United States v. Daifullah
| Decision Date | 01 September 2021 |
| Docket Number | No. 20-1667,20-1667 |
| Citation | 11 F.4th 888 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Abdulla Nagi Naser DAIFULLAH, also known as Abdullah Nagi Naser Daifullah, also known as Saleh Ahmed Altawalh, also known as Saleh Ahmed Altwaih, also known as Saleh Ahmed Al-Tawalh, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anthony D. Bianco, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Plaintiff-Appellee.
Misty Wilson Borkowski, Attorney, Cross & Gunter, Little Rock, AR, Julie A. Goldberg, Eric Hisey, Goldberg & Associates, Bronx, NY, for Defendant-Appellant.
Before LOKEN, GRASZ, and KOBES, Circuit Judges.
The United States government sought to revoke Abdulla Nagi Naser Daifullah's citizenship because he entered the country and sought asylum using a false identity and then concealed this deception when later applying for naturalization under his true identity. The district court1 granted summary judgment to the government. Daifullah appeals, arguing the district court lacked subject matter jurisdiction over the case due to the government's failure to comply with a statutory requirement for the local United States Attorney to "institute" the proceedings (the "U.S. Attorney Rule"). See 8 U.S.C. § 1451(a). Alternatively, Daifullah argues the district court erred in granting summary judgment in light of purported factual disputes. We affirm.
In October 1991, the United States admitted Daifullah as a nonimmigrant visitor from Yemen. To gain admission, Daifullah used a Yemeni passport under a false name: "Saleh Ahmed Altawalh." Daifullah claimed he made up his false identity to prevent his father from learning about his traveling to the United States.
Again using the fictitious "Altawalh" identity, Daifullah applied for asylum. Daifullah's asylum paperwork asserted his false identity and included a tale about being part of anti-Yemeni government activities. The application claimed: (1) "Altawalh" worked with the Islamic Reform Opposition Party; (2) the Yemeni government had arrested him and labelled him a subversive element; and (3) his "whole family suddenly was put in the crossfire." None of this was true. Daifullah had not been active in politics, was never arrested, and his family was not in danger.
In 1996, the Immigration and Naturalization Service ("INS")2 denied Daifullah's asylum application, concluding that he had not established past persecution or a well-founded fear of future persecution. INS referred the application to an immigration judge ("IJ"), who issued a show cause order and notice of hearing for deportation based on Daifullah overstaying his nonimmigrant visa. In response, Daifullah submitted an affidavit in both English and Arabic, which again falsely asserted under oath that he had opposed Yemeni governmental authorities and that his "open and vociferous stance" had caused him "unbearable hardships" and made him subject to imprisonment, torture, and execution. In July 1997, Daifullah personally appeared before the immigration court, withdrew his asylum application, and applied for voluntary departure. The IJ granted Daifullah's application for voluntary departure and Daifullah later returned to Yemen.
Nearly a decade later, in early 2006, Daifullah submitted another visa application to the United States. While Daifullah's application included his real identity, it also falsely claimed that he had never visited or resided in the United States. Daifullah ultimately obtained an F31 immigrant visa, which applies to the married son or daughter of a U.S. citizen. Daifullah was admitted in March 2006.
Daifullah applied for naturalization in 2011. Daifullah's application, submitted under penalty of perjury, again included false statements. He responded "none," when asked to list other names used, and denied giving "false or misleading information to any U.S. Government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal." Daifullah also denied lying to a "U.S. Government official to gain entry or admission into the United States" or applying for any kind of relief from deportation, exclusion, or removal.
In December 2011, the government interviewed Daifullah under oath regarding his naturalization application. The interview was stopped and then completed in January 2012 with the assistance of a translator. Daifullah signed the naturalization application, swearing and certifying that the contents of the application were true and correct to the best of his knowledge and belief.
In April 2012, Daifullah's naturalization was approved and he soon took the oath of allegiance and became a naturalized citizen. The government official who adjudicated Daifullah's application for citizenship testified that had she known the truth about his immigration history under the false identity of "Altawalh," she would not have approved his naturalization application without further inquiry to see if he had willfully misrepresented facts and was inadmissible to the United States under 8 U.S.C. § 1182(a)(6)(C)(i).
Over six years later, the government sought to revoke Daifullah's naturalization under 8 U.S.C. § 1451(a). The government alleged Daifullah: (1) illegally procured his naturalization because he was not lawfully admitted for permanent residence on account of the misrepresentations he made when applying for his visa and asylum; and (2) willfully misrepresented and concealed his identity and immigration history during naturalization proceedings.3 After reviewing the parties’ cross-motions for summary judgment, the district court awarded summary judgment to the government on both counts.
Daifullah advances two primary arguments. Daifullah first argues the district court lacked subject matter jurisdiction over the case because the government did not follow the U.S. Attorney Rule by having the local U.S. Attorney "institute" the proceedings. See 8 U.S.C. § 1451(a). Alternatively, Daifullah claims the district court erred in granting summary judgment to the government. We address each argument in turn.
We first consider Daifullah's contention that the district court lacked subject matter jurisdiction because the government failed to comply with the U.S. Attorney Rule. The statutory text states:
It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing the suit[.]
Daifullah argues "the term ‘institute’ has been understood to mean the actual filing in a court of the necessary documentation to commence or begin a legal action and represents the distinct event of beginning an original proceeding in a court[.]" See generally Post v. United States , 161 U.S. 583, 587, 16 S.Ct. 611, 40 L.Ed. 816 (1896) () (emphasis added); Institute , Black's Law Dictionary (11th ed. 2019) ("To begin or start; commence."). And so, he maintains that § 1451(a) requires the local U.S. Attorney to file the revocation complaint. Because the U.S. Attorney here was indisputably not included on the pleadings, Daifullah argues that the government violated the U.S. Attorney Rule, and this failure deprived the district court of subject matter jurisdiction.
The government counters that Daifullah waived the issue by first raising it on appeal. Further, the government maintains it complied with the U.S. Attorney Rule because it obtained the local U.S. Attorney's authorization, via email, to file the complaint. See United States v. Olivar , 648 F. App'x 675, 676 (9th Cir. 2016) (unpublished) (); United States v. Borgono , No. 18-21835, 2019 WL 1755709, at *2 (S.D. Fla. Apr. 19, 2019) (). According to the government, this authorization was sufficient to comply with the statutory mandate.
"Ordinarily, we will not consider an argument raised for the first time on appeal." United States v. Hirani , 824 F.3d 741, 751 (8th Cir. 2016). However, if failure to follow the U.S. Attorney Rule deprived the district court of subject matter jurisdiction, then the issue cannot be waived or forfeited. See Henderson v. Shinseki , 562 U.S. 428, 434–35, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Therefore, to decide whether Daifullah waived his argument by failing to raise it to the district court, we must first decide whether the U.S. Attorney Rule is indeed jurisdictional. It is not.
The Supreme Court has "urged that a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction." Id. at 435, 131 S.Ct. 1197. The "jurisdictional brand" should not be given to other rules, even if they are "important and mandatory." Id. Congress may, however, "attach the conditions that go with the jurisdiction label to a rule that" may otherwise have the character of a claims-processing rule. Id. There are no "magic words" required to make a rule jurisdictional. Id. at 436, 131 S.Ct. 1197. To decide whether Congress intended a rule to be jurisdictional, we are to "look to see if there is any ‘clear’ indication that Congress wanted" that result. Id.
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