United States v. Teng Zhou , 815 F.3d 639 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-55027
Plaintiff-Appellee,
D.C. No.
v. 2:13-cv-02145-
BRO-CW
TENG JIAO ZHOU,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted
February 8, 2016—Pasadena, California
Filed March 7, 2016
Before: Marsha S. Berzon, Andre M. Davis*,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
*
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
2 UNITED STATES V. ZHOU
SUMMARY**
Immigration
The panel affirmed the district court’s order granting the
government’s motion for judgment on the pleadings and its
judgment revoking Teng Jiao Zhou’s naturalization pursuant
to 8 U.S.C. § 1451(a).
The panel affirmed the district court’s denaturalization
judgment under 8 U.S.C. § 1101(f), the “catch-all” provision,
on the ground that Zhou’s robbery conviction prevented him
from establishing good moral character during the statutory
period. The panel held that robbery was an unlawful act
which reflected adversely on Zhou’s moral character and for
which he could not show extenuating circumstances.
COUNSEL
Armineh Ebrahimian (argued), Rosemead, California, for
Defendant-Appellant.
Troy D. Liggett (argued), Stuart F. Delery, William C.
Peachey, and Elizabeth J. Stevens, United States Department
of Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ZHOU 3
OPINION
OWENS, Circuit Judge:
Appellant Teng Jiao Zhou appeals from the district
court’s order granting the government’s motion for judgment
on the pleadings and its resulting judgment of
denaturalization. Zhou committed robbery during the
relevant statutory period prior to his naturalization. Because
the robbery is an unlawful act that reflects adversely on
Zhou’s moral character and for which he cannot show
extenuating circumstances, we affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Zhou emigrated from China in 1985, and applied for
naturalization in 1993. He attended his naturalization
interview, filled out the necessary Form N-400 application,
and passed the naturalization exam.
Also in 1993, Zhou went into business with a man named
Tong, but that relationship broke bad. On March 8–9, 1994,
Zhou physically seized Tong, threatened him, and stole from
him. Due to this conduct, Zhou was ultimately charged with
robbery, kidnaping, and extortion. Although his first jury
deadlocked, a second jury found him guilty of Robbery of the
First Degree (Cal. Penal Code § 211) and False Imprisonment
with Violence or Menace (Cal. Penal Code §§ 236–37) on
November 21, 1994. The trial judge sentenced Zhou to the
“high term” of six years for the false imprisonment
conviction, finding in aggravation Zhou’s “threats of great
bodily harm to the victim” and his “position of leadership
over others during the commission of the offense.” The judge
4 UNITED STATES V. ZHOU
concurrently sentenced Zhou to the “mid term” of two years
for the robbery conviction.
Despite this serious criminal activity, Zhou’s quest for
citizenship continued. On March 22, 1994—after Zhou’s
March 8–9 criminal activity but before his June arrest and his
November jury conviction—he completed a Form 445-A, in
which Zhou updated his earlier Form N-400. Form 445-A
asked whether, since his initial naturalization interview, Zhou
had “knowingly committed any crime or offense, for which
[he] ha[d] not been arrested?” Zhou answered no. On March
31, 1994, Zhou took his oath of allegiance and became a
naturalized U.S. citizen.
Nearly 20 years passed, and the record reveals no
additional misconduct by Zhou. However, on March 25,
2013, the government filed a complaint to revoke Zhou’s
naturalization. The government argued that the 1994
convictions—for which the underlying unlawful conduct
occurred during the relevant five-year period preceding
Zhou’s naturalization—meant that Zhou lacked the necessary
good moral character required to naturalize. See 8 U.S.C.
§ 1427(a)(3) (no person shall be naturalized unless the
applicant “has been and still is a person of good moral
character”).1 The government then moved for judgment on
1
The nearly 20-year delay between Zhou’s conviction and the complaint
to revoke his naturalization is very troubling, and the government (in its
briefs and at argument) failed to explain why it waited so long to bring this
action. While this delay could make a strong case for laches against the
government, Zhou never made a laches argument before the district court
or this court, so we do not reach this issue. See Costello v. United States,
365 U.S. 265, 282 (1961) (leaving the question of laches open in the
denaturalization context); United States v. Dang, 488 F.3d 1135, 1143–44
(9th Cir. 2007) (recognizing that the issue remains open).
UNITED STATES V. ZHOU 5
the pleadings on two bases: (1) 8 U.S.C. § 1101(f)(3) (for
having committed crimes involving moral turpitude during
the statutory period); and (2) the “catch-all” provision of
8 U.S.C. § 1101(f), as promulgated in 8 C.F.R.
§ 316.10(b)(3)(iii) (for having committed unlawful acts that
adversely reflect on one’s moral character during the
statutory period). The district court granted the government’s
motion on both grounds. Because we affirm the district
court’s application of section 1101(f)’s “catch-all” provision,
we need not review the application of section 1101(f)(3).
Relevant to our review under the “catch-all” provision,
the district court concluded that First Degree Robbery, as
defined in Cal. Penal Code § 211, is a crime involving moral
turpitude, which constitutes an unlawful act that adversely
reflects on one’s moral character. See Mendoza v. Holder,
623 F.3d 1299, 1302–04 (9th Cir. 2010).2 Zhou attempted to
downplay the seriousness of his crimes, arguing that (1) they
arose from a mere business dispute, (2) the first jury could
not reach a verdict, and (3) he had no other criminal
convictions. Following United States v. Jean-Baptiste,
395 F.3d 1190, 1195 (11th Cir. 2005), and United States v.
Suarez, 664 F.3d 655, 662 (7th Cir. 2011), the district court
rejected these attempts to establish “extenuating
circumstances” under 8 C.F.R. § 316.10(b)(3)(iii). The
district court reasoned that it had limited discretion to apply
this exception, and that none of the stated grounds rendered
Zhou’s crimes “less reprehensible than [they] otherwise
2
The district court also held that the False Imprisonment with Violence
or Menace conviction was an unlawful act that adversely reflected on
Zhou’s moral character. We need not review that alternative holding here,
as Zhou’s robbery conviction prevented him from establishing good moral
character during the statutory period.
6 UNITED STATES V. ZHOU
would be, or tend[ed] to palliate or lessen [his] guilt.”
Suarez, 664 F.3d at 662 (quoting Black’s Law Dictionary (6th
ed. 1990)). The district court entered the judgment of
denaturalization, and this appeal followed.
II. STANDARD OF REVIEW
We review a district court’s order granting judgment on
the pleadings de novo. Lyon v. Chase Bank USA, N.A.,
656 F.3d 877, 883 (9th Cir. 2011). “A judgment on the
pleadings is properly granted when, taking all the allegations
in the non-moving party’s pleadings as true, the moving party
is entitled to judgment as a matter of law.” Fajardo v. Cty. of
L.A., 179 F.3d 698, 699 (9th Cir. 1999).
III. ANALYSIS
A naturalized individual’s citizenship “should not be
taken away without the clearest sort of justification and
proof,” Schneiderman v. United States, 320 U.S. 118, 122
(1943), as “its loss can have severe and unsettling
consequences,” Fedorenko v. United States, 449 U.S. 490,
505 (1981). Due to the extremely high stakes involved, “[t]he
evidence justifying revocation of citizenship must be clear,
unequivocal, and convincing and not leave the issue in
doubt.” Id. (citation and internal quotation marks omitted).
If the government meets its high burden, however, a court
must enter a judgment of denaturalization—it lacks any
discretion to do otherwise. Id. at 517–18.
Under 8 U.S.C. § 1451(a), the government may file a
complaint to revoke naturalization if a citizen’s naturalization
was “illegally procured” or “[was] procured by concealment
UNITED STATES V. ZHOU 7
of a material fact or by willful misrepresentation.” Only the
illegal procurement theory is at issue in this appeal.
Naturalization was “illegally procured” if the individual
did not meet the statutory requirements for citizenship.
Fedorenko, 449 U.S. at 506; United States v. Dang, 488 F.3d
1135, 1139 (9th Cir. 2007). One requirement for citizenship
is that an applicant must be of “good moral character” for the
five years immediately preceding the date of the filing of the
application for naturalization until the time the applicant
takes the oath of allegiance. 8 U.S.C. § 1427(a). Under
section 1101(f), a person will not “be regarded as, or found to
be, a person of good moral character” if, within the statutory
period, he fell into any of several enumerated categories.
Section 1101(f)’s additional “catch-all” provision provides
that “[t]he fact that any person is not within any of the
foregoing [categories] shall not preclude a finding that for
other reasons such person is or was not of good moral
character.”
Under section 1101(f), the government promulgated 8
C.F.R. § 316.10, which offers guidance on making moral
character determinations. It includes the following language:
Unless the applicant establishes extenuating
circumstances, the applicant shall be found to
lack good moral character if, during the
statutory period, the applicant: (i) Willfully
failed or refused to support dependents;
(ii) Had an extramarital affair which tended
to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely
reflect upon the applicant’s moral character,
8 UNITED STATES V. ZHOU
or was convicted or imprisoned for such acts
....
8 C.F.R. § 316.10(b)(3).3 We have 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), so we apply it here. See Dang,
488 F.3d at 1140–41.
The facts of Zhou’s case are unusual in that, while he
committed the relevant crime during the statutory period prior
to his naturalization, he was not charged with, arrested for, or
convicted of the crime until after he took his oath of
allegiance and became a naturalized citizen. We have not
applied sections 1101(f) and 316.10(b)(3)(iii) in precisely
these circumstances, but we have applied those provisions to
a situation where the commission of, and indictment and
arrest for, the crime occurred before the oath of allegiance,
but the resulting conviction came after.
In Dang, Dang set fire to her van while she and her son
were inside as part of an insurance fraud scheme. Shortly
after the fire (and while out on bail after arrest), Dang took
the oath of allegiance and became a United States citizen.
Later that same year, she was convicted of arson and related
crimes and sentenced to eleven years in prison. 488 F.3d at
1137–38. As in this case, the government in Dang moved for
her denaturalization because she lacked good moral character
at the time of naturalization under the section 1101(f) “catch-
all” provision and 8 C.F.R. § 316.10 as promulgated thereto.
3
An earlier version of the regulation was in effect in 1994, and is
materially identical to the version that the district court analyzed. See
Administrative Naturalization, 56 Fed. Reg. 50,486 (Oct. 7, 1991).
UNITED STATES V. ZHOU 9
Our court rejected Dang’s various statutory and
constitutional challenges to 8 C.F.R. § 316.10. We affirmed
the district court’s decision to denaturalize Dang, even though
her convictions for arson and related offenses came after she
took the oath to become a United States citizen. Id. at
1137–38, 1144.
The Dang decision is in accord with those in other
circuits, including at least one in which the indictment, arrest,
and conviction all occurred after naturalization. Suarez,
664 F.3d at 657; see also id. at 661 (explaining that, under the
“catch-all” provision, “a conviction during the statutory
period is not necessary for a finding that an applicant lacks
good moral character,” and “[i]t is enough that the offense
was ‘committed’ during that time”); Jean-Baptiste, 395 F.3d
at 1191, 1194 (holding that a naturalized citizen who
committed unlawful acts under the “catch-all” provision
during the statutory period prior to taking the oath of
allegiance, but who was indicted, arrested, and convicted only
after naturalization, could have his citizenship revoked for
lack of good moral character).
Applying these cases, the same result obtains here. A jury
convicted Zhou of robbery, a crime involving moral
turpitude. See Mendoza, 623 F.3d at 1302–04. The parties
agree that these acts occurred during the relevant five-year
period for which Zhou was required to demonstrate good
moral character. With these facts, the district court did not
err in concluding that the “unlawful act” of robbery reflected
“adversely” on Zhou’s moral character.4 Zhou has no serious
4
Our opinion is limited to reviewing the application of 8 C.F.R.
§ 316.10(b)(3)(iii), involving “unlawful acts” that “adversely reflect” on
moral character, to the facts at hand. We do not consider the legitimacy
10 UNITED STATES V. ZHOU
response on this issue, and conceded at argument that there is
no dispute that Zhou committed a crime involving moral
turpitude during the statutory period.
Instead, Zhou tries to argue that the facts of his case
entitle him to invoke the “extenuating circumstances”
exception, which would enable him to avoid denaturalization.
See 8 C.F.R. § 316.10(b)(3)(iii). Although he attempts to
minimize his culpability and role in the offense—referring to
it as a mere “business dispute”—a jury unanimously thought
otherwise, and that verdict binds this court. See, e.g., Jean-
Baptiste, 395 F.3d at 1194 (“Collateral estoppel bars a
defendant who is convicted in a criminal trial from contesting
this conviction in a subsequent civil action with respect to
issues necessarily decided in the criminal trial.”).
To the extent that Zhou contends that his otherwise clean
record creates “extenuating circumstances,” that contention
misapprehends the nature of the exception. The narrow
“extenuating circumstances” exception, applicable to having
failed to support dependents or engaged in an extramarital
affair, as well as to the commission of a crime, focuses on the
circumstances during the statutory period, and so, here,
focuses on circumstances during the statutory period that may
“palliate or lessen” an offender’s guilt for an offense. Suarez,
664 F.3d at 662 (quoting Black’s Law Dictionary (6th ed.
1990)). It is not a post-naturalization retrospective on the
of denaturalization based on other parts of section 316.10, including the
subsections specifying that having “[w]illfully failed or refused to support
dependents” or engaged in “extramarital affair[s] which tended to destroy
. . . existing marriage[s],” § 316.10(b)(3)(i), (ii), precludes a finding of
good moral character, absent extenuating circumstances. Nor do we
address the categories listed in 8 U.S.C. §§ 1101(f)(1) through 1101(f)(9).
UNITED STATES V. ZHOU 11
person, his achievements, or the unfortunate effect that
denaturalization will surely have. See Jean-Baptiste,
395 F.3d at 1195 (explaining that “extenuating circumstances
. . . must pertain to the reasons showing lack of good moral
character, including acts negating good character, not to the
consequences of these matters, including the consequence of
denaturalization”). Zhou, however, has not pointed to
anything in the record that demonstrates any extenuating
circumstances during the statutory period. The seriousness of
Zhou’s conviction, his significant sentence, and the absence
of any record concerning mitigating matter during the
statutory period, confirms that there are no “extenuating
circumstances” that would permit relief here.
Zhou also argues that for the government to demonstrate
that Zhou “illegally procured” his naturalization under section
1451(a), it needed to prove that Zhou knew his actions of
March 8–9, 1994 constituted a crime when he completed his
Form 445-A. Zhou states that he had no knowledge that he
had committed a crime (and to this day maintains his
innocence), so any misrepresentation on his form was
inadvertent.
As stated above, under section 1451(a), the government
may seek denaturalization under two independent legal
theories: that naturalization was procured (1) illegally; and
(2) through concealment of a material fact or by willful
misrepresentation. While the individual’s scienter with
respect to any misrepresentation is relevant to the latter
theory, there is no authority in the statute or case law to
require the government to prove that Zhou knew his conduct
was illegal at the time he naturalized under the former. See
Fedorenko, 449 U.S. at 516–17 (explaining that if an
individual does not meet the statutory requirements for
12 UNITED STATES V. ZHOU
naturalization, naturalization was illegally procured). Zhou
exhibited a lack of moral character by committing a serious
crime—robbery. Whether at the time he took the oath of
allegiance he knew that he violated any specific law or that he
lacked moral character is irrelevant to our “illegally
procured” analysis.
Accordingly, the district court did not err in holding that
Zhou could not establish good moral character under section
1101(f) and 8 C.F.R. § 316.10(b)(3)(iii). Thus, it was
required to enter a judgment of denaturalization.
IV. CONCLUSION
While we fail to understand why the government waited
nearly two decades to bring this action against an otherwise
law-abiding individual, ultimately our lack of comprehension
is irrelevant. What matters is that Zhou committed an
unlawful act just days before he took the oath of allegiance.
That unlawful act, absent extenuating circumstances, required
the district court to revoke Zhou’s certificate of
naturalization.
AFFIRMED.