United States v. Bogacki

• Decision Date: 20 December 2012
• Docket Number: Case No. 8:12–cv–934–T–26TGW.
• Citation: 925 F.Supp.2d 1288
• Parties: UNITED STATES of America, Plaintiff, v. Jozef BOGACKI, Defendant.
• Court: U.S. District Court — Middle District of Florida

925 F.Supp.2d 1288

UNITED STATES of America, Plaintiff,

v.Jozef BOGACKI, Defendant.

Case No. 8:12–cv–934–T–26TGW.

United States District Court,

M.D. Florida.

Dec. 20, 2012.

Lana L. Vahab, U.S. Department of Justice, Washington, DC, John F. Rudy, III, U.S. Attorney's Office, Tampa, FL, for Plaintiff.

Michael T. Heider, Michael T. Heider, PA, Clearwater, FL, for Defendant.

ORDER

RICHARD A. LAZZARA, District Judge.

Before the Court are Defendant's Motion to Dismiss the Complaint to Revoke Naturalization (Dkt. 16) and Plaintiff's Response in Opposition (Dkt. 19). Also before the Court is the Plaintiff's Motion for Summary Judgment with exhibits (Dkt. 15) and Defendant's brief Response in Opposition (Dkt. 21).

Background

Defendant Jozef Bogacki (“Bogacki”), who was born in Poland in 1962, obtained United States citizenship through naturalization in 2000.¹ The Complaint in this action asserts that because Bogacki had committed crimes involving moral turpitude during the statutory period predating his naturalization, he was ineligible to naturalize, but managed to do so anyway by willfully concealing his criminal history. (Dkt. 1.) Bogacki filed an Answer to the complaint, in which he admitted having pleaded guilty in the Southern District of Florida, case number 05–cr–60010–KAM, to: (1) a conspiracy to bring in and harbor aliens, make false statements, commit mail fraud and wire fraud, and fraud by misuse of immigration documents in violation of 18 U.S.C. § 371; (2) wire fraud in violation of 18 U.S.C. § 1343; (3) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); and (4) conspiracy to defraud the United States by evading and defeating taxes in violation of 18 U.S.C. § 371. (Dkt. 10, ¶ 8; Dkt. 15, Exs. 3–5.) For those convictions, he was sentenced to 56 months' incarceration and two years of supervised release, as well as being ordered to pay a $950,000 money judgment and forfeit other ill-gotten monies and properties. (Dkt. 10, ¶¶ 8–9; Dkt. 15, Exs. 4–5.)

Motion to Dismiss

Bogacki now seeks to dismiss the Government's Complaint on the theory that his denaturalization would violate the Double Jeopardy Clause of the Fifth Amendment. ( See Dkt. 16.) His theory for dismissal is without merit because this is a civil denaturalization action brought under a civil statute, 8 U.S.C. § 1451(a), that does not implicate the doctrine of double jeopardy. The Double Jeopardy Clause of the Fifth Amendment declares that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” SeeU.S. Const. amend. V. It protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). These protections, with a “rare” exception, attach to criminal proceedings only. See U.S v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (holding that it is a “rare case” where a civil fine implicates the protections of double jeopardy and specifically limiting such a case to situations in which the amount of the sanction is “overwhelmingly disproportionate” to the damages caused by the wrongful conduct and, thus, “bears no rational relation to the goal of compensating the government for its loss, but rather appears to qualify as ‘punishment’ within the plain meaning of the word.”).

Furthermore, it is well-established in the Eleventh Circuit that immigration proceedings cannot form the basis of a double jeopardy claim because double jeopardy arises in criminal proceedings, and deportation is a civil matter. See Lemorin v. U.S. Att'y Gen., 416 Fed.Appx. 35, 40 (11th Cir.2011) (citing De La Teja v. United States, 321 F.3d 1357, 1364–65 (11th Cir.2003) (rejecting an alien's argument that his continuing detention pending the entry of a final order of removal violates the prohibition against double jeopardy because deportation proceedings “cannot form the basis for a double jeopardy claim” because “they are inherently civil in nature”)); Garces v. U.S. Att'y Gen., 611 F.3d 1337, 1347 (11th Cir.2010) (holding that immigration proceedings are not criminal trials and involve a considerably less stringent standard of proof); Cadet v. Bulger, 377 F.3d 1173, 1196 (11th Cir.2004) (holding that the Eight Amendment's prohibition against cruel and unusual punishment is criminal in nature, and, thus, does not apply to deportation proceedings becausedeportation is neither criminal not punitive, in that it is “purely civil”).

Bogacki's denaturalization is not intended to punish him for his criminal actions. Instead, it is intended to strip him of a privilege that he was never eligible to obtain in the first place, and which he obtained only because he concealed his criminal history from the immigration authorities during the naturalization process. See Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); see also INS v. Pangilinan, 486 U.S. 875, 883–884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (holding that naturalization is available only upon the terms specified by Congress). 8 U.S.C. § 1421(d) specifically provides that “a person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise.” As argued by the Government, the principle of rendering an illegally procured denaturalization certificate “null and void” (as opposed to punishing the citizen) was succinctly stated in United States v. Rebelo, 358 F.Supp.2d 400, 409–410 (D.N.J.2005), which held:

Despite the fact that courts on occasion refer to revocation of naturalization as a “forfeiture” of citizenship, it is well established that the purpose of the denaturalization statute is not to punish citizens, but to protect the integrity of the naturalization process. Indeed, the United States Supreme Court has noted that denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.”

Section 340(a) of the INA, 8 U.S.C. § 1451(a), operates to render an unlawfully obtained certificate of naturalization void ab initio .... The effect of cancellation of naturalization ab initio is to render the original order of naturalization and certificate of naturalization completely null and void for purposes of derivation of citizenship benefits from such naturalization....

... More than ninety years ago, the United States Supreme Court explained the connection between the “relation back” theory and the need to enforce the INA's provisions: [An applicant for citizenship] can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist, and if they do not he takes nothing by his paper grant.

358 F.Supp.2d at 409–410 (internal citations and quotations omitted) (emphasis added). Therefore the outcome of denaturalization, unlike an excessive civil fine following a criminal conviction, is neither punitive, nor disproportionate. Bogacki's Motion to Dismiss is without merit and must be denied.

Motion for Summary Judgment

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment is appropriate where there is no genuine issue of material fact. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). On a motion for summary judgment, the court must review the record, and all its inferences, in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Having done so, the Court finds that the Government is entitled to the entry of final summary judgment in this case.

To prevail in a denaturalization proceeding, the Government must prove its case “by clear, unequivocal, and convincing evidence which does not leave the issue in doubt.” Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 93 L.Ed. 266 (1949). In 8 U.S.C. § 1451(a), Congress authorized the government to seek denaturalization if the naturalized citizen either: (1) illegally procured naturalization; or (2) procured naturalization by concealment of material facts or by willful misrepresentation. An individual is deemed to have “illegally procured” naturalization if he was statutorily ineligible to naturalize at the time he became a naturalized citizen. See Fedorenko v. U.S., 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). An individual is subject to denaturalization under the second ground of § 1451(a) if he procured naturalization by either concealment or misrepresentation, if the concealment or misrepresentation was willful, and if the fact at issue was material. See Kungys v. United States, 485 U.S. 759, 767, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (citing Fedorenko, 449 U.S. at 507, n. 28, 101 S.Ct. 737). When a court determines that the government has met its burden of proving that a naturalized citizen obtained his citizenship illegally, or by willful concealment or misrepresentation, it has no discretion to excuse the conduct, and must enter a judgment of denaturalization. Fedorenko, 449 U.S. at 517, 101 S.Ct. 737. Accordingly, summary judgment is a proper method to order denaturalization where the facts are undisputed and the legal elements for a denaturalization claim are met. See, e.g., ...