943 F.3d 1277 (9th Cir. 2019), 18-35998, United States v. Phattey

Docket Nº:18-35998
Citation:943 F.3d 1277
Opinion Judge:IKUTA, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phoday Baba PHATTEY, a.k.a. Foday Fatty, Defendant-Appellant.
Attorney:Nicolas A. Olano and Lara E. Nations, Nations Law Group, Anchorage, Alaska, for Defendant-Appellant. Joseph F. Carilli, Jr., Trial Attorney; Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, District Court Section; Timothy M. Belsan, Chief, National Security & Affirmative ...
Judge Panel:Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.
Case Date:December 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1277

943 F.3d 1277 (9th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Phoday Baba PHATTEY, a.k.a. Foday Fatty, Defendant-Appellant.

No. 18-35998

United States Court of Appeals, Ninth Circuit

December 5, 2019

Submitted August 5, 2019 [*] Anchorage, Alaska

Page 1278

Nicolas A. Olano and Lara E. Nations, Nations Law Group, Anchorage, Alaska, for Defendant-Appellant.

Joseph F. Carilli, Jr., Trial Attorney; Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, District Court Section; Timothy M. Belsan, Chief, National Security & Affirmative Litigation Unit; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding, D.C. No. 3:17-cv-00247-JWS-MMS

Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.

SUMMARY[**]

Immigration

Affirming the district court's grant of summary judgment in favor of the government, the panel held that the five-year statute of limitations set out by 28 U.S.C. § 2462, which generally applies to actions to enforce civil penalties, does not apply to denaturalization proceedings.

In 2010, Phoday Phattey was issued a certificate of naturalization. In 2017, the government learned that Phattey had obtained his citizenship by fraud and filed a complaint to revoke naturalization under 8 U.S.C. § 1451(a). Although § 1451(a) does not contain a statute of limitations, Phattey argued that the five-year statute of limitations set out by 28 U.S.C. § 2462 applies to revocation proceedings and that, therefore, the statute of limitations to bring the denaturalization action had expired.

Observing that the Supreme Court has long held that revocation of citizenship is not a penalty, the panel held that § 2462 does not provide Phattey a statute-of-limitations defense because denaturalization is not a penalty for purposes of § 2462. The panel rejected Phattey's argument that the relevant precedent had been superseded by Kokesh v. SEC, 137 S.Ct. 1635 (2017), in which the Supreme Court concluded that § 2462 applies to disgorgement actions brought by the Securities Exchange Commission. The panel observed that the Supreme Court set out two principles in Kokesh: 1) whether a sanction represents a penalty turns in part on whether the wrong sought to be addressed is a wrong to the public or a wrong to an individual; and 2) a pecuniary sanction operates as a penalty only if it is sought for the purpose of punishment, and to deter others from offending.

The panel explained that, although the wrong sought to be redressed by denaturalization is a wrong to the public, revocation of citizenship is not sought for the purpose of punishment or to deter future violations. Rather, the purpose of denaturalization is to remedy a past fraud by taking back a benefit to which the alien is not entitled and thus restoring the status quo ante.

OPINION

IKUTA, Circuit Judge:

Page 1279

This appeal raises the question whether the revocation of citizenship on the ground that the grant of citizenship was "illegally procured or ... procured by concealment of a material fact or by willful misrepresentation," 8 U.S.C. § 1451(a), constitutes a "penalty" for purposes of the five-year statute of limitations generally applicable to civil fines, penalties, and forfeitures, see 28 U.S.C. § 2462. Because the purpose of denaturalization is to remedy a past fraud by taking back a benefit to which an alien is not entitled, see Johannessen v. United States, 225 U.S. 227, 242-43, 32 S.Ct. 613, 56 L.Ed. 1066 (1912), we conclude it is not a penalty, and the statute of limitations does not apply.

I

Phoday Phattey arrived in New York in 1995 with a non-immigrant U.S. visa and a Gambian passport issued to Foday Fatty. He submitted an application for asylum and withholding of removal under the name Foday Fatty. An immigration judge denied his application and ordered him removed, but the government was unable to locate him to execute the removal order.

Shortly after he was ordered to be removed, Phattey applied again for asylum and withholding, this time using the name Phoday Phattey. In his application, Phattey claimed he was a citizen of Mauritania who had recently arrived in Miami, Florida. He also denied having a passport or using any other names. As required by the application, he swore that the contents of the application were all "true and correct." The second application for asylum was granted in September 1997. Phattey successfully registered as a legal permanent resident in 2004.

In April 2010, Phattey applied for citizenship under the name Phoday Phattey. He left blank the space provided to identify other names used, which indicated that he had never used another name. Phattey also falsely stated in the application that he had never lied to a government official to gain entry or admission into the United States, given false or misleading information to a government official while applying for an immigration benefit or to prevent deportation or removal, or been ordered to be...

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