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

NOT DETAINED

No. 11-16557

________________________________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

________________________________________________________________

ABDUL H. ALOCOZY,

Appellant,

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

Appellees.________________________________________________________________

BRIEF FOR APPELLEES________________________________________________________________

Case: 11-16557 12/15/2011 ID: 8001911 DktEntry: 15 Page: 1 of 38

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF JURISDICTION AND STANDARD OF REVIEW . . . . . . . 1

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS AND OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. A CONVICTION FOR ASSAULT TO COMMIT RAPE IS AN AGGRAVATED FELONY, WHICH PERMANENTLY BARS ALOCOZY FROM NATURALIZING . . . . . . . . . . . . . . . . . . . . . . 7

A. Statutory Overview of the Relevant Provisions of the INA . 7

1. Naturalization Under 8 U.S.C. § 1427 . . . . . . . . . . . . 7

2. IMMAct 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. IIRIRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4. Application to Alocozy . . . . . . . . . . . . . . . . . . . . . . . 12

B. Irrelevance of Grant of Section 212(c) Relief . . . . . . . . . . . 13

C. The Aggravated Felon Bar Is Not Being Applied Retroactively to Alocozy . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i


D. Alternatively, Even Under a Retroactivity Analysis, theAggravated Felon Bar Is Permissibly Applied to Alocozy . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ii


TABLE OF AUTHORITIES

FEDERAL CASES

PAGE

Alvarez-Barajas v. Gonzales,418 F.3d 1050 (9th Cir. 2005) ............................................................... 13, 19

Aragon-Ayon v. INS,206 F.3d 849 (9th Cir. 2000) ................................................................. 11, 19

Matter of Balderas,20 I. & N. Dec. 389 (BIA 1991) ............................................................ 14, 16

Becker v. Gonzales,473 F.3d 1000 (9th Cir. 2007) .................................................. 15, 16, 24, 25

Berenyi v. Dist. Dir., INS,385 U.S. 630 (1967) ................................................................................... 7, 8

Boatswain v. Gonzales,414 F.3d 413 (2d Cir. 2005) .................................................................. 16, 23

Bucknor v. Attorney Gen. of U.S.,243 Fed.Appx. 712 (3d Cir. 2007) ............................................................. 17

Bugari v. Napolitano,2011 WL 2610173 (N.D. Cal. July 1, 2011) .................................. 18, 19, 25

Chan v. Gantner,464 F.3d 289 (2d Cir. 2006) .................................................................. 14, 15

Fedorenko v. United States,449 U.S. 490 (1981) ..................................................................................... 26

iii


Flores v. Quarantillo,2008 WL 5396599 (S.D.N.Y. Dec. 29, 2008) ............................................ 17

Fowlin v. Monica,221 Fed.Appx. 147, 2007 WL 843850 (3d Cir. 2007) .............................. 16

Gorenyuk v. U.S. Dept. of Homeland Sec., 2007 WL 3334340 (N.D. Ill. Nov. 8, 2007) ............................................ 17

Hernandez de Anderson v. Gonzales,497 F.3d 927 (9th Cir. 2007) ....................................................................... 21

INS v. St. Cyr,533 U.S. 289 (2001) ............................................................ 11, 21, 22, 23, 26

Judulang v. Holder,2011 WL 6141311 (2011) ................................................................... 13, 14

Landgraf v. USI Film Prods.,511 U.S. 244 (1994) ........................................................................ 20, 21, 22

Ledezma-Galicia v. Holder,636 F.3d 1059 (9th Cir. 2010) ............................................................... 23, 24

Lopez-Castellanos v. Gonzales,437 F.3d 848 (9th Cir. 2006) ................................................................. 11, 24

Lutica v. Mukasey,2007 WL 4145275 (S.D.N.Y. Nov. 19, 2007) ............................................ 17

Margolis v. Ryan,140 F.3d 850 (9th Cir. 1998) ......................................................................... 2

In re Marin,16 I. & N. Dec. 581 (BIA 1978) .................................................................. 13

Marmolejo-Campos v. Holder,558 F.3d 903 (9th Cir. 1999) ......................................................................... 4

iv


Molina-Amezcua v. INS,6 F.3d 646 (9th Cir. 1993) ........................................................................... 15

Nunez-Reyes v. Holder,646 F.3d 684 (9th Cir. 2011) ...................................................................... 25

Padilla v. Kentucky,130 S. Ct. 1473 (2010) ................................................................................. 25

Pannu v. Holder,639 F.3d 1225 (9th Cir. 2011) ....................................................................... 4

Polizzi v. U.S. Dept. Of Homeland Security,2006 WL 3025686 (W.D ............................................................................. 17

Raghani v. USCIS,2011 WL 4849670 (N.D. Tex. Aug. 25, 2011) ........................................... 17

Ramirez-Castro v. INS,287 F.3d 1172 (9th Cir.2002) .................................................................. 3, 12

Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003) ....................................................................... 22

Rasdan v. Gonzalez, 2008 WL 2740815 (N.D. Ohio, Jul. 10, 2008) ........................................ 17

Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007) .................................................................... 9

Schneiderman v. United States,320 U.S. 118 (1943) ..................................................................................... 25

Socarras v. U.S. Dept. of Homeland Sec.,672 F. Supp. 2d 1320 (S.D. Fla. 2009) ........................................................ 17

v


United States v. Ginsberg, 243 U.S. 472 (1917) ............................................................................... 25, 26

United States v. Hovsepian,359 F.3d 1144 (9th Cir. 2004) .................................................................... 22

Usery v. Turner Elkhorn Minig Co.,428 U.S. 1 (1976) ......................................................................................... 23

Valencia-Alvarez v. Gonzales,469 F.3d 1319 (9th Cir. 2006) ..................................................................... 25

FEDERAL STATUTES

8 C.F.R. § 316.10(b)(1) ......................................................................................... 10

8 C.F.R. § 316.2(b) .................................................................................................. 8

8 U.S.C. § 1101 ........................................................................................................ 3

8 U.S.C. § 1101(a)(43) .............................................................................. 10, 13, 21

8 U.S.C. § 1101(a)(43)(A) & (F) ........................................................................... 12

8 U.S.C. § 1101(f)(8) ........................................................................... 9, 12, 19, 21

8 U.S.C. § 1182(c) ................................................................................................ 13

8 U.S.C. § 1421(c) ..................................................................................... 1, 2, 4, 14

8 U.S.C. § 1427 .................................................................................................... 7, 8

8 U.S.C. § 1427(a) ................................................................................................... 8

8 U.S.C. § 1427(a)(3) .............................................................................................. 9

8 U.S.C. § 1440 ...................................................................................................... 17

vi


28 U.S.C. § 1291 ...................................................................................................... 2

IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009, 3009-627 (1996) ........................ 10

IIRIRA, Pub. L. No. 104-208, Title III, Subtitle B, § 321(b) ........................ 10, 11

IMMAct90, Pub. L. No. 101-649, 104 Stat. 4978 (1990) ................................. 9, 19

INA § 212(c) .................................................................................................... 3, 13

STATE STATUTES

Cal. Penal Code § 220 ..................................................................................... 3, 12

Cal. Penal Code § 220(a)(1) .................................................................................. 12

Cal. Penal Code § 1203.4 ................................................................................ 3, 12

vii


NOT DETAINED

No. 11-16557

________________________________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

________________________________________________________________

ABDUL H. ALOCOZY,

Appellant,

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

Appellees.________________________________________________________________

BRIEF FOR APPELLEES________________________________________________________________

STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

Appellant Abdul H. Alocozy (“Alocozy”) seeks judicial review of a decision

out of the Eastern District of California, civil docket number 2:10-cv-1597 JAM

KJN, in which Alocozy sought de novo review of United States Citizenship and

Immigration Services’ (“USCIS”) denial of his naturalization application pursuant

to 8 U.S.C. § 1421(c). The district court granted summary judgment in the

1


government’s favor, denying Alocozy naturalization. Alocozy appeals this

decision, arguing that the district court erred in finding him permanently barred

from naturalization because of his commission of an aggravated felony.

This Court reviews de novo the district court’s grant of summary judgment

in the 8 U.S.C. § 1421(c) action pursuant to 28 U.S.C. § 1291. Margolis v. Ryan,

140 F.3d 850, 852 (9th Cir. 1998).

ISSUE PRESENTED

1. Whether the district court correctly determined that Alocozy is ineligible for

naturalization because his state conviction for Assault with the Intent to

Commit Rape constitutes an aggravated felony, such that he cannot establish

good moral character, notwithstanding a grant of § 212(c) relief from

removal.

STATEMENT OF FACTS AND OF THE CASE

The facts and procedural history of this case are undisputed, and are

accurately set forth in the Statement of Facts presented in Appellant’s Opening

Brief. Appellant’s Opening Brief at 2-4.

2


Briefly, Alocozy is a native and citizen of Afghanistan. Administrative

Record (“AR”) 737. He entered the United States as a refugee in 1983, and

became a lawful permanent resident in 1984. AR 787-788. On January 9, 1991,

Alocozy pleaded guilty to an aggravated felony: Assault to Commit Rape, in

violation of California Penal Code § 220. AR 67. He was sentenced to a one year

term of imprisonment, which was stayed and he instead entered a work furlough

program. AR 67.1

In 1999, Alocozy was placed into deportation proceedings as an alien

convicted of an aggravated felony as defined by 8 U.S.C. § 1101. AR 736.

However, Alocozy requested and received a waiver of removal under former

Immigration and Nationality Act (“INA”) § 212(c). AR 20. Removal proceedings

were accordingly terminated.

///

///

1On July 8, 1999, Alocozy’s case was dismissed pursuant to California PenalCode § 1203.4. AR 467-469. That expungement does not, however, eliminate theimmigration consequences of the conviction. See Ramirez–Castro v. INS, 287 F.3d1172, 1174 (9th Cir.2002) (state expungement of a criminal conviction generallydoes not remove its immigration consequences).

3


On October 6, 2004, Alocozy applied for naturalization.2 AR 53. On

September 28, 2005, USCIS denied the application on the grounds that Alocozy’s

aggravated felony conviction prevented him from establishing the necessary good

moral character. AR 48-50, 53. Alocozy appealed administratively by filing

USCIS Form N-336. AR 33-37. USCIS affirmed the denial on June 16, 2009. AR

2-3.

Alocozy brought a petition pursuant to 8 U.S.C. § 1421(c) seeking de novo

review of his naturalization application in district court. Eastern District of

California docket number 2:10-cv-1597 JAM KJN. Agreeing that the case

presented a singular legal issue, with no dispute as to the underlying facts, the

parties filed cross-motions for summary judgment. Docket entries 12, 15. On

April 27, 2011, the district court granted summary judgment in the government’s

favor and denied Alocozy’s motion for summary judgment. Docket entry 19. The

2On his naturalization application, Alocozy indicated that he had sufferedtwo additional convictions: failure to register as a sex offender and a driving underthe influence charge. AR 61. These additional convictions are certainly relevantto the good moral character determination, but they are not aggravated felonies,and therefore influence the good moral character determination as discretionaryfactors, not eligibility grounds. See Marmolejo-Campos v. Holder, 558 F.3d 903,915 (9th Cir. 1999) (en banc); Pannu v. Holder, 639 F.3d 1225 (9th Cir. 2011)(failure to register as sex offender).

4


district court rejected the argument that the § 212(c) grant had any bearing on

naturalization proceedings, and instead applied the aggravated felon bar to find

Alocozy ineligible for naturalization. Docket entry 19.

This appeal followed.

SUMMARY OF ARGUMENT

This case presents a single issue that is superficially easily resolved. Framed

as a § 212(c) issue, the question is whether the fact of Alocozy’s grant of § 212(c)

relief in deportation proceedings entitles him to some special consideration in the

naturalization context notwithstanding the statutory bar prohibiting aliens

convicted of aggravated felonies from making the required showing of good moral

character. Clearly not. Relief from removal under former § 212(c) does not erase

an aggravated felony conviction for all immigration purposes. Rather, it is a

narrow form of relief that applies only to the deportation proceedings in which it

was granted. All of the existing caselaw on point agrees.

The more challenging articulation of the issue is whether this Court is

required to inquire further into the retroactive effect of Congress’s reclassification

of Alocozy’s crime, from one that was not an aggravated felony to one that now is

an aggravated felony. Alocozy pleaded guilty to his crime with the knowledge that

5


aggravated felons could not make the required showing of good moral character,

but without the knowledge that his crime would later be reclassified as an

aggravated felony. No additional retroactivity analysis is required. The

aggravated felon bar to good moral character was not retroactively applied to

Alocozy – that bar was in place at the time of his plea. This Circuit has already

held that the amended aggravated felony definition was intended to apply

retroactively. The substantive immigration consequences (ineligibility for

naturalization) do not flow from the definitional change, but rather from the pre-

existing bar on aggravated felons demonstrating good moral character.

Accordingly, this Court need not engage in a retroactivity analysis of the

definitional change.

Should the Court find, however, that a retroactivity analysis is required, the

expansion of the aggravated felony definition permissibly barred a broader class of

aliens from the privilege of naturalization. The privilege of naturalization is quite

different from relief from deportation in the form of former § 212(c), or any of the

other more immediate immigration consequences that relate to a criminal

conviction. It is not reasonable to assume that an alien engaged in a plea bargain

would weigh his continued eligibility to naturalize in the same way he would his

6


ability to avoid deportation. The privilege of naturalization is too attenuated from

the plea bargain to conclude that a retroactive definitional change would upset

settled expectations. Accordingly, even if this Court were to undertake a

retroactivity analysis, the retroactive reclassification of Alocozy’s crime as an

aggravated felony is permissible.

Against this background, the district court correctly found that Alocozy is

permanently barred from naturalizing because of his commission of an aggravated

felony.

ARGUMENT

I. A CONVICTION FOR ASSAULT TO COMMIT RAPE IS ANAGGRAVATED FELONY, WHICH PERMANENTLY BARSALOCOZY FROM NATURALIZING.

A. Statutory Overview of the Relevant Provisions of the INA.

1. Naturalization Under 8 U.S.C. § 1427

“[T]”he government has a strong and legitimate interest in ensuring that

only qualified persons are granted citizenship.” Berenyi v. Dist. Dir., INS, 385

U.S. 630, 637 (1967). Thus, when an alien seeks to naturalize, “it has been

universally accepted that the burden is on the alien applicant to show his

7


eligibility for citizenship in every respect.” Id. As the Supreme Court has

explained, this is because:

[w]hen the Government seeks to strip a person of citizenship alreadyacquired, or deport a resident alien and send him from our shores, itcarries the heavy burden of proving its case by “clear, unequivocal,and convincing evidence.” But when an alien seeks to obtain theprivileges and benefits of citizenship, the shoe is on the other foot.He is the moving party, affirmatively asking the Government toendow him with all the advantages of citizenship. Because thatstatus, once granted, cannot lightly be taken away, the Governmenthas a strong and legitimate interest in ensuring that only qualifiedpersons are granted citizenship.

Id. at 636-37. An alien generally meets this burden if he or she shows, by a

preponderance of the evidence, that she is eligible to become a United States

citizen. 8 C.F.R. § 316.2(b). Any doubts regarding an alien’s eligibility for

citizenship “should be resolved in favor of the United States and against the

claimant.” Berenyi, 385 U.S. at 637 (quotation omitted).

The statutory requirement for naturalization are set forth in 8 U.S.C. § 1427.

This case hinges on the 8 U.S.C. § 1427(a) statutory requirement of good moral

character: “[n]o person . . . shall be naturalized unless such applicant . . . (3)

during all periods referred to in this subsection [the five years preceding the

8


filing of the application for naturalization] has been and still is a person of good

moral character. . . .” 8 U.S.C. § 1427(a)(3).

The statute bars a finding of good moral character for aliens convicted of an

aggravated felony: “No 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 . . . (8) one who at any time has been

convicted of an aggravated felony (as defined in subsection (a)(43) of this

section.” 8 U.S.C. § 1101(f)(8).

2. IMMAct 1990

In 1990, just prior to Alocozy’s conviction, Congress overhauled

deportation law by passing the Immigration Act of 1990 (“IMMAct90"), Pub.L.

No. 101-649, 104 Stat. 4978 (1990). The IMMAct90 introduced the aggravated

felon bar to naturalization. Under 8 U.S.C. §1101(f)(8), a person who at any time

has been convicted of an aggravated felony, cannot establish good moral character

for naturalization. This limitation applies only to aggravated felonies entered on

or after November 29, 1990, as the IMMAct90 is not a retroactive statute. See

Pub.L. No. 101-649, 104 Stat. 4978 (1990); cf. Saravia-Paguada v. Gonzales, 488

F.3d 1122 (9th Cir. 2007).

9


The IMMAct90 bar is also reflected in the applicable regulations. 8 C.F.R.

§ 316.10(b)(1) sets forth the aggravated felony bar to good moral character

determinations for convictions occurring on or after November 29, 1990.

3. IIRIRA.

Six years later, Congress again reformed immigration law with the Illegal

Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No.

104-208, 110 Stat. 3009, 3009-627 (1996). The IIRIRA broadly expanded the

definition of “aggravated felony”–significantly in this case to include a “crime of

violence.” 8 U.S.C. §1101(a)(43).

The IIRIRA definitional changes apply retroactively for convictions entered

before September 30, 1996. IIRIRA § 321(b); 8 C.F.R. § 316.10(b)(1).

Specifically, IIRIRA amended the effective date of the aggravated felony

definition by adding the following language to the end of Section 1001(a)(43):

“[n]otwithstanding any other provision of law (including any effective date), the

term applies regardless of whether the conviction was entered before, on, or after

the date of enactment of this paragraph.” Pub. L. 104-208, Title III, Subtitle B, §

321(b). IIRIRA further provided in its effective date provisions that “the

amendments made . . . shall apply to actions taken on or after the date of the

10


enactment of [IIRIRA], regardless of when the conviction occurred.” Pub.L. 104-

208, Title III, Subtitle B, § 321(c).

In INS v. St. Cyr, in holding that Congress did not clearly intend for a

different section of the IIRIRA to apply retroactively, the Supreme Court

contrasted this section with § 321(b), which the Court found unambiguously

applied retroactively. INS v. St. Cyr, 533 U.S. 289 (2001). In Aragon-Ayon v.

INS, 206 F.3d 849 (9th Cir. 2000), this Court agreed: IIRIRA’s language

expressed clear congressional intent that the amended definition in IIRIRA be

applied retroactively. In that case, the retroactive application resulted in the alien

being rendered deportable, when he was not at the time of conviction. 206 F.3d at

852-53. See also Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.

2006) (“it is settled law that the . . . definitional statute, IIRIRA § 321, which

defines certain crimes as aggravated felonies, applies regardless of the date of the

crime.”).

///

///

///

11


4. Application to Alocozy.

Alocozy pleaded guilty on January 9, 1991, to Assault to Commit Rape in

violation of Cal. Penal Code §220.3 AR 67. On February 20, 1991, the Superior

Court of California, County of Alameda, sentenced him to one year of

imprisonment and three years probation.4 A.R. 67. Alocozy’s conviction

constitutes an aggravated felony and permanently bars him from establishing good

moral character for naturalization. 8 U.S.C. §1101(f)(8). The statutory definition

of an aggravated felony includes “. . . rape . . .” and “a crime of violence . . .” 8

U.S.C. §1101(a)(43)(A) & (F).

There is no dispute in this case that Assault to Commit Rape in violation of

Cal. Penal Code §220 is now an aggravated felony. District Court docket entry

12, p.4 at ¶ 3; Appellant’s Opening Brief at 8. This became so in 1996 when

3 Cal. Penal Code § 220(a)(1) indicates “any person who assaults anotherwith intent to commit mayhem, rape, sodomy, oral copulation . . . shall be punishedby imprisonment in the state prison for two, four, or six years.”

4Execution of the sentence was stayed and Alocozy was referred into thework furlough program. AR 67. He successfully completed this program, and onJuly 8, 1999, Alocozy’s case was dismissed pursuant to California Penal Code §1203.4. AR 467-469. Again, however, that expungement does not eliminate theimmigration consequences of the conviction, and has no relevance to the issuespresented in this appeal. See Ramirez–Castro, 287 F.3d at 1174.

12


Congress added “a crime of violence” to the list of aggravated felonies in 8 U.S.C.

§1101(a)(43).

Alocozy’s guilty plea and conviction occurred after November 29, 1990,

and this triggered the IMMAct 90 provision permanently barring him from

establishing good moral character for naturalization. See Alvarez-Barajas v.

Gonzales, 418 F.3d 1050 (9th Cir. 2005). Accordingly, Alocozy’s conviction for

the aggravated felony of Assault to Commit Rape permanently bars him from

establishing good moral character for naturalization.

B. Irrelevance of Grant of Section 212(c) Relief.

Alocozy argues that the above statutory scheme notwithstanding, the fact

that he was granted relief under former INA § 212(c) should excuse him from the

aggravated felon bar to naturalization. Former § 212(c) was a form of relief from

deportation given to criminal aliens who could demonstrate that social and

humane considerations outweighed their undesirability as lawful permanent

residents. 8 U.S.C. § 1182(c) (repealed 1996). In re Marin, 16 I. & N. Dec. 581,

584 (BIA 1978). Section 212(c) was repealed by the IIRIRA and replaced with a

new section that gives the Attorney General the authority to cancel removal for a

narrow class of inadmissible or deportable aliens. See Judulang v. Holder,

13


___ S. Ct. __, 2011WL6141311 at *2-4 (2011) (providing a history of § 212(c)

relief). “[S]ection 212(c) merely provides that an alien may be admitted to or, in

the case of deportation proceedings, allowed to remain in the United States despite

a finding of excludability or deportability. Thus, when section 212(c) relief is

granted, the Attorney General does not issue a pardon or expungement of the

conviction itself.” Matter of Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991).

Alocozy benefitted from a grant of section 212(c) relief, and his deportation

proceedings were terminated as a result. But there is no authority for the

proposition advanced by Alocozy: that the shield of § 212(c) relief in deportation

proceedings can be used as a sword in naturalization proceedings to precludes

USCIS from considering the underlying conviction. There is only authority to the

contrary. The Second Circuit decision in Chan v. Gantner, 464 F.3d 289 (2d Cir.

2006), is directly on point. The Second Circuit reviewed a denied naturalization

application under the same jurisdictional statute applicable in this case, 8 U.S.C. §

1421(c). The Second Circuit held that the district court in that case correctly

denied naturalization to a criminal alien who had also argued that his section

212(c) waiver precluded the finding of a lack of good moral character based upon

the conviction: “We agree with the District Court that no authority supports the

14


proposition that the government is foreclosed by a waiver of deportation from

considering a conviction when determining the unrelated question of fitness for

naturalization.” 464 F.3d at 294.

In reaching its conclusion in Chan, the Second Circuit cites a Ninth Circuit

case, Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993). The Ninth Circuit

considered a similar issue: whether deportability under the two-crimes-involving-

moral-turpitude statute may be based in part on a crime for which a previous §

212(c) waiver had been granted. 6 F.3d at 646. The Ninth Circuit concluded that

a section 212(c) waiver does not preclude reliance on the underlying crime in

making a subsequent deportability determination: “A waiver of deportation gives

the alien a chance to stay in the United States despite his misdeed, but it does not

expunge the conviction. The blemish remains on his record, to be considered if

and when the alien again gives the Attorney General cause to examine his

deportability.” 6 F.3d at 647.

The reverse proposition must also be true. The underlying crime must be

available for consideration by the immigration services in assessing eligibility for

an immigration benefit other than the initial section 212(c) waiver. The Court

confirmed as much in Becker v. Gonzales, 473 F.3d 1000, 1003 (9th Cir. 2007).

15


In Becker, an alien sought to apply for cancellation of removal based on a more

recent criminal conviction. The alien had also suffered an older conviction; the

alien argued that through retroactivity analysis, he should be eligible to apply for

§ 212(c) relief for the old crime, absolving any bars to his current cancellation

application. The Court disagreed. Even with a successful § 212(c) waiver, the

Court held that the old crime would be treated as a disqualifying aggravated

felony. 473 F.3d at 1003-04. The Court quoted the BIA: “‘the grant of section

212(c) relief merely waives the finding of deportability rather than the basis of the

deportability itself. Therefore, the crimes alleged to be grounds for deportability

do not disappear from the alien’s record for immigration purposes.’” Id., quoting

Matter of Balderas, 20 I&N Dec. 389, 391 (BIA 1991).

The government is aware of no case to the contrary. See Fowlin v. Monica,

221 Fed.Appx. 147, 2007 WL 843850 (3d Cir., Mar. 21, 2007) (unpublished)

(citing Molina-Amezcua and rejecting an argument that a § 212(c) grant should be

considered evidence of good moral character in the naturalization context: “The

fact that [appellant] received the [§ 212(c)] waiver of deportation following his

drug trafficking conviction in no way attenuates the nature or seriousness of that

crime. It does not pardon or expunge the conviction.”); Boatswain v. Gonzales,

16


414 F.3d 413 (2d Cir. 2005) (addressing the same question in the context of 8

U.S.C. § 1440, the veterans’ naturalization statute); Raghani v. USCIS, 2011 WL

4849670 (N.D. Tex. Aug. 25, 2011) (rejecting an argument that because an alien

was granted § 212(c) relief, his crime could not be considered an aggravated

felony, nor detract from his good moral character in naturalization proceedings);

Polizzi v. U.S. Dept. Of Homeland Security, 2006 WL 3025686 (W.D. Wash.

June 8, 2006) (“When an applicant who has been convicted of an aggravated

felony wants to become a naturalized citizen of the United States, there is only one

possible way to clear the path for achieving that goal: to seek a ‘full and

unconditional executive pardon.’”); Socarras v. U.S. Dept. of Homeland Sec., 672

F. Supp. 2d 1320, 1325 (S.D. Fla. 2009) (underlying conviction appropriately

considered in evaluating good moral character, notwithstanding section 212(c)

waiver); Gorenyuk v. U.S. Dept. of Homeland Sec., 07 C 1190, 2007 WL 3334340

(N.D. Ill. Nov. 8, 2007) (same); Bucknor v. Attorney Gen. of U.S., 243 Fed.Appx.

712, 714 (3d Cir. 2007) (same); Rasdan v. Gonzalez, 5:07 CV 1873, 2008 WL

2740815 (N.D. Ohio July 10, 2008) (same); Lutica v. Mukasey, 2007 WL

4145275 (S.D.N.Y. Nov. 19, 2007) (same); Flores v. Quarantillo, 2008 WL

17


5396599 (S.D.N.Y. Dec. 29, 2008) (same); Bugari v. Napolitano, 2011 WL

2610173 (N.D. Cal. July 1, 2011) (same).

The apparently unanimous consensus of courts to have considered the issue

is that a grant of § 212(c) relief is irrelevant to the calculus of good moral

character in the naturalization context. The district court therefore correctly

disregarded Alocozy’s successful obtainment of a § 212(c) grant in its assessment

of his eligibility for naturalization.

C. The Aggravated Felon Bar Is Not Being Applied Retroactively to Alocozy.

Alocozy suggests that his case is more complicated than the above; that the

retroactive reclassification of his crime as an aggravated felony upset his settled

expectation of eligibility for naturalization at the time he pleaded guilty.

Appellant’s Brief at 9-10. The idea that the Alocozy’s quid pro quo with the

government was disrupted with an unanticipated, retroactive change in the law

may give pause. But the argument is ultimately unpersuasive. No retroactivity

analysis is needed because the aggravated felon bar to naturalization was already

in place at the time Alocozy pleaded guilty.

18


It is undisputed that the IMMAct90 aggravated felon bar to naturalization

was in place at the time Alocozy pleaded guilty, and would have applied to him

then if his crime had at the time been an aggravated felony. IMMAct90; 8 U.S.C.

§1101(f)(8). In Alvarez-Barajas, this Court considered the case of an alien who

(a) pleaded guilty at a time when his crime was not an aggravated felony and not a

deportable offense; and (b) the law at the time of his plea already barred

aggravated felons from obtaining § 212(c) relief. 418 F.3d at 1050. The Alvarez-

Barajas Court found these facts critical, and confirmed that there was no

impermissible retroactive effect in the alien’s § 212(c) ineligibility. Because per

Aragon-Ayon, the expanded aggravated felony definition could be applied to

Alvarez-Barajas, and because aggravated felons were already barred from 212(c)

relief, the Court found no concerns with barring Alvarez-Barajas from 212(c)

eligibility. 418 F.3d at 1054.

The holding in Alvarez-Barajas should apply equally to Alocozy. The

substantive bar to his naturalization originates in the IMMAct90 aggravated felon

bar. It is only the definitional change which is being applied unforeseen. This

definitional change has already been held to be permissibly retroactive.

Therefore, no further analysis is needed. See also Bugari, 2011 WL 2610173 at

19


*9 (in an identically-postured case, holding that no retroactivity analysis was

necessary because the aggravated felony bar to naturalization was not applied

retroactively).

D. Alternatively, Even Under a Retroactivity Analysis, the Aggravated Felon Bar Is Permissibly Applied to Alocozy.

Even if this Court rejects the government’s contention that the bar

originates in the preexisting IMMAct90 statute, the Court should find that the

IIRIRA definitional change is permissibly retroactive. Alocozy would have to

argue that he would not have entered a guilty plea had he known the conviction

would eventually render him ineligible for naturalization. Because naturalization

is categorically treated as a privilege, rather than a right, however, this argument

lacks force. Congress may exert its plenary power to tinker with the requirements

for naturalization and may do so retroactively without upsetting any settled

expectations of one entering a plea bargain.

Landgraf establishes a two-part framework for inquiry into whether a

statute should be applied retroactively. Landgraf v. USI Film Prods., 511 U.S.

244 (1994). Congress must make its intentions clear if the Court is to give

retroactive effect to a statute that burdens private rights of individuals. Landgraf,

20


511 U.S. at 270. If there is no clear intent, a statute cannot be applied

retroactively if it “takes away or impairs vested rights acquired under existing

laws, or creates a new obligation, imposes a new duty, or attaches a new

obligation, in respect to transactions or considerations already past.” Id. at 269.

In St. Cyr, the Supreme Court applied Landgraf to assess the retroactivity of

the IIRIRA repeal of section 212(c) relief. St. Cyr, 533 U.S. at 289. By way of

contrast the St. Cyr Court noted that the aggravated felony definition is

“unambiguously” retroactive. St. Cyr, 503 U.S. at 318-19. Furthermore, because

8 U.S.C. § 1101(f)(8) incorporates 8 U.S.C. § 1101(a)(43) by reference, it is clear

that Congress intended that the aggravated felony definitions apply retroactively

to bar persons convicted of those crimes from establishing the good moral

character necessary for naturalization.

This case is therefore indisputably Langraf step one – Congress clearly

intended for the expanded aggravated felony definition to apply retroactively. Cf.

Hernandez de Anderson v. Gonzales, 497 F.3d 927, 935 (9th Cir. 2007)

(evaluating the retroactive effect of repeal of suspension of deportation for an

alien who sought naturalization before the IIRIRA effective date under Landgraf

step two). “[S]tatutes may and should be retroactively applied when the statute at

21


issue clearly indicates that it is intended to be retroactive.” Landgraf, 511 U.S. at

280.

Under Landgraf step one, the Court must presume that “Congress itself has

affirmatively considered the potential unfairness of retroactive application and

determined that it is an acceptable price to pay for the countervailing benefits.”

St. Cyr, 533 U.S. at 320; see also United States v. Hovsepian, 359 F.3d 1144,

1156-57 (9th Cir. 2004) (en banc) (applying Landgraf step one retroactivity

analysis to deportation statute). “‘A statute does not operate “retrospectively

merely because it is applied in a case arising from conduct antedating the statute’s

enactment, or upsets expectations based in prior law.’” Rankine v. Reno, 319 F.3d

93, 98 (2d Cir. 2003) (quoting Landgraf, 511 U.S. at 269). “Rather, the inquiry

demands a commonsense, functional judgment about whether the new provision

attaches new legal consequences to events completed before its enactment.” Id.

Whether a particular statute acts retroactively is informed by the criteria of “fair

notice, reasonable reliance, and settled expectations.” St. Cyr, 533 U.S. at 321.

“[L]egislation readjusting rights and burdens is not unlawful solely because it

upsets otherwise settled expectations. . . . This is true even though the effect of

the legislation is to impose a new duty or liability based on past acts.” Usery v.

22


Turner Elkhorn Minig Co., 428 U.S. 1, 16 (1976). Accordingly, the Court looks

for some indication of a quid pro quo, or reasoned exchange, wherein the

individual whose settled expectations were in question relied on a potential benefit

in structuring his conduct. Boatswain, 414 F.3d at 419.

The Ninth Circuit caselaw places heavy emphasis on the “substantive

immigration consequences” of the potentially retroactive statute. In Ledezma-

Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), the Court took up the question

of the effect of the IMMAct90 and IIRIRA reforms on a conviction that predated

both statutes. The Court held that because of a previous statute’s temporal

limitation specifically exempting earlier criminal aliens from deportability, the

IIRIRA could not be read as retroactively erasing that temporal limitation: “both

the Supreme Court [in St. Cyr] and the immigration agencies have consistently

determined the temporal reach of those consequences of aggravated felony

convictions separately from the temporal reach of the aggravated felony

definition, even in the wake of IIRIRA.” 636 F.3d at 1079-90 (emphasis in

original).

23


In Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir. 2006), the

Court also relied on “substantive immigration consequence” analysis to find that

the opportunity to apply for discretionary relief must remain available

notwtithstanding the alien’s seeming ineligibility to apply for such relief under

IIRIRA. The Lopez-Castellanos court held “it is settled law that the . . .

definitional statute, IIRIRA § 321, which defines certain crimes as aggravated

felonies, applies regardless of the date of the crime.” 437 F.3d at 852. But the

Court went on to hold that the IIRIRA effective date provisions do not control

“the substantive immigration consequences of IIRIRA.” Id. Because there was

no clear congressional intent for this “substantive immigration consequence” to

have retroactive effect, the Court found that the alien in that case should be

eligible to apply for the discretionary relief he sought. 437 F.3d at 852. But see

Becker, 473 F.3d at 1003-04 (declining to extend Lopez-Castellano beyond the

context of an alien seeking a § 212(c) waiver to avoid deportation resulting from

the original conviction).

Lopes-Castellanos and Ledezma-Galicia are distinguishable cases in that

both involve the question of whether the amended provisions of IIRIRA

governing eligibility for discretionary relief should be applied retroactively. The

24


Court’s analysis of congressional intent and retroactive application are

inapplicable here, where the sole question is the retroactive application of the

expanded aggravated felony definition. See Bugari, 2011 WL 2610173 at *9.

Moreover, there is simply no support for an argument that an alien entering

a guilty plea has a settled expectation in his continued eligibility for

naturalization. This Court has held: “[t]he loss of an opportunity to become

eligible for discretionary relief does not rise to the level of impairing a right

possessed by a party.” Becker, 473 F.3d at 1004 (quoting Valencia-Alvarez v.

Gonzales, 469 F.3d 1319, 1328-29 (9th Cir. 2006). This is by contrast to the

“particularly severe penalty” of deportation. Cf. Padilla v. Kentucky, 130 S. Ct.

1473, 1481 (2010); Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en

banc) (“It would be manifestly unfair effectively to hoodwink aliens into waiving

their constitutional rights on the promise of no legal consequences and, then, to

hold retroactively that their convictions actually carried with them the

‘particularly severe penalty’ of removal.”) (citing Padilla, 130 S. Ct. at 1481).

Naturalization is a privilege, not a right. See Schneiderman v. United

States, 320 U.S. 118, 131 (1943). Unless strict statutory requirements are met,

“[n]o alien has the slightest right to naturalization.” United States v. Ginsberg,

25


243 U.S. 472, 475 (1917); Fedorenko v. United States, 449 U.S. 490, 506 (1981).

Naturalization is not just any immigration benefit; it is the ultimate. That Alocozy

may once have been, but is not now, eligible to naturalize, is of no constitutional

consequence. No due process rights are upset when Congress “consider[s] the

potential unfairness of retroactive application and determine[s] that it is an

acceptable price to pay for the countervailing benefits.” St. Cyr, 533 U.S. at 320.

Alocozy had no settled expectation in his potential naturalization, and

accordingly, there are no retroactivity concerns with the application of the

aggravated felony bar to his case.

///

///

///

26


CONCLUSION

For the foregoing reasons, the Court should affirm the decision of the

District Court and deny the appeal. In the alternative, the Court should remand

the matter to district court for further proceedings to determine Alocozy’s

suitability for naturalization.

Respectfully submitted,

BENJAMIN B. WAGNERUnited States Attorney/s/ Audrey B. HemesathAudrey B. HemesathAssistant United States Attorney501 I Street, Suite 10-100Sacramento, California 95814 Telephone: (916) 554-2729

TONY WESTUnited States Department of JusticeAssistant Attorney GeneralELIZABETH J. STEVENSAssistant DirectorOffice of Immigration LitigationDistrict Court SectionARAM A. GAVOORTrial Attorney, District Court SectionP.O. Box 868, Ben Franklin StationWashington, DC 20044Tel: (202) 305-8014

Dated: December 15, 2011 ATTORNEYS FOR APPELLEES

27


STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, counsel for the Appellees states that

based on a survey of the attorneys in this office, there are no cases involving the

same factual and/or legal issues as the instant case.

/s/ Audrey B. HemesathAUDREY B. HEMESATH

28


CERTIFICATION OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32, counsel for the Appellees certifies that

the answering brief is proportionally spaced, has a typeface of 14 points or more

and contains 5,088 words.

/s/ Audrey B. HemesathAUDREY B. HEMESATH

29


CERTIFICATE OF SERVICEWhen All Case Participants are Registered for the

Appellate CM/ECF System

I hereby certify that on December 15, 2011, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for

the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Audrey B. Hemesath AUDREY B. HEMESATH


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

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