United States v. Phattey, 120519 FED9, 18-35998

Docket Nº:18-35998
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

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

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

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.

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

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 (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 nonimmigrant 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 removed or deported. Phattey signed this application under penalty of perjury, certifying that his answers were all "true and correct." In his interview with an immigration officer, Phattey again swore that the contents of his application were true and correct. Phattey's application for citizenship was successful. He took the Oath of Allegiance on August 20, 2010, see 8 C.F.R. § 337.1, and was issued a certificate of naturalization.

In November 2017, as part of a Department of Homeland Security investigation, the government learned of Phattey's immigration fraud and filed a complaint to revoke naturalization. See 8 U.S.C. § 1451(a).1 The government later presented matching fingerprints from the asylum applications of Foday Fatty and Phoday Phattey to establish that the two are the same person.

In his answer to the government's complaint, Phattey invoked his Fifth Amendment right against self-incrimination and declined to respond to the charges against him. Nevertheless, he raised the defense that the statute of limitations to bring a denaturalization action under § 1451(a) had expired. Although § 1451(a) does not contain a statute of limitations, Phattey argued that 28 U.S.C. § 2462-a catch-all provision imposing a five-year limitations period on any action to enforce a penalty-applies to revocation proceedings.2

The parties both moved for summary judgment. Based on the matching fingerprints from Phattey's two asylum applications and a negative inference from Phattey's invocation of the Fifth Amendment, the district court granted the government's motion for summary judgment, concluding that Phattey and Fatty were the same person and that the government, through "clear, unequivocal, and convincing" evidence, had carried the "heavy burden," Fedorenko v. United States, 449 U.S. 490, 505 (1981) (citations omitted), of proving that Phattey's citizenship was "illegally procured," 8 U.S.C. § 1451(a). The district court rejected Phattey's statute of limitations defense. This appeal followed.

II

On appeal, Phattey primarily claims that the revocation of citizenship, sometimes referred to as "denaturalization," constitutes a penalty. Because 28 U.S.C. § 2462 imposes a five-year statute of limitation on actions for the enforcement of a penalty, Phattey contends that the government cannot now revoke his citizenship because more than five years have passed since he was naturalized. Therefore, he concludes, the district court erred in rejecting his statute of limitations defense.

We have jurisdiction under 28 U.S.C. § 1291. "A grant of summary judgment is reviewed de novo." Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). In reviewing a grant...

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