United States v. Jose Suarez ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3476
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE SUAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-06431—Robert M. Dow, Jr., Judge.
A RGUED A PRIL 4, 2011—D ECIDED D ECEMBER 16, 2011
Before K ANNE, R OVNER and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Jose Suarez committed two
controlled substance offenses shortly before he applied
for naturalization. Unaware of these offenses, the Im-
migration and Naturalization Service (“INS”)1 approved
1
Congress transferred the functions of the former INS to the
Department of Homeland Security (“DHS”) on March 1, 2003.
(continued...)
2 No. 10-3476
his application, and Suarez took the oath of allegiance,
becoming a United States citizen. A few months later, he
was indicted for the offenses he committed prior to filing
his application. After Suarez was convicted and had
served his sentence, the United States sought to revoke
his naturalization pursuant to 8 U.S.C. § 1451(a). The
district court granted the government’s motion for sum-
mary judgment and revoked his citizenship. Suarez
appeals.
I.
Suarez is a native of Mexico who became a lawful
permanent resident of the United States on July 17, 1978.
In December 1996, he filed an Application for Naturaliza-
tion with the INS. He revealed on the Application that
he had been arrested for a marijuana crime in the 1980s,
and for disorderly conduct and trespassing in the 1990s.
He explained to an INS officer that all of the charges had
been dismissed. What he did not reveal was that he
had recently committed additional marijuana-related
offenses for which he had not yet been charged. The
1
(...continued)
The transfer does not affect any legal issue in the case, and the
DHS did not exist during any of the underlying administrative
proceedings. We will use the terminology in place at the time
that the agency considered and approved Suarez’s applica-
tion for naturalization. See Diallo v. Ashcroft, 381 F.3d 687, 690
n.1 (7th Cir. 2004).
No. 10-3476 3
INS approved his application on April 4, 1998, and
Suarez became a citizen on May 14, 1998.
On August 27, 1998, the United States charged Suarez
and three other defendants with possession with intent
to distribute approximately 196 pounds of marijuana, in
violation of 21 U.S.C. § 841(a)(1); and conspiracy to
possess with intent to distribute marijuana, in violation
of 21 U.S.C. § 846. Both charges related to the time
period between June 1996 and October 22, 1996, a few
short months before Suarez applied for naturalization.
A jury found Suarez guilty on both counts and the
district court sentenced him to an eighty-seven month
term of imprisonment. In setting the sentence, the
court determined that Suarez would be held ac-
countable for eighty-nine kilograms of marijuana seized
from his co-defendants as well as an additional twelve
kilograms from previous shipments.2 The court also
found that Suarez was a manager or supervisor of at
least one other participant in the conspiracy, and en-
hanced his sentence on that basis. We affirmed the
district court’s judgment on direct appeal. United States
v. Suarez, 2000 WL 197927 (7th Cir. Feb. 8, 2000).
Approximately three years after Suarez was released
from prison, the United States filed a complaint to
revoke his naturalization under three separate theories,
pursuant to 8 U.S.C. § 1451(a). The complaint alleged
that Suarez (1) illegally procured his naturalization
2
The eighty-nine kilograms seized from Suarez’s co-defendants
is equal to approximately 196 pounds.
4 No. 10-3476
because he committed crimes that reflected adversely on
his moral character, and thus lacked the good moral
character required for naturalization; (2) illegally
procured his naturalization because he provided false
testimony to obtain citizenship when he denied that he
had committed any such crimes; and (3) obtained his
naturalization by willfully misrepresenting and/or con-
cealing that he had committed these crimes. After dis-
covery, the government moved for summary judgment
on the first ground alleged, that Suarez had illegally
procured his citizenship because, as a person lacking
good moral character, he was ineligible for naturaliza-
tion. Suarez opposed the motion, arguing that ex-
tenuating circumstances mitigated his unlawful acts and
he could still be found to possess good moral character
at the time of his naturalization. The district court
granted judgment in favor of the United States, finding
that Suarez was barred from establishing good moral
character because he had committed serious crimes in the
five years prior to his application, and that none of
the circumstances he raised in any way mitigated his
crimes. The court noted that, under Suarez’s argument,
a person who was convicted before applying for natural-
ization would be barred from citizenship, but a person
who committed the same crime and managed to evade
justice until after naturalization would be eligible for
citizenship. Rejecting that reasoning, the court revoked
Suarez’s citizenship. Suarez appeals.
No. 10-3476 5
II.
Suarez contends that he cannot be found to have
illegally procured his citizenship because the INS had
the discretion and authority to grant his application for
citizenship notwithstanding his unlawful acts. Moreover,
he argues that there are genuine questions of material
fact on the issue of whether extenuating circumstances
mitigated his unlawful acts. Finally, he maintains that
the court erred in relying on the length of his criminal
sentence as evidence of the seriousness of his criminal
acts. Our review of the district court’s grant of summary
judgment in favor of the government is de novo. Norman-
Nunnery v. Madison Area Technical Coll., 625 F.3d 422,
428 (7th Cir. 2010); Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009).
A.
The United States may sue to set aside the order admit-
ting a person to citizenship and to cancel that person’s
certificate of naturalization “on the ground that such
order and certificate of naturalization were illegally
procured or were procured by concealment of a material
fact or by willful misrepresentation[.]” 8 U.S.C. § 1451(a).
Only the first ground for revocation, illegal procurement,
is at issue in this appeal. The government alleged
that Suarez illegally procured his citizenship because
he was statutorily ineligible for naturalization at the
time he sought to become a naturalized citizen. See
Fedorenko v. United States, 449 U.S. 490, 506 (1981) (failure
to comply with any of the congressionally imposed pre-
6 No. 10-3476
requisites of citizenship renders the certificate of citizen-
ship illegally procured). See also United States v. Ciurinskas,
148 F.3d 729, 732 (7th Cir. 1998) (if a certificate of natural-
ization is illegally procured, a court lacks discretion
to refuse to revoke citizenship). He was statutorily ineligi-
ble, the government asserted, because he lacked good
moral character, a prerequisite to citizenship. See 8 U.S.C.
§ 1427(a)(3) (“No person, except as otherwise provided
in this subchapter, shall be naturalized unless such ap-
plicant . . . during all the periods referred to in this sub-
section has been and still is a person of good moral charac-
ter.”). Although the statute directs the Attorney General
to consider the five-year period prior to filing the ap-
plication in determining good moral character, the At-
torney General may also consider as a basis for the deter-
mination the applicant’s conduct and acts at any time
prior to that period. 8 U.S.C. § 1427(d). Suarez lacked
good moral character, under the government’s theory,
because he had committed two serious controlled sub-
stance offenses shortly before he applied for naturaliza-
tion. After he became a citizen, he was indicted, tried
and convicted of possession with intent to distribute
marijuana and conspiracy to possess with intent to dis-
tribute marijuana. Both charges stemmed from the ship-
ment of nearly 200 pounds of marijuana only months
before Suarez applied for citizenship.
Under section 1101(f), “[n]o person shall be regarded
as, or found to be, a person of good moral character who,
during the period for which good moral character is
required to be established, is, or was,” among other
things, “a habitual drunkard,” gambler, aggravated felon,
No. 10-3476 7
or Nazi persecutor. 8 U.S.C. § 1101(f). The list of those
lacking good moral character includes persons who
have been convicted of or who have admitted committing
certain controlled substance offenses. 8 U.S.C. § 1101(f)(3)
and (8). Suarez was not convicted until after his applica-
tion was approved and he contends that this distinction
places him in a category of persons that the INS may
still admit as a discretionary matter. Because the INS
could have exercised its discretion to admit him, he
argues that he was not statutorily barred from admis-
sion and thus cannot be considered to have illegally
procured his citizenship. We see at least three possible
flaws in Suarez’s argument, based on our reading of the
statutes and regulations.
1.
First, the express language of section 1101(f)(3) arguably
includes in the list of persons who must be found
to lack good moral character those who committed a
qualifying crime during the statutory period and were
later convicted for that crime:
For the purposes of this chapter—
No person shall be regarded as, or found to be, a
person of good moral character who, during the
period for which good moral character is required to
be established, is, or was—
****
(3) a member of one or more of the classes of persons,
whether inadmissible or not, described in . . . subpara-
8 No. 10-3476
graphs (A) and (B) of section 1182(a)(2) of this title and
subparagraph (C) thereof of such section (except as
such paragraph relates to a single offense of simple
possession of 30 grams or less of marihuana), if the
offense described therein, for which such person was con-
victed or of which he admits the commission, was com-
mitted during such period;
8 U.S.C. § 1101(f)(3) (emphasis added). Section
1182(a)(2)(A)(i), in turn, lists classes of aliens ineligible
for admission:
. . . [A]ny alien convicted of, or who admits having
committed, or who admits committing acts which
constitute the essential elements of—
****
(II) a violation of (or a conspiracy or attempt to vio-
late) any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance
(as defined in section 802 of Title 21), is inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i)(II).
Suarez is a member of the class of persons described in
section 1182(a)(2)(A) because he was convicted of two
controlled substance offenses. He falls within the
purview of section 1101(f)(3) as a person statutorily barred
from a finding of good moral character because “the
offense described therein” was “committed during such
period” when one’s good character must be established.
In other words, under the language of section 1101(f)(3)
that we highlighted above, if the offense was committed
during the statutory period when an applicant must
No. 10-3476 9
possess good moral character, and the applicant is con-
victed of that offense, the applicant is statutorily barred
from a finding of good moral character no matter when
the conviction occurs. The highlighted language addresses
the very problem that concerned the district court. Ap-
plicants who commit crimes that statutorily bar them
from a finding of good moral character who manage to
evade detection and conviction until after they have
been naturalized should not and do not possess an ad-
vantage over persons who are convicted before they
apply for naturalization.
Both the government and Suarez assume that the
crime and the conviction must both occur within the
statutory period in order for an applicant to be barred
from a finding of good moral character under section
1101(f)(3). We do not read such a limitation into the
statute. Section 1182(a)(2)(A)(i) provides that the alien
(or, in this case, applicant) “convicted of, or who admits
having committed, or who admits committing acts
which constitute the essential elements of” a violation
of the controlled substance laws is inadmissible. The
quoted language indicates the level of proof necessary
to demonstrate a violation of the controlled substance
laws. That is, the person must have been convicted of
the offense, or admitted committing it, or admitted the
acts which make up the substance of the offense.
See Fedorenko, 449 U.S. at 505 (the evidence against the
naturalized citizen must be clear, unequivocal and con-
vincing); Ciurinskas, 148 F.3d at 732 (same). There is no
reason, either in the text or in the intent of these
statutes, to assume that the proof must occur during the
10 No. 10-3476
statutory period. To the contrary, the offense must occur
during the statutory period under the language of the
highlighted part of section 1101(f)(3) but the proof may
come at any time. To read these statutes otherwise would
lead to the absurd result that the district court feared:
an applicant who evaded prosecution or refused during
the statutory period to admit committing a crime
would have an advantage over an applicant who was
convicted or who was truthful during that time period. The
district court, and apparently the government, believed
that only the catch-all language of section 1101(f)(8) and
the accompanying regulations could remedy this
peculiar result. We would be inclined to find that resort
to the catch-all is not necessary, but because the gov-
ernment relies on the catch-all, we will address it next.
2.
Assuming for the sake of argument that the language
we have highlighted does not apply to Suarez, there is a
second way in which he was statutorily barred from
a finding of good moral character. The list in section 1101(f)
is expressly not all-inclusive:
The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for
other reasons such person is or was not of good
moral character.
8 U.S.C. § 1101(f). Federal regulations set forth further
guidance for applying section 1101(f). In accordance with
section 1101(f), the INS “shall evaluate claims of good
No. 10-3476 11
moral character on a case-by-case basis taking into
account the elements enumerated in this section and the
standards of the average citizen in the community of
residence.” An applicant “shall be found to lack good
moral character” if, during the statutory period, the
applicant, among other things:
***
(iii) [v]iolated any law of the United States, any State,
or any foreign country relating to a controlled sub-
stance, provided that the violation was not a single
offense for simple possession of 30 grams or less of
marijuana[.]
8 C.F.R. § 316.10(b)(2). Suarez does not dispute the district
court’s finding or the government’s argument on appeal
that section 316.10(b) is entitled to Chevron deference. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843-44 (1984); United States v. Jean-
Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005) (Cudahy, J.,
sitting by designation). The regulation requires a
finding that the applicant lacks good moral character if,
during the statutory period, the applicant “violated any
law” of the United States relating to a controlled sub-
stance. That Suarez “violated” the law during the
statutory period is sufficient under the regulation to
require a finding that he lacked good moral character.
And we know that he violated the law during the
statutory period because he was later convicted of a
controlled substance offense involving considerably
more than 30 grams of marijuana where the charged
12 No. 10-3476
conduct occurred during the statutory period. 3 Although
Suarez contends that the “case-by-case” language of
section 316.10 demonstrates that the INS could have
exercised its discretion to find that he possessed good
moral character even though he violated the controlled
substance laws, he fails to note that the INS’s discretion
is cabined by the mandatory language at the start of the
provision: “An applicant shall be found to lack good
moral character” if the applicant violated a qualifying
controlled substance law during the statutory period.
8 C.F.R. § 316.10(b)(2) (emphasis added). A finding con-
trary to this mandatory language would be a per se
abuse of discretion.
3.
We turn then to the third way in which Suarez can be
found to have illegally procured citizenship even if
neither the plain language of section 1101(f)(3) nor the
mandatory language of section 316.10(b)(2) applies. A
catch-all provision of 8 C.F.R. § 316.10(b)(3) specifies:
Unless the applicant establishes extenuating circum-
stances, the applicant shall be found to lack good
moral character if, during the statutory period, the
applicant:
***
3
Thirty grams amounts to slightly more than an ounce.
Suarez was convicted of possession and conspiracy to possess
nearly 200 pounds of marijuana.
No. 10-3476 13
(iii) [c]ommitted unlawful acts that adversely
reflect upon the applicant’s moral character, or
was convicted or imprisoned for such acts, al-
though the acts do not fall within the purview of
§ 316.10(b) (1) or (2).
8 C.F.R. § 316.10(b)(3). As with section 316.10(b)(2), a
conviction during the statutory period is not necessary
for a finding that an applicant lacks good moral character.
It is enough that the offense was “committed” during
that time. And as we noted above, this regulation is
entitled to deference. See Chevron, 467 U.S. at 843-44. See
also United States v. Dang, 488 F.3d 1135, 1140-41 (9th
Cir. 2007) (according Chevron deference to section
316.10(b)(3) and finding that unlawful acts during the
statutory period would be considered even when the
conviction came after naturalization). There are thus
three different paths in the statutes and regulations that
would lead to the same result: Suarez illegally procured
his naturalization because he was statutorily ineligible
as a person lacking good moral character.
That the regulations encompass some discretion on the
part of the INS in determining whether an applicant
possesses good moral character does not change the
result. This conclusion is bolstered by a very similar case
from one of our sister circuits. Suarez, as we noted, con-
cedes that if he had been convicted before his ap-
plication was approved, he would have been statutorily
ineligible for naturalization. In the absence of a convic-
tion during the statutory period, he maintains that,
under section 316.10(b)(3), the Attorney General retained
14 No. 10-3476
discretion to approve his application. Because of this
discretion, he asserts that his citizenship cannot be charac-
terized as “illegally procured.” Although this is an issue
of first impression in the Seventh Circuit, the Eleventh
Circuit has held that a conviction for a qualifying con-
trolled substance offense after naturalization, for
conduct that occurred in the statutory period before
naturalization, precludes an applicant from establishing
good moral character under 8 U.S.C. § 1101(f)(8), as
elaborated in 8 C.F.R. § 316.10(b)(3)(iii). Jean-Baptiste,
395 F.3d at 1194.
Suarez contends that Jean-Baptiste was wrongly decided
because the court had not been presented with the argu-
ment he makes here. In particular, Suarez contends that
because the Attorney General retained discretion to
approve his application, and because no statute or reg-
ulation alone categorically precluded his citizenship, he
cannot be found to have “illegally” procured citizenship.
According to Suarez, only an INS examining officer
exercising his or her discretion could have made the
determination. He cites the INS Field Adjudicator’s
Manual, section 73.6(d)(3) in support of his claim that a
denial of naturalization under 8 C.F.R. § 316.10(b)(3)(iii)
is discretionary, and thus cannot be characterized as
a statutory bar.
But we see no reason to depart from the well-reasoned
decision of our sister circuit. As we noted above, we
think it highly unlikely that Congress intended for ap-
plicants who, during the statutory period, commit
crimes that would disqualify them from naturalization
No. 10-3476 15
to nonetheless slide through the loophole Suarez asks us
to create if they manage to evade detection and convic-
tion until after they are naturalized. And we have held
that a court lacks discretion to refuse to revoke citizen-
ship where it was illegally procured. Ciurinskas, 148 F.3d
at 732. Suarez was not eligible for naturalization when,
during the five years prior to his application, he
committed crimes establishing a lack of good moral
character, whether or not he was convicted for those
crimes before his naturalization was complete. Any
discretion available in different circumstances cannot
change the result here.
B.
Section 316.10(b)(3) begins with a possible exception
to the general rule that an applicant “shall be found to
lack good moral character” if the applicant committed
certain criminal acts during the statutory period. 8 C.F.R.
§ 316.10(b)(3). Suarez contends that, under that provision,
he may avoid a finding that he lacks good moral
character if he “establishes extenuating circumstances.”
Id. Suarez argues that he has raised genuine issues of
material fact regarding extenuating circumstances that
should have precluded summary judgment. In particular,
he cites as extenuating circumstances that (1) the convic-
tions at issue here were his first and only criminal con-
victions; (2) he played a minimal role in the offenses
for which he was convicted; and (3) he received no com-
pensation for the drug transactions at issue.
Extenuating circumstances in the context of a deter-
mination of good moral character “must pertain to the
16 No. 10-3476
reasons showing lack of good character, including acts
negating good character, not to the consequences of
these matters.” Jean-Baptiste, 395 F.3d at 1195 (collecting
cases). Extenuating circumstances are those which render
a crime less reprehensible than it otherwise would be, or
“tend to palliate or lessen its guilt.” Black’s Law Dictio-
nary, Sixth Edition (1990). That these convictions
allegedly arose from Suarez’s first crimes does nothing
to mitigate their seriousness. Recall that Suarez was
convicted of possession with intent to distribute
and conspiracy to possess with intent to distribute
nearly 200 pounds of marijuana. Setting aside the
dubious proposition that any drug dealer begins his
career with a 200-pound transaction, if this truly was
his first offense (as opposed to his first conviction), he
certainly jumped into a life of crime with both feet with
a transaction of this size. A first crime of this magnitude
is more damning rather than less so. Nothing about the
magnitude of this first offense incident tends to mini-
mize the seriousness of the crime.
Although Suarez would now have us believe that his
role in the offense was minimal, we need only refer to
our opinion on direct appeal to determine that this is
simply not true. The district court adjusted Suarez’s
sentence upward after finding that he served as a
manager or supervisor in the conspiracy. Suarez, 2000
WL 197927, at *3. We affirmed that enhancement, con-
cluding that Suarez not only recruited two other conspira-
tors but also directed their activities. Moreover, Suarez
served as an indispensable middleman who found a
driver willing to travel across state lines to transport a
No. 10-3476 17
large quantity of marijuana. Nothing about Suarez’s role
in the offense may be fairly described as minimal, and
he may not now re-litigate issues decided in his criminal
case. See Jean-Baptiste, 395 F.3d at 1194-95 (collateral
estoppel bars a defendant who is convicted in a
criminal trial from contesting the conviction in a sub-
sequent civil action with respect to issues necessarily
decided in the criminal trial). See also In re Grand Jury
Proceedings of Special April 2002 Grand Jury, 347 F.3d
197, 201-02 (7th Cir. 2003) (setting forth the elements
of collateral estoppel).
Finally, that he made no money for his role in the
offense does nothing to mitigate his responsibility for the
crime. First, the statutes themselves are agnostic on
the question of money changing hands. The harm that
the statutes at issue penalize is the distribution of con-
trolled substances, not the sale. And the social harm
caused by persons who conspire to distribute con-
trolled substances is not lessened when the dealer
makes little or no money on the transaction.
In sum, Suarez has failed to raise a genuine issue of
material fact regarding extenuating circumstances. Al-
though we are inclined to find that the plain language
of section 1101(f)(3) bars a finding of good moral character
for persons who commit qualifying crimes during the
statutory period but who are not convicted of those
offenses until after naturalization, we will not definitively
decide that question here in the absence of the govern-
ment’s urging. Instead we conclude that the district court
correctly granted summary judgment in favor of the
18 No. 10-3476
government because Suarez could not demonstrate
the good moral character required for naturalization
under the catch-all provision of section 1101(f)(8) and
the accompanying regulations. Suarez’s remaining argu-
ments are without merit.
A FFIRMED.
12-16-11