U.S. v. Jean-Baptiste, 04-10144.

• Citation: 395 F.3d 1190
• Decision Date: 04 January 2005
• Docket Number: No. 04-10144.,04-10144.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lionel JEAN-BAPTISTE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1190

395 F.3d 1190

UNITED STATES of America, Plaintiff-Appellee, v. Lionel JEAN-BAPTISTE, Defendant-Appellant.

No. 04-10144.

United States Court of Appeals, Eleventh Circuit.

January 4, 2005.

Andre Dominique Pierre, Douthit Murray & Pierre, P.A., North Miami, FL, for Defendant-Appellant.

Thomas F. Baxley, Jr., U.S Government, Dept. of Justice — INS, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and CUDAHY^*, Circuit Judges.

CUDAHY, Circuit Judge:

The right to acquire United States citizenship is precious and coveted and its successful exercise rarer than many aspirants would hope for. See Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Accordingly, when the government seeks to strip citizenship from one who has acquired it, denaturalization proceedings can have "severe and unsettling consequences." Id. Here, we address the question whether a naturalized citizen who committed certain unlawful acts during the statutory period prior to taking the oath of allegiance but for which he was indicted, arrested and convicted after naturalization stands to lose his precious acquisition for lack of good moral character. Unfortunately, the answer is yes.

I.

Lionel Jean-Baptiste is a Haitian citizen and native who was paroled into the United States on September 10, 1980, and became a permanent resident here on January 1, 1982. He applied for naturalization on November 21, 1994 on the ground that he had been a lawful permanent resident for at least five years. His application was approved on February 13, 1996, and on April 23, 1996, Jean-Baptiste took the oath of allegiance and became a naturalized citizen. Unbeknownst to immigration officials, however, Jean-Baptiste had entangled himself in a conspiracy to distribute crack cocaine at some point between March 17 and March 23, 1995, in violation of 23 U.S.C. § 841(a)(1), 18 U.S.C. § 2, and 21 U.S.C. § 846. Jean-Baptiste was indicted for this crime by a grand jury on October 11, 1996, was arrested on October 30, 1996, and was convicted by a jury on January 8, 1997. He thereafter received a sentence of 97 months' imprisonment, five years of supervised release and a $50,000 fine.

Consequently, the United States government sought to revoke Jean-Baptiste's citizenship on the ground that he was barred from establishing "good moral character" under 8 U.S.C. § 1101(f) because he had committed unlawful acts reflecting adversely upon his moral character during the statutory period.¹ The district court granted summary judgment for the government, finding that Jean-Baptiste must be denaturalized for illegally procuring his citizenship in the face of commission during the statutory period of acts sufficient to negate and belie a showing of good moral character. The district court stayed the order of denaturalization so that Jean-Baptiste could pursue this appeal. We review the district court's grant of summary judgment to the government de novo. O'Ferrell v. United States, 253 F.3d 1257 (11th Cir.2001).

II.

An applicant who seeks to become a naturalized United States citizen must fully comply with several statutory prerequisites before taking the oath of allegiance. Fedorenko, 449 U.S. at 506, 101 S.Ct. 737. These requirements demand that applicants for naturalization reside continuously in the United States for at least five years after being lawfully admitted for permanent residence; maintain physical presence in the United States for the five years immediately preceding the application date; reside in the United States "from the date of the application up to the time of admission to citizenship"; and during all such periods establish and maintain "good moral character." 8 U.S.C. § 1427(a). In view of these requirements, the district court concluded that applicants had to maintain good moral character at least from the date on which the application was filed until the date the oath of allegiance was taken.² We concur in this interpretation.

Once applicants have complied with the arduous naturalization requirements and have taken the oath of allegiance, they are, to use a baseball analogy, safe at home plate. If, however, evidence later comes to light suggesting that citizenship was illegally procured, the government may challenge the naturalized citizen's certificate of citizenship and demand its cancellation. Fedorenko, 449 U.S. at 505, 101 S.Ct. 737. But the government bears a heavy burden of proof in denaturalization proceedings, and a court should only revoke citizenship if the government presents "clear, unequivocal, and convincing" evidence establishing that citizenship was illegally procured. United States v. Koziy, 728 F.2d 1314, 1318 (11th Cir.1984) (citing Fedorenko, 449 U.S. at 505, 101 S.Ct. 737). When the government succeeds in carrying this heavy burden, a district court must revoke citizenship "on the ground that such order and certificate of naturalization were illegally procured." 8 U.S.C. § 1451(a). In these circumstances, a court lacks discretion but is compelled to enter a judgment of denaturalization. Fedorenko, 449 U.S. at 517, 101 S.Ct. 737.

A.

Before addressing the substance of this case, we note that one of Jean-Baptiste's arguments is not relevant to the instant appeal. Jean-Baptiste asserts that the issue before us is whether he illegally procured his citizenship by willfully and knowingly misrepresenting or concealing a material fact during the naturalization process. But, to the contrary, this case does in fact require us to determine whether Jean-Baptiste pursued citizenship without possessing the requisite good moral character and not to determine whether he committed fraud. Therefore, the only fact relevant to the count contained in the government's second amended complaint is whether Jean-Baptiste, during the statutory period, committed the crime of conspiring to distribute cocaine, thereby negating his possession of good moral character.

B.

Since Jean-Baptiste committed his unlawful acts while his naturalization application was pending, but was convicted of those offenses after he became a naturalized citizen, the specific question here is whether the commission, in contrast to the conviction, of a crime negates good character during the critical statutory period. While the Immigration and Naturalization Act (INA) does not specifically define what "good moral character" is, it quite explicitly states what it is not. Among the entries in a non-exhaustive list of categories of persons who cannot establish good moral character for purposes of the statute are individuals convicted of trafficking in controlled substances and those convicted of other crimes. 8 U.S.C. § 1101(f)(3), (8). While this section is not directly on point to the present facts because it speaks to conviction and not to commission of a crime, it does illustrate what types of unlawful behavior may bar an applicant from establishing good moral character in that context, particularly in view of the expansive "catch-all" provision in the last section of 8 U.S.C. § 1101(f). The final section of 8 U.S.C. § 1101(f) contains a "catch-all" provision which cautions that "the fact that any person is not within any of the foregoing classes shall not preclude a finding that for such reasons such person is or was not of good moral character."

Numerous other statutory and regulatory provisions also suggest the contours of a definition of good moral character. Under 8 U.S.C. § 1182(a)(2), which is referenced in 8 U.S.C. § 1101(f)(3), aliens who are inadmissible to citizenship on criminal and related grounds include those who commit or conspire to commit a crime of moral turpitude as well as aliens who assist others in trafficking in controlled substances. In addition, 8 C.F.R. § 316.10, a regulation based on 8 U.S.C. § 1101(f), sets forth additional categories of persons who cannot establish good moral character, including applicants convicted of an aggravated felony, a crime of moral turpitude or a controlled substance violation. The "catch-all" provision of 8 C.F.R § 316.10(b) states that applicants who have committed acts adversely reflecting on moral character during the statutory period cannot establish the requisite good moral character.

Jean-Baptiste does not deny that he was required to maintain good moral character from the date of application until he took the oath of allegiance, but he instead claims that he did possess good moral character throughout this period. Jean-Baptiste was convicted of knowingly and intentionally conspiring to possess crack cocaine with intent to distribute. This offense is an aggravated felony, a crime of moral turpitude³ and a controlled substances violation-all categories of offenses the commission of which bar an applicant for naturalization from establishing the requisite good moral character.

The district court narrowed the issue by finding that Jean-Baptiste's failure to establish good moral character was not as an alien who was convicted of or who admitted trafficking in controlled substances under 8 U.S.C. § 1101(f)(3) or as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(f)(8), before the taking of the oath of allegiance. Indeed, at or before the time of his naturalization Jean-Baptiste had not been indicted for, much less convicted of, a drug offense, nor is there evidence to suggest that he had admitted such an act at that time. Thus, the district court seized upon the final "catch-all" section of 8 U.S.C. § 1101(f)(8), in which Congress delegated authority to the former INS to set forth "other reasons" affecting determinations of good moral character. Pursuant to this authority, Congress delegated to the Attorney General authority to issue 8 C.F.R. § 316.10, including § 316.10(b)(3)(iii), which states that "the applicant shall be found to lack good moral character if, during the...