United States v. Dhanoa

• Decision Date: 29 March 2019
• Docket Number: C/A No. 8:18-1742-TMC
• Citation: 402 F.Supp.3d 296
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America, Plaintiff, v. Devinder Singh DHANOA, a/k/a Sukhvinder Singh, a/k/a Vora Jayendra Amritlal, a/k/a Dalip Kumar, Defendant.

402 F.Supp.3d 296

UNITED STATES of America, Plaintiff,

v.Devinder Singh DHANOA, a/k/a Sukhvinder Singh, a/k/a Vora Jayendra Amritlal, a/k/a Dalip Kumar, Defendant.

C/A No. 8:18-1742-TMC

United States District Court, D. South Carolina, Anderson Division.

Signed March 29, 2019

Matthew J Modica, US Attorneys Office (Chas), Charleston, SC, Beth Drake, US Attorneys Office (Cola), Columbia, SC, for Plaintiff,

Rebecca Laffitte, Vordman Carlisle Traywick, John M Montgomery, Rachel M Hutchens, Robinson Gray Stepp and Laffitte LLC, Columbia, SC, Thomas Kirk Ragland, Clark Hill PLC, Washington, DC, for Defendant.

ORDER

Timothy C. Cain, United States District Judge

This action is a denaturalization proceeding brought pursuant to 8 U.S.C. § 1451(a) to revoke the naturalized citizenship of Defendant Devinder Singh Dhanoa, a/k/a Sukhvinder Singh, a/k/a Vora Jayendra Amritlal, a/k/a Dalip Kumar. (ECF No. 1 at 11-12). This matter is before the court on a motion to dismiss filed by Defendant. (ECF No. 19). The Plaintiff United States (the "Government") filed a response opposing the motion (ECF No. 20), and Defendant filed a reply (ECF No. 22). This motion is now ready for a ruling.

I. Facts/Procedural Background

Defendant was born in India and became a naturalized United States citizen on September 15, 2009. (ECF No. 1 at 2, 10). Defendant first attempted to enter the United States on March 3, 1991, at the Los Angeles International Airport. (ECF No. 1 at 1, 3). He presented an Indian passport in the name of Vora Jayendra Amritlal ("Amritlal"), which was suspected of having been altered. Id. at 3. Therefore, he was detained for an exclusion proceeding before an immigration judge. Id. On March 29, 1991, he was released on bond. Id. Because he failed to appear for a subsequent hearing on May 28, 1991, the immigration judge ordered him excluded from the United States in abstentia under the name Amritlal. Id. at 3-4. However, Defendant did not leave the United States. Id. at 4.

On October 20, 1993, Defendant filed a request for asylum under the name of Sukhvinder Singh ("Singh"). Id. at 4. On November 5, 1999, after he failed to appear for a hearing, an immigration judge ordered Defendant under the name Singh removed to India in abstentia. Id. at 5. On January 8, 2002, Defendant was stopped at an Immigration and Naturalization Service ("INS") checkpoint in Arizona. Id.¹ He was taken into custody and it was determined that he was the subject of an outstanding removal order. Id. Therefore, on May 6, 2002, Defendant under the name of Sukhvinder Singh was removed from the United States to India. Id.

On September 30, 1996, Defendant using the name Devinder Singh Dhanoa ("Dhanoa") applied for asylum. Id. at 5. On November 20, 1996, Defendant appeared for a hearing and testified that his first and only entrance into the United States was on February 28, 1996, and that he had used the name Dalip Kumar when he entered the United States. Id. at 6. Defendant was granted asylum under the name Dhanoa on December 4, 2000, and he applied for permanent residency. Id. On his application, Defendant stated that he had never been deported from the United States. Id. at 7. On August 10, 2005, Defendant received asylum under the name Dhanoa, and his status was changed to that of a permanent resident. Id. On June 29, 2009, Defendant applied for naturalized citizenship under the name Dhanoa. Id. On his application, he stated that he had never used any other names and had never been removed from the United States. Id. at 7-8. Defendant confirmed these statements during his testimony at a naturalization interview. Id. at 9. On September 15, 2009, Defendant under the name of Dhanoa became a naturalized citizen of the United States. Id. at 10.

On June 25, 2018, the Government filed a Complaint seeking to revoke Defendant's United States citizenship. (ECF No. 1). The Government alleges that Defendant was previously excluded from the United States under the name Amritlal and removed from the United States under the name of Singh. (ECF No. 1-1 at 2). The Government contends that Defendant did not disclose that he had been previously excluded and removed from the United States, lied under oath about his identity and immigration history, and concealed and misrepresented material facts during his naturalization proceedings. (ECF No. 1 at 2). The Government alleges that Defendant was never eligible for the lawful permanent residency on which his naturalization was premised. Id. at 13-20. Therefore, the Government contends that Defendant's naturalization was unlawfully procured, and it seeks to revoke Defendant's naturalization. Id. at 21. Defendant has moved to dismiss alleging that the statute of limitations has run. (ECF No. 19 at 1).

II. Applicable Law

A Rule 12(b)(6) motion should not be granted unless it appears certain that the pleading party can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the pleading party. Ostrzenski v. Seigel , 177 F.3d 245, 251 (4th Cir. 1999) ; Mylan Labs. , 7 F.3d at 1134. "To survive a motion to dismiss, a [claim] must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the [pleading party] pleads factual content that allows the court to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged." Id. The raising of the statute of limitations as a bar to a cause of action constitutes an affirmative defense and may be raised by motion pursuant to Fed. R. Civ. P. 12(b)(6) if the time bar is apparent on the face of the complaint. Dean v. Pilgrim's Pride Corp. , 395 F.3d 471, 474 (4th Cir. 2005) (citations omitted).²

III. Discussion

In his motion to dismiss, Defendant contends that this court lacks subject matter jurisdiction because the statute of limitations has run on the United States' denaturalization claims. (ECF No. 19 at 1). Defendant contends that pursuant to 28 U.S.C. § 2462 all civil actions seeking a penalty or forfeiture must be brought within five years from the date the claim first accrued. Id. at 4. He argues that because denaturalization is a penalty and a forfeiture, the five-year statute of limitations set forth in § 2462 applies. Id. Defendant relies on the Supreme Court's recent opinion in Kokesh v. Securities and Exchange Commission , ––– U.S. ––––, 137 S. Ct. 1635, 198 L.Ed.2d 86 (2017). In Kokesh , the Supreme Court held that disgorgement in a Securities and Exchange Commission ("SEC") enforcement action constitutes a penalty within the meaning of § 2462 because "SEC disgorgement is imposed by the courts as a consequence for violating public laws" and "for punitive purposes" and is "often not compensatory." Kokesh , 137 S. Ct. at 1643. Therefore, pursuant to § 2462, SEC disgorgements must be commenced within five years of the date the claim accrued. Id. at 1645. Defendant contends that, pursuant to the holding in Kokesh , denaturalization is also a penalty and a forfeiture subject to the statute of limitations set forth in § 2462. (ECF No. 19 at 1). In response, the Government contends that there is no statute of limitations for civil denaturalization actions and Defendant's reliance on Kokesh is misplaced. (ECF No. 20 at 5, 6). Specifically, the Government argues that civil denaturalization is not a penalty. Id. at 6-7. In his reply, Defendant argues that the Government incorrectly relies on pre- Kokesh decisions and has not meaningfully addressed the holding in Kokesh , which he alleges has broadened when an action is considered a "penalty." (ECF No. 22 at 1-2).

"American citizenship is a precious right." Costello v. United States , 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). An individual who seeks to obtain naturalized United States citizenship must comply with the statutory requirements for naturalization. See Fedorenko v. United States , 449 U.S. 490, 505-06, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Failure to comply with any of the requirements for naturalization renders the naturalization illegally procured and subject to revocation under § 1451(a). United States v. Breyer , 41 F.3d 884, 889 (3d Cir. 1994) (quoting Fedorenko , 449 U.S. at 506, 101 S.Ct. 737 ). The Government can seek civil denaturalization when the citizenship orders and certificates of naturalization were either "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." See 28 U.S.C. § 1451(a) ; Kungys v. United States , 485 U.S. 759, 772-73, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). "[T]he purpose of the denaturalization statute is not to punish citizens, but to protect the integrity of the naturalization process." United States v. Kairys , 782 F.2d 1374, 1382 (7th Cir. 1986) (citing Fedorenko , 449 U.S. at 506-507, 101 S.Ct. 737 ).

Section 1451, which controls this denaturalization proceeding, makes no mention of any statute of limitations. See 8 U.S.C. § 1451. Section 2462 provides:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

28 U.S.C. § 2462.

Prior to Kokesh , several district courts have specifically held that § 2462 does not apply to denaturalization actions. See , e.g...