670 F.3d 988 (9th Cir. 2012), 10-15821, United States v. Arango

Docket Nº:10-15821.
Citation:670 F.3d 988
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Fernando ARANGO, aka Fernando Arango-Villegas, Defendant-Appellant.
Attorney:Charles Lifland, Sabrina H. Strong, and Shaun M. Simmons, O'Melveny & Myers LLP, Los Angeles, CA, for the appellant. Tony West, Assistant Attorney General; Joshua E.T. Braunstein, Assistant Director Office of Immigration Litigation; and Kristen L. Daubler, Trial Attorney, Office of Immigration Li...
Judge Panel:Before: KIM McLANE WARDLAW, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.
Case Date:January 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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670 F.3d 988 (9th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Fernando ARANGO, aka Fernando Arango-Villegas, Defendant-Appellant.

No. 10-15821.

United States Court of Appeals, Ninth Circuit.

January 12, 2012

Argued and Submitted April 14, 2011.

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Charles Lifland, Sabrina H. Strong, and Shaun M. Simmons, O'Melveny & Myers LLP, Los Angeles, CA, for the appellant.

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Tony West, Assistant Attorney General; Joshua E.T. Braunstein, Assistant Director Office of Immigration Litigation; and Kristen L. Daubler, Trial Attorney, Office of Immigration Litigation, Washington, DC, for the appellee.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:09-cv-00178-DCB.

Before: KIM McLANE WARDLAW, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

In 1989, Fernando Arango was naturalized as a United States citizen. Twenty years later, in 2009, the United States instituted this action in Arizona district court to strip Arango of his citizenship. The complaint alleged that (1) Arango unlawfully procured his citizenship, and (2) Arango misrepresented and concealed material facts during the naturalization process.

The district court rejected Arango's argument that his incarceration in a federal prison in the Central District of California at the time the government filed its complaint meant that venue was improper in the District of Arizona. The district court then granted the government's motion for summary judgment, concluding that because Arango's Lawful Permanent Resident (LPR) status was unlawfully obtained, there was no material issue of fact as to whether he had procured his citizenship unlawfully.

Although it is undisputed that Arango acquired his LPR status on the basis of a fraudulent marriage, Arango adduced evidence that he had entered into a cooperation agreement with the Immigration and Naturalization Service (INS) permitting him to retain his status as an LPR and to naturalize. The district court improperly weighed the evidence in the record, however, and concluded that such a cooperation agreement did not exist. Because there are genuine issues of material fact as to whether the INS entered into an agreement permitting Arango to retain his LPR status and to naturalize in exchange for cooperating in the investigation of a fraudulent marriage operation, summary judgment was improper, and we reverse.

Because the district court did not permit Arango to rebut the presumption that his place of residence remained where he lived prior to his incarceration, we also vacate the denial of Arango's motion to dismiss the complaint for improper venue, and remand with instructions for the district court to allow Arango to argue that his residence is now his place of incarceration.

I. FACTUAL AND PROCEDURAL BACKGROUND

Arango is a native of Colombia who was admitted to the United States as an LPR in 1980. He acquired this status through a fraudulent marriage to a United States citizen arranged by a marriage broker, Miguel Diaz. Arango's sister, Amparo Valbuena, worked as a secretary for Diaz, and Valbuena acquired her own LPR status through a sham marriage arranged by him.

In 1982, the INS began to investigate Diaz's fraudulent activities. As part of the investigation, three INS agents met with Valbuena and Arango and obtained sworn affidavits from both that detailed their involvement with the marriage-fraud scheme. In Arango's affidavit, he admitted that he obtained his green card as a result of a sham marriage arranged by Diaz. As a result of Arango and Valbuena's

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assistance, the INS seized evidence of over 200 immigration applications that were based on sham marriages arranged by Diaz. The INS agents admit that Valbuena was " an important witness" in their case against Diaz, and that they met with her multiple times during the course of their investigation.

Arango asserts that the INS agents promised both him and his sister that, in exchange for their cooperation with the investigation, their immigration status would be secure, and that both would be permitted to naturalize. Both Arango and Valbuena remained LPRs and naturalized without any complications. Valbuena naturalized in 1984, and Arango naturalized in 1989. Arango later became a U.S. Customs Border Protection Officer in Arizona.

In 2005, Arango was arrested on unrelated federal drug charges. After pleading guilty, he began to serve his sentence at the Federal Correctional Institution in San Pedro, California. In 2009, the Department of Justice filed a civil action in the District of Arizona to revoke Arango's citizenship pursuant to Section 340 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1451. The complaint alleged that Arango's citizenship should be revoked because (1) his citizenship was procured unlawfully as his fraudulent marriage meant that he was never lawfully admitted as an LPR, and (2) Arango misrepresented and concealed material facts regarding his participation in the marriage-fraud scheme during the naturalization process.

Arango argued that venue was improper in the District of Arizona because he had been living in California since his incarceration in San Pedro, California in May of 2007, and he retained no ties to Arizona. The district court disagreed, concluding that Arango's last known residence was Arizona and that " a person does not acquire a domicil while imprisoned."

Opposing the government's motion for summary judgment, Arango submitted a sworn declaration stating that he had entered into a cooperation agreement with INS that permitted him to retain his LPR status and to naturalize in exchange for his assistance with the agency's investigation into the marriage-fraud scheme. Arango also swore that he had not misrepresented or concealed any facts during the naturalization process because he had reasonably assumed that (1) the INS officer was aware of the contents of his immigration file, and (2) his 1982 affidavit and evidence of the cooperation agreement was in his file. Arango also submitted translated emails from his sister that suggested that the siblings had entered into some type of cooperation agreement with the INS. The government's evidence in support of summary judgment included (1) declarations denying the existence of an agreement from the INS agents who met with Arango and Valbuena in 1982; (2) declarations from Valbuena stating that she was not aware of an agreement between INS and her brother; and (3) a declaration from the INS agent who conducted Arango's 1989 naturalization interview indicating that, while she could not remember meeting with Arango, she would not have granted his naturalization application if he had disclosed information about his sham marriage during his interview.

Granting the government's motion for summary judgment,1 the court concluded that " the Government provides clear, convincing, and unequivocal evidence that

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leaves no issue in doubt that Defendant Arango, a naturalized citizen, obtained his citizenship illegally."

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over Arango's timely appeal under 28 U.S.C. § 1291, and we review the district court's grant of summary judgment de novo. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). We must determine whether the district court applied the substantive law correctly and whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact. Id.

We review the district court's determination as to proper venue de novo. United States v. Childs, 5 F.3d 1328, 1331 (9th Cir.1993).

III. DISCUSSION

A. Summary Judgment

Summary judgment is appropriate only if there are no genuine issues of material fact, entitling the moving party to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although " the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment," id. at 247-48, 106 S.Ct. 2505, summary judgment is not warranted if a " reasonable jury could return a verdict for the nonmoving party," id. at 248, 106 S.Ct. 2505.

In a denaturalization proceeding, the government bears the " heavy burden" of providing " clear, unequivocal, and convincing" evidence that citizenship should be revoked. United States v. Dang, 488 F.3d 1135, 1139 (9th Cir.2007) (quoting Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981)). The government's evidence justifying denaturalization must " not leave the issue in doubt." Id. (quoting Fedorenko, 449 U.S. at 505, 101 S.Ct. 737). As the Supreme Court has recognized, " the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions...." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Thus, summary judgment for the government in a denaturalization proceeding is warranted in narrow circumstances: if, viewing the evidence in the light most favorable to the naturalized citizen, there is no genuine issue of material fact as to whether clear, unequivocal, and convincing evidence supports denaturalization.

The government bears the burden of such a high degree of proof in denaturalization proceedings because of the " importance of the right that is at stake." Fedorenko, 449 U.S. at 505-06, 101 S.Ct. 737; see also id. at 505, 101 S.Ct. 737 (" [O]nce citizenship has been acquired, its loss can have severe and unsettling consequences." ); Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943) (" [Citizenship] once conferred should not be taken away without the clearest sort of justification and proof." ). Thus, although summary judgment may be appropriate...

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