United States v. Hirani, 053116 FED8, 15-1583

Docket Nº:15-1583
Opinion Judge:GRITZNER, District Judge.
Party Name:United States of America Plaintiff - Appellee v. Rakesh Vasant Hirani a/k/a Rakeshkumar Vasantlal Patel Defendant-Appellant
Judge Panel:Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, District Judge.
Case Date:May 31, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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United States of America Plaintiff - Appellee

v.

Rakesh Vasant Hirani a/k/a Rakeshkumar Vasantlal Patel Defendant-Appellant

No. 15-1583

United States Court of Appeals, Eighth Circuit

May 31, 2016

Submitted: February 11, 2016

Appeal from United States District Court for the District of Nebraska

Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

GRITZNER, District Judge.

The United States brought an action against Rakesh Hirani, also known as Rakeshkumar Patel (Appellant), pursuant to 8 U.S.C. § 1451(a), seeking revocation of Appellant's citizenship and cancellation of his certificate of naturalization. The district court2 granted summary judgment in favor of the United States. This appeal followed. We affirm.

I. BACKGROUND

Appellant was born in India in 1972 and was named Rakeshkumar Vasantlal Patel. After arriving in the United States in 1991, Appellant applied for asylum using his birth year, 1972, and his given name, Rakeshkumar Vasantlal Patel. Prior to coming to the United States, Appellant also used the family name Rakesh Hirani, but never attempted to change his legal name. The U.S. Immigration and Naturalization Service (INS) denied Appellant's request for asylum and notified Appellant by U.S. mail of the denial on October 13, 1993, and again on February 24, 1994.

Following the denial of Appellant's asylum request, a deportation hearing was held on November 22, 1995. Appellant did not appear and now contends he did not receive notice of that hearing. After the hearing, the INS issued a decision and order finding Appellant deportable from the United States. A warrant of deportation was issued against him on March 18, 1996. On April 5, 1996, the INS sent a letter to Appellant informing him that he had been found deportable and instructed him to report to a U.S. Immigration Officer on April 16, 1996, to complete his deportation. Appellant did not report as instructed. Appellant argues he did not receive the notice until August 1996. Nonetheless, Appellant voluntarily left the country on the advice of an attorney in 1997.

In 1998, Appellant's wife filed a petition with the INS on Appellant's behalf for permanent residency using the name Rakesh Hirani and a false date of birth in 1968. According to Appellant, the same attorney who advised him to leave the country in 1997 prepared the 1998 petition for permanent residency. The INS approved Appellant's petition on October 18, 1999, and admitted Appellant as a permanent resident on April 11, 2000.

On January 15, 2003, Appellant filed an application for naturalization, Form N-400, again using the name Rakesh Hirani and a false date of birth in 1968. Appellant testified that he did not fill out the Form N-400, but could not remember who would have completed it for him. The answers to the questions on the Form N-400 certified that Appellant had never used another name, had never given false information to attain an immigration benefit, and had never been deported from the United States. Appellant signed and dated the Form N-400, affirming its contents under penalty of perjury. The U.S. Citizenship and Immigration Services (USCIS)3approved Appellant's application for naturalization on May 29, 2003.

On January 28, 2014, the United States filed an action to revoke Appellant's naturalization. On January 16, 2015, the United States moved for summary judgment, arguing that Appellant procured his naturalization illegally, or alternatively, that Appellant procured naturalization by material misrepresentation or concealment. The district court granted the motion on the basis of material misrepresentation or concealment. This appeal followed.

II. DISCUSSION

A. Standard of Review

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Castillo v. Ridge, 445 F.3d 1057, 1060 (8th Cir. 2006). "Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." Fezard v. United Cerebral Palsy of Cent. Ark., 809 F.3d 1006, 1009 (8th Cir. 2016) (quoting Neb. Beef, Ltd. v. Wells Fargo Bus. Credit, Inc., 470 F.3d 1249, 1251 (8th Cir. 2006)). "This court may affirm on any basis supported by the record." Hasenwinkel v. Mosaic, 809 F.3d 427, 431 (8th Cir. 2015).

"[T]he Government 'carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship'" because the loss of American citizenship can have "severe and unsettling consequences." Fedorenko v. United States, 449 U.S. 490, 505 (1981) (quoting Costello v. United States, 365 U.S. 265, 269 (1961)); see also United States v. Hansl, 439 F.3d 850, 853 (8th Cir. 2006). Due to the importance of the rights at stake, "[t]he evidence justifying revocation of citizenship must be 'clear, unequivocal, and convincing' and not leave 'the issue in doubt.'" Fedorenko, 449 U.S. at 505 (quoting Schneiderman v. United States, 320 U.S. 118, 125 (1943)). The Supreme Court has analogized the government's burden of proof in denaturalization proceedings to the beyond-a-reasonable-doubt standard of criminal cases. See Klapprott v. United States, 335 U.S. 601, 612 (1949) ("This burden is substantially identical with that required in criminal cases–proof beyond a reasonable doubt."); see also Kungys v. United States, 485 U.S. 759, 795 (1988) (Stevens, J., concurring in the judgment) ("[T]he factors that support the imposition of so heavy a burden are largely the same in both contexts.").

B. Revocation of Citizenship pursuant to 8 U.S.C. § 1451

The United States shall institute proceedings to revoke citizenship if naturalization was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a).

Appellant argues the district court erred by considering circumstantial evidence to conclude that Appellant had willfully misrepresented or concealed a material fact. Citing Espinoza-Espinoza v. INS, 554 F.2d 921, 925-26 (9th Cir. 1977), the district court explained that a misrepresentation or concealment is willful if it is deliberate and voluntary, and that circumstantial evidence can demonstrate willfulness. Appellant does not dispute the district court's interpretation of willfulness, but rather argues it was error to consider circumstantial evidence when the government was required to produce evidence that is clear, unequivocal, and convincing.

Appellant's argument assumes that circumstantial evidence is inherently less probative or reliable than direct evidence and is therefore unable to satisfy high evidentiary burdens. Yet Appellant's distinction between the probative value of direct and circumstantial evidence has no basis in the law, which treats both types of evidence alike. "The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'" Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Mo. Pac. R. Co., 352 U.S. 500, 508 n.17 (1957)). "The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required." Id.; see United States v. Crumley, 528 F.3d 1053, 1065 (8th Cir. 2008) ("[C]ircumstantial evidence is just as probative as any other type of evidence."); United States v. McCrady, 774 F.2d 868, 874 (8th Cir. 1985) ("Circumstantial evidence is 'intrinsically as probative as direct evidence' and may be the sole support for a conviction." (quoting United States v. Two Eagle, 633 F.2d 93, 97 (8th Cir. 1980))).

In both civil and criminal cases, circumstantial evidence is considered just as probative as direct evidence, and for that reason, circumstantial evidence may constitute evidence that is clear, unequivocal, and convincing. Because circumstantial evidence is compatible with the evidentiary standard applicable to denaturalization proceedings, the district court did not err by considering circumstantial evidence to find Appellant had willfully concealed or misrepresented material facts.

C. Appellant's Two Names

Appellant also claims the district court erred by considering Appellant's use of the name Rakeshkumar Patel in his 1991 asylum application, as well as on bills and tax returns dated from 2011 through 2014, to determine that Appellant procured naturalization by willful misrepresentation. Arguing that such evidence does not "relate to Appellant's naturalization in 2003, " Appellant's Br. 19, as required by the four-factor test established by the Supreme Court in Kungys, Appellant asserts that only alleged concealments relating to Appellant's naturalization process are to be considered for this inquiry.

Section 1451(a) covers only concealments or misrepresentations that procure an order and certificate of naturalization. Kungys, 485 U.S. at 773 (plurality opinion). "Procurement of other benefits, including visas, is not covered." Id.; see also United States v. Ciurinskas, 976 F.Supp. 1167, 1189 (N.D. Ind. 1997) ("Naturalization that was procured by 'concealment of a material fact or by willful misrepresentation' in the naturalization, as opposed to immigration, process, may be revoked and canceled." (quoting § 1451(a) (citing Kungys, 485 U.S. at 773 (plurality opinion)))). Appellant argues that his use of the names Rakeshkumar Patel and Rakesh Hirani outside the naturalization context may not be considered at all under Kungys because his prior use of those names does not relate to his naturalization. We disagree.

Kungys makes clear that misrepresentations made outside the naturalization context are not grounds for denaturalization under § 1451(a). But Kungys did not hold that a...

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