United States v. Teng Jiao Zhou

• Decision Date: 07 March 2016
• Docket Number: No. 14–55027.,14–55027.
• Citation: 815 F.3d 639
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. TENG JIAO ZHOU, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

815 F.3d 639

UNITED STATES of America, Plaintiff–Appellee,

v.TENG JIAO ZHOU, Defendant–Appellant.

No. 14–55027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 2016.

Filed March 7, 2016.

Armineh Ebrahimian (argued), Rosemead, CA, for Defendant–Appellant.

Troy D. Liggett (argued), Stuart F. Delery, William C. Peachey, and Elizabeth J. Stevens, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Plaintiff–Appellee.

Before: MARSHA S. BERZON, ANDRE M. DAVIS^* , and JOHN B. OWENS, Circuit Judges.

OPINION

OWENS, Circuit Judge:

Appellant Teng Jiao Zhou appeals from the district court's order granting the government's motion for judgment on the pleadings and its resulting judgment of denaturalization. Zhou committed robbery during the relevant statutory period prior to his naturalization. Because the robbery is an unlawful act that reflects adversely on Zhou's moral character and for which he cannot show extenuating circumstances, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Zhou emigrated from China in 1985, and applied for naturalization in 1993. He attended his naturalization interview, filled out the necessary Form N–400 application, and passed the naturalization exam.

Also in 1993, Zhou went into business with a man named Tong, but that relationship broke bad. On March 8–9, 1994, Zhou physically seized Tong, threatened him, and stole from him. Due to this conduct, Zhou was ultimately charged with robbery, kidnaping, and extortion. Although his first jury deadlocked, a second jury found him guilty of Robbery of the First Degree (Cal.Penal Code § 211 ) and False Imprisonment with Violence or Menace (Cal.Penal Code §§ 236 –37 ) on November 21, 1994. The trial judge sentenced Zhou to the "high term" of six years for the false imprisonment conviction, finding in aggravation Zhou's "threats of great bodily harm to the victim" and his "position of leadership over others during the commission of the offense." The judge concurrently sentenced Zhou to the "mid term" of two years for the robbery conviction.

Despite this serious criminal activity, Zhou's quest for citizenship continued. On March 22, 1994—after Zhou's March 8–9 criminal activity but before his June arrest and his November jury conviction—he completed a Form 445–A, in which Zhou updated his earlier Form N–400. Form 445–A asked whether, since his initial naturalization interview, Zhou had "knowingly committed any crime or offense, for which [he] ha[d] not been arrested?" Zhou answered no. On March 31, 1994, Zhou took his oath of allegiance and became a naturalized U.S. citizen.

Nearly 20 years passed, and the record reveals no additional misconduct by Zhou. However, on March 25, 2013, the government filed a complaint to revoke Zhou's naturalization. The government argued that the 1994 convictions—for which the underlying unlawful conduct occurred during the relevant five-year period preceding Zhou's naturalization—meant that Zhou lacked the necessary good moral character required to naturalize. See 8 U.S.C. § 1427(a)(3) (no person shall be naturalized unless the applicant "has been and still is a person of good moral character").¹

The government then moved for judgment on the pleadings on two bases: (1) 8 U.S.C. § 1101(f)(3) (for having committed crimes involving moral turpitude during the statutory period); and (2) the "catch-all" provision of 8 U.S.C. § 1101(f), as promulgated in 8 C.F.R. § 316.10(b)(3)(iii) (for having committed unlawful acts that adversely reflect on one's moral character during the statutory period). The district court granted the government's motion on both grounds. Because we affirm the district court's application of section 1101(f)'s "catch-all" provision, we need not review the application of section 1101(f)(3).

Relevant to our review under the "catch-all" provision, the district court concluded that First Degree Robbery, as defined in Cal.Penal Code § 211, is a crime involving moral turpitude, which constitutes an unlawful act that adversely reflects on one's moral character. See Mendoza v. Holder, 623 F.3d 1299, 1302–04 (9th Cir.2010).² Zhou attempted to downplay the seriousness of his crimes, arguing that (1) they arose from a mere business dispute, (2) the first jury could not reach a verdict, and (3) he had no other criminal convictions. Following United States v. Jean–Baptiste, 395 F.3d 1190, 1195 (11th Cir.2005), and United States v. Suarez, 664 F.3d 655, 662 (7th Cir.2011), the district court rejected these attempts to establish "extenuating circumstances" under 8 C.F.R. § 316.10(b)(3)(iii). The district court reasoned that it had limited discretion to apply this exception, and that none of the stated grounds rendered Zhou's crimes "less reprehensible than [they] otherwise would be, or tend[ed] to palliate or lessen [his] guilt." Suarez, 664 F.3d at 662 (quoting Black's Law Dictionary (6th ed.1990)). The district court entered the judgment of denaturalization, and this appeal followed.

II. STANDARD OF REVIEW

We review a district court's order granting judgment on the pleadings de novo. Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir.2011). "A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." Fajardo v. Cty. of L.A., 179 F.3d 698, 699 (9th Cir.1999).

III. ANALYSIS

A naturalized individual's citizenship "should not be taken away without the clearest sort of justification and proof," Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), as "its loss can have severe and unsettling consequences," Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Due to the extremely high stakes involved, "[t]he evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt." Id. (citation and internal quotation marks omitted). If the government meets its high burden, however, a court must enter a judgment of denaturalization—it lacks any discretion to do otherwise. Id. at 517–18, 101 S.Ct. 737.

Under 8 U.S.C. § 1451(a), the government may file a complaint to revoke naturalization if a citizen's naturalization was "illegally procured" or "[was] procured by concealment of a material fact or by willful misrepresentation." Only the illegal procurement theory is at issue in this appeal.

Naturalization was "illegally procured" if the individual did not meet the statutory requirements for citizenship. Fedorenko, 449 U.S. at 506, 101 S.Ct. 737 ; United States v. Dang, 488 F.3d 1135, 1139 (9th Cir.2007). One requirement for citizenship is that an applicant must be of "good moral character" for the five years immediately preceding the date of the filing of the application for naturalization until the time the applicant takes the oath of allegiance. 8 U.S.C. § 1427(a). Under section 1101(f), a person will not "be regarded as, or found to be, a person of good moral character" if, within the statutory period, he fell into any of several enumerated categories. Section 1101(f)'s additional "catch-all" provision provides that "[t]he fact that any person is not within any of the foregoing [categories] shall not preclude a finding that for other reasons such person is or was not of good moral character."

Under section 1101(f), the government promulgated 8 C.F.R. § 316.10, which offers guidance on making moral character determinations. It includes the following language:

Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant: (i) Willfully failed or refused to support dependents; (ii) Had an extramarital affair which tended to destroy an existing marriage; or (iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts....

8 C.F.R. § 316.10(b)(3).³ We have held that this regulation is a permissible interpretation of section 1101(f) under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), so we apply it here. See Dang, 488 F.3d at 1140–41.

The facts of Zhou's case are unusual in that, while he committed the relevant crime during the statutory period prior to his naturalization, he was not charged with, arrested for, or convicted of the crime until after he took his oath of allegiance and became a naturalized citizen. We have not applied sections 1101(f) and 316.10(b)(3)(iii) in precisely these circumstances, but we have applied those provisions to a situation where the commission of, and indictment and arrest for, the crime occurred before the oath of allegiance, but the resulting conviction came after.

In Dang, Dang set fire to her van while she and her son were inside as part of an insurance fraud scheme. Shortly after the fire (and while out on bail after arrest), Dang took the oath of allegiance and became a United States citizen. Later that same year, she was convicted of arson and related crimes and sentenced to eleven years in prison. 488 F.3d at 1137–38. As in this case, the government in Dang moved for her denaturalization because she lacked good moral character at the time of naturalization under the section 1101(f)"catch-all" provision and 8 C.F.R. § 316.10 as promulgated thereto.

Our court rejected Dang's various statutory and constitutional challenges to 8 C.F.R. § 316.10. We affirmed the district court's decision to denaturalize Dang, even though her convictions for arson and related offenses came after she took the oath to become a United States citizen. Id. at 1137–38, 1144.

The Dang decision is in accord with those in other circuits, including at least one in which the indictment, arrest, and conviction all occurred after naturalization. Suarez, 664 F.3d at 657 ;...