                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                             August 7, 2007

                                                                   Charles R. Fulbruge III
                               No. 06-10962                                Clerk
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                    versus

                          RASMI KHADER ALMALLAH,

                                                        Defendant-Appellant.


             Appeal from the United States District Court
                  for the Northern District of Texas
                            (3:04-CV-2230)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Rasmi     Khader   Almallah,   a    native   and   citizen    of     Jordan,

challenges     the   revocation   of    his   admission    to   United     States

citizenship and cancellation of his certificate of naturalization.

He contends the Government failed to prove by clear and convincing

evidence that he fraudulently obtained citizenship; and the court

abused its discretion by not allowing him to amend his answer to

assert a selective-prosecution defense and by denying the testimony

of his expert witness.



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
      A bench trial produced the following facts.                    After coming to

the United States on a student visa, Almallah left school to manage

and partly own a Sonic restaurant in Dallas, Texas.                       Because his

student     visa    was   nearing    expiration,         Almallah     asked   a   Sonic

employee, who was a United States citizen, to marry him.                             He

offered to pay her money in exchange for assisting him in obtaining

a   green   card    and   promised        a    divorce      thereafter.    After    two

employees refused his offer, another woman, Rose Marie Hawley, a

United States citizen, accepted.

      Almallah and Hawley married on 21 December 1981, four days

before Almallah’s student visa expired.                      Almallah testified the

marriage     was    legitimate      and       that   they    lived   together.      (As

discussed infra, the district court, based on Hawley’s and two

other witnesses’ testimony, found, however, that the couple “did

not marry with the intent to establish a life together and assume

the duties and obligations of husband and wife.”                       Rather, “they

never resided together as husband and wife, never established joint

bank accounts, never filed joint income tax returns, and their

purpose for marrying was solely for [Almallah] to obtain lawful

permanent resident immigration status”. The court found Almallah’s

testimony not credible.)

      In March 1982, Hawley filed a “Petition for Alien Relative”,

INS form I-130, seeking immediate-relative status for Almallah.

After that Petition was approved, Almallah filed his “Application

for   Status       as   Permanent     Resident”,         Form    I-485,    requesting

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permanent-resident status.        In response to a question on that

application, and during an INS interview conducted under oath,

Almallah represented that he and his wife resided together.             Later

that year, the INS granted Almallah permanent resident status.

     Shortly      thereafter,   Almallah    filed   for,   and   received,   a

divorce from Hawley, as promised. Approximately three years later,

he married a Jordanian woman, with whom he subsequently had seven

children.    In June 1987, Almallah filed an “Application to File

Petition    for    Naturalization”,   INS    form   N–400,   based    on   his

eligibility for naturalization as a lawful permanent resident for

at least five years, pursuant to 8 U.S.C. § 1427.                    Almallah

responded “no” to a question on that application which asked if he

had ever given false testimony for the purpose of obtaining any

benefits under the Immigration and Nationality Act.                  During a

subsequent INS interview, Almallah signed a sworn statement that

his application’s contents were true.         On 29 January 1988, the INS

approved Almallah’s application.            He filed his “Petition for

Naturalization” the same day and was admitted to United States

citizenship on 29 July 1988.

     Conclusions of law are reviewed de novo; findings of fact, for

clear error.      United States v. Lopez-Ortiz, 313 F.3d 225, 228 (5th

Cir. 2002). “Deference is given to the district court’s assessment

of the credibility of witnesses and a finding of fact in that

regard will not be overturned unless manifest error appears in the

record.” Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th

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Cir. 1997).     Evidentiary rulings in a denaturalization proceeding

are evaluated for an abuse of discretion.           United States v. Hajda,

135 F.3d 439, 443 (7th Cir. 1998).

       “The   Government   carries    a    heavy    burden   of    proof    in   a

proceeding to divest a naturalized citizen of his citizenship

[because] American citizenship is a precious right [and s]evere

consequences may attend its loss, [especially] when the person has

enjoyed his citizenship for many years”.                Costello v. United

States, 365 U.S. 265, 269 (1961).            Specifically, the Government

must    prove   by    “clear   and    convincing”      evidence      that    the

naturalization was procured illegally or by concealment of a

material fact or willful misrepresentation. Schneiderman v. United

States, 320 U.S. 118, 123 (1943); see also 8 U.S.C. § 1451(a).

Naturalization is “illegally procured” when the individual was

statutorily ineligible for naturalization before and including the

time he was naturalized. Fedorenko v. United States, 449 U.S. 490,

506 (1981).        To warrant denaturalization, any concealment or

misrepresentation must be “both willful and material”.                Kungys v.

United States, 485 U.S. 759, 767 (1988).

       Allmallah   first   contends   he    was    improperly     denaturalized

because he was selectively prosecuted. See, e.g., United States v.

McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984) (prosecution

improper when others similarly situated are not prosecuted and

defendant was selected based on race, religion, or exercise of a


                                      4
constitutional    right).      Almallah      did    not   assert   selective

prosecution in his original answer to the Government’s complaint,

and the district court refused his motion for leave to amend, filed

eight months after the deadline for amending pleadings, because

Almallah failed to show good cause.          In this regard, the district

court did not abuse its discretion.          (In any event, Almallah has

shown neither that selective prosecution applies in the civil

immigration context nor that it is a defense on the merits.              See

United States v. Armstrong, 517 U.S. 456, 463 (1996) (applying

selective    prosecution    principle   in    the   criminal   context   and

stating:    a “selective prosecution claim is not a defense on the

merits ... but an independent assertion that the prosecutor has

brought the charge for reasons forbidden by the Constitution”).)

     Almallah next claims the district court abused its discretion

in denying the testimony of his expert witness, Harry Joe, who

would have opined the Government lacked clear and convincing

evidence that Almallah entered into a sham marriage.               The court

found:     “Mr. Joe’s opinion would supply ... no information other

than Mr. Joe’s own view of how the verdict should read”.            “Because

a district court has broad discretion in deciding the admissibility

vel non of expert testimony, we will not find error unless the

ruling is manifestly erroneous.”        Guy v. Crown Equip. Corp., 394

F.3d 320, 325 (5th Cir. 2004) (emphasis in original).              The court

did not err in excluding Mr. Joe’s testimony.



                                    5
       Finally,     Almallah   maintains   the   district   court   erred   in

holding, by clear and convincing evidence, that he fraudulently

obtained United States citizenship.              The district court found

Almallah “entered into a sham marriage by paying a United States

citizen, whom he never resided with or otherwise had the intention

to reside with, to marry him for the purpose of circumventing

immigration law and obtaining legal immigration status”.                This

factual finding, which we review only for clear error, was based on

Hawley’s testimony and that of two corroborating witnesses.             Only

Almallah’s testimony contradicts this finding, and, as noted supra,

the court found his testimony “not credible”.               Accordingly, the

district court did not clearly err in this finding or those

findings discussed below that stem from it.          N.N.P. Inc., 104 F.3d

at 1485 (factual finding not clearly erroneous unless manifest

error appears in the record).

       An alien’s marrying a United States citizen for the purpose of

circumventing immigration laws is not valid to confer immigration

benefits.     See Lutwak v. United States, 344 U.S. 604 (1953).

Because Almallah’s marriage to Hawley was invalid, he was not

eligible for immediate-relative status, permanent-resident status,

or naturalization.      Moreover, Almallah wilfully misrepresented his

eligibility to the INS at each of these stages.         Witter v. INS, 113

F.3d   549,   554    (5th   Cir.   1997)   (misrepresentation    wilfull    if

deliberate, voluntary, and knowingly false; proof of intent to

deceive not required).         Because Almallah did not comply with the

                                       6
naturalization prerequisites, his naturalization was illegally

procured.    Federenko, 449 U.S. at 506 (naturalization illegally

procured    when    individual   was   statutorily   ineligible   when

naturalized).      Therefore, the evidence was clear and convincing

that Almallah fraudulently obtained his United States citizenship.

                                                          AFFIRMED




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