Sameh Hussein v. Robin Barrett , 820 F.3d 1083 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMEH HUSSEIN, No. 14-16303
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-05317-
JST
ROBIN BARRETT, San Francisco
Field Office Director; UNITED
STATES CITIZENSHIP AND OPINION
IMMIGRATION SERVICES,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted
February 12, 2016—San Francisco, California
Filed April 29, 2016
Before: A. Wallace Tashima, William A. Fletcher, Circuit
Judges, and Stanley Allen Bastian, District Judge.*
Opinion by Judge Bastian
*
The Honorable Stanley A. Bastian, United States District Judge for the
Eastern District of Washington, sitting by designation.
2 HUSSEIN V. BARRETT
SUMMARY**
Immigration
The panel vacated the district court’s order denying
Sameh Hussein’s naturalization application for failure to
satisfy his statutory burden to establish good moral character.
The panel held that the district court erred in failing to
make specific findings that Hussein’s statements under oath
to the Sacramento Superior Court regarding his marital status
were material and thus perjurious unlawful acts. The panel
also held that the district court abused its discretion in failing
to consider all relevant factors when it made its ultimate
determination, because a violation of the regulation’s catch-
all provision 8 C.F.R. § 316.10(b)(3)(iii) is not a per se bar to
a good moral character finding.
COUNSEL
Stephen A. Shaiken (argued), Law Offices of Stephen A.
Shaiken, San Rafael, California; Robert G. Ryan, Law
Offices of Robert G. Ryan, San Francisco, California, for
Plaintiff-Appellant.
Regan Hildebrand (argued), Senior Litigation Counsel;
Jeffrey S. Robins, Assistant Director; William C. Peachey,
Director; Joyce R. Branda, Acting Assistant Attorney
General; Office of Immigration Litigation, United States
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HUSSEIN V. BARRETT 3
Department of Justice, Washington, D.C., for Defendants-
Appellees.
OPINION
BASTIAN, District Judge:
Sameh Hussein, a lawful permanent resident, appeals the
district court’s denial of his naturalization application. After
a bench trial, which followed a decision adverse to Hussein
by the United States Citizenship and Immigration Services
(USCIS), the district court concluded that Hussein failed to
satisfy his statutory burden of establishing good moral
character, but in doing so it erred in its application of the
relevant statutes and regulation. We vacate the district court’s
order denying citizenship and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Sameh Hussein, a citizen of Egypt, came to the United
States in 1996 on a student visa. He obtained lawful
permanent resident status in 2000, as a result of his marriage
to a United States citizen, Debra Hawley. He separated from
Hawley in 2003, but they did not divorce until 2008.
Hussein met Stacey Mabrey while still married to
Hawley. After his separation from Hawley, he began a
relationship with Mabrey. In December 2003, near the
beginning of his relationship with Mabrey, his close friend
performed a religious blessing for the couple. The blessing
lasted less than thirty seconds and consisted of a recitation of
the first verse of the Koran. According to the friend who
performed the blessing, it is meant to protect a new
4 HUSSEIN V. BARRETT
relationship and to reflect the couple’s commitment to each
other, but does not constitute a marriage in Islam, does not
guarantee the couple will one day be married, and does not
constitute an engagement to be married.
Hussein and Mabrey never married, but cohabited until
2009 when they separated. They have three children together.
Mabrey had two children born prior to the relationship that
Hussein raised and supported. After they separated, Mabrey
took the children to Qatar to visit Hussein’s mother, but
refused to return to the United States. In his attempts to force
Mabrey to return the children, Hussein contacted various law
enforcement agencies, including the FBI and the Elk Grove
Police Department. During these conversations, the law
enforcement officials were lead to believe that Mabrey was
his wife. At trial, Hussein explained he was in the habit of
calling Mabrey his wife in order to protect his social standing
and to “avoid public embarrassment and avoid having to go
through all that explanation.”
Stacey Mabrey eventually returned to the United States
and was charged with abduction and intent to conceal,
although the charges were eventually dropped. Hussein and
Mabrey became embroiled in a custody dispute in California.
As part of the proceedings, Hussein filed a declaration under
penalty of perjury with the Sacramento Superior Court in
which he stated that although he and Mabrey were never
married, they were married under Islamic rules on December
13, 2003, and the marriage is considered legal in Egypt,
where he is a citizen. Ultimately, Hussein and Mabrey were
awarded joint custody of their children, but Hussein was
awarded physical custody.
HUSSEIN V. BARRETT 5
Hussein filed his application for naturalization in
September 2005, which was denied on December 9, 2010
after USCIS found Hussein lacked good moral character
because he committed tax fraud. Hussein exhausted his
administrative remedies and sought de novo review with the
district court, denying he committed tax fraud and asserting
any discrepancies were innocent mistakes that were corrected
with amended tax returns.
Just one month prior to trial, the government decided not
to pursue the tax fraud allegations and changed the grounds
upon which it opposed Hussein’s application for
naturalization. The government’s new theory at trial was that
Hussein lacked good moral character because he gave false
testimony at his naturalization interviews on March 11, 2010
and June 22, 2010, when he testified he had only been
married once and the person to whom he had been married
was Debra Hawley. The government’s theory rested on its
belief that Hussein and Mabrey were married.
The district court found that Hussein and Mabrey entered
into a religious blessing meant to reflect their commitment to
each other in late 2003, but the blessing did not constitute a
legal or religious marriage. Consequently, it rejected the
government’s argument that Hussein lacks good moral
character because he gave false testimony at his
naturalization interviews, his deposition, and at trial, when he
testified that he was married only once. These statements
were not false because Hussein never actually married Stacey
Mabrey.
Instead, the district court found that Hussein knowingly
misrepresented to the Sacramento Superior Court that he was
married to Mabrey because he believed making such a
6 HUSSEIN V. BARRETT
misrepresentation would benefit him in his custody dispute.
Consequently, it concluded that Hussein’s petition must be
denied because he “committed unlawful acts that adversely
reflect upon [his] moral character.” These acts consisted of
Hussein’s false representation to the Sacramento Superior
Court, which was under oath, as well as his statements to law
enforcement that he was married to Mabrey, which were not
under oath.
The district court did not consider counterbalancing
factors regarding the issue of Hussein’s good moral character.
Also, while it did not conclusively find Hussein committed
perjury in his declaration, it noted that these repeated false
representations show him to lack good moral character under
the regulation. Ultimately, the district court denied his
petition because Hussein failed to satisfy his burden of
establishing good moral character.
STANDARD OF REVIEW
We review the district court’s findings of fact for clear
error, including findings pertaining to good moral character.
United States v. Hovsepian, 359 F.3d 1144, 1165 (9th Cir.
2004) (Hovsepian I). “We may not disturb the district court’s
findings of fact unless we have the definite and firm
conviction that the court has made a mistake.” United States
v. Hovsepian, 422 F.3d 883, 885 (9th Cir. 2005) (Hovsepian
II). “If the district court’s account of the evidence is plausible
in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently.” Id. at 885–86. We review de novo the
district court’s conclusions of law. Hovsepian I, 359 F.3d at
1165.
HUSSEIN V. BARRETT 7
ANALYSIS
In order to become a naturalized citizen, an applicant
must demonstrate that he satisfies the numerous statutory
criteria of the Immigration and Naturalization Act, including
the requirement that the applicant “has been and still is a
person of good moral character” during the statutorily defined
period of residency. 8 U.S.C. § 1427(a); United States v.
Dang, 488 F.3d 1135, 1138–39 (9th Cir. 2007). An applicant
bears the burden to show his or her eligibility for citizenship
in every respect. Hovsepian I, 359 F.3d at 1168. The USCIS
stipulated that Hussein satisfied all the statutory and
regulatory requirements for naturalization other than the good
moral character requirement.
The determination of good moral character is governed by
both a statute, 8 U.S.C. § 1101(f), and a regulation, 8 C.F.R.
§ 316.10. While the statute does not define “good moral
character,” it lists specific characteristics that preclude a
finding of good moral character. 8 U.S.C. § 1101(f). A person
shall not “be regarded as, or found to be, a person of good
moral character” if, within the statutory period, he or she is an
admitted or convicted prostitute, smuggler, polygamist, moral
turpitude criminal, drug user as defined by statute, or drug
trafficker (during the relevant good moral character period),
a gambler deriving substantial income from gambling, one
convicted of two or more gambling offenses during the
statutory period, one who gives false testimony for obtaining
naturalization, one who has been confined in a penal
institution for more than 180 days during the statutory
period, or one convicted of an aggravated felony, at any
8 HUSSEIN V. BARRETT
time.1 8 U.S.C. § 1101(f); see also Dang, 488 F.3d at 1139
n.2. These enumerated factors provide a per se bar to
naturalization. Torres-Guzman v. INS, 804 F.2d 531, 533 (9th
Cir. 1986). In addition, the statute contains a “catch-all”
provision:
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); Dang, 488 F.3d at 1139.
If the person has not committed acts bringing them within
the enumerated categories, and instead, the question is
whether the person meets the catch-all provision, the
adjudicator must consider all of the petitioners’ evidence on
factors relevant to the determination of good moral character.
Torres-Guzman, 804 F.2d at 534. Specifically, we held:
In the absence of a congressionally imposed
per se rule, a statutory direction to determine
the presence or absence of good moral
character requires the fact finder to weigh and
balance the favorable and unfavorable facts or
factors, reasonably bearing on character, that
are presented in evidence. To preclude
1
Recently, we held that 8 U.S.C. § 1101(f)(1) was unconstitutional
because there is no rational basis for classifying persons afflicted by
chronic alcoholism as persons who innately lack good moral character.
Ledezma-Cosina v. Lynch, __ F.3d. __ , 2016 WL 1161260 (9th Cir. Mar.
24, 2016).
HUSSEIN V. BARRETT 9
consideration of favorable facts is to abuse
discretion.
Id.
Relevant factors include: education, family background,
employment history, financial status, and lack of criminal
record. Id. at 533.
Pursuant to the statute, a regulation was promulgated,
specifically 8 C.F.R. § 316.10, to offer “guidance to officials
making moral character determinations.” Dang, 488 F.3d at
1139.2 The regulation instructs the USCIS to evaluate claims
of good moral character on a case-by-case basis taking into
account the enumerated elements in the section as well as the
standards of the average citizen in the community of
residence. 8 C.F.R. § 316.10(a)(2). The regulation includes
the enumerated categories found in the statute, as well as an
additional subsection, as follows:
Unless the applicant establishes extenuating
circumstances, the applicant shall be found to
lack good moral character if, during the
statutory period, the applicant:
(iii) Committed unlawful acts that adversely
reflect upon the applicant’s moral character,
2
In Dang, we held that this regulation is a permissible interpretation of
section 1101(f) under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). 488 F.3d at 1140–41.
10 HUSSEIN V. BARRETT
or was convicted or imprisoned for such acts,
although the acts do not fall within the
purview of § 316.10(b) (1) or (2).
8 C.F.R. § 316.10(b)(3)(iii).
In this case, we are asked specifically to address whether
the regulation creates additional enumerated categories. The
distinction between an enumerated category and a non-
enumerated category is critical because it determines the
scope of the relevant evidence regarding good moral
character. The enumerated categories are per se bars to
naturalization, which means that the court should not consider
other evidence once it finds that one of the categories exists.
However, if a non-enumerated category is being considered
then the court is required to also consider all evidence
relevant to the applicant’s character.
Here, the decision to reject Hussein’s application was
based on the district court’s conclusion that Hussein gave
repeated false representations regarding his marital status,
both to law enforcement and to the Sacramento Superior
Court. In reaching this conclusion, the district court relied on
the regulation, not the statute, and held as a matter of law that
8 C.F.R. § 316.10(b)(3)(iii) is an enumerated factor that
provides a per se bar to a good moral character finding. This
was error. While we have held that section 316.10 is a
permissible exercise of congressional delegation, see Dang,
488 F.3d at 1141, we have not held that subsection
(b)(3)(iii)’s catch-all provision is an enumerated element that
serves as a per se bar to naturalization. And we decline to do
so in this instance. On the contrary, section 316.10(b)(3)(iii),
while providing guidance to officials, is not a
Congressionally imposed per se rule, as contemplated by
HUSSEIN V. BARRETT 11
Torres-Guzman. The statute creates per se bars to
naturalization, but the regulation does not.
There is no suggestion in the record that Hussein’s two
statements to law enforcement officers concerning Mabrey
were made under oath or penalty of perjury. These statements
cannot legally be perjurious because, under California law,
for a statement to be perjury it must be made under oath or
under penalty of perjury. Chein v. Shumsky, 373 F.3d 978,
983 (9th Cir. 2004)(en banc); Cal. Penal Code § 118. On the
other hand, the false representation made by Hussein under
oath to the court may or may not have been perjury. It is not
possible to reach that conclusion based on this record. Under
California law, the elements of perjury include a willful
statement under oath of any material matter which the witness
knows to be false. Id. The legal standard for materiality is
whether the statement in question “could probably have
influenced the outcome of the proceedings.” Id. at 984. When
applying the materiality test, California law focuses on
whether the false statement, at the time it was made, had the
tendency to probably influence the outcome of the
proceedings, not whether, as a matter of historical fact, the
false statement probably did influence the outcome of the
proceedings. Id.
In making its ruling, the district court did not address
whether Hussein’s statements to the Sacramento Superior
Court were material to the proceeding. Without this analysis,
it is impossible for us to review the district’s conclusion that
Hussein committed an unlawful act that reflects adversely on
his moral character. On remand, the district court should
make a finding on whether Hussein’s statements made to the
California courts were material, i.e. that Hussein “committed
12 HUSSEIN V. BARRETT
an unlawful act.” Absent a finding of materiality, there can be
no conclusion of perjury.
CONCLUSION
Hussein’s statements to law enforcement officers were
not under oath and cannot be perjury. Hussein’s declaration
to the Sacramento Superior Court could be perjury if it was
material. The failure of the district court to make specific
findings with respect to the materiality of Hussein’s
statements made to the Sacramento Superior Court prevents
us from reviewing the district court’s determination that
Hussein committed unlawful acts that adversely reflect upon
his moral character. Additionally, because a violation of
8 C.F.R. § 316.10(b)(3)(iii) is not a per se bar, the district
court abused its discretion in failing to consider all relevant
factors in making its ultimate determination that Hussein
failed to show he is of good moral character. Accordingly, the
judgment of the district court is vacated and this matter is
remanded for further proceedings consistent with this
opinion.
Costs on appeal are awarded to appellant to the extent
authorized by law.
VACATED and REMANDED.