USCIS brief to Alocozy in 9th Circuit Natz GMC Agg Felony

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  • 1. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 1 of 38 NOT DETAINED No. 11-16557________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT________________________________________________________________ ABDUL H. ALOCOZY, Appellant, v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Appellees.________________________________________________________________ BRIEF FOR APPELLEES________________________________________________________________
  • 2. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 2 of 38 TABLE OF CONTENTS PAGETABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiSTATEMENT OF JURISDICTION AND STANDARD OF REVIEW . . . . . . . 1ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2STATEMENT OF FACTS AND OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 2SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. A CONVICTION FOR ASSAULT TO COMMIT RAPE IS AN AGGRAVATED FELONY, WHICH PERMANENTLY BARS ALOCOZY FROM NATURALIZING . . . . . . . . . . . . . . . . . . . . . . 7 A. Statutory Overview of the Relevant Provisions of the INA . 7 1. Naturalization Under 8 U.S.C. § 1427 . . . . . . . . . . . . 7 2. IMMAct 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. IIRIRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4. Application to Alocozy . . . . . . . . . . . . . . . . . . . . . . . 12 B. Irrelevance of Grant of Section 212(c) Relief . . . . . . . . . . . 13 C. The Aggravated Felon Bar Is Not Being Applied Retroactively to Alocozy . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 i
  • 3. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 3 of 38 D. Alternatively, Even Under a Retroactivity Analysis, the Aggravated Felon Bar Is Permissibly Applied to Alocozy . 20CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ii
  • 4. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 4 of 38 TABLE OF AUTHORITIES FEDERAL CASES PAGEAlvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. 2005) ............................................................... 13, 19Aragon-Ayon v. INS, 206 F.3d 849 (9th Cir. 2000) ................................................................. 11, 19Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1991) ............................................................ 14, 16Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007) .................................................. 15, 16, 24, 25Berenyi v. Dist. Dir., INS, 385 U.S. 630 (1967) ................................................................................... 7, 8Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. 2005) .................................................................. 16, 23Bucknor v. Attorney Gen. of U.S., 243 Fed.Appx. 712 (3d Cir. 2007) ............................................................. 17Bugari v. Napolitano, 2011 WL 2610173 (N.D. Cal. July 1, 2011) .................................. 18, 19, 25Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006) .................................................................. 14, 15Fedorenko v. United States, 449 U.S. 490 (1981) ..................................................................................... 26 iii
  • 5. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 5 of 38Flores v. Quarantillo, 2008 WL 5396599 (S.D.N.Y. Dec. 29, 2008) ............................................ 17Fowlin v. Monica, 221 Fed.Appx. 147, 2007 WL 843850 (3d Cir. 2007) .............................. 16Gorenyuk v. U.S. Dept. of Homeland Sec., 2007 WL 3334340 (N.D. Ill. Nov. 8, 2007) ............................................ 17Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2007) ....................................................................... 21INS v. St. Cyr, 533 U.S. 289 (2001) ............................................................ 11, 21, 22, 23, 26Judulang v. Holder, 2011 WL 6141311 (2011) ................................................................... 13, 14Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ........................................................................ 20, 21, 22Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010) ............................................................... 23, 24Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006) ................................................................. 11, 24Lutica v. Mukasey, 2007 WL 4145275 (S.D.N.Y. Nov. 19, 2007) ............................................ 17Margolis v. Ryan, 140 F.3d 850 (9th Cir. 1998) ......................................................................... 2In re Marin, 16 I. & N. Dec. 581 (BIA 1978) .................................................................. 13Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 1999) ......................................................................... 4 iv
  • 6. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 6 of 38Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993) ........................................................................... 15Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) ...................................................................... 25Padilla v. Kentucky, 130 S. Ct. 1473 (2010) ................................................................................. 25Pannu v. Holder, 639 F.3d 1225 (9th Cir. 2011) ....................................................................... 4Polizzi v. U.S. Dept. Of Homeland Security, 2006 WL 3025686 (W.D ............................................................................. 17Raghani v. USCIS, 2011 WL 4849670 (N.D. Tex. Aug. 25, 2011) ........................................... 17Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir.2002) .................................................................. 3, 12Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003) ....................................................................... 22Rasdan v. Gonzalez, 2008 WL 2740815 (N.D. Ohio, Jul. 10, 2008) ........................................ 17Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007) .................................................................... 9Schneiderman v. United States, 320 U.S. 118 (1943) ..................................................................................... 25Socarras v. U.S. Dept. of Homeland Sec., 672 F. Supp. 2d 1320 (S.D. Fla. 2009) ........................................................ 17 v
  • 7. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 7 of 38United States v. Ginsberg, 243 U.S. 472 (1917) ............................................................................... 25, 26United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) .................................................................... 22Usery v. Turner Elkhorn Minig Co., 428 U.S. 1 (1976) ......................................................................................... 23Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) ..................................................................... 25 FEDERAL STATUTES8 C.F.R. § 316.10(b)(1) ......................................................................................... 108 C.F.R. § 316.2(b) .................................................................................................. 88 U.S.C. § 1101 ........................................................................................................ 38 U.S.C. § 1101(a)(43) .............................................................................. 10, 13, 218 U.S.C. § 1101(a)(43)(A) & (F) ........................................................................... 128 U.S.C. § 1101(f)(8) ........................................................................... 9, 12, 19, 218 U.S.C. § 1182(c) ................................................................................................ 138 U.S.C. § 1421(c) ..................................................................................... 1, 2, 4, 148 U.S.C. § 1427 .................................................................................................... 7, 88 U.S.C. § 1427(a) ................................................................................................... 88 U.S.C. § 1427(a)(3) .............................................................................................. 98 U.S.C. § 1440 ...................................................................................................... 17 vi
  • 8. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 8 of 3828 U.S.C. § 1291 ...................................................................................................... 2IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009, 3009-627 (1996) ........................ 10IIRIRA, Pub. L. No. 104-208, Title III, Subtitle B, § 321(b) ........................ 10, 11IMMAct90, Pub. L. No. 101-649, 104 Stat. 4978 (1990) ................................. 9, 19INA § 212(c) .................................................................................................... 3, 13 STATE STATUTESCal. Penal Code § 220 ..................................................................................... 3, 12Cal. Penal Code § 220(a)(1) .................................................................................. 12Cal. Penal Code § 1203.4 ................................................................................ 3, 12 vii
  • 9. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 9 of 38 NOT DETAINED No. 11-16557 ________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________________________________ ABDUL H. ALOCOZY, Appellant, v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Appellees. ________________________________________________________________ BRIEF FOR APPELLEES ________________________________________________________________ STATEMENT OF JURISDICTION AND STANDARD OF REVIEW Appellant Abdul H. Alocozy (“Alocozy”) seeks judicial review of a decisionout of the Eastern District of California, civil docket number 2:10-cv-1597 JAMKJN, in which Alocozy sought de novo review of United States Citizenship andImmigration Services’ (“USCIS”) denial of his naturalization application pursuantto 8 U.S.C. § 1421(c). The district court granted summary judgment in the 1
  • 10. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 10 of 38government’s favor, denying Alocozy naturalization. Alocozy appeals thisdecision, arguing that the district court erred in finding him permanently barredfrom naturalization because of his commission of an aggravated felony. This Court reviews de novo the district court’s grant of summary judgmentin the 8 U.S.C. § 1421(c) action pursuant to 28 U.S.C. § 1291. Margolis v. Ryan,140 F.3d 850, 852 (9th Cir. 1998). ISSUE PRESENTED1. Whether the district court correctly determined that Alocozy is ineligible for naturalization because his state conviction for Assault with the Intent to Commit Rape constitutes an aggravated felony, such that he cannot establish good moral character, notwithstanding a grant of § 212(c) relief from removal. STATEMENT OF FACTS AND OF THE CASE The facts and procedural history of this case are undisputed, and areaccurately set forth in the Statement of Facts presented in Appellant’s OpeningBrief. Appellant’s Opening Brief at 2-4. 2
  • 11. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 11 of 38 Briefly, Alocozy is a native and citizen of Afghanistan. AdministrativeRecord (“AR”) 737. He entered the United States as a refugee in 1983, andbecame a lawful permanent resident in 1984. AR 787-788. On January 9, 1991,Alocozy pleaded guilty to an aggravated felony: Assault to Commit Rape, inviolation of California Penal Code § 220. AR 67. He was sentenced to a one yearterm of imprisonment, which was stayed and he instead entered a work furloughprogram. AR 67.1 In 1999, Alocozy was placed into deportation proceedings as an alienconvicted of an aggravated felony as defined by 8 U.S.C. § 1101. AR 736.However, Alocozy requested and received a waiver of removal under formerImmigration and Nationality Act (“INA”) § 212(c). AR 20. Removal proceedingswere accordingly terminated.////// 1 On July 8, 1999, Alocozy’s case was dismissed pursuant to California PenalCode § 1203.4. AR 467-469. That expungement does not, however, eliminate theimmigration consequences of the conviction. See Ramirez–Castro v. INS, 287 F.3d1172, 1174 (9th Cir.2002) (state expungement of a criminal conviction generallydoes not remove its immigration consequences). 3
  • 12. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 12 of 38 On October 6, 2004, Alocozy applied for naturalization.2 AR 53. OnSeptember 28, 2005, USCIS denied the application on the grounds that Alocozy’saggravated felony conviction prevented him from establishing the necessary goodmoral character. AR 48-50, 53. Alocozy appealed administratively by filingUSCIS Form N-336. AR 33-37. USCIS affirmed the denial on June 16, 2009. AR2-3. Alocozy brought a petition pursuant to 8 U.S.C. § 1421(c) seeking de novoreview of his naturalization application in district court. Eastern District ofCalifornia docket number 2:10-cv-1597 JAM KJN. Agreeing that the casepresented a singular legal issue, with no dispute as to the underlying facts, theparties filed cross-motions for summary judgment. Docket entries 12, 15. OnApril 27, 2011, the district court granted summary judgment in the government’sfavor and denied Alocozy’s motion for summary judgment. Docket entry 19. The 2 On his naturalization application, Alocozy indicated that he had sufferedtwo additional convictions: failure to register as a sex offender and a driving underthe influence charge. AR 61. These additional convictions are certainly relevantto the good moral character determination, but they are not aggravated felonies,and therefore influence the good moral character determination as discretionaryfactors, not eligibility grounds. See Marmolejo-Campos v. Holder, 558 F.3d 903,915 (9th Cir. 1999) (en banc); Pannu v. Holder, 639 F.3d 1225 (9th Cir. 2011)(failure to register as sex offender). 4
  • 13. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 13 of 38district court rejected the argument that the § 212(c) grant had any bearing onnaturalization proceedings, and instead applied the aggravated felon bar to findAlocozy ineligible for naturalization. Docket entry 19. This appeal followed. SUMMARY OF ARGUMENT This case presents a single issue that is superficially easily resolved. Framedas a § 212(c) issue, the question is whether the fact of Alocozy’s grant of § 212(c)relief in deportation proceedings entitles him to some special consideration in thenaturalization context notwithstanding the statutory bar prohibiting aliensconvicted of aggravated felonies from making the required showing of good moralcharacter. Clearly not. Relief from removal under former § 212(c) does not erasean aggravated felony conviction for all immigration purposes. Rather, it is anarrow form of relief that applies only to the deportation proceedings in which itwas granted. All of the existing caselaw on point agrees. The more challenging articulation of the issue is whether this Court isrequired to inquire further into the retroactive effect of Congress’s reclassificationof Alocozy’s crime, from one that was not an aggravated felony to one that now isan aggravated felony. Alocozy pleaded guilty to his crime with the knowledge that 5
  • 14. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 14 of 38aggravated felons could not make the required showing of good moral character,but without the knowledge that his crime would later be reclassified as anaggravated felony. No additional retroactivity analysis is required. Theaggravated felon bar to good moral character was not retroactively applied toAlocozy – that bar was in place at the time of his plea. This Circuit has alreadyheld that the amended aggravated felony definition was intended to applyretroactively. The substantive immigration consequences (ineligibility fornaturalization) do not flow from the definitional change, but rather from the pre-existing bar on aggravated felons demonstrating good moral character.Accordingly, this Court need not engage in a retroactivity analysis of thedefinitional change. Should the Court find, however, that a retroactivity analysis is required, theexpansion of the aggravated felony definition permissibly barred a broader class ofaliens from the privilege of naturalization. The privilege of naturalization is quitedifferent from relief from deportation in the form of former § 212(c), or any of theother more immediate immigration consequences that relate to a criminalconviction. It is not reasonable to assume that an alien engaged in a plea bargainwould weigh his continued eligibility to naturalize in the same way he would his 6
  • 15. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 15 of 38ability to avoid deportation. The privilege of naturalization is too attenuated fromthe plea bargain to conclude that a retroactive definitional change would upsetsettled expectations. Accordingly, even if this Court were to undertake aretroactivity analysis, the retroactive reclassification of Alocozy’s crime as anaggravated felony is permissible. Against this background, the district court correctly found that Alocozy ispermanently barred from naturalizing because of his commission of an aggravatedfelony. ARGUMENTI. A CONVICTION FOR ASSAULT TO COMMIT RAPE IS AN AGGRAVATED FELONY, WHICH PERMANENTLY BARS ALOCOZY FROM NATURALIZING. A. Statutory Overview of the Relevant Provisions of the INA. 1. Naturalization Under 8 U.S.C. § 1427 “[T]”he government has a strong and legitimate interest in ensuring thatonly qualified persons are granted citizenship.” Berenyi v. Dist. Dir., INS, 385U.S. 630, 637 (1967). Thus, when an alien seeks to naturalize, “it has beenuniversally accepted that the burden is on the alien applicant to show his 7
  • 16. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 16 of 38eligibility for citizenship in every respect.” Id. As the Supreme Court hasexplained, this is because: [w]hen the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by “clear, unequivocal, and convincing evidence.” But when an alien seeks to obtain the privileges and benefits of citizenship, the shoe is on the other foot. He is the moving party, affirmatively asking the Government to endow him with all the advantages of citizenship. Because that status, once granted, cannot lightly be taken away, the Government has a strong and legitimate interest in ensuring that only qualified persons are granted citizenship.Id. at 636-37. An alien generally meets this burden if he or she shows, by apreponderance of the evidence, that she is eligible to become a United Statescitizen. 8 C.F.R. § 316.2(b). Any doubts regarding an alien’s eligibility forcitizenship “should be resolved in favor of the United States and against theclaimant.” Berenyi, 385 U.S. at 637 (quotation omitted). The statutory requirement for naturalization are set forth in 8 U.S.C. § 1427.This case hinges on the 8 U.S.C. § 1427(a) statutory requirement of good moralcharacter: “[n]o person . . . shall be naturalized unless such applicant . . . (3)during all periods referred to in this subsection [the five years preceding the 8
  • 17. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 17 of 38filing of the application for naturalization] has been and still is a person of goodmoral character. . . .” 8 U.S.C. § 1427(a)(3). The statute bars a finding of good moral character for aliens convicted of anaggravated felony: “No person shall be regarded as, or found to be, a person ofgood moral character who, during the period for which good moral character isrequired to be established, is, or was . . . (8) one who at any time has beenconvicted of an aggravated felony (as defined in subsection (a)(43) of thissection.” 8 U.S.C. § 1101(f)(8). 2. IMMAct 1990 In 1990, just prior to Alocozy’s conviction, Congress overhauleddeportation law by passing the Immigration Act of 1990 (“IMMAct90"), Pub.L.No. 101-649, 104 Stat. 4978 (1990). The IMMAct90 introduced the aggravatedfelon bar to naturalization. Under 8 U.S.C. §1101(f)(8), a person who at any timehas been convicted of an aggravated felony, cannot establish good moral characterfor naturalization. This limitation applies only to aggravated felonies entered onor after November 29, 1990, as the IMMAct90 is not a retroactive statute. SeePub.L. No. 101-649, 104 Stat. 4978 (1990); cf. Saravia-Paguada v. Gonzales, 488F.3d 1122 (9th Cir. 2007). 9
  • 18. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 18 of 38 The IMMAct90 bar is also reflected in the applicable regulations. 8 C.F.R.§ 316.10(b)(1) sets forth the aggravated felony bar to good moral characterdeterminations for convictions occurring on or after November 29, 1990. 3. IIRIRA. Six years later, Congress again reformed immigration law with the IllegalImmigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No.104-208, 110 Stat. 3009, 3009-627 (1996). The IIRIRA broadly expanded thedefinition of “aggravated felony”–significantly in this case to include a “crime ofviolence.” 8 U.S.C. §1101(a)(43). The IIRIRA definitional changes apply retroactively for convictions enteredbefore September 30, 1996. IIRIRA § 321(b); 8 C.F.R. § 316.10(b)(1).Specifically, IIRIRA amended the effective date of the aggravated felonydefinition by adding the following language to the end of Section 1001(a)(43):“[n]otwithstanding any other provision of law (including any effective date), theterm applies regardless of whether the conviction was entered before, on, or afterthe date of enactment of this paragraph.” Pub. L. 104-208, Title III, Subtitle B, §321(b). IIRIRA further provided in its effective date provisions that “theamendments made . . . shall apply to actions taken on or after the date of the 10
  • 19. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 19 of 38enactment of [IIRIRA], regardless of when the conviction occurred.” Pub.L. 104-208, Title III, Subtitle B, § 321(c). In INS v. St. Cyr, in holding that Congress did not clearly intend for adifferent section of the IIRIRA to apply retroactively, the Supreme Courtcontrasted this section with § 321(b), which the Court found unambiguouslyapplied retroactively. INS v. St. Cyr, 533 U.S. 289 (2001). In Aragon-Ayon v.INS, 206 F.3d 849 (9th Cir. 2000), this Court agreed: IIRIRA’s languageexpressed clear congressional intent that the amended definition in IIRIRA beapplied retroactively. In that case, the retroactive application resulted in the alienbeing rendered deportable, when he was not at the time of conviction. 206 F.3d at852-53. See also Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.2006) (“it is settled law that the . . . definitional statute, IIRIRA § 321, whichdefines certain crimes as aggravated felonies, applies regardless of the date of thecrime.”).///////// 11
  • 20. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 20 of 38 4. Application to Alocozy. Alocozy pleaded guilty on January 9, 1991, to Assault to Commit Rape inviolation of Cal. Penal Code §220.3 AR 67. On February 20, 1991, the SuperiorCourt of California, County of Alameda, sentenced him to one year ofimprisonment and three years probation.4 A.R. 67. Alocozy’s convictionconstitutes an aggravated felony and permanently bars him from establishing goodmoral character for naturalization. 8 U.S.C. §1101(f)(8). The statutory definitionof an aggravated felony includes “. . . rape . . .” and “a crime of violence . . .” 8U.S.C. §1101(a)(43)(A) & (F). There is no dispute in this case that Assault to Commit Rape in violation ofCal. Penal Code §220 is now an aggravated felony. District Court docket entry12, p.4 at ¶ 3; Appellant’s Opening Brief at 8. This became so in 1996 when 3 Cal. Penal Code § 220(a)(1) indicates “any person who assaults anotherwith intent to commit mayhem, rape, sodomy, oral copulation . . . shall be punishedby imprisonment in the state prison for two, four, or six years.” 4 Execution of the sentence was stayed and Alocozy was referred into thework furlough program. AR 67. He successfully completed this program, and onJuly 8, 1999, Alocozy’s case was dismissed pursuant to California Penal Code §1203.4. AR 467-469. Again, however, that expungement does not eliminate theimmigration consequences of the conviction, and has no relevance to the issuespresented in this appeal. See Ramirez–Castro, 287 F.3d at 1174. 12
  • 21. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 21 of 38Congress added “a crime of violence” to the list of aggravated felonies in 8 U.S.C.§1101(a)(43). Alocozy’s guilty plea and conviction occurred after November 29, 1990,and this triggered the IMMAct 90 provision permanently barring him fromestablishing good moral character for naturalization. See Alvarez-Barajas v.Gonzales, 418 F.3d 1050 (9th Cir. 2005). Accordingly, Alocozy’s conviction forthe aggravated felony of Assault to Commit Rape permanently bars him fromestablishing good moral character for naturalization. B. Irrelevance of Grant of Section 212(c) Relief. Alocozy argues that the above statutory scheme notwithstanding, the factthat he was granted relief under former INA § 212(c) should excuse him from theaggravated felon bar to naturalization. Former § 212(c) was a form of relief fromdeportation given to criminal aliens who could demonstrate that social andhumane considerations outweighed their undesirability as lawful permanentresidents. 8 U.S.C. § 1182(c) (repealed 1996). In re Marin, 16 I. & N. Dec. 581,584 (BIA 1978). Section 212(c) was repealed by the IIRIRA and replaced with anew section that gives the Attorney General the authority to cancel removal for anarrow class of inadmissible or deportable aliens. See Judulang v. Holder, 13
  • 22. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 22 of 38___ S. Ct. __, 2011WL6141311 at *2-4 (2011) (providing a history of § 212(c)relief). “[S]ection 212(c) merely provides that an alien may be admitted to or, inthe case of deportation proceedings, allowed to remain in the United States despitea finding of excludability or deportability. Thus, when section 212(c) relief isgranted, the Attorney General does not issue a pardon or expungement of theconviction itself.” Matter of Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991). Alocozy benefitted from a grant of section 212(c) relief, and his deportationproceedings were terminated as a result. But there is no authority for theproposition advanced by Alocozy: that the shield of § 212(c) relief in deportationproceedings can be used as a sword in naturalization proceedings to precludesUSCIS from considering the underlying conviction. There is only authority to thecontrary. The Second Circuit decision in Chan v. Gantner, 464 F.3d 289 (2d Cir.2006), is directly on point. The Second Circuit reviewed a denied naturalizationapplication under the same jurisdictional statute applicable in this case, 8 U.S.C. §1421(c). The Second Circuit held that the district court in that case correctlydenied naturalization to a criminal alien who had also argued that his section212(c) waiver precluded the finding of a lack of good moral character based uponthe conviction: “We agree with the District Court that no authority supports the 14
  • 23. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 23 of 38proposition that the government is foreclosed by a waiver of deportation fromconsidering a conviction when determining the unrelated question of fitness fornaturalization.” 464 F.3d at 294. In reaching its conclusion in Chan, the Second Circuit cites a Ninth Circuitcase, Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993). The Ninth Circuitconsidered a similar issue: whether deportability under the two-crimes-involving-moral-turpitude statute may be based in part on a crime for which a previous §212(c) waiver had been granted. 6 F.3d at 646. The Ninth Circuit concluded thata section 212(c) waiver does not preclude reliance on the underlying crime inmaking a subsequent deportability determination: “A waiver of deportation givesthe alien a chance to stay in the United States despite his misdeed, but it does notexpunge the conviction. The blemish remains on his record, to be considered ifand when the alien again gives the Attorney General cause to examine hisdeportability.” 6 F.3d at 647. The reverse proposition must also be true. The underlying crime must beavailable for consideration by the immigration services in assessing eligibility foran immigration benefit other than the initial section 212(c) waiver. The Courtconfirmed as much in Becker v. Gonzales, 473 F.3d 1000, 1003 (9th Cir. 2007). 15
  • 24. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 24 of 38In Becker, an alien sought to apply for cancellation of removal based on a morerecent criminal conviction. The alien had also suffered an older conviction; thealien argued that through retroactivity analysis, he should be eligible to apply for§ 212(c) relief for the old crime, absolving any bars to his current cancellationapplication. The Court disagreed. Even with a successful § 212(c) waiver, theCourt held that the old crime would be treated as a disqualifying aggravatedfelony. 473 F.3d at 1003-04. The Court quoted the BIA: “‘the grant of section212(c) relief merely waives the finding of deportability rather than the basis of thedeportability itself. Therefore, the crimes alleged to be grounds for deportabilitydo not disappear from the alien’s record for immigration purposes.’” Id., quotingMatter of Balderas, 20 I&N Dec. 389, 391 (BIA 1991). The government is aware of no case to the contrary. See Fowlin v. Monica,221 Fed.Appx. 147, 2007 WL 843850 (3d Cir., Mar. 21, 2007) (unpublished)(citing Molina-Amezcua and rejecting an argument that a § 212(c) grant should beconsidered evidence of good moral character in the naturalization context: “Thefact that [appellant] received the [§ 212(c)] waiver of deportation following hisdrug trafficking conviction in no way attenuates the nature or seriousness of thatcrime. It does not pardon or expunge the conviction.”); Boatswain v. Gonzales, 16
  • 25. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 25 of 38414 F.3d 413 (2d Cir. 2005) (addressing the same question in the context of 8U.S.C. § 1440, the veterans’ naturalization statute); Raghani v. USCIS, 2011 WL4849670 (N.D. Tex. Aug. 25, 2011) (rejecting an argument that because an alienwas granted § 212(c) relief, his crime could not be considered an aggravatedfelony, nor detract from his good moral character in naturalization proceedings);Polizzi v. U.S. Dept. Of Homeland Security, 2006 WL 3025686 (W.D. Wash.June 8, 2006) (“When an applicant who has been convicted of an aggravatedfelony wants to become a naturalized citizen of the United States, there is only onepossible way to clear the path for achieving that goal: to seek a ‘full andunconditional executive pardon.’”); Socarras v. U.S. Dept. of Homeland Sec., 672F. Supp. 2d 1320, 1325 (S.D. Fla. 2009) (underlying conviction appropriatelyconsidered in evaluating good moral character, notwithstanding section 212(c)waiver); Gorenyuk v. U.S. Dept. of Homeland Sec., 07 C 1190, 2007 WL 3334340(N.D. Ill. Nov. 8, 2007) (same); Bucknor v. Attorney Gen. of U.S., 243 Fed.Appx.712, 714 (3d Cir. 2007) (same); Rasdan v. Gonzalez, 5:07 CV 1873, 2008 WL2740815 (N.D. Ohio July 10, 2008) (same); Lutica v. Mukasey, 2007 WL4145275 (S.D.N.Y. Nov. 19, 2007) (same); Flores v. Quarantillo, 2008 WL 17
  • 26. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 26 of 385396599 (S.D.N.Y. Dec. 29, 2008) (same); Bugari v. Napolitano, 2011 WL2610173 (N.D. Cal. July 1, 2011) (same). The apparently unanimous consensus of courts to have considered the issueis that a grant of § 212(c) relief is irrelevant to the calculus of good moralcharacter in the naturalization context. The district court therefore correctlydisregarded Alocozy’s successful obtainment of a § 212(c) grant in its assessmentof his eligibility for naturalization. C. The Aggravated Felon Bar Is Not Being Applied Retroactively to Alocozy. Alocozy suggests that his case is more complicated than the above; that theretroactive reclassification of his crime as an aggravated felony upset his settledexpectation of eligibility for naturalization at the time he pleaded guilty.Appellant’s Brief at 9-10. The idea that the Alocozy’s quid pro quo with thegovernment was disrupted with an unanticipated, retroactive change in the lawmay give pause. But the argument is ultimately unpersuasive. No retroactivityanalysis is needed because the aggravated felon bar to naturalization was alreadyin place at the time Alocozy pleaded guilty. 18
  • 27. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 27 of 38 It is undisputed that the IMMAct90 aggravated felon bar to naturalizationwas in place at the time Alocozy pleaded guilty, and would have applied to himthen if his crime had at the time been an aggravated felony. IMMAct90; 8 U.S.C.§1101(f)(8). In Alvarez-Barajas, this Court considered the case of an alien who(a) pleaded guilty at a time when his crime was not an aggravated felony and not adeportable offense; and (b) the law at the time of his plea already barredaggravated felons from obtaining § 212(c) relief. 418 F.3d at 1050. The Alvarez-Barajas Court found these facts critical, and confirmed that there was noimpermissible retroactive effect in the alien’s § 212(c) ineligibility. Because perAragon-Ayon, the expanded aggravated felony definition could be applied toAlvarez-Barajas, and because aggravated felons were already barred from 212(c)relief, the Court found no concerns with barring Alvarez-Barajas from 212(c)eligibility. 418 F.3d at 1054. The holding in Alvarez-Barajas should apply equally to Alocozy. Thesubstantive bar to his naturalization originates in the IMMAct90 aggravated felonbar. It is only the definitional change which is being applied unforeseen. Thisdefinitional change has already been held to be permissibly retroactive.Therefore, no further analysis is needed. See also Bugari, 2011 WL 2610173 at 19
  • 28. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 28 of 38*9 (in an identically-postured case, holding that no retroactivity analysis wasnecessary because the aggravated felony bar to naturalization was not appliedretroactively). D. Alternatively, Even Under a Retroactivity Analysis, the Aggravated Felon Bar Is Permissibly Applied to Alocozy. Even if this Court rejects the government’s contention that the baroriginates in the preexisting IMMAct90 statute, the Court should find that theIIRIRA definitional change is permissibly retroactive. Alocozy would have toargue that he would not have entered a guilty plea had he known the convictionwould eventually render him ineligible for naturalization. Because naturalizationis categorically treated as a privilege, rather than a right, however, this argumentlacks force. Congress may exert its plenary power to tinker with the requirementsfor naturalization and may do so retroactively without upsetting any settledexpectations of one entering a plea bargain. Landgraf establishes a two-part framework for inquiry into whether astatute should be applied retroactively. Landgraf v. USI Film Prods., 511 U.S.244 (1994). Congress must make its intentions clear if the Court is to giveretroactive effect to a statute that burdens private rights of individuals. Landgraf, 20
  • 29. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 29 of 38511 U.S. at 270. If there is no clear intent, a statute cannot be appliedretroactively if it “takes away or impairs vested rights acquired under existinglaws, or creates a new obligation, imposes a new duty, or attaches a newobligation, in respect to transactions or considerations already past.” Id. at 269. In St. Cyr, the Supreme Court applied Landgraf to assess the retroactivity ofthe IIRIRA repeal of section 212(c) relief. St. Cyr, 533 U.S. at 289. By way ofcontrast the St. Cyr Court noted that the aggravated felony definition is“unambiguously” retroactive. St. Cyr, 503 U.S. at 318-19. Furthermore, because8 U.S.C. § 1101(f)(8) incorporates 8 U.S.C. § 1101(a)(43) by reference, it is clearthat Congress intended that the aggravated felony definitions apply retroactivelyto bar persons convicted of those crimes from establishing the good moralcharacter necessary for naturalization. This case is therefore indisputably Langraf step one – Congress clearlyintended for the expanded aggravated felony definition to apply retroactively. Cf.Hernandez de Anderson v. Gonzales, 497 F.3d 927, 935 (9th Cir. 2007)(evaluating the retroactive effect of repeal of suspension of deportation for analien who sought naturalization before the IIRIRA effective date under Landgrafstep two). “[S]tatutes may and should be retroactively applied when the statute at 21
  • 30. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 30 of 38issue clearly indicates that it is intended to be retroactive.” Landgraf, 511 U.S. at280. Under Landgraf step one, the Court must presume that “Congress itself hasaffirmatively considered the potential unfairness of retroactive application anddetermined that it is an acceptable price to pay for the countervailing benefits.”St. Cyr, 533 U.S. at 320; see also United States v. Hovsepian, 359 F.3d 1144,1156-57 (9th Cir. 2004) (en banc) (applying Landgraf step one retroactivityanalysis to deportation statute). “‘A statute does not operate “retrospectivelymerely because it is applied in a case arising from conduct antedating the statute’senactment, or upsets expectations based in prior law.’” Rankine v. Reno, 319 F.3d93, 98 (2d Cir. 2003) (quoting Landgraf, 511 U.S. at 269). “Rather, the inquirydemands a commonsense, functional judgment about whether the new provisionattaches new legal consequences to events completed before its enactment.” Id.Whether a particular statute acts retroactively is informed by the criteria of “fairnotice, reasonable reliance, and settled expectations.” St. Cyr, 533 U.S. at 321.“[L]egislation readjusting rights and burdens is not unlawful solely because itupsets otherwise settled expectations. . . . This is true even though the effect ofthe legislation is to impose a new duty or liability based on past acts.” Usery v. 22
  • 31. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 31 of 38Turner Elkhorn Minig Co., 428 U.S. 1, 16 (1976). Accordingly, the Court looksfor some indication of a quid pro quo, or reasoned exchange, wherein theindividual whose settled expectations were in question relied on a potential benefitin structuring his conduct. Boatswain, 414 F.3d at 419. The Ninth Circuit caselaw places heavy emphasis on the “substantiveimmigration consequences” of the potentially retroactive statute. In Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), the Court took up the questionof the effect of the IMMAct90 and IIRIRA reforms on a conviction that predatedboth statutes. The Court held that because of a previous statute’s temporallimitation specifically exempting earlier criminal aliens from deportability, theIIRIRA could not be read as retroactively erasing that temporal limitation: “boththe Supreme Court [in St. Cyr] and the immigration agencies have consistentlydetermined the temporal reach of those consequences of aggravated felonyconvictions separately from the temporal reach of the aggravated felonydefinition, even in the wake of IIRIRA.” 636 F.3d at 1079-90 (emphasis inoriginal). 23
  • 32. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 32 of 38 In Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir. 2006), theCourt also relied on “substantive immigration consequence” analysis to find thatthe opportunity to apply for discretionary relief must remain availablenotwtithstanding the alien’s seeming ineligibility to apply for such relief underIIRIRA. The Lopez-Castellanos court held “it is settled law that the . . .definitional statute, IIRIRA § 321, which defines certain crimes as aggravatedfelonies, applies regardless of the date of the crime.” 437 F.3d at 852. But theCourt went on to hold that the IIRIRA effective date provisions do not control“the substantive immigration consequences of IIRIRA.” Id. Because there wasno clear congressional intent for this “substantive immigration consequence” tohave retroactive effect, the Court found that the alien in that case should beeligible to apply for the discretionary relief he sought. 437 F.3d at 852. But seeBecker, 473 F.3d at 1003-04 (declining to extend Lopez-Castellano beyond thecontext of an alien seeking a § 212(c) waiver to avoid deportation resulting fromthe original conviction). Lopes-Castellanos and Ledezma-Galicia are distinguishable cases in thatboth involve the question of whether the amended provisions of IIRIRAgoverning eligibility for discretionary relief should be applied retroactively. The 24
  • 33. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 33 of 38Court’s analysis of congressional intent and retroactive application areinapplicable here, where the sole question is the retroactive application of theexpanded aggravated felony definition. See Bugari, 2011 WL 2610173 at *9. Moreover, there is simply no support for an argument that an alien enteringa guilty plea has a settled expectation in his continued eligibility fornaturalization. This Court has held: “[t]he loss of an opportunity to becomeeligible for discretionary relief does not rise to the level of impairing a rightpossessed by a party.” Becker, 473 F.3d at 1004 (quoting Valencia-Alvarez v.Gonzales, 469 F.3d 1319, 1328-29 (9th Cir. 2006). This is by contrast to the“particularly severe penalty” of deportation. Cf. Padilla v. Kentucky, 130 S. Ct.1473, 1481 (2010); Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (enbanc) (“It would be manifestly unfair effectively to hoodwink aliens into waivingtheir constitutional rights on the promise of no legal consequences and, then, tohold retroactively that their convictions actually carried with them the‘particularly severe penalty’ of removal.”) (citing Padilla, 130 S. Ct. at 1481). Naturalization is a privilege, not a right. See Schneiderman v. UnitedStates, 320 U.S. 118, 131 (1943). Unless strict statutory requirements are met,“[n]o alien has the slightest right to naturalization.” United States v. Ginsberg, 25
  • 34. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 34 of 38243 U.S. 472, 475 (1917); Fedorenko v. United States, 449 U.S. 490, 506 (1981).Naturalization is not just any immigration benefit; it is the ultimate. That Alocozymay once have been, but is not now, eligible to naturalize, is of no constitutionalconsequence. No due process rights are upset when Congress “consider[s] thepotential unfairness of retroactive application and determine[s] that it is anacceptable price to pay for the countervailing benefits.” St. Cyr, 533 U.S. at 320.Alocozy had no settled expectation in his potential naturalization, andaccordingly, there are no retroactivity concerns with the application of theaggravated felony bar to his case.///////// 26
  • 35. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 35 of 38 CONCLUSION For the foregoing reasons, the Court should affirm the decision of theDistrict Court and deny the appeal. In the alternative, the Court should remandthe matter to district court for further proceedings to determine Alocozy’ssuitability for naturalization. Respectfully submitted, BENJAMIN B. WAGNER United States Attorney /s/ Audrey B. Hemesath Audrey B. Hemesath Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2729 TONY WEST United States Department of Justice Assistant Attorney General ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation District Court Section ARAM A. GAVOOR Trial Attorney, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 305-8014Dated: December 15, 2011 ATTORNEYS FOR APPELLEES 27
  • 36. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 36 of 38 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, counsel for the Appellees states thatbased on a survey of the attorneys in this office, there are no cases involving thesame factual and/or legal issues as the instant case. /s/ Audrey B. Hemesath AUDREY B. HEMESATH 28
  • 37. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 37 of 38 CERTIFICATION OF COMPLIANCE Pursuant to Ninth Circuit Rule 32, counsel for the Appellees certifies thatthe answering brief is proportionally spaced, has a typeface of 14 points or moreand contains 5,088 words. /s/ Audrey B. Hemesath AUDREY B. HEMESATH 29
  • 38. Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 38 of 38 CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that on December 15, 2011, I electronically filed theforegoing with the Clerk of the Court for the United States Court of Appeals forthe Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users andthat service will be accomplished by the appellate CM/ECF system. /s/ Audrey B. Hemesath AUDREY B. HEMESATH