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.

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

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

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

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

(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

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

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

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

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

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

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

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.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

NIZAR AL-SHARIF,Plaintiff : Civil Action No. 10-1435 (CCC)

V.

OpinionUNITED 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 oralargument to be waived. See Brenner v. Local 514. United Bhd. of Caenters & Joiners, 927F.2d 1283, 1298 (3d Cir. 1991) (“It is well established that failure to raise an issue in the districtcourt constitutes a waiver of the argument.”).

Case 2:10-cv-01435-CCC Document 18 Filed 04/25/12 Page 1 of 11 PageID: 167

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. (ZanottiDecL, 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 personof good moral character.” 8 C.F.R. § 316.10(b)(1) states that “[a]n applicant shall be found tolack good moral character, if the applicant has been.. .(ii) [c]onvicted of an aggravated felony asdefined 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

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)5of 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 naturalizationunder 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 thedistrict in which such person resides in accordance with chapter 7 of title 5. Such review shall bede novo, and the court shall make its own findings of fact and conclusions of law and shall, at therequest of the 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

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

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 $120,0005

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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 to6

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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 atleast one year.”

7

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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

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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 itsatisfied the definition of “theft offense” under subsection (G). In that case, theoffense not only had the title “theft by deception,” it also required proof of ataking of, or an exercise of control over, property. The § 371 offense ofconspiring to commit wire fraud, however, does not require proof that theconspirators 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, wirefraud]; (2) the defendants intentionally joining in the agreement; (3) one of theconspirators committing an overt act; and (4) an overt act in furtherance of theconspiracy. United States v. Rigas, 605 F.3d 194, 206 n.9 (3d Cir. 2010) (enbanc), Thus, [the petitioner’s] § 371 conviction cannot be classified as a “theftoffense” 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

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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 mentionsthat “at the time of the Plaintiff’s plea and sentence, the definition of aggravated felony underU.S.C. § 1 l01(a)(43)(M)(i) for crimes involving fraud or deceit required a loss to the victim orvictims in an amount exceeding $200,000 and the plea agreement here stipulated a loss less thanthat amount.” (Plaintiff Opp. 2.) Further, Plaintiff’s “criminal defense counsel did not haveoccasion to seek a disposition of the criminal case by plea to a single substantive count underU.S.C. § 1343 involving a loss less than $10,000” and that “the plea was entered with theunderstanding that, Mr. Al-Sharif would not be barred from naturalization.” (Id. 2-3.) Plaintiffdoes not develop this argument further, In any event, 8 C.F.R. § 3 16.1O(b)(1)(ii) states that “[ajnapplicant shall be found to lack good moral character, if the applicant has been. . .(ii) [c]onvictedof 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. TheThird Circuit has also ruled that retroactive application of the statute is not inappropriate. SeeBiskupsid v. AG of the United States, 503 F.3d 274, 281-84 (3d Cir. 2007) (“Because we holdthat Biskupski’s federal misdemeanor conviction constitutes an “aggravated felony” within themeaning of 8 U.S.C. § 1 101(a)(43)(N) and because we conclude that the statute is notimpermissibly 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 theaggravated felony provisions at issue here should be resolved in Plaintiff’s favor under thecriminal rule of lenity.” (Plaintiff Opp. 7.) Because the Third Circuit has addressed the exactargument raised by Plaintiff here, and has held that a conviction of a conspiracy to commit wirefraud does not constitute a hybrid offense under Nugent, there is no doubt that Plaintiff has beenconvicted of an “aggravated felony.”

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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

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