714 F.2d 1038 (10th Cir. 1983), 81-1430, United States v. Sheshtawy

Docket Nº:81-1430.
Citation:714 F.2d 1038
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Adel SHESHTAWY, Defendant-Appellant.
Case Date:August 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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714 F.2d 1038 (10th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Adel SHESHTAWY, Defendant-Appellant.

No. 81-1430.

United States Court of Appeals, Tenth Circuit

August 22, 1983

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Peter D. Williamson and Spencer H. Gardner of Williamson & Gardner, Houston, Tex. (E. Vance Winningham, Jr. and Mike Moore of Oklahoma City, Okl., with them on the brief), for defendant-appellant.

Robert Kendall, Jr., Dept. of Justice, Washington, D.C. (Lauri Steven Filppu and Eb F. Luckel, Criminal Div., Dept. of Justice, Washington, D.C., on brief), for plaintiff-appellee.

Before McWILLIAMS, McKAY and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

Adel Sheshtawy, a naturalized citizen of the United States, appeals a district court decision to revoke his citizenship and cancel his certificate of naturalization.

The appellant initially sought naturalization in 1978; however, his naturalization was delayed because his character witnesses had not known him for the requisite period of time. Approximately three weeks before the appellant's rescheduled naturalization hearing, he was arrested and charged with concealing stolen property. Shortly after the arrest, he received a standard form questionnaire from the Immigration and Naturalization Service, which he was required to fill out in order to update the information on his application for a petition for naturalization. The third question asked whether he had ever been arrested, which he falsely answered "no." As instructed, the appellant took the form with him to his naturalization hearing, where he turned it in to a naturalization examiner and was ultimately naturalized. About six weeks later, the state trial judge, at the end of the preliminary hearing, dismissed the criminal charges against the appellant, finding that no crime had been committed. At some later date, the INS discovered that the appellant had been arrested, and these proceedings were commenced.

In revoking the appellant's citizenship, the trial court held that disclosure of the arrest would have caused a substantial delay in the appellant's naturalization pending investigation, that the appellant willfully answered the arrest question falsely in order to avoid the consequences that a true answer might have had on his naturalization thereby facilitating his acquisition of citizenship, and that the defendant willfully misrepresented and concealed a material fact.

This case is squarely governed by principles established in Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). There, the Supreme Court held that the government carries a heavy burden when it seeks to revoke citizenship under 8 U.S.C. § 1451(a) (1976) for the willful misrepresentation or concealment of a material fact. 1 For a fact to be "material," the

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government must "show by 'clear, unequivocal, and convincing' evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." Id. at 355, 81 S.Ct. at 150.

In this case, the government made no claim that the arrest itself would have resulted in a denial of citizenship. Nor did the government attempt to show that an investigation would have turned up other facts warranting a denial of citizenship. Rather, it argues that Chaunt requires only that disclosure might have led to the discovery of...

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