United States v. Fernando Arango , 686 F. App'x 489 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-17536
Plaintiff-Appellee, D.C. No. 4:09-cv-00178-DCB
v.
MEMORANDUM *
FERNANDO ARANGO, AKA Fernando
Arango-Villegas,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 17, 2017
San Francisco, California
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
Fernando Arango appeals the revocation of his citizenship under 8 U.S.C.
§ 1451(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Arango first argues that laches bars this denaturalization action. “Laches
requires proof of (1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.” Costello v. United
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
States, 365 U.S. 265, 282 (1961). We need not decide whether laches applies. See
United States v. Dang, 488 F.3d 1135, 1143–44 (9th Cir. 2007) (“It remains an
open question in this circuit as to whether laches is a permissible defense to a
denaturalization proceeding.”). Even assuming laches is a permissible defense,
Arango’s claim fails as the district court did not err in concluding that Arango
failed to prove lack of diligence by the government.1
The government’s delay in bringing this denaturalization action was
reasonable. When Arango applied for naturalization, his own false statements
before and during his interview caused the government’s delay in uncovering his
sham marriage, which was ultimately the basis of these denaturalization
proceedings. In addition, the decision to hire Arango as a border patrol agent does
not prove a lack of diligence because the government did no more than check that
his naturalization certificate bore his name and was not forged, and Arango does
not show why the government had to do more. Once Agent Stanley Ward pieced
together Arango’s full immigration history, the government moved swiftly to begin
denaturalization proceedings. Any delay was reasonable, especially considering
that no statute places a time limit on denaturalization actions and the government
1
Because Arango’s argument fails under any potential standard of review, we need
not resolve the intracircuit split over the correct standard for reviewing laches
decisions. Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1226 n.1
(9th Cir. 2012).
2
has broad discretion when prioritizing resources in the immigration context. See
Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).2
Arango next argues that he had a Sixth Amendment right to a jury trial in
these denaturalization proceedings. As the Supreme Court has made clear,
denaturalization actions, which in nature are civil, not criminal, “assuredly [do] not
involve an adjudication to which the Sixth Amendment right to jury trial attaches.”
United States v. Gaudin, 515 U.S. 506, 522 (1995).
AFFIRMED.
2
In light of this conclusion, we need not reach Arango’s evidentiary argument
related to prejudice.
3
FILED
United States v. Arango, No. 14-17536
APR 11 2017
WALLACE, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s judgment. I write separately because the majority
does not address the threshold question in this case: whether laches is a viable
defense against the United States in a denaturalization proceeding. In United States
v. Dang, we acknowledged that “[i]t remains an open question in this circuit as to
whether laches is a permissible defense to a denaturalization proceeding.” 488 F.3d
1135, 1143–44 (9th Cir. 2007). Dang, however, assumed for the sake of argument
that laches was a permissible defense, and held that the defendant had failed to
establish laches. Id. at 1144. The majority follows the Dang approach in the
present case. Instead of pitching around this issue, we should address it head on.
The only circuit to have answered this question directly is the Sixth Circuit,
which held that laches is not a permissible defense in this context. See United
States v. Mandycz, 447 F.3d 951, 964–965 (6th Cir. 2006). Mandycz examined the
history of the laches defense and concluded that “[b]ecause the United States acted
in its sovereign capacity when it sought to denaturalize Mandycz, the common law
doctrine of laches does not apply.” Id. at 964. I believe we should endorse the Sixth
Circuit’s reasoning and I advocate that our circuit adopt it. The words of the
immigration statute, combined with the history and purpose of the laches defense,
suggest that it should not apply to this context against sovereigns such as the
United States. Moreover, in the immigration arena, people who have procured
citizenship by way of fraud should not be allowed to escape denaturalization via
the laches trap door.
Our circuit possesses an overwhelming immigration docket. There is no
indication that our immigration docket will decrease in the foreseeable future.
Accordingly, we should resolve this issue now and provide appropriate guidance to
the lower courts.