[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-10223 November 25, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00294 CV-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KANMI GBOLAHAN ONABANJO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 25, 2003)
Before ANDERSON, BARKETT and RONEY, Circuit Judges.
PER CURIAM:
Kanmi Gbolahan Onabanjo, a Nigerian native, appeals the district court’s
decision granting the government’s motion for summary judgment, and revoking
his citizenship pursuant to 8 U.S.C. §1451(a), holding that Onabanjo did not satisfy
the Congressional prerequisite of living in marital union with his citizen spouse
during the three years prior to his filing for expedited naturalization under 8 U.S.C.
§1430(a). Onabanjo appeals.
Onabanjo and his wife were married on April 19, 1985. Their daughter was
born on February 4, 1986. On July 5, 1989, Onabanjo filed a petition seeking an
expedited naturalization pursuant to 8 U.S.C. §1430(a), on the basis of his marriage
to his citizen spouse, Joan Beatrice Tatum-Onabanjo (herein referred to as his
wife). The summary judgment record reveals that Onabanjo and his wife were
living apart during some of the relevant time period. Although admitting that he
relocated to Atlanta in September 1988 for employment reasons, Onabanjo asserted
that he and his wife remained in marital union, and adduced evidence that he and
his wife made a joint decision that he must do that for occupational reasons, that he
and his wife and child have continued to be a family unit, that he has continued to
be in full communication with them as a good husband and father, and that he and
his wife have never viewed themselves as not married or as married but estranged.1
The relevant statutory and regulatory framework is as follows. Pursuant to 8
U.S.C. §1451(a), the government has a duty “upon affidavit showing good cause
1
Although there is contradictory evidence in the summary judgment record which,
if believed, would indicate an absence of an marital union, we must take the evidence and
reasonable inferences in the light most favorable to Onabanjo in this summary judgment posture.
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therefor, to institute proceedings in any district court of the United States in the
judicial district in which the naturalized citizen may reside at the time of bringing
suit, for the purpose of revoking and setting aside the order admitting such person
to citizenship and canceling the certificate of naturalization on the ground that such
order and certificate of naturalization were illegally procured or were procured by
concealment of a material fact or by willful misrepresentation ....” The government
carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his
citizenship. Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 536 (1961).
The evidence must be “clear, unequivocal, and convincing and not leave the issue
in doubt.” Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747
(1981). As noted above, Onabanjo received his certificate of naturalization
pursuant to the expedited procedures of 8 U.S.C. §1430(a), which provides in
relevant part:
Any person whose spouse is a citizen of the United States ... may be
naturalized upon compliance with all the requirements of this
subchapter except the provisions of paragraph (1) of section 1427(a)
of this title if such person immediately preceding the date of filing his
application for naturalization has resided continuously, after being
lawfully admitted for permanent residence, within the United States
for at least three years, and during the three years immediately
preceding the date of filling his application has been living in marital
union with the citizen spouse ....
In other words, naturalization can be obtained after three years of legal permanent
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residency in the United States, rather than the normal five years, if the resident is
married to an American citizen and if the requirements of §1430(a) are satisfied.
The particular requirement of §1430(a) at issue in the instant appeal is the three-
year “marital union” requirement.
The relevant regulation provides as follows:
(b) Marital union--
(1) General. An applicant lives in marital union with a citizen spouse
if the applicant actually resides with his or her current spouse. The
burden is on the applicant to establish, in each individual case, that a
particular marital union satisfies the requirements of this part.
(2) Loss of Marital Union--
(i) Divorce, death or expatriation. ...
(ii) Separation--
(A) Legal separation. Any legal separation will break the continuity of
the marital union required for purposes of this part.
(B) Informal separation. Any informal separation that suggests the
possibility of marital disunity will be evaluated on a case-by-case
basis to determine whether it is sufficient enough to signify the
dissolution of the marital union.
(C) Involuntary separation. In the event that the applicant and spouse
live apart because of circumstances beyond their control, such as
military service in the Armed Forces of the United States or essential
business or occupational demands, rather than because of voluntary
legal or informal separation, the resulting separation, even if
prolonged, will not preclude naturalization under this part.
(c) Physical presence in the United States. In the event that the alien
spouse has never been in the United States, eligibility under this
section is not established even though the alien spouse resided abroad
in marital union with the citizen spouse during the three year period.
8 CFR § 319.1
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The district court held that Onabanjo’s citizenship was illegally procured
because he did not actually reside in the same home with his citizen wife for the
three years preceding his petition for naturalization.2 Onabanjo argues on appeal
that the district court erred in requiring actual residence in the same home. In
particular, Onabanjo argues that the district court erred in failing to consider the
application of the exceptions to the actual residence requirement as provided for in
8 C.F.R. §319.1(b)(2)(ii).
In holding that actual residence in the same home with the citizen spouse is
required, the district court relied upon United States v. Maduno, 40 F.3d 1212 (11th
Cir. 1994). Although there is language in the Maduno opinion suggesting an
actual residence requirement, we do not believe that Maduno holds that the actual
residence requirement is absolute, or that the exceptions provided for in the
regulation are invalid or otherwise inoperative. Although Maduno said that the
district court’s instruction was a correct statement of the law, and that instruction
included an actual residence requirement, the instruction also indicated exceptions
for various short periods of separation. More significant, the Maduno holding
2
Although the government’s motion for summary judgment was based upon
assertions that Onabanjo had misrepresented material facts in his naturalization petition, and that
Onabanjo’s citizenship was illegally procured because he lacked good moral character, the
district court declined to address the grounds relied upon by the government, and instead relied
upon the undisputed evidence that Onabanjo and his wife did not actually reside in the same
home.
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expressly relied upon 8 C.F.R. §319.1(b)(1), quoting its general rule, “An applicant
lives in marital union with a citizen spouse if the applicant actually resides with his
or her current spouse.” We note that the regulation then, as it does now, states that
general rule, but goes on to provide for the exceptions quoted above. The only fair
reading of the Maduno decision is that it applied the regulation’s general rule, but
that it did not address the exceptions provided for in the regulations. Most likely,
the exceptions were either not argued or clearly inapplicable.
The district court in the instant case applied the regulation’s general rule that
actual residence was required, without considering the applicability of the
exceptions provided for in the regulation. This was error.
Accordingly, we reverse and remand for further proceedings not inconsistent
with this opinion.
REVERSED and REMANDED.
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