diaz investigation. They also both specifically remember Valbuena, who was a more important witness than Arango.
30. The U.S. Attorney prosecuting Diaz was prepared to grant Valbuena criminal immunity in exchange for her cooperation in the Diaz investigation, but he did not do so. That criminal immunity would not have extended to grant Valbuena immunity from any administrative immigration proceedings, and it would not have provided Arango with any immunity whatsoever.
31. Valbuena played a more important role in the Diaz investigation because Valbuena worked with Diaz to further the marriage fraud ring; she received her permanent resident status; she handled immigration paperwork for Diaz, and she drove Diaz and other aliens in connection with the marriage fraud ring. Arango does not recall ever meeting Diaz.
32. Agents Hittelman, Candemeres and Ferrigno have never seen or heard of a cooperation agreement offering an alien immunity from immigration proceedings in exchange for the alien's cooperation in an investigation.
33. Agents Hittelman, Candemeres and Ferrigno have never offered any alien a verbal or written cooperation agreement offering any immunity from immigration proceedings, or offering the ability to naturalize despite an alien's ineligibility to do so, in exchange for the alien's cooperation in an investigation.
34. Valbuena assumed that she would be permitted to remain in the United States in exchange for her cooperating with the INS regarding the Diaz investigation. But Valbuena never asked the INS for anything in return for her cooperation. Nor did Agents Hittelman, Candemeres and/or Ferrigno enter into a written or oral cooperation agreement with Valbuena allowing her (or Arango) to remain in the United States or naturalize in exchange for her cooperation.
35. According to Arango when he and his sister decided to proceed with their naturalization, Agent Hittelman affirmed there would be no problem. Arango's testimony conflicted with Valbuena's testimony that Agent Hittelman changed the subject when she questioned him about whether she could proceed with naturalization. The August 13, 1982, Investigation Report by Hittelman and testimony from witness Ferrigno that Hittelman expected criminal and deportation proceedings would be instituted with respect to the aliens who were party to the scheme., support Valbuena's testimony. The Court finds Arango's testimony to be not credible in respect to the existence of a cooperation agreement between himself and the United States.
36. Agents Hittelman, Candemeres and/or Ferrigno did not enter into a written or oral cooperation agreement with Arango allowing him to remain in the United States ...