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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 12-2767
_________________
NIZAR A...
2
(Filed: August 19, 2013)
Thomas E. Moseley [ARGUED]
Suite 2600
One Gateway Center
Newark, NJ 07102-0000
Attorneys for Pl...
3
Nizar Al-Sharif applied for United States citizenship,
but his application was denied because he had been convicted
of c...
4
In 2004, Al-Sharif applied to become a naturalized
citizen of the United States. On his application, he truthfully
discl...
5
least one year” an aggravated felony, and § 1101(a)(43)(M)(i)
makes any “offense” that “involves fraud or deceit in whic...
6
(explaining that forgery can be an aggravated felony under
both § 1101(a)(43)(M)(i) and § 1101(a)(43)(R)).
In his plea a...
7
439 n.4 (BIA 2008).4
Rather, in Bobb, we declined to find
that an offense that was both “relat[ed] to . . . forgery,” as...
8
363–64 (3d Cir. 2011) (quoting 3d Cir. I.O.P. 9.1), raised the
question of what, exactly, remained of Nugent following
B...
9
to Subsection (G).”). For its part, the Board of Immigration
Appeals (BIA) has declined to follow the hybrid offense
the...
10
that is sure error.” Citizens United v. FEC, 558 U.S. 310, 362
(2010). However, stare decisis “is not an inexorable
com...
11
order to be an aggravated felony. Thus, an offense that
“involves fraud or deceit in which the loss to the victim
excee...
12
and the District Court properly entered summary judgment in
favor of USCIS.
III
Al-Sharif raises two additional argumen...
13
entitled to relief under the rule of lenity. See Kawashima, 132
S. Ct. at 1175–76 (declining to apply rule of lenity be...
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NIZAR AL-SHARIF,
Plaintiff : Civil Action No. 10-1...
II. BACKGROUND
Plaintiff was indicted on August 4, 1992 for wire fraud and conspiracy to commit wire
fraud in violation of...
1101(a)(43XM)(i).4 Thus, Plaintiff was “permanently barred from naturalization.” (Zanotti
Deci., Ex. D.) Plaintiff appeale...
exists a genuine issue of material fact for trial. çç Matsushita Elec. Indus. Co. v. Zenith Radio
Cow., 475 U.S. 574, 586—...
A. Plaintiff’s Conviction Of An Aggravated Felony Bars His Naturalization
The statutory framework is clear that in order t...
but was less than $200,000.” (Zanotti Dccl,, Ex, I.) Plaintiff was sentenced to six years of home
confinement and five yea...
commit wire fraud falls squarely within the definition of an aggravated felony under 8 U.S.C.
1 101(a)(43)(M)(i) and 1 10l...
The Third Circuit then determined whether Nugent’s “theft by deception” conviction
consisted of a “theft” offense under 8 ...
In Miny, the Third Circuit addressed the specific question of whether a conviction for
conspiring to commit wire fraud is ...
Circuit concluded that the Petitioner’s conviction of conspiracy to commit wire fraud constituted
an aggravated felony.
Ba...
V. CONCLUSION
The Court grants CIS’s Motion for Summary Judgment and denies Plaintiff’s Cross-
Motion for Summary Judgment...
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Al-Sharif v. U.S. Citizenship & Immigration Serv., ___F. 3d___ (3d Cir. 2013) No. 12-2767 August 18, 2013

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Aggravated Felony finding for which he was NOT removed (IJ ganted relief) can and does still bar naturalization at least in this case. This document is a combination of the District Court and Circuit Court Opinions. It is 3rd Circuit Precedent that overrules and earlier Precedent.

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Al-Sharif v. U.S. Citizenship & Immigration Serv., ___F. 3d___ (3d Cir. 2013) No. 12-2767 August 18, 2013

  1. 1. PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________________ No. 12-2767 _________________ NIZAR AL-SHARIF, Appellant v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES _________________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 10-cv-01435) District Judge: Honorable Claire C. Cecchi __________________ Argued before Original Panel on June 13, 2013 Submitted Sua Sponte En Banc on August 15, 2013 Before: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SCIRICA and VAN ANTWERPEN, Circuit Judges. Al-Sharif v. U.S. Citizenship & Immigration Serv., ___F. 3d___ (3d Cir. 2013) ***********************No. 12-2767 August 18, 2013****************************
  2. 2. 2 (Filed: August 19, 2013) Thomas E. Moseley [ARGUED] Suite 2600 One Gateway Center Newark, NJ 07102-0000 Attorneys for Plaintiff-Appellant Bradley B. Banias Timothy M. Belsan [ARGUED] United States Department of Justice Office of Immigration Litigation Room 6417 P.O. Box 868 Ben Franklin Station Washington, DC 20001 Michael Campion Kristin L. Vassallo Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102-0000 Attorneys for Defendant-Appellee _____________________ OPINION OF THE COURT ___________________ HARDIMAN, Circuit Judge.
  3. 3. 3 Nizar Al-Sharif applied for United States citizenship, but his application was denied because he had been convicted of conspiracy to commit wire fraud, which the United States Citizenship and Immigration Services (USCIS) determined to be an aggravated felony. Al-Sharif contested the denial in the District Court, which entered summary judgment in favor of USCIS. In this appeal, Al-Sharif argues that he is entitled to citizenship because, under our decision in Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), his conviction was not for an aggravated felony. After oral argument before a panel of this Court, we elected sua sponte to hear the case en banc in order to determine whether Nugent remains good law. For the reasons discussed below, we hold that it does not, and will affirm the judgment of the District Court. I Al-Sharif is a lawful permanent resident of the United States. In 1992, he and others arranged to connect callers in Israel to callers in countries with no direct phone service to Israel, for a fee, by routing the calls through an apartment in New Jersey. Al-Sharif rented the apartment and set up phone service there using a false name and Social Security number. Afterwards, he abandoned the apartment without leaving a forwarding address or paying the phone bill. As a result of this scheme, Al-Sharif pleaded guilty in 1993 to conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, with a stipulation that his fraud caused a loss to the victim of between $120,000 and $200,000. He was sentenced to six months’ home confinement and five years’ probation, and was ordered to pay $128,838 in restitution to the phone company.
  4. 4. 4 In 2004, Al-Sharif applied to become a naturalized citizen of the United States. On his application, he truthfully disclosed his conviction for conspiracy to commit wire fraud.1 As a result, his application was denied by USCIS. In the view of USCIS, Al-Sharif’s conviction was for an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(M)(i), which precluded him, under 8 U.S.C. § 1101(f)(8), from demonstrating “good moral character,” as required for naturalization under 8 U.S.C. § 1427(a)(3). Al-Sharif sought review in the District Court, arguing that his conviction was not an “aggravated felony” for naturalization purposes. The District Court disagreed, and granted summary judgment to USCIS. Al-Sharif filed this timely appeal. II2 A Section 1101(a)(43) of Title 8 lists several categories of offenses that are considered “aggravated felon[ies]” for immigration purposes. In particular, § 1101(a)(43)(G) makes any “theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at 1 In 2006, the Government charged Al-Sharif with deportability as a result of his conviction; however, an immigration judge granted Al-Sharif a waiver of deportation. 2 The District Court had jurisdiction under 8 U.S.C. § 1421(c). We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s summary judgment de novo. Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir. 2012).
  5. 5. 5 least one year” an aggravated felony, and § 1101(a)(43)(M)(i) makes any “offense” that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” an aggravated felony.3 Although some of these categories of aggravated felonies can overlap, each category is separate from the others, and a particular conviction may constitute an aggravated felony under multiple sections of § 1101(a)(43). See Bobb v. Att’y Gen., 458 F.3d 213, 217–18 (3d Cir. 2006) 3 We note that Al-Sharif was convicted of conspiracy, which is an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). However, because § 1101(a)(43)(U) only applies to “an attempt or conspiracy to commit an offense described in this paragraph,” we must review the underlying substantive offense to determine whether it is “an offense described in this paragraph.” See In re S-I-K-, 24 I. & N. Dec. 324, 326 (BIA 2007) (requiring the government to prove that “at least one of the unlawful acts that was the object of the conspiracy was an offense” described in another paragraph of § 1101(a)(43)); see also Nijhawan v. Att’y Gen., 523 F.3d 387, 399 (3d Cir. 2008) (looking to the underlying object of the conspiracy to determine if the alien committed an aggravated felony). Because the language of the statute and In re S-I-K- require an examination of the elements of the substantive offense when analyzing whether a conspiracy is an aggravated felony, USCIS correctly based its denial of Al- Sharif’s naturalization application on § 1101(a)(43)(M)(i), which deals with fraud. This approach is in accord with that of many of our sister circuits. See, e.g., Conteh v. Gonzales, 461 F.3d 45, 57 (1st Cir. 2006); Kamagate v. Ashcroft, 385 F.3d 144, 152–53 (2d Cir. 2004).
  6. 6. 6 (explaining that forgery can be an aggravated felony under both § 1101(a)(43)(M)(i) and § 1101(a)(43)(R)). In his plea agreement, Al-Sharif stipulated that his conspiracy to commit wire fraud caused a loss of more than $10,000. Nevertheless, he argues that Nugent dictates that he is not an aggravated felon because his offense was a hybrid theft/fraud offense and he was not sentenced to at least one year in prison. In Nugent, an alien was convicted in Pennsylvania state court of theft by deception in violation of 18 Pa. Cons. Stat. § 3922 for passing a bad check worth $4,831, and was sentenced to a period of six to twenty-three months’ imprisonment. 367 F.3d at 163, 169. We found that the alien’s offense was both a “theft offense” as defined in § 1101(a)(43)(G), id. at 174, and an offense “involving fraud or deceit” as defined in § 1101(a)(43)(M)(i), id. at 177. As a result, we held that “to qualify as an aggravated felony under the INA [the alien’s offense] must meet the requirements of Section 1101(a)(43)(M)(i), loss to the victim of more than $10,000, in addition to Section 1101(a)(43)(G), term of imprisonment of at least one year.” Id. at 174–75 (emphasis added). This theory—that an alien convicted of an offense that is both a “theft offense” and an offense “involv[ing] fraud or deceit” is an aggravated felon only if he satisfies both the loss threshold of § 1101(a)(43)(M)(i) and the imprisonment threshold of § 1101(a)(43)(G)—has since become known as the “hybrid offense” theory. See Bobb, 458 F.3d at 215. In the nine years since this Court adopted the hybrid offense theory in Nugent, we have never found another hybrid offense. See Matter of Garcia-Madruga, 24 I. & N. Dec. 436,
  7. 7. 7 439 n.4 (BIA 2008).4 Rather, in Bobb, we declined to find that an offense that was both “relat[ed] to . . . forgery,” as defined in § 1101(a)(43)(R), and “involve[d] fraud or deceit,” as defined in § 1101(a)(43)(M)(i), was a hybrid offense. 458 F.3d at 226. In doing so, we explicitly limited Nugent to “classificational schemes in which one classification is entirely a subset of another.” Id. The hybrid offense theory, Bobb explained, could not apply to “separate universal classifications which intersect, but which have separate and independent elements.” Id. While our holding in Bobb reaffirmed the basic premise of the hybrid offense theory, it raised a serious question about the theory’s scope. When read literally, Bobb’s statement that the hybrid offense theory is “restricted to classificational schemes in which one classification is entirely a subset of another” seems to suggest that the hybrid offense theory would not even apply to § 1101(a)(43)(G) and § 1101(a)(43)(M)(i) because the classification “theft offense” is not entirely a subset of “an offense . . . involv[ing] fraud or deceit.” This conclusion, and the rule that “no subsequent panel overrules the holding in a precedential opinion of a previous panel,” Covell v. Bell Sports, Inc., 651 F.3d 357, 4 Other than Bobb, the only cases from our Circuit that discuss Nugent’s hybrid offense theory are a handful of not precedential opinions. See Familia v. Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011); Hatkewicz v. Att’y Gen., 350 F. App’x 667, 671 (3d Cir. 2009); Mirat v. Att’y Gen., 184 F. App’x 153, 155–56 (3d Cir. 2006). Each refused to extend the hybrid offense theory to the relevant statute of conviction.
  8. 8. 8 363–64 (3d Cir. 2011) (quoting 3d Cir. I.O.P. 9.1), raised the question of what, exactly, remained of Nugent following Bobb. Following Bobb, our Court has struggled with the applicability of the hybrid offense theory to fraud conspiracy cases, such as this one. Two panels of our Court issued not precedential opinions finding that fraud conspiracies were not hybrid offenses by analyzing the elements of the conspiracies, rather than the substantive fraud offenses. See Familia v. Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011). In addition, no other court of appeals has adopted Nugent’s hybrid offense theory. Only a handful of published opinions from our sister Circuits have dealt with the hybrid offense theory. See, e.g., Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir. 2008); Martinez v. Mukasey, 519 F.3d 532, 539 (5th Cir. 2008); Soliman v. Gonzales, 419 F.3d 276, 280 (4th Cir. 2005). These Circuits have all avoided applying the theory by disposing of the cases on other grounds. See Magasouba, 543 F.3d at 15 (“Nugent has been restricted to classificational schemes in which one classification is entirely a subset of another. As previously mentioned, that is not the case here.” (internal quotation marks and citation omitted)); Martinez, 519 F.3d at 539 (“Our court has not decided whether an offense may properly be characterized as a hybrid fraud/theft offense, which must meet the requirements of both subsections (G) and (M)(i).”); Soliman, 419 F.3d at 280 (4th Cir. 2005) (“Because we are able to resolve Soliman’s petition for review by finding that Soliman’s conviction was not for a theft offense under Subsection (G), we need not reach and address her alternative contention with respect to imputing Subsection (M)(i)’s minimum threshold requirement
  9. 9. 9 to Subsection (G).”). For its part, the Board of Immigration Appeals (BIA) has declined to follow the hybrid offense theory. See Garcia-Madruga, 24 I. & N. Dec. at 440 n.5 (“That [theft and fraud may be coextensive] does not mean, however, that we subscribe to the Nugent court’s holding that in such an instance the elements of both aggravated felony branches must be demonstrated.” (emphasis in original)). The Supreme Court too has recently issued an opinion casting further doubt upon the hybrid offense theory. In Kawashima v. Holder, 132 S. Ct. 1166 (2012), the Court stated that: “The language of [§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an offense that ‘involves fraud or deceit in which the loss to the victim or victims exceeds $10,000’ has committed an aggravated felony.” Id. at 1173 (emphasis added). Read literally, this statement conflicts with Nugent, as the hybrid offense theory leaves open the possibility that someone convicted of an offense “involv[ing] fraud or deceit in which the loss to the victim or victims exceeds $10,000” has not committed an aggravated felony. This is exactly what Al-Sharif argues here: that, although his offense falls within the definition of § 1101(a)(43)(M)(i), it is not an aggravated felony because it is also a “theft offense” that did not result in at least one year of imprisonment. Mindful of this history, we now overrule Nugent’s hybrid offense theory because it has been rejected by other courts and conflicts with the plain language of the statute. B We do not overturn our precedents lightly. “[P]recedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course
  10. 10. 10 that is sure error.” Citizens United v. FEC, 558 U.S. 310, 362 (2010). However, stare decisis “is not an inexorable command.” Payne v. Tennessee, 501 U.S. 808, 828 (1991). “[W]hen governing decisions are unworkable,” they may be overturned. Id. at 827. This is particularly true “if the precedent is particularly recent and has not generated any serious reliance interests,” Morrow v. Balaski, --- F.3d ----, 2013 WL 2466892, at *16 (3d Cir. Jun. 14, 2013) (en banc) (Smith, J., concurring), or if the precedent has “sustained serious erosion from our recent decisions,” Lawrence v. Texas, 539 U.S. 558, 576 (2003). Here, the hybrid offense theory “has not generated any serious reliance interests.” In the nine years since we have adopted it, it has been applied by no Court of Appeals, including our own. Rather, it has “sustained serious erosion from . . . recent decisions.” We have greatly limited its applicability, see Bobb, 458 F.3d at 226, the BIA has declined to follow it, see Garcia-Madruga, 24 I. & N. Dec. at 440 n.5, and the Supreme Court’s dicta in Kawashima has cast substantial doubt upon it. See IFC Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d Cir. 2006) (“[W]e pay due homage to the Supreme Court’s well- considered dicta as [lighthouses] that guide our rulings.”). On its merits, the hybrid offense theory cannot easily be reconciled with the text of the statute. “[W]hen [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Sebelius v. Cloer, 133 S. Ct. 1886, 1896 (2013). The language of § 1101(a)(43) is plain. Each of its subparagraphs lays out a separate aggravated felony and there is no indication in the statute that an offense must satisfy multiple subparagraphs in
  11. 11. 11 order to be an aggravated felony. Thus, an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000” is an aggravated felony under § 1101(a)(43)(M)(i) regardless of whether it also meets the requirements of some other subparagraph. As the Supreme Court recently emphasized in Kawashima: “The language of [§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an offense that ‘involves fraud or deceit in which the loss to the victim or victims exceeds $10,000’ has committed an aggravated felony . . . .” 132 S. Ct. at 1173 (emphasis added). The hybrid offense theory conflicts with the Supreme Court’s textual interpretation insofar as it implies that at least some fraud offenses with losses exceeding $10,000—namely, those that are also theft offenses and for which the offender was not sentenced to at least a year of imprisonment—are not aggravated felonies.5 Therefore, we now overrule that theory. Having held that Nugent is no longer the law of this Circuit, we hold that Al-Sharif was properly deemed an aggravated felon under § 1101(a)(43)(M)(i). Wire fraud is clearly an offense “involv[ing] fraud or deceit,” see Doe v. Att’y Gen., 659 F.3d 266, 274–75 (3d Cir. 2011), and Al- Sharif’s plea agreement stipulated that he caused a loss of between $120,000 and $200,000—well in excess of the $10,000 threshold for a fraud to be considered an aggravated felony. Thus, Al-Sharif’s offense was an aggravated felony 5 We also note that, under the hybrid offense theory, a defendant who is convicted of an offense that is both theft and fraud receives more favorable treatment than a defendant who is convicted of either theft or fraud alone. This incongruity reinforces further our holding that the hybrid offense theory is inconsistent with the statute.
  12. 12. 12 and the District Court properly entered summary judgment in favor of USCIS. III Al-Sharif raises two additional arguments, but neither is persuasive. First, he argues that the 1996 aggravated felony definitions, which reduced the loss threshold at which fraud becomes an aggravated felony, do not apply to him. We rejected a nearly identical argument in Biskupski v. Attorney General, 503 F.3d 274 (3d Cir. 2007), where we held that the 1996 aggravated felony definitions applied retroactively to crimes committed before 1996, so long as the “orders or decisions of the [immigration judge] or BIA which apply the ‘aggravated felony’ definitions” were issued after the 1996 amendments. Id. at 283. Here, USCIS denied Al- Sharif’s naturalization application in 2009, long after the 1996 amendments took effect. Although USCIS and not an immigration judge or the BIA was making that determination, our reasoning in Biskupski still applies because, until USCIS issued a final decision, Al-Sharif “remain[ed] the subject of administrative adjudication and ha[d] not established any right to the benefit he [wa]s seeking to obtain by his application.” Id. (internal quotation mark and alteration omitted). Second, Al-Sharif argues that the rule of lenity, which requires courts to “constru[e] any lingering ambiguities in deportation statutes in favor of the alien,” see INS v. Cardoza- Fonseca, 480 U.S. 421, 449 (1987), applies to him. However, 8 U.S.C. § 1101(a)(43) is unambiguous. Section 1101(a)(43)(M)(i) is clear that an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” is an aggravated felony. Therefore, Al-Sharif is not
  13. 13. 13 entitled to relief under the rule of lenity. See Kawashima, 132 S. Ct. at 1175–76 (declining to apply rule of lenity because § 1101(a)(43)(M) was “clear enough”); Muscarello v. United States, 524 U.S. 125, 138–39 (1998) (rule of lenity only applies if there is a “grievous ambiguity or uncertainty in the statute”). IV For the foregoing reasons, we hold that the hybrid offense theory of Nugent no longer remains good law and the District Court did not err when it held that Al-Sharif was not entitled to citizenship by virtue of his 1993 conviction for conspiracy to commit wire fraud. Accordingly, we will affirm the judgment of the District Court.
  14. 14. NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NIZAR AL-SHARIF, Plaintiff : Civil Action No. 10-1435 (CCC) V. Opinion UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Respondent. CECCHI, District Judge I. INTRODUCTION This matter comes before the Court by Defendant United States Citizenship & Immigration Services’ (“CIS”) Motion for Summary Judgment against Nizar Al-Sharif (“Plaintiff’) pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposed CIS’ Motion and has filed a Cross-Motion for Summary Judgment. The Court has considered the submissions made in support of and in opposition to the instant motions,’ No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, CIS’ Motion for Summary Judgment is granted and Plaintiff’s Cross-Motion for Summary Judgment is denied. The Court considers any new arguments not presented by the parties in their papers or at oral argument to be waived. See Brenner v. Local 514. United Bhd. of Caenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well established that failure to raise an issue in the district court constitutes a waiver of the argument.”). Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 1 of 11 PageID: 167 Court of Appeals Docket #: 12-2767 Docketed: 06/27/2012 Nature of Suit: 2462 Ntrlztn Aplctn, Ptn - Hrg of Denial Nizar Al-Sharif v. USCIS Appeal From: United States District Court for the District of New Jersey I am somewhat amazed that this decision makes no reference to INA 318 [8 USC 1429] which says that in the proviso that: granting cancellation of removal is not binding in determining GMC for natz. But, what do I know?
  15. 15. II. BACKGROUND Plaintiff was indicted on August 4, 1992 for wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. § 371 and U.S.C. § 1343 and 2. (Declaration of Kimberly Zanotti (“Zanotti Deci.”), Ex. H.) Plaintiff entered into a plea agreement with the United States Government and agreed to plead guilty to conspiracy to commit wire fraud. (Zanotti Deci., Ex. I.) Pursuant to the plea agreement, Plaintiff stipulated that the loss attributable to his crime “exceeded $120,000 but was less than $200,000.” (RI.) On October 5, 1993, Judge Politan sentenced Plaintiff to six years of home confinement and five years of probation. (Zanotti Decl., Ex. G.) Plaintiff was also ordered to make restitution in the amount of $128,838. (RI.) Subsequently, on February 25, 2004, Plaintiff applied to become a naturalized citizen of the United States. (Zanotti Dee!., Ex. A.) In his application, Plaintiff made a full disclosure to CTS of his conviction of conspiracy to commit wire fraud and his sentence, including his probation and payment of restitution. (Id.)2 On May 22, 2009, CIS denied Plaintiff’s naturalization request. (Zanotti Deci., Ex. D.) CIS based its decision on the fact that a naturalization applicant must demonstrate “good moral character” as a prerequisite to citizenship and that an applicant’s conviction of an “aggregated felony” under 8 C.F.R. § 3 16.2(7) and 316.lO(b)(1)(ii) would prevent him from meeting this requirement. (hi) CIS found that Plaintiff’s 1993 conviction constituted an “aggravated felony” under 8 U.S.C. § 2 During the application process, Plaintiff was notified by the Department of Homeland Security, Customs and Border Protection, that he was subject to removal based on his 1993 conviction. (Zanotti Dccl,, Ex, B.) Plaintiff applied for a waiver of deportation, which was granted. (Zanotti DecL, Ex, C.) 8 C.F.R. § 316.2 states that “to be eligible for naturalization, an alien must establish that he • . .(7) [fjor all relevant time periods under this paragraph, has been and continues to be a person of good moral character.” 8 C.F.R. § 316.10(b)(1) states that “[a]n applicant shall be found to lack good moral character, if the applicant has been.. .(ii) [c]onvicted of an aggravated felony as defined in section l01(a)(43) of the Act on or afler November 29, 1990.” Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 2 of 11 PageID: 168
  16. 16. 1101(a)(43XM)(i).4 Thus, Plaintiff was “permanently barred from naturalization.” (Zanotti Deci., Ex. D.) Plaintiff appealed CIS’ decision. (Zanotti Deci., Ex. F.) CIS affirmed the denial of Plaintiff’s naturalization application, again finding that his prior conviction was an “aggravated felony” that that prevented his naturalization. (Id.) Plaintiff seeks a de novo review under 8 U.S.C. § 1421(c)5 of the final administrative denial of his naturalization application. cIs filed a Motion for Summary Judgment and Plaintiff filed a Cross-Motion for Summary Judgment. III. LEGAL STANDARD Summary judgment is appropriate if the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials” demonstrate that there is no genuine issue as to any material fact, and, construing all facts and inferences in a light most favorable to the non-moving party, “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 5. Ct. 2548, 91 L. Ed. 2d 265 (1986), Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The moving party has the initial burden of proving the absence of a genuine issue of material fact, See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the non- moving party has the burden of identifying specific facts to show that, to the contrary, there 8 U.S.C. § 1101(a) states: “(43) The term ‘aggravated felony’ means.. .(M) an offense that,. .(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 142 1(c) states: “Judicial review: A person whose application for naturalization under this subchapter is denied, afler a hearing before an immigration officer under section 1447 (a) of this title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request ofthe petitioner, conduct a hearing de novo on the application.” 3 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 3 of 11 PageID: 169
  17. 17. exists a genuine issue of material fact for trial. çç Matsushita Elec. Indus. Co. v. Zenith Radio Cow., 475 U.S. 574, 586—87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). A fact is “material” if a dispute about that fact “might affect the outcome of the suit under governing [substantive] law,” and a “genuine” issue exists as to that fact “if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court’s role is to determine whether there is a genuine issue for trial, not to weigh the evidence and decide the truth of the matter. Id. at 249. Summary judgment is appropriate when there is no genuine issue of material fact regarding a statutory bar to naturalization. See Kai Tung Chan v. Gantner, 464 F.3d 289, 296 (2d Cir. 2006) (granting summary judgment to the government where naturalization applicant’s prior conviction of a felony was a statutory bar to establishing good moral character). An applicant seeking review of a naturalization denial bears the burden of establishing, by a preponderance of the evidence, that he is entitled to naturalization. See Berenyi v. District Director, INS, 385 U.S. 630, 636-37 (1967); Ogundoju v. Attorney Gen., 390 Fed. Appx. 134, 137 (3d Cir. 2010). In order to meet this burden, the applicant must demonstrate that he meets each statutory requirement for becoming a naturalized citizen. See Berenyi, 385 U.S. at 637. Further, “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship.” Fedorenko v. United States, 449 U.S. 490, 506 (1981). IV. DISCUSSION Having reviewed the facts of this case de novo, the Court finds that Plaintiff is ineligible for citizenship based on his 1993 conviction of an “aggravated felony.” 4 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 4 of 11 PageID: 170
  18. 18. A. Plaintiff’s Conviction Of An Aggravated Felony Bars His Naturalization The statutory framework is clear that in order to become a United States citizen, an applicant must satisfy the requirements of 8 U.S.C. § 1427, in that “(1) immediately preceding the date of filing his application for naturalization [he] has resided continuously, after being lawftally admitted for permanent residence, within the United States for at least five years,. . .(2) [he] has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection [he] has been and still is a person ofgood moral character” (emphasis added). Under 8 U.S.C. § 1101(f), “[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was. * . one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section).” $ç 8 C.F.R. § 3l6.l0(b)(l)(ii) (explaining that “[a]n applicant shall be found to lack good moral character, if the applicant has been,. .(ii) [c]onvicted of an aggravated felony as defined in section lOl(a)(43) of the Act on or after November 29, 1990”). Among the crimes that qualify as an “aggravated felony” under 8 U.S.C. § 1 10l(a)(43)(M)(i) are “offense[s] that. . .(i) involve[] fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Importantly, under 8 U.S.C. § 1 101(a)(43)(U), “an attempt or conspiracy to commit an offense” that would constitute an aggravated felony under the statute is also included within the statutory definition of aggravated felonies (emphasis added). In other words, a conspiracy to commit an “aggravated felony” is itself an “aggravated felony.” Here, Plaintiff admitted to CIS that he was convicted of conspiracy to commit wire fraud in 1993. (Zanotti Decl,, Ex. A.) Plaintiff agreed to plead guilty to conspiracy to commit wire fraud, and the parties stipulated that the loss attributable to Plaintiff’s crime “exceeded $120,000 5 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 5 of 11 PageID: 171
  19. 19. but was less than $200,000.” (Zanotti Dccl,, Ex, I.) Plaintiff was sentenced to six years of home confinement and five years of probation, and was also ordered to make restitution in the amount of $128,838. (Zanotti Decl., Ex. G.) Plaintiff’s conviction clearly constitutes an aggravated felony under 8 U.S.C. § 1 101(a)(43)(M)(i), because 1) Plaintiff’s offense “involve[dj fraud or deceit” and 2) “the loss to the victim or victims exceed{ed] $10,000.” Further, Plaintiff’s conviction of conspiracy to commit wire fraud is itself considered an aggravated felony under the statute. Thus, Plaintiff cannot meet the requirement of establishing “good moral character” in order to obtain citizenship. Of relevance here is Nijhawan v. Holder, 129 5. Ct. 2294 (U.S. 2009). In that case, the petitioner was convicted of, inter alia, conspiring to commit wire fraud. At the petitioner’s sentencing, he stipulated that the loss to his victims exceeded $100 million. jçj. at 2298. The petitioner was sentenced to prison and required to make $683 million dollars in restitution. I4 The government sought to remove the petitioner from the United States based on his conviction of an “aggravated felony” under 8 U.S.C. § 1 l0l(a)(43)(M)(i) and 1 lOl(a)(43)(U). Id. CIS found that the petitioner’s conviction fell within the statute’s “aggravated felony” definition. Id. The Third Circuit agreed, and the Supreme Court affirmed, Specifically, the Supreme Court held that the petitioner’s conviction of wire fraud, his own stipulation regarding the victim’s losses, and the court’s restitution order placed the petitioner’s prior conviction within the scope of 8 U.S.C. § llOl(a)(43)(M)(i). Morgan v. Attorney General of the United States, 228 Fed. Appx. 177, 179 (3d Cir. 2007) (finding that the petitioner’s conviction of conspiracy to commit mail fraud and wire fraud, along with the petitioner’s plea agreement, in which he stipulated to an amount of loss between $250,000 and $300,000, established that he was convicted of an “aggravated felony”). Therefore, because Plaintiff’s conviction of conspiracy to 6 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 6 of 11 PageID: 172
  20. 20. commit wire fraud falls squarely within the definition of an aggravated felony under 8 U.S.C. 1 101(a)(43)(M)(i) and 1 10l(a)(43)U, it is a complete bar to his naturalization. B. Plaintiffs Conviction Of Conspiracy to Commit Wire Fraud Is Not A Hybrid Offense In support of his application for naturalization, however, Plaintiff argues that under Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), wire fraud constitutes a “hybrid offense” containing elements of both fraud and theft. (Plaintiff Opp. 4.) As such, Plaintiff alleges that CIS must prove both the loss amount under 8 U.S.C. § 110 1(a)(43)(M)(i) and the sentence requirement under 8 U.S.C. § 1 101(a)(43)(G).6 According to Plaintiff, because he did not receive a sentence of imprisonment, his prior conviction does not constitute an “aggravated felony” and therefore cannot prevent his naturalization. The Court disagrees. In Nigent, the plaintiff (“Nugent”), a lawful permanent resident of the United States, was convicted of “theft by deception” in violation of a Pennsylvania criminal statute. Nugent, 367 F.3d at 163-64. He was sentenced to a term of imprisonment. Id. The Immigration and Naturalization Service (“INS”) charged Nugent with removability from the United States for having been convicted of an aggravated felony as defined in 8 U.S.C. § 110 1(a)(43)(G). Id. at 164. After being detained by the Department of Homeland Security, Nugent filed a petition for a writ of habeas corpus. Specifically, Nugent requested that the district court decide whether the “theft by deception” conviction was a “theft” offense or a “fraud/deceit” offense. Id. at 167. The district court denied the writ, holding that Nugent had been convicted of an aggravated felony and was therefore removable. 4. at 168. Nugent appealed the district court’s decision, 6 8 U.S.C. § I lOl(a)(43) states “the term aggravated felony means.. .(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year.” 7 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 7 of 11 PageID: 173
  21. 21. The Third Circuit then determined whether Nugent’s “theft by deception” conviction consisted of a “theft” offense under 8 U.S.C. § 1 lOl(a)(43)(G), or a “fraud/deceit” offense under 8 U.S.C. § 1 1O1(a)(43)(M)(i), In doing so, the Third Circuit defined “theft” as “a taking of property or an exercise of control over property without consent.” 4 at 174 (emphasis added). The Third Circuit held that Nugent’s bad check transaction for which he was convicted under the Pennsylvania “theft by deception” statute constituted a “theft” offense under 8 U.S.C. § 1 i01(a)(43)(G). j The Third Circuit also held that 8 U.S.C. § I l0l(a)(43)(M)(i) “clearly applies to those ‘theft offenses’ under Subsection (G) that are anchored on ‘fraud or deceit.” Id. at 176. Therefore, “both G and M(i). . .apply to an ‘offense’ involving ‘theft’ and ‘fraud or deceit,’ and thus the requirements of both provisions must be fulfilled for such an offense to qualify as an aggravated felony.” j4 Because Pennsylvania’s “theft by deception” was “designed entirely on all-embracing concepts of fraud or deceit —various forms of the word ‘deceive’ appear[ed] five times and ‘false impression’ three times — it [wa]s precisely the particular type of theft contemplated in the universal class of offenses set forth in the fraud or deceit Subsection 1 101(a)(43)(M)(i).” Id. at 179. The Third Circuit concluded that although the term of imprisonment imposed on Nugent met the requirements of 8 U.S.C. § 110 l(a)(43)(G), the victims’ losses did not exceed $10,000, as required by 8 U.S.C. § 1 lOl(a)(43)(M)(i). Thus, Nugent’s “theft by deception” conviction did not qualify as an “aggravated felony.” The Nugent case is distinguishable from the case at hand in that the specific elements of the crimes charged differ. The Third Circuit’s decision in Minaya v. Attorney General of the United States, No. 10-cv-4321, 2011 U.S. App. LEXIS 24068 (3d Cir. Dec. 2, 2011), as discussed below, is more closely aligned with the facts of our case. This Court finds the Third Circuit’s reasoning in Minaya to be persuasive. 8 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 8 of 11 PageID: 174
  22. 22. In Miny, the Third Circuit addressed the specific question of whether a conviction for conspiring to commit wire fraud is in fact a “theft” offense. Minaya, 2011 U.S. App. LEXIS 24068. The petitioner was convicted of conspiracy to commit wire fraud and was sentenced to five months of imprisonment and five months of home confinement. Id. at *1..2. In addition, the petitioner was ordered to pay restitution in the amount of $97,872. Id. When the petitioner was subsequently charged with removal, he filed an application for cancellation of removal, arguing that that he was convicted of a “hybrid offense” under Nugent. at *3 Like Plaintiff here, the petitioner in Minaya argued that his sentence did not satisfy the imprisonment requirement of 8 U.S.C. § 110 l(a)(43)(G). Thus, the petitioner asserted that he was not subject to removal as an aggravated felon. Id. at *3..4• The Third Circuit disagreed, explaining: The Nugent Court analyzed the statute of conviction to determine whether it satisfied the definition of “theft offense” under subsection (G). In that case, the offense not only had the title “theft by deception,” it also required proof of a taking of, or an exercise of control over, property. The § 371 offense of conspiring to commit wire fraud, however, does not require proof that the conspirators took another’s property or exerted control over another’s property. Instead the elements of the § 371 offense of conspiracy to violate federal law are: (1) an agreement to commit an offense proscribed by federal law [, here, wire fraud]; (2) the defendants intentionally joining in the agreement; (3) one of the conspirators committing an overt act; and (4) an overt act in furtherance of the conspiracy. United States v. Rigas, 605 F.3d 194, 206 n.9 (3d Cir. 2010) (en banc), Thus, [the petitioner’s] § 371 conviction cannot be classified as a “theft offense” under subsection (a)(43)(G). j at *1l12. The Third Circuit again reiterated that the petitioner’s conviction “for conspiring to commit an offense against the United States, namely wire fraud in violation of § 1343, is not a theft offense. For that reason, it cannot be a hybrid offense, which would require the alien to satisfy the requirements of both subsection (G) and subsection (M)(i).” Id. at *14. The Third 9 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 9 of 11 PageID: 175
  23. 23. Circuit concluded that the Petitioner’s conviction of conspiracy to commit wire fraud constituted an aggravated felony. Based on the Third Circuit’s decision in Minaya, there is no genuine issue of material fact that Plaintiff’s 1993 conviction constitutes an “aggravated felony” under 8 U.S.C. § 1 101(a)(43)(M)(i) and 1 101(a)(43)(U). The evidence is such that no reasonable jury could return a verdict finding that Plaintiff would be able to demonstrate the good moral character necessary to obtain naturalization. Therefore, CIS’ Motion for Summary Judgment should be granted.7 Plaintiff makes two other arguments that the Court will discuss briefly. First, Plaintiff mentions that “at the time of the Plaintiff’s plea and sentence, the definition of aggravated felony under U.S.C. § 1 l01(a)(43)(M)(i) for crimes involving fraud or deceit required a loss to the victim or victims in an amount exceeding $200,000 and the plea agreement here stipulated a loss less than that amount.” (Plaintiff Opp. 2.) Further, Plaintiff’s “criminal defense counsel did not have occasion to seek a disposition of the criminal case by plea to a single substantive count under U.S.C. § 1343 involving a loss less than $10,000” and that “the plea was entered with the understanding that, Mr. Al-Sharif would not be barred from naturalization.” (Id. 2-3.) Plaintiff does not develop this argument further, In any event, 8 C.F.R. § 3 16.1O(b)(1)(ii) states that “[ajn applicant shall be found to lack good moral character, if the applicant has been. . .(ii) [c]onvicted of an aggravated felony as defined in section l0l(a)(43) of the Act on or fler November 29, 1990” (emphasis added). Plaintiff’s conviction in 1993 thus meets this date requirement. The Third Circuit has also ruled that retroactive application of the statute is not inappropriate. See Biskupsid v. AG of the United States, 503 F.3d 274, 281-84 (3d Cir. 2007) (“Because we hold that Biskupski’s federal misdemeanor conviction constitutes an “aggravated felony” within the meaning of 8 U.S.C. § 1 101(a)(43)(N) and because we conclude that the statute is not impermissibly retroactive as applied to Biskupski, we will deny the petition for review.”). Second, Plaintiff argues that “[a]ny doubt about the construction and application of the aggravated felony provisions at issue here should be resolved in Plaintiff’s favor under the criminal rule of lenity.” (Plaintiff Opp. 7.) Because the Third Circuit has addressed the exact argument raised by Plaintiff here, and has held that a conviction of a conspiracy to commit wire fraud does not constitute a hybrid offense under Nugent, there is no doubt that Plaintiff has been convicted of an “aggravated felony.” 10 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 10 of 11 PageID: 176
  24. 24. V. CONCLUSION The Court grants CIS’s Motion for Summary Judgment and denies Plaintiff’s Cross- Motion for Summary Judgment. An appropriate Order follows. CLAIRE C. CECCHI, U.S.D.J. DATED: April 25, 2012 11 Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 11 of 11 PageID: 177

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