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Egyptian Properly Barred by INS for Polygamy

RICHMOND, Va. (CN) - An Egyptian man who was formerly in a polygamous marriage cannot become a naturalized resident because his dual marriages took place within five years of his residency petition, a federal judge ruled.

Amin Mohamed Basher Hassan became a lawful permanent resident in 2004 after his marriage to Debra Horn-Hassan, a U.S. citizen.

But when the couple discovered Horn-Hassan was unable to conceive, Hassan's family in Egypt urged him to take a second wife, something that's allowed under Egyptian law.

According to the ruling, Hassan's American wife agreed to the second marriage, and he and his second wife, Suhila Fatju Arby Hamid, now have three children, who live with their mother in Egypt.

"The record also shoes that Ms. Horn-Hassan moved out of the marital home one week after Hassan returned in January 2008 after his marriage in Egypt," said U.S. District Judge Leonie Brinkema. "They divorced on March 19, 2012."

Hassan applied for naturalization on June 6, 2012, and truthfully disclosed on his application that he had previously been married to two women concurrently. His application included a letter that stated he did not originally intend to bring Hamid or their children to the United States, but said in light of his divorce from Horn-Hassan, he might do so in the future.

The U.S. Citizen and Immigration Services denied Hassan's application on May 30, 2013, on the grounds that he had "engaged in a polygamous marriage" within the five-year statutory period set forth in the Immigration and Naturalization Act, and this "adversely reflected upon his moral character," the ruling says.

The letter rejecting Hassan's application stated in part, "Polygamy is the practice or condition of having more than one spouse, especially wife, at one time. An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC [good moral character]."

Hassan appealed the decision, but the agency again rejected his application, explaining that polygamy is "against the public policy of the United States" ... and that "Hassan had not presented any evidence that attitudes in the United States towards polygamy had changed or that polygamous marriages had become commonly accepted either in the United States or in Hassan's Northern Virginia community."

The agency went on to note that polygamy is illegal in 49 states and the District of Columbia, and held that "regardless of whether practiced abroad or n the United States, polygamy is a bar to [a] finding of good moral character," if practiced during the statutory period.

Judge Brinkema also noted that Hassan was convicted of driving under the influence in October 2007, and that he was sentenced to three months in jail, 12 months probation and had his licensed suspended for a year.

"On these bases, the USCIS concluded that Hassan had failed to meet his burden of demonstrating good moral character for the five years preceding the filing of his naturalization application," Brinkema wrote.

Unable to make headway with the agency, Hassan turned to the courts, filing a petition that described the relevant regulations as "seriously out of date," that his conduct did not amount to bigamy under Virginia law, and that the agency's decision was "absurd" when considered against its history of approving the applications of those who have had children out of wedlock.

Brinkema rejected Hassan's argument for the relevancy of the Virginia law on bigamy, holding that

a state criminal statute is not controlling for purposes of interpreting and applying federal naturalization laws."

Further, she said, immigration regulations "do not require an applicant's conduct to be chargeable under state or federal law in order for that conduct to adversely reflect upon the applicant's moral character."

"Indeed, the USCIS did not find Hassan lacking in good moral character because he committed a federal or state crime of bigamy. Instead, it found him lacking in good moral character because he admittedly practiced polygamy, which is expressly listed as an exclusionary basis in both the INA and the implementing regulations," she wrote.

In the face of the ironclad reality, all of Hassan's arguments must fail, she said.

"In sum, the INA expresses an unambiguous policy against practicing polygamists, the regulation is a reasonable interpretation of the INA, Hassan bears the burden of demonstrating his good moral character which he has failed to do, and any doubts regarding his eligibility should be resolved in favor of the government," Judge Brinkema wrote.

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