Alocozy v. USCIS, combined Dist Crt and 9th Cir. fails GMC for Natz
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITABDUL H. ALOCOZY , No. 11-16557 Petitioner-Appellant, D.C. No. v. 2:10-cv-01597- JAM-KJNUNITED STATES CITIZENSHIP ANDIMMIGRATION SERVICES;ALEJANDRO MAYORKAS, Director, OPINIONUnited States Citizenship &Immigration Services; MICHAEL C.BIGGS, Field Director of UnitedStates Citizenship & ImmigrationServices; JANET A. NAPOLITANO ,Secretary of the Department ofHomeland Security, Respondents-Appellees. Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted December 6, 2012—San Francisco, California Filed December 28, 2012
2 ALOCOZY V . USCIS Before: Stephen S. Trott and Johnnie B. Rawlinson, Circuit Judges, and Frederic Block, District Judge.* Opinion by Judge Trott * The Honorable Frederic Block, Senior United States District Judge forthe Eastern District of New York, sitting by designation.
ALOCOZY V . USCIS 3 SUMMARY** Immigration The panel affirmed the district court’s summary judgmentin favor of the United States Citizenship and ImmigrationServices, in Abdul H. Alocozy’s action challenging theUSCIS’ determination finding him ineligible fornaturalization due to his felony conviction for assault withintent to commit rape. The panel held that the government’s prior grant of INA§ 212(c) relief to Alocozy did not constitute a waiver by thegovernment of 8 U.S.C. § 1101(f)(8)s permanent bar tonaturalization. The panel also held that IIRIRA’s addition of“crime of violence” offenses to the list of aggravated feloniesthat bar naturalization was not an improper retroactiveapplication of the statute. COUNSELStephen Shaiken, San Francisco, California, for Petitioner-Appellant.Audrey B. Hemesath, Department of Justice, Sacramento,California, for Respondents-Appellees. ** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.
4 ALOCOZY V . USCIS OPINIONTROTT, Circuit Judge: Abdul H. Alocozy appeals a decision by the district courtdenying his petition for review of a determination by theUnited States Citizenship and Immigration Services(“USCIS”) that his felony conviction of assault with intent tocommit rape renders him ineligible to become naturalized asa United States citizen. We have jurisdiction pursuant to28 U.S.C. § 1291, and we affirm. I The facts and circumstances surrounding this case arelargely undisputed. Alocozy, a native and citizen ofAfghanistan, came to the United States in 1983. On October15, 1984, his status was adjusted pursuant to section 209(a)of the Immigration and Naturalization Act (“INA”) to “lawfulpermanent resident.” On October 3, 1990, he was charged inAlameda County, California with rape, in violation ofCalifornia Penal Code section 261. He subsequently pleadednolo contendere on January 9, 1991 to felonious assault withthe intent to commit rape, in violation of California PenalCode section 220, as a stipulated related offense to the crimeoriginally charged. In 1999, the Immigration and Naturalization Service(“INS”) initiated removal proceedings against Alocozy onaccount of his conviction of an aggravated felony as definedin section 101(a)(43) of the INA. On May 27, 2004, animmigration judge (“IJ”) granted his application for adiscretionary waiver of deportation under former INA section
ALOCOZY V . USCIS 5212(c), and removal proceedings against him wereterminated. Five months later, on October 6, 2004, he applied to theUSCIS for naturalization as a United States citizen. OnSeptember 28, 2005, the USCIS’s District Director deniedAlocozy’s application on the ground that his conviction onJanuary 9, 1991 of an aggravated felony automaticallyprevented him from establishing the good moral characterrequired by law to support his application, thus barring himfrom naturalization. Alocozy’s administrative appeal of the District Director’sdecision was unsuccessful, and he then filed a petition for denovo review in the district court pursuant to the INA.8 U.S.C. § 1421(c). On cross-motions for summaryjudgment, the court granted judgment to the USCIS. Based upon the litigants’ agreement that Alocozy wasconvicted on January 9, 1991 of an aggravated felony,8 U.S.C. § 1101(a)(43), the district court held as follows: 1) In 1996, Congress added “a crime of violence” to thelist of aggravated felonies in 8 U.S.C. § 1101(a)(43) as partof the Illegal Immigration Reform and ImmigrantResponsibility Act (“IIRIRA”). 2) In section 321(b) of IIRIRA, Congress intended thisaddition to apply retroactively to the aggravated felony bar tonaturalization established by the Immigration Act of 1990(“IMMACT 90”).1 1 See also 8 C.F.R. § 316.10(b)(1).
6 ALOCOZY V . USCIS 3) Because IMMACT 90 is not retroactive, the goodmoral character bar “applies only to aggravated felonies [suchas Alocozy’s] entered on or after November 29, 1990,” theeffective date of IMMACT 90. 4) Because Alocozy’s aggravated felony convictionpostdates November 29, 1990, it “permanently bar[s] himfrom establishing good moral character for naturalization.” II Alocozy does not dispute the first three of theseconclusions. However, he asserts nevertheless that the grantto him of former INA section 212(c) relief from deportation(now removal) constituted a waiver by the Government of8 U.S.C. § 1101(f)(8)’s permanent bar to naturalization. Hebolsters this contention with the argument that because thecrime of which he was convicted was not an “aggravatedfelony” in 1991 at the time of his plea, INS v. St. Cyr,533 U.S. 289 (2001) precludes the application to him “of anadverse immigration consequence not foreseeable” at the timehe entered his plea. Thus, he contends, even though “thedefinition of aggravated felony is applied retroactively, thecreation of a new immigration consequence is barred by St.Cyr.” Relying in part on the Second Circuit’s opinion in Chanv. Gantner, 464 F.3d 289, 294 (2d Cir. 2006) (per curiam),the district court dismissed these arguments, noting thatsection 212(c)’s shield in the context of deportation/removaldoes not permit him to use it “as a sword in the naturalizationcontext to bar the Government’s reliance on his aggravatedfelony conviction in denying him the wholly separateimmigration benefit of naturalization.” The district court also
ALOCOZY V . USCIS 7held that Alocozy “could not have had a settled expectationat the time of his conviction that a potential discretionarygrant of 212(c) relief would also render him eligible tonaturalize, and thus INS v. St. Cyr does not require that theformer Section 212(c) waiver be honored in thenaturalization context.” (internal citation omitted). III Alocozy’s waiver argument is easily answered. “Waiver”is the intentional relinquishment of a known right. UnitedStates v. Olano, 507 U.S. 725, 733 (1993). There is nothingin this record even remotely suggesting that when aremovable alien is granted discretionary relief in the form ofa waiver of deportation, the Government waives anyobjection based on the ground for which he was removable tohis naturalization as a citizen. “Indeed, a finding of ‘goodmoral character,’ was not a statutory prerequisite ornecessarily a consideration for relief under section 212(c).”Chan, 464 F.3d at 295. Legally, Alocozy offers no precedentor principle supporting his claim of waiver, nor do we seehow there could be any. In this respect, we agree with theSecond Circuit: “[N]o authority supports the proposition thatthe government is foreclosed by a waiver of deportation fromconsidering a conviction when determining the unrelatedquestion of fitness for naturalization.” Id. at 294. Moreover,we have held, as recognized by Chan, “that a waiver undersection 212(c) does not preclude the INS or the courts fromrelying on the underlying offense to bar other forms ofimmigration relief or benefits.” Id. at 295; Molina-Amezcuav. INS, 6 F.3d 646, 647 (9th Cir. 1993) (per curiam) (aconviction for a crime of moral turpitude can be used as aground for deportation even though the INS had previouslywaived its right to deport based in part on that conviction).
8 ALOCOZY V . USCIS IV St. Cyr also is unhelpful to Alocozy. The issue there waswhether in 1997 section 304(b) of IIRIRA, which repealedsection 212(c), retroactively extinguished an alien’s eligibilityfor discretionary section 212(c) relief when at the time of hisprevious conviction before that date he would have beeneligible for such consideration. 533 U.S. at 292–93. In tackling this question, the Court first indicated that “itis beyond dispute that, within constitutional limits, Congresshas the power to enact laws with retrospective effect.” Id. at316. The Court qualified this statement, saying, “A statutemay not be applied retroactively, however, absent a clearindication from Congress that it intended such a result.” Id.The Court noted that the “standard for finding suchunambiguous direction is a demanding one,” and that it canonly be satisfied by statutory language “‘so clear that it couldsustain only one interpretation.’” Id. at 316–17 (quotingLindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). The Courtthen used this demanding test to determine that Congress did“not communicate with unmistakable clarity” an intentionretroactively to repeal § 212(c). Id. at 318. Most notably for our case, the Court in St. Cyr chose forcomparative and illustrative purposes to highlight othersections of IIRIRA, sections 321(b) and (c), where Congressdid adequately and unmistakably express its intentretroactively to apply the provisions of those sections. Another reason for declining to accept the INS’ invitation to read § 309(c)(1) as dictating the temporal reach of IIRIRA § 304(b) is provided by Congress’ willingness, in other
ALOCOZY V . USCIS 9 s ect i ons of IIRIRA, to indicat e unambiguously its intention to apply specific provisions retroactively. IIRIRA’s amendment of the definition of “aggravated felony,” for example, clearly states that it applies with respect to “convictions entered before, on, or after” the statute’s enactment date. § 321(b). As the Court of Appeals noted, the fact that Congress made some provisions of IIRIRA expressly applicable to prior convictions, but did not do so in regard to § 304(b), is an indication that Congress did not definitively decide the issue of § 304’s retroactive application to pre-enactment convictions. The “saving provision” is therefore no more significant than the specification of an effective date.Id. at 318–20 (internal quotation marks, citation, alterations,and footnote omitted). The Court’s analysis forecloses anyargument that section 321(b) is not retroactive. Moreover, the Court in St. Cyr relied in large measure onwhat it considered to be an alien in St. Cyr’s situation’s“settled expectations,” i.e., that a plea of guilty to a felonywould not make him ineligible for section 212(c) relief fromdeportation. Id. at 321, 323. Even if we were to concludethat section 321(b) is not retroactive, which we do not, we areconvinced that a person in Alocozy’s situation could not havehad any “settled” or even reasonable belief or expectation thata plea to a serious felony would not impair any future attemptto pursue naturalization as a United States citizen. Whereasthe Court found considerable authoritative support in St. Cyrfor the reasonableness of St. Cyr’s expectations, id. at 322
10 ALOCOZY V . USCIS(citing inter alia Magana-Pizano v. INS, 200 F.3d 603, 612(9th Cir. 1999)), Alocozy offers nothing similar. The requirements of becoming a naturalized citizen andthe grounds for avoiding deportation as a felon are asdifferent as chalk is from cheese. To quote the SupremeCourt, When 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.Berenyi v. Dist. Dir., INS, 385 U.S. 630, 636–37 (1967)(internal quotation marks and footnotes omitted). Any doubtsregarding an alien’s eligibility for citizenship are “resolved infavor of the United States and against the claimant.” Id. at637 (internal quotation marks omitted). Also, unlike the grounds for section 212(c) relief fromdeportation, 8 U.S.C. § 1427(a)’s statutory provisions doinclude a requirement of demonstration by the applicant thathe “has been and still is a person of good moral character.”
ALOCOZY V . USCIS 118 U.S.C. § 1427(a)(3). No one convicted by a plea of guiltyto a felony involving assault with the intent to commit rapeand thereby becoming a registered sex offender in his state ofresidence could reasonably believe that his moral characterwould not be seriously impaired. CONCLUSION The district court’s grant of summary judgment to theUSCIS as a matter of law was justified. Contrary toAlocozy’s claims, he has not been deprived of due process oflaw or been the victim of the improper retroactive applicationof a statute. Although he is barred from naturalization as acitizen, his status as a legal permanent resident remains in fullforce. AFFIRMED.He was granted 212(c) relief ONLY in relation to theRemoval Proceedings. Naturalization Proceedingsare separate and distinct with a different burden andstandard of proof.
Case 2:10-cv-01597-JAM-KJN Document 19 Filed 04/27/11 Page 1 of 4 This case is on appeal to the 9th Circuit with oral 1 TONY WEST United States Department of Justice argument scheduled for Dec. 9, 2012. 2 Assistant Attorney General The parties briefs are posted separately. ELIZABETH J. STEVENS 3 Assistant Director Office of Immigration Litigation, District Court Section 4 ARAM A. GAVOOR Trial Attorney, District Court Section 5 P.O. Box 868, Ben Franklin Station Washington, DC 20044 6 Tel: (202) 305-8014 7 AUDREY B. HEMESATH Assistant United States Attorney 8 501 I Street, Suite 10-100 Sacramento, California 95814 9 Tel: (916) 554-272910 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA1112 ABDUL H. ALOCOZY, ) ) 2:10-cv-1597-JAM-KJN13 Petitioner/Plaintiff, ) )14 v. ) )15 UNITED STATES CITIZENSHIP & ) IMMIGRATION SERVICES; ) ORDER GRANTING RESPONDENTS16 ALEJANDRO MAYORKAS, Director, ) SUMMARY JUDGMENT United States Citizenship and )17 Immigration Services; MICHAEL C. ) BIGGS, Field Office Director, United )18 States Citizenship and Immigration ) The Honorable John A. Mendez Services; JANET NAPOLITANO, )19 Secretary, Department of Homeland ) Security, )20 ) Respondents/Defendants. )2122 The Parties appeared before the Court on April 20, 2011 for oral argument on cross-motions23 for summary judgment in an 8 U.S.C. § 1421(c) de novo challenge to determine whether Petitioner24 is eligible for naturalization. However, the motions before the Court are on the threshold question25 of whether Petitioner is permanently barred from naturalizing because of his commission of an26 aggravated felony. Having read the papers and heard oral argument in support of, and in opposition27 to the respective motions, the Court finds that Petitioner Abdul H. Alocozy cannot establish good28 moral character because his state conviction for Assault with the Intent to Commit Rape constitutes
Case 2:10-cv-01597-JAM-KJN Document 19 Filed 04/27/11 Page 2 of 4 1 an Aggravated Felony under the Immigration and Nationality Act (“INA”), thereby permanently 2 barring him from establishing the requisite good moral character necessary to naturalize. 3 I. Petitioner’s Conviction of Assault to Commit Rape Is an Aggravated Felony Under the INA and Permanently Bars Him From Establishing Good Moral Character for 4 Naturalization. 5 The Superior Court of California, County of Alameda, convicted Alocozy of committing 6 Assault to Commit Rape in violation of Cal. Penal Code §220 and sentenced him to one year of 7 imprisonment and three years probation.1 Petitioner’s conviction constitutes an aggravated felony 8 and permanently bars him from establishing good moral character for naturalization. 8 U.S.C. 9 §1101(f)(8). The statutory definition of an aggravated felony includes “. . . rape . . .” and “a crime10 of violence . . .”2 8 U.S.C §1101(a)(43)(A) & (F). The Court agrees with the Parties in their briefing11 and oral argument that Petitioner’s conviction constitutes an aggravated felony for immigration12 purposes. 8 U.S.C. §1101(a)(43) .13 Under 8 U.S.C. §1101(f)(8), a person who at any time has been convicted of an aggravated14 felony, cannot establish good moral character for naturalization. Because Congress introduced this15 provision through IMMACT 90, it is not retroactive. See Pub. L. No. 101-649, 104 Stat. 497816 (1990). This means that the provision applies only to aggravated felonies entered on or after17 November 29, 1990. Id. For immigration purposes, a conviction occurs when “there has been a18 formal judgment of guilt entered by a court or . . . and the judge has ordered some form of19 punishment [or] penalty . . . ” See 8 U.S.C. §1101(a)(48)(A). Under this provision, “conviction”20 refers to the date on which judgment is entered on the docket, not the date on which a court accepts21 122 Cal. Penal Code §220(a)(1) indicates “any person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation . . . shall be punished by imprisonment in the23 state prison for two, four, or six years.” 224 Congress added “a crime of violence” to the list of aggravated felonies in 8 U.S.C. §1101(a)(43) when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act25 (IIRIRA) of 1996. See Pub. L. No. 104-208, 110 Stat. 3009, 3009-627. Although IIRIRA took effect in 1996, Congress fully intended retroactive application of the law for convictions entered26 before September 30, 1996. See Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir. 2001) (holding that Congress has clearly manifested an intent to apply the amended definition of ‘aggravated27 felony’ retroactively); see also IIRIRA §321(b).28 2
Case 2:10-cv-01597-JAM-KJN Document 19 Filed 04/27/11 Page 3 of 4 1 a guilty plea. Puello v. Bureau of Citizenship and Immigration Svcs, 511 F.3d 324, 331 (2d Cir. 2 2007) (holding that “under the plain meaning of the definition of “conviction” in 8 U.S.C. 3 §1101(a)(48)(A), the entry of a formal judgment of guilt . . . by a court” occurs when judgment is 4 entered on the docket, not when a defendant pleads guilty.”). 5 The Superior Court of California, County of Alameda, convicted Alocozy of committing 6 Assault to Commit Rape in violation of Cal. Penal Code §220 on January 9, 1991. Accordingly 7 Alocozy’s conviction postdates November 29, 1990 and triggered the provision enacted through 8 IMMACT 90 permanently barring him from establishing good moral character for naturalization. 9 Puello, 511 F.3d at 331. Accordingly, Alocozy’s conviction for the aggravated felony of Assault to10 Commit Rape permanently bars him from establishing good moral character for naturalization.11 II. INA Section 212(c) Relief Does Not Waive the Government’s Ability to Consider an Aggravated Felony for Naturalization Purposes.12 Former § 212(c) was a form of relief from deportation given to criminal aliens who could13 demonstrate that social and humane considerations outweighed their undesirability as lawful14 permanent residents. In re Marin, 16 I. & N. Dec. 581, 584 (BIA 1978).3 “[S]ection 212(c) merely15 provides that an alien may be admitted to or, in the case of deportation proceedings, allowed to16 remain in the United States despite a finding of excludability or deportability. Thus, when section17 212(c) relief is granted, the Attorney General does not issue a pardon or expungement of the18 conviction itself.” Matter of Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991). In 1999, Petitioner was19 placed in removal proceedings for being convicted of the aggravated felony discussed above. On20 or about May 27, 2004, an immigration judge granted Alocozy’s application for a waiver under21 former Section 212(c). Petitioner relies on former INA § 212(c), not as a shield from removal, but22 as a sword in the naturalization context to bar the Government’s reliance on his aggravated felony23 conviction in denying him the wholly separate immigration benefit of naturalization. 8 U.S.C. §2425 3 Section 212(c) was repealed by the Illegal Immigration Reform and Immigrant26 Responsibility Act of 1996 (IIRIRA) section 304(b), Pub.L. 104-208, 110 Stat. 3009-597, and replaced with a new section that gives the Attorney General the authority to cancel removal for a27 narrow class of inadmissible or deportable aliens.28 3
Case 2:10-cv-01597-JAM-KJN Document 19 Filed 04/27/11 Page 4 of 4 1 1182(c) (repealed 1996). 2 This case presents the issue of whether a grant of a former Section 3 212(c) waiver of deportability precludes the United States Citizenship and Immigration Service from 4 considering the conviction in a determination of whether the alien is eligible to naturalize. This 5 Court concludes that it does not. Rather, the government properly may consider a conviction for 6 which the alien had previously obtained a former Section 212(c) waiver when determining the 7 unrelated question of whether the alien can establish the necessary good moral character for 8 naturalization. See Chan v. Gantner, 464 F.3d 289, 294 (2d Cir 2006). 9 In addition, the Court further finds that Petitioner could not have had a settled expectation10 at the time of his conviction that a potential discretionary grant of 212(c) relief would also render11 him eligible to naturalize, and thus INS v. St Cyr., 533 U.S. 289 (2001), does not require that the12 former Section 212(c)(waiver be honored in the naturalization context.13 //14 //1516 Accordingly, IT IS HEREBY ORDERED that Respondents’ motion for summary judgment17 is GRANTED, and Petitioner’s motion for summary judgment is DENIED. Judgment is entered in18 favor of Respondents.1920 DATED: April 27, 2011 /s/ John A. Mendez21 United States District Court Judge22232425262728 4