488 F.3d 1135 (9th Cir. 2007), 04-17529, United States v. Dang

Docket Nº:04-17529.
Citation:488 F.3d 1135
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thi Marilyn DANG, Defendant-Appellant.
Case Date:May 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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488 F.3d 1135 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Thi Marilyn DANG, Defendant-Appellant.

No. 04-17529.

United States Court of Appeals, Ninth Circuit.

May 24, 2007

Argued and Submitted December 7, 2006.

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[Copyrighted Material Omitted]

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James P. Mayo, Segal & Kirby, Sacramento, CA, for the appellant.

Peter D. Keisler, Barry J. Pettinato, and Patricia M. Corrales-Talleda, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding, D.C. No., CV-01-01514-WBS/DAD



Appellee's motion for publication is granted. The memorandum disposition, filed January 31, 2007, is withdrawn. A published opinion will be filed concomitantly with this order.

Appellant's Petition for Panel Rehearing and Rehearing En Banc is denied as moot.


THOMAS, Circuit Judge.

This appeal presents the question, among others, as to the constitutionality and validity of the Department of Homeland Security's regulation pertaining to assessment of good moral character in naturalization proceedings. We conclude that the regulation passes constitutional muster and is not ultra vires as to its governing statute. We affirm the judgment of the district court.


After thirteen years of lawful permanent residence, Marilyn Thi Dang filed an Application for Naturalization with the Immigration and Naturalization Service ("INS") on June 28, 1995. On February 2, 1996, Dang intentionally set fire to her van, severely burning herself and her four-month-old son. Meanwhile, the INS had been processing Dang's application for naturalization. On March 12, 1996, after Dang had set fire to the van, Dang was interviewed under oath by an INS officer regarding her citizenship application. During the inter-view, Dang was asked, "Have you ever knowingly committed any crime for which you have not been arrested?" and Dang answered in the negative. The INS approved her application the same day. The next day, March 13, 1996, Dang was arrested and charged with arson, willful injury to a child, making a false report of a criminal offense, and two counts of insurance fraud.

On April 3, 1996, Dang--out on bail--was administered the oath of allegiance and admitted to United States citizen-ship. As a prerequisite to naturalization, applicants were required to complete questions on a Notice of Naturalization Oath Ceremony Form N-455A. One of the questions on the form asked: "After the date you were first interviewed . . . have you been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance, including traffic violations?" Dang's form was checked "No" in response.

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On September 30, 1996, Dang was sentenced to an eleven-year term of imprisonment after being convicted of all charges arising out of the February 2, 1996 incident.

Roughly five years later, on August 6, 2001, the government filed a two-count complaint in federal court against Dang for denaturalization on the basis that Dang's citizenship was "illegally procured" and "procured by concealment of a material fact or by willful misrepresentation," pursuant to 8 U.S.C. § 1451(a). As required by § 1451(a), the government attached an "affidavit of good cause" for initiating denaturalization proceedings against Dang. The first count of the com-plaint alleged that Dang falsely testified during her naturalization interview, revealing a lack of good moral character, and therefore illegally procured citizenship. The second count alleged that Dang willfully misrepresented her criminal history both during the naturalization interview and on the N-455A, thereby falsely procuring citizenship. Both counts were based on Dang's purported misrepresentations to the INS.

On December 18, 2002, the district court issued a Pre-Trial Scheduling Order pursuant to Federal Rule of Civil Procedure 16. In accordance with Rule 16, the scheduling order provided for the amendment of pleadings thenceforth only upon leave of the court and a showing of "good cause." See Fed. R. Civ. P. 16(b).

In October 2003--after learning of information that would make it more difficult for it to prove its two misrepresentation-based counts 1]--the government sought to amend its complaint to include a third count, pursuant to 8 C.F.R. § 316.10(b)(3)(iii). Under this new Count III, the government would not be required to prove Dang's willful mis-representation to the INS. It would only need to show that Dang committed unlawful acts-for which she was later convicted or imprisoned-during the statutory good moral character period. 8 C.F.R. § 316.10(b)(3)(iii). The district court granted the government's motion to amend the complaint pursuant to Rule 16(b) in November of 2003.

Dang then filed a motion to dismiss the government's amended complaint, arguing that it was barred by laches, was not accompanied by a second affidavit of good cause, and failed to state a cause of action. The district court denied this motion in its entirety. The government then filed a motion for summary judgment with regard to Count III of the amended complaint. The district court granted the motion, finding that, based on her commission of unlawful acts during the relevant statutory period, Dang had not established the good moral character required for naturalization. See 8 C.F.R. § 316.10(b)(3)(iii). The court entered judgment against Dang that revoked Dang's citizenship and cancelled her certificate of naturalization.


American citizenship is "a right no less precious than life or liberty, indeed of one which today comprehends those rights and almost all others." Klapprott v. United States, 335 U.S. 601, 616, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (Rutledge, J., concurring). In order to be naturalized, an applicant must demonstrate that he or she satisfies the numerous statutory criteria of the Immigration and Naturalization Act, including the requirement that the applicant "has been and still is a person of good moral character" during the statutorily defined

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period of residency. 8 U.S.C. § 1427(a).

Because citizenship is a precious right, "once citizenship has been acquired, its loss can have severe and unsettling con-sequences." Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Because of this, "the Government 'carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship.' " Id. (quoting Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961)). "The evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt." Id. (internal quotation marks and citations omitted).

The denaturalization statute, 8 U.S.C. § 1451(a), provides that denaturalization may be commenced if the citizen's naturalization was (1) "illegally procured," or (2) "procured by concealment of a material fact or by willful misrepresentation." In order lawfully to obtain U.S. citizenship, a person must be of "good moral character" for the five years immediately preceding the date of filing her citizenship application, as well as from the date of filing this application until the date she or he is admitted to citizenship. Under 8 U.S.C. § 1101(f), a person shall not "be regarded as, or found to be, a person of good moral character" if, within the statutory period, he or she fell into any of seven enumerated categories. 2 Section 1101(f) concludes: "The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such a person is or was not of good moral character." Id. ("catch-all provision").

Pursuant to § 1101(f), the Department of Homeland Security (subsuming the former Immigration and Naturalization Service) promulgated regulation 8 C.F.R. § 316.10. The regulation offers guidance to officials making moral character determinations, stating as a general matter that "the Service shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence." 8 C.F.R. § 316.10(a)(2). Among those elements to be considered, the regulation restates the enumerated categories of § 1101(f) in § 316.10(b)(1)-(2). Among those "elements enumerated in this section" are the same seven categories as are listed in 8 U.S.C. § 1101(f), see 8 C.F.R. § 316.10(b)(1)-(2), as well as the following:

Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant . . . [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).

8 U.S.C. § 316.10(b)(3)(iii). The Supreme Court has required "strict compliance with all the congressionally imposed pre-requisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship 'illegally

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procured' ...." Fedorenko, 449 U.S. at 506, 101 S.Ct. 737. The government's final theory, upon which the district court granted summary judgment, was that Dang committed the unlawful acts during the statutory period prior to naturalization and, thus, her naturalization was illegally procured even though the conviction for those acts did not occur until after naturalization.


Dang argues that the regulation, 8 C.F.R. § 316.10(b) (3)(iii), is ultra vires to the statute. In particular, Dang...

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