U.S. v. Hovsepian

Decision Date06 September 2005
Docket NumberNo. 99-56922.,No. 01-55247.,No. 99-50041.,99-50041.,99-56922.,01-55247.
Citation422 F.3d 883
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Viken HOVSEPIAN; Viken Yacoubian, Defendants-Appellees. Viken Hovsepian, Plaintiff-Appellee, v. United States of America; Alberto R. Gonzales,<SMALL><SUP>*</SUP></SMALL> Attorney General, United States Department of Justice, Defendants-Appellants. Viken Hovsepian; Viken Yacoubian, Plaintiffs-Appellees, v. United States of America; Alberto R. Gonzales,** Attorney General, United States Department of Justice, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

A. Ashley Tabbador, Assistant United States Attorney; Debra W. Yang, United States Attorney; and Leon W. Weidman, Chief, Civil Division, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant and the defendants-appellants.

Barrett S. Litt, Litt, Estuar, Harrison, Miller & Kitson, LLP; Michael J. Lightfoot, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine; and Mathew Millen, Law Offices of Mathew Millen, Los Angeles, CA, for the defendants-appellees and the plaintiffs-appellees.

Appeals from the United States District Court for the Central District of California Mariana R. Pfaelzer, District Judge, Presiding. D.C. Nos. CR-82-0917-MRP, CV-98-01001-MRP, CV-98-01001-MRP.

Before: SCHROEDER, Chief Judge, and D.W. NELSON, KLEINFELD, MICHAEL DALY HAWKINS, THOMAS, GRABER, McKEOWN, GOULD, PAEZ, BERZON, and CLIFTON, Circuit Judges.

GRABER, Circuit Judge:

This case comes before the en banc court for the second time. The first time, in United States v. Hovsepian, 359 F.3d 1144, 1165-69 (9th Cir.2004) (en banc), we reversed the district court's decision to administer the oath of citizenship to Appellees Viken Hovsepian and Viken Yacoubian because of legal errors in the court's consideration of their applications for naturalization. On remand, the government pursued additional discovery and the court took further evidence and heard argument, again finding that Appellees had established that they possess good moral character, as required by 8 U.S.C. § 1427(a)(3). The court ratified its August 18, 2000, administration of the oath of allegiance and the swearing in of Appellees as United States citizens. The government timely sought review, and we affirm.

The key to our present decision is the standard of review. We review for clear error the district court's findings that Appellees possess good moral character, which are findings of fact. See Fed.R.Civ.P. 52(a) (mandating that "[f]indings of fact . . . shall not be set aside unless clearly erroneous"); Yuen Jung v. Barber, 184 F.2d 491, 497 (9th Cir.1950) (holding that findings of good moral character are findings of fact). When the court rests its findings on an assessment of credibility, we owe even greater deference to those findings. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). That principle has unusual force here because the starting point for the government's concerns is Appellees' crimes in 1982; the same district judge presided over the criminal proceedings and over all of the protracted litigation concerning Appellees' efforts to become citizens of the United States, thus observing Appellees personally for more than two decades. We may not disturb the district court's findings of fact unless we have the definite and firm conviction that the court has made a mistake. Id. at 573, 105 S.Ct. 1504. "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74, 105 S.Ct. 1504.

Of equal importance is the principle that we must fulfill congressional intent. As we explained in our previous opinion, under the statutes that govern the relationship between the determination of good moral character and the crimes that Appellees committed 23 years ago, Congress has made the judgment that rehabilitation is possible. Hovsepian, 359 F.3d at 1166-67.1 Under those statutes, Appellees are eligible for citizenship if they demonstrate that, "during the five years immediately preceding the date of filing" their applications for naturalization, they have been, and still are, persons "of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. § 1427(a). Thus, Appellees were required to demonstrate good moral character during the period from August 1992 (five years before they filed their applications) through the date of the most recent hearing in 2004, a period of about 12 years.

Conduct occurring outside the regulatory period is relevant only insofar as it bears on Appellees' present moral character. See 8 U.S.C. § 1427(e) ("[T]he Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for [the] determination [of good moral character during that period] the applicant's conduct and acts at any time prior to that period."); 8 C.F.R. § 316.10(a)(2) (allowing earlier conduct to be considered "if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character" (emphasis added)). As we cautioned in Santamaria-Ames v. INS, 104 F.3d 1127, 1132 (9th Cir.1996), if the applicant demonstrates exemplary conduct during the specified statutory period, "then his application cannot be denied based solely on his prior criminal record."

To hold otherwise would sanction a denial of citizenship where the applicant's misconduct . . . was many years in the past, and where a former bad record has been followed by many years of exemplary conduct with every evidence of reformation and subsequent good moral character. Such a conclusion would require a holding that Congress had enacted a legislative doctrine of predestination and eternal damnation,

id. at 1131, whereas the statutes contemplate rehabilitation, Yuen Jung, 184 F.2d at 495.

In a 42-page order, the district court detailed its findings about Appellees and, most especially, about the contested issue of their good moral character during the requisite 12 years. Those findings describe two people who, in spite of the crimes that they committed in their youth, completely reformed as adults. See Hovsepian, 359 F.3d at 1148 (detailing the accomplishments of Hovsepian and Yacoubian and the exemplary lives that they have led since serving their prison terms). The evidence at the 2004 hearing included declarations from religious, educational, and political leaders who attested to Appellees' good moral character. Appellees continue their positive contributions to the Armenian community and to the community at large; both remain employed and married; both continue to reject the use of violence to express a political view; both regret their actions in 1982.

Yacoubian became the principal of the Rose and Alex Pilibos Armenian School in 1993 and, in addition to being a positive role model for youth, he has become a leader in the larger Armenian-American community. Yacoubian has "promoted dialogue for conflict resolution in lieu of violence" and has become "a respected advocate of a worldview that . . . emphatically rejects the very same elements that, as a young man, pushed him into a course which he now deeply regrets." Having undergone years of therapy, to which he principally credits his psychological transformation, Yacoubian has earned a doctorate in counseling psychology at the University of Southern California.

Hovsepian, likewise, has "become a role model amongst youth groups and student groups, to which he frequently lectures about the counter-productiveness of violence and the usefulness of dialogue to resolve conflicts on all levels." Hovsepian works in the field of finance and banking, but devotes 15 to 20 hours a week to volunteer work with international Armenian political and cultural organizations in which he is a respected leader and has advocated nonviolence and democratization in Armenia. In particular, he publicly has advocated dialogue between Armenia and Turkey.

The government's argument to the district court on remand, and in this appeal, is primarily that Hovsepian and Yacoubian gave false testimony for the purpose of obtaining an immigration benefit. Under 8 U.S.C. § 1101(f)(6), such an act precludes a finding of good moral character. Kungys v. United States, 485 U.S. 759, 779, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). In Kungys, the Court held that the bar applies to any misrepresentation "made with the subjective intent of obtaining immigration benefits," whether or not the misrepresentation is material to the immigration decision. Id. at 780, 108 S.Ct. 1537.2

In response to the government's attempts to show that Appellees made various false statements in order to secure United States citizenship, the district court concluded that no intentionally false testimony was given; that, to the extent that any statements in the naturalization applications were inaccurate, the inaccuracies resulted from faulty memory, misinterpretation of a question, or innocent mistake; and that no false statement, if there were any, was made for the purpose of obtaining an immigration...

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