Ljutica v. Holder

• Decision Date: 03 December 2009
• Docket Number: Docket No. 07-5638-cv.
• Citation: 588 F.3d 119
• Parties: Rajko LJUTICA, Plaintiff-Appellant, v. U.S. Attorney General Eric H. HOLDER, Jr., Secretary Janet A. Napolitano, Department of Homeland Security, Acting Deputy Director Michael Aytes, U.S. Citizenship and Immigration Services, New York District Director Andrea J. Quarantillo, U.S. Citizenship and Immigration Services,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

588 F.3d 119

Rajko LJUTICA, Plaintiff-Appellant, v. U.S. Attorney General Eric H. HOLDER, Jr., Secretary Janet A. Napolitano, Department of Homeland Security, Acting Deputy Director Michael Aytes, U.S. Citizenship and Immigration Services, New York District Director Andrea J. Quarantillo, U.S. Citizenship and Immigration Services,^* Defendant-Appellees.

Docket No. 07-5638-cv.

United States Court of Appeals, Second Circuit.

Argued: April 16, 2009.

Decided: December 3, 2009.

Walter Drobenko, Drobenko & Associates, P.C., Astoria, NY, for Appellant.

Patricia L. Buchanan, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellees.

Before: JACOBS, Chief Judge, LEVAL, and SACK, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiff appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) granting summary judgment in favor of the Government. Plaintiff contended in his suit that, in denying him citizenship, the U.S. Citizenship and Immigration Services ("CIS") relied on a legally erroneous ground. CIS denied Plaintiff's application on the ground that Plaintiff's conviction under 18 U.S.C. § 1344 for attempting to execute a fraudulent scheme to obtain money from a bank constitutes an "aggravated felony" as defined in 8 U.S.C. §§ 1101(a)(43)(M)(i) and that conviction for an aggravated felony makes one ineligible for naturalization under 8 U.S.C. §§ 1101(f)(8), 1427(a)(3). On de novo review, the district court affirmed, finding that Plaintiff is an aggravated felon as defined in Subsections (M)(i) and (U). On appeal, Plaintiff argues primarily that the statutory bar is inapplicable to his crime because he was convicted of bank fraud rather than attempted bank fraud (rendering Subsection (U) inapplicable) and because the bank suffered no actual loss, as he was caught before he could withdraw the money (rendering Subsection (M)(i) inapplicable). We find Plaintiff's arguments to be without merit.

BACKGROUND

Plaintiff is a citizen of the Republic of Montenegro who entered the United States as a visitor in October 1987 and adjusted his status to that of permanent resident in November 1988. In December 1993, Plaintiff was convicted of violating 18 U.S.C. §§ 1344 and 2 upon his plea of guilty to attempting to execute a fraudulent scheme to obtain $475,025.25 from Security Pacific National Trust Company ("Security Pacific"). The scheme was detected after the money was wired from Security Pacific to Plaintiff's account at another bank, but before Plaintiff could withdraw it from that account. Plaintiff was sentenced to 16 months imprisonment and two years of supervised release.

As a result of the conviction, the Immigration and Naturalization Service ("INS") charged Plaintiff with deportability under § 241(a)(2)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(A) (recodified at 8 U.S.C. § 1227(a)(2)(A)), as an alien who had been convicted of a crime involving moral turpitude, committed within five years of entry, and sentenced to imprisonment for one year or more. On April 29, 1996, Plaintiff was granted a waiver of deportation under § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).

In March 2005, Plaintiff applied to CIS to become a naturalized citizen of the United States. CIS denied Plaintiff's application on the ground that Plaintiff's conviction was for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i) and therefore statutorily precluded him from demonstrating "good moral character." On appeal, Defendant-Appellee Andrea J. Quarantillo, CIS's New York District Director, affirmed the denial.

Plaintiff filed a complaint in the United States District Court for the Southern District of New York seeking de novo review of his application, arguing that his conviction was not an aggravated felony within the meaning of the relevant statute and that res judicata deriving from his prior deportation proceedings and § 212(c) waiver established his good moral character. Plaintiff and the Government moved for summary judgment.

The district court denied Plaintiff's motion and granted the Government's motion for summary judgment. Ljutica v. Mukasey, No. 07 Civ. 6129(JSR), 2007 WL 4145275, at * 1 (S.D.N.Y. Nov. 19, 2007). After reviewing the record of Plaintiff's plea and conviction, the court concluded that, based on "the undisputed facts and clear law, Ljutica is statutorily ineligible for naturalization because he is an aggravated felon and thus barred by 8 U.S.C. § 1101(f) from establishing the good moral character required for naturalization." Id. at *2.

This appeal followed.

DISCUSSION

We review the district court's grant of a motion for summary judgment de novo. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003). Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether there are genuine issues of material fact, we "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).

Plaintiff raises two issues on appeal. First, he argues that his conviction under 18 U.S.C. § 1344 does not constitute an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i) and (U). Second, he argues that his prior deportation proceeding and the resulting § 212(c) waiver preclude the Government from asserting that he lacked good moral character.

I. Aggravated Felony

The INA provides that no person shall be naturalized unless he "has been and still is a person of good moral character." 8 U.S.C. § 1427(a)(3). CIS is precluded from finding "good moral character" if the applicant "has been convicted of an aggravated felony (as defined in subsection (a)(43) . . .)." 8 U.S.C. § 1101(f)(8); see also 8 C.F.R. § 316.10(b)(1)(ii) ("An applicant shall be found to lack good moral character, if the applicant has been . . . [c]onvicted of an aggravated felony . . . on or after November 29, 1990."); Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 325 (2d Cir.2007) ("Under the 1990 amendments to the INA, if a person is `convicted' of an aggravated felony after the date of enactment of the statute, November 29, 1990, that person is statutorily precluded from establishing the `good moral character' required for naturalization.").

Section 1101(a)(43) provides in Subsections (A) through (U) a list of offenses that constitute aggravated felonies. Subsection (M)(i) specifies an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i). Subsection (U) provides that "an attempt or conspiracy to commit an offense described in [Subsections (A) through (T)]" is an aggravated felony. 8 U.S.C. § 1101(a)(43)(U). Accordingly, an attempt to commit a crime that involves fraud or deceit, which, if successful, would have resulted in a loss to the victim exceeding $10,000, is an aggravated felony under the INA.

Plaintiff claims that he was not convicted of attempted bank fraud under 18 U.S.C. § 1344, but was instead convicted of bank fraud, and thus Subsection (U) is inapplicable. He further argues that because he was unable to withdraw the money wired to his account, all of which was returned to the victim of the fraud, there was no permanent "loss to the victim," so that Subsection (M)(i) is inapplicable. We reject his arguments.

A. Attempted Bank Fraud

18 U.S.C. § 1344 applies to anyone who "knowingly executes, or attempts to execute, a scheme or artifice — (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises" (emphasis added). It is clear that an attempt to defraud a bank can be the basis for a conviction under 18 U.S.C. § 1344.

The record of Plaintiff's conviction¹ indicates that he was convicted of attempted bank fraud. Count Two of the Indictment alleges that Plaintiff "unlawfully, willfully, and knowingly did attempt to execute a scheme and artifice to obtain money, funds, credits, assets, securities and other property under the custody of a financial institution, namely, Security Pacific National Trust Company . . . by means of false and fraudulent pretenses" (emphasis added). The Plea Agreement indicates that Plaintiff would plead guilty to Count Two of the Indictment, and states that "the `loss' figure . . . is $475,025.25, the amount the defendants would have realized had the scheme charged in Count Two been successful." The Judgment of Conviction states that Plaintiff was convicted on his plea of guilty to Count Two. As a defendant who pleads guilty "admits all elements of the formal charge," United States v. Lasaga, 328 F.3d 61, 63 (2d Cir. 2003), Plaintiff pleaded guilty to attempted bank fraud.²

Relying on United States v. Kilkenny, 493 F.3d 122 (2d Cir.2007), Plaintiff argues that because the money from Security Pacific was wired to his account, the crime was completed and not merely attempted. In Kilkenny, we held that the defendant's bank fraud scheme was "executed no later than when he received the funds from his fraudulent loan application," and therefore found error in the district court's treatment of a subsequent failure to repay the loan as conduct that was part of the offense for purposes of determining which version of the Sentencing Guidelines to apply. Kilkenny, 493 F.3d at 130.

There is no merit to Plaintiff's argument. Because an attempt to commit a substantive crime is a lesser included...