Anthony Kariuki v. Tracy Tarango, et al

Filing

PUBLISHED OPINION FILED. [12-10174 Affirmed ] Judge: CES , Judge: EMG , Judge: JWE Mandate pull date is 04/15/2013 [12-10174]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-10174

February 21, 2013
Lyle W. Cayce
Clerk

ANTHONY NGOMI KARIUKI,
Plaintiff-Appellant,
v.
TRACY TARANGO,
Field Office Director, Dallas District Office,
United States Citizenship & Immigration Services et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Texas

Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant, Anthony Ngomi Kariuki (“Kariuki”) appeals the
district court’s grant of summary judgment to Defendants-Appellees
(“Appellees”). Kariuki had petitioned under 8 U.S.C. § 1421(c) for review of his
denied naturalization application. However, the district court determined that
he could not demonstrate good moral character as a matter of law, a prerequisite
for naturalization under 8 U.S.C. § 1427(a) and 8 C.F.R. § 329.2(d). For the
reasons provided below, we AFFIRM.

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I. BACKGROUND
In 1998, Kariuki entered the United States on a six-month visitor visa. He
never left and, in the ensuing years, has misrepresented his immigration status
repeatedly.
In 2000, Kariuki enlisted in the U.S. Army by means of a false passport
stamp denoting permanent residency.

He was discharged for “fraudulent

enlistment.”
In 2001, Kariuki pleaded guilty to violating 18 U.S.C. § 911.1 He had
violated the statute by checking the box on an INS Form I-9,2 which attested,
under penalty of perjury, that he was a “citizen or national of the United States.”
In connection with this same incident, Kariuki had erased the words “Not Valid
for Work Without INS Verification” from his Social Security card, which he had
presented to a prospective employer along with the INS Form I-9. In a sworn
statement to U.S. Citizenship and Immigration Services (“USCIS”), Kariuki
later testified that he was aware the falsification of these documents constituted
“fraud.”
Despite his visa overstay, his Army discharge for fraudulent enlistment,
and his guilty plea for falsely representing himself as a citizen, Kariuki
remained in the United States.

In 2003, 2004, and 2008, he applied for

apartment rentals, providing the names and phone numbers of purported
employers. Kariuki, in fact, was unemployed and had enlisted friends to verify
his false claims of employment.
Kariuki applied for naturalization in 2004 pursuant to 8 U.S.C. § 1440,
which waives the residency requirement for qualifying military veterans.

1

“Whoever falsely and willfully represents himself to be a citizen of the United States
shall be fined under this title or imprisoned not more than three years, or both.” 18 U.S.C. §
911.
2

An INS Form I-9 verifies employment eligibility.

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During his naturalization interview, Kariuki claimed under oath that he never
had falsely represented himself as a U.S. citizen.
USCIS denied Kariuki’s application on September 29, 2009, finding that
he was not “a person of good moral character,” as required by 8 U.S.C. § 1427(a)
and 8 C.F.R. § 329.2(d).

Kariuki administratively appealed, and his

administrative appeal was denied on May 25, 2010.
Kariuki filed the instant suit on August 9, 2010, petitioning for review of
his denied application pursuant to 8 U.S.C. § 1421(c). In July of 2011, during a
deposition for the instant proceedings, Kariuki again claimed under oath that
he never had falsely represented himself as a U.S. citizen.
Appellees moved for summary judgment pursuant to Federal Rule of Civil
Procedure (“FRCP”) 56, asserting that Kariuki could not demonstrate good moral
character as a matter of law. Kariuki requested an evidentiary hearing as to his
moral character.
The district court granted Appellees’ motion for summary judgment
without conducting an evidentiary hearing. In doing so, it cited, inter alia, to
Kariuki’s visa overstay, his prior conviction for a crime of dishonesty, his
discharge from the Army for fraudulent enlistment, his recurring efforts to
misrepresent his employment status on rental applications, and his sworn
answers in the naturalization interview and court deposition, which were at odds
with the central premise underlying his prior conviction. On January 17, 2012,
the district court entered final judgment for Appellees.
II. DISCUSSION
On appeal, Kariuki argues that the district court erred by using the
summary judgment procedure in his 8 U.S.C. § 1421(c) naturalization
proceedings because he had requested an evidentiary hearing.3 Kariuki also
3

Kariuki makes this argument in response to our July 10, 2012 letter to counsel for the
parties, which requested supplemental briefing on this issue.

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contends that the district court erred by considering conduct that preceded the
filing of his application by more than one year, despite the one-year “good moral
character” time limit for military naturalizations articulated in 8 C.F.R. §
329.2(d). Moreover, Kariuki submits that, regardless of his prior conduct,
affidavit evidence of his present conduct creates a genuine issue of material fact
as to his moral character. Finally, Kariuki maintains that the district court
erred by applying collateral estoppel in his naturalization proceedings.4
A.

A “Hearing De Novo” Within the Meaning of 8 U.S.C. § 1421(c)
Encompasses an FRCP 56 Review on Summary Judgment.
Kariuki argues that the district court erred by using the summary

judgment procedure even though he had requested an evidentiary hearing.
Section 1421(c), entitled “Judicial review,” states:
A person whose application for naturalization under this
subchapter is denied, after a hearing before an
immigration officer under [8 U.S.C. § 1447(a)], may seek
review of such denial before the [appropriate] United
States district court. . . . Such review shall be de novo, and
the court shall make its own findings of fact and
conclusions of law and shall, at the request of the
petitioner, conduct a hearing de novo on the application.
8 U.S.C. § 1421(c) (emphasis added).
At issue is whether the “hearing de novo” language impels an evidentiary
hearing or whether an FRCP 56 review suffices. This is an issue of first
impression in this Circuit. To date, the Second Circuit has provided the only
published appellate opinion on the issue. See Chan v. Gantner, 464 F.3d 289,
295-96 (2d Cir. 2006) (per curiam). However, both the Third and the Eleventh
Circuits have expressed their agreements with Chan in recent unpublished

4

After applying collateral estoppel, the district court determined that Kariuki’s
testimony at deposition and in the USCIS interview, that he never had represented himself
as a U.S. citizen, was necessarily “false” within the meaning of 8 U.S.C. § 1101(f)(6) because
it conflicted with his prior conviction under 18 U.S.C. § 911 for falsely representing himself
as a U.S. citizen.

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opinions. See Abulkhair v. Bush, 413 F. App’x 502, 507-08 n.4 (3d Cir. 2011) (per
curiam) (unpublished); Cernuda v. Neufeld, 307 F. App’x 427, 431 n.2 (11th Cir.
2009) (per curiam) (unpublished). Upon consideration, we agree with our sister
circuits that a “hearing de novo” within the meaning of Section 1421(c)
encompasses an FRCP 56 review on summary judgment.
1.

Standard of Review

“We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Pierce v. Dep’t of the Air Force, 512 F.3d 184,
186 (5th Cir. 2007) (citation omitted). “Questions of law are reviewed de novo.”
Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009) (citation omitted).
“[S]ummary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (internal quotation marks omitted). “Only disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant
or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). There is no genuine dispute if the record, taken as a whole,
could not lead a rational trier-of-fact to find for the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 597-98
(1986).
2.

Analysis

FRCP 81(a)(3) states that the Federal Rules of Civil Procedure, including
Rule 56, “apply to proceedings for admission to citizenship to the extent that the
practice in those proceedings” (i) “is not specified in federal statutes”; and (ii)

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“has previously conformed to the practice in civil actions.” Fed. R. Civ. P.
81(a)(3). We structure our analysis around this test.
a.

Section 1421(c) Does Not Specify an Alterative to the
Federal Rules of Civil Procedure for Naturalization
Hearings.
Concerning the first prong of the FRCP 81(a)(3) test, Kariuki relies on a
structural analysis to argue that, by specifying a “hearing de novo,” Congress
intended only for a full evidentiary hearing in naturalization proceedings. We
briefly recount this argument.
The last sentence of Section 1421(c) states: (i) “Such review shall be de
novo, and” (ii) “the court shall make its own findings of fact and conclusions of
law and” (iii) “shall, at the request of the petitioner, conduct a hearing de novo
on the application.” 8 U.S.C. § 1421(c). Kariuki notes that the first clause of
Section 1421(c)’s last sentence states that “such review shall be de novo.” Thus,
he argues that the “hearing de novo” language in the third clause could not
merely set the standard of review for a Section 1421(c) hearing, or else the first
clause would be superfluous. Rather, Kariuki contends that “hearing de novo”
describes the specific type of Section 1421(c) “hearing” envisioned by the statute.
Next, Kariuki notes that the second clause of Section 1421(c)’s last
sentence states that “the court shall make its own findings of fact and
conclusions of law.” He maintains that the third clause, “conduct a hearing de
novo on the application,” expands the review necessary to make the second
clause’s findings to “testimonial evidence,” as opposed to just “deposition
transcripts, affidavits, and other [paper] evidence.” We are not persuaded.
As Appellees argue, Section 1421(c)’s “vague reference” to a “hearing de
novo” does not amount to an alternatively specified practice. In United States
v. Florida East Coast Railway Co., the Supreme Court explained that “[t]he term
‘hearing’ in its legal context undoubtedly has a host of meanings. Its meaning
undoubtedly will vary, depending on . . . context.” 410 U.S. 224, 239 (1973)
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(footnote omitted).

In United States v. Tannehill, we added that, “[i]n

determining what Congress meant by its use of the word ‘hearing’ . . . we must
consider the context in which the word is used and give to the term its ordinary
meaning within that context.” 49 F.3d 1049, 1053 (5th Cir. 1995) (citation
omitted). “[T]he term ‘hearing’ . . . ‘does not necessarily embrace either the right
to present evidence orally and to cross-examine opposing witnesses, or the right
to present oral argument to the agency’s decision-maker.’” Texas v. United
States, 866 F.2d 1546, 1555 (5th Cir. 1989) (quoting Fla. E. Coast Ry. Co., 410
U.S. at 240 (evaluating the term “hearing” as used in the Administrative
Procedure Act)).
In Aparicio v. Blakeway, we specifically addressed the meaning of
“hearing” within the context of Section 1421(c), and clarified that the modifier
“de novo” merely specifies the standard of review. See 302 F.3d 437, 440 (5th
Cir. 2002). We are not persuaded by Kariuki’s structural argument, which, in
effect, attacks our precedent from Aparicio.
Neither use of “de novo” is superfluous.

The first clause of Section

1421(c)’s last sentence, which states that “such review shall be de novo,” simply
explains that the deferential “arbitrary and capricious” standard often applicable
to administrative reviews does not apply in this context. The last clause,
“conduct a hearing de novo on the application,” then clarifies that review is not
limited to the administrative record. Rather, “the court shall make its own
findings of fact and conclusions of law,” as articulated in the second clause. The
district court may do so by admitting and reviewing evidence in accordance with
the Federal Rules of Civil Procedure, which apply pursuant to FRCP 81(a)(3) in
the absence of statutory language to the contrary.
b.

Our Past Practices in Naturalization Hearings Have
Conformed to the Federal Rules of Civil Procedure.
Concerning the second prong of the FRCP 81(a)(3) test, Appellees argue
that past practices in naturalization hearings, both before and after the
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Immigration Act of 1990, Pub. L. No. 101-649, § 401(a), have conformed to the
Federal Rules of Civil Procedure. In making this point, Appellees cite to
persuasive Ninth Circuit precedent, as well as the decisions of various district
courts within our jurisdiction, which have specifically applied the FRCP 56
summary judgment procedure to Section 1421(c) proceedings. We agree.
In Abela v. Gustafson, the Ninth Circuit explained that “[n]aturalization
proceedings are ‘civil actions’ . . . . [W]hile there is extensive administrative
participation, an application for naturalization is in every respect a judicial
proceeding and encompasses every incident of such proceedings.” 888 F.2d 1258,
1262 (9th Cir. 1989) (citing, inter alia, Tutun v. United States, 270 U.S. 568, 57679 (1926)). Surely, these incidents of judicial proceedings include the Federal
Rules of Civil Procedure.
Moreover, as noted above, multiple district courts within this Circuit have
specifically concluded that the Rules, including Rule 56, apply to Section 1421(c)
proceedings.

See, e.g., Islam v. Harrington, No. 3:00-cv-1683-P, 2001 WL

1335851, at *3-4 (N.D. Tex. Oct. 23, 2001); Jiwani v. Immigration &
Naturalization Serv., No. 3:00-cv-1077-X, 2001 WL 322421, at *1 (N.D. Tex. Mar.
30, 2001) (adopting the findings, conclusions, and recommendation of the
magistrate judge (available at No. 3:00-cv-1077-X, 2001 WL 258409, at *2-3
(N.D. Tex. Mar. 13, 2001))). Additional courts within our jurisdiction have
applied FRCP 56 to Section 1421(c) proceedings without comment. See, e.g.,
Rangel v. Barrows. No. 4:07-cv-279, 2008 WL 4441974 (E.D. Tex. Sep. 25, 2008);
Edem-Effiong v. Acosta, Civil No. H-04-2025, 2006 WL 626406 (S.D. Tex. Mar.
13, 2006). The district courts’ routine application of FRCP 56 to Section 1421(c)
proceedings is a persuasive indication that our past practices in naturalization
hearings have conformed to the Federal Rules of Civil Procedure.
c.

We Need Not Reach Kariuki’s Alternative Legislative
History Argument.
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Finally, in light of the above analysis, we need not reach an alternative
argument raised by Kariuki concerning Section 1421(c)’s legislative history.
Kariuki posits that prior to passage of the Immigration Act of 1990, the
authority to naturalize aliens lied exclusively in the district courts, which
conducted full evidentiary hearings. See, e.g., Tutun v. United States, 270 U.S.
at 576; Immigration and Nationality Act of 1952, Pub. L. No. 82-414, ch. 477, §
336. He quotes from a floor statement by the Immigration Act of 1990’s
congressional sponsor for the proposition that Congress intended to preserve the
full hearing function of the district courts despite providing for the
administrative review of naturalization applications in the first instance. See
135 Cong. Rec. H4539 (Jul. 31, 1989) (statement of Rep. Bruce Morrison) (stating
that the Act “does not take away any of the judicial review rights accorded
applicants today. It retains the ability of the applicant to take the case to court
in a manner similar to current procedures. . . . Denied cases are appealed to the
District Court and heard de novo as under existing law.”). Here, we need look
no further than the plain language of Section 1421(c) and the Federal Rules of
Civil Procedure. However, we note that, without further support or context, it
is unclear whether Representative Morrison’s isolated floor statement is
representative of the majority who actually voted for the legislation.
For all of the above reasons, a “hearing de novo” within the meaning of
Section 1421(c) encompasses an FRCP 56 review on summary judgment.
B.

Consideration of Prior Conduct Is Appropriate Where the
Conduct Is Relevant to Assessing the Applicant’s Moral Character
or Present Conduct Indicates Poor Moral Character.
1.
Standard of Review
“Congress alone has the constitutional authority to prescribe rules for

naturalization.”

Fedorenko v. United States, 449 U.S. 490, 506-07 (1981)

(footnote and citations omitted). Therefore, the courts’ task is to ensure “strict
compliance with the statutory conditions precedent to naturalization . . . .” Id.
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“[T]he burden is on the alien applicant to show his eligibility for citizenship in
every respect. . . . [Any] doubts should be resolved in favor of the United States
. . . .” Berenyi v. Dist. Dir., Immigration & Naturalization Serv., 385 U.S. 630,
637 (1967) (internal quotation marks and citation omitted). “An applicant for
naturalization bears the burden of demonstrating that, during the statutorily
prescribed period, he or she has been and continues to be a person of good moral
character.

This includes the period between the examination and the

administration of the oath of allegiance.” 8 C.F.R. § 316.10(a)(1).
2.

Analysis

In Lopez v. Henley, we upheld as reasonable a “good moral character”
requirement, applicable to military naturalization applications, which the former
Immigration and Naturalization Service had promulgated. See 416 F.3d 455,
457-58 (5th Cir. 2005).

That requirement states:

“To be eligible for

naturalization . . . [a military] applicant must establish that he or she . . . [h]as
been, for at least one year prior to filing the application for naturalization, and
continues to be, of good moral character . . . .” 8 C.F.R. § 329.2(d).
While Section 329.2(d) sets a one-year good moral character time limit, an
additional regulation explains that a reviewing tribunal “is not limited to
reviewing the applicant’s conduct during the [one year] immediately preceding
the filing of the application.” 8 C.F.R. § 316.10(a)(2). Rather, the tribunal “may
take into consideration, as a basis for its determination, the applicant’s conduct
and acts at any time prior to that period” (i) “if the conduct of the applicant
during the statutory period does not reflect that there has been reform of
character from an earlier period”; or (ii) “if the earlier conduct and acts appear
relevant to a determination of the applicant’s present moral character.” Id.
At issue here is whether it was improper for the district court to consider
Kariuki’s visa overstay, prior conviction, and discharge from the Army, in
determining that he could not demonstrate good moral character as a matter of
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law, because those events preceded his application filing by more than one year.
This is an issue of first impression in this Circuit. We conclude that the district
court’s actions were proper.
In Hovsepian v. United States, the Ninth Circuit imposed an affirmative
obligation on the applicant to demonstrate good moral character during the
Section 316.10(a)(2) regulatory term. See 422 F.3d 883, 886 (9th Cir. 2005) (en
banc) (“Appellees were required to demonstrate good moral character during the
period from . . . [one year] before they filed their applications . . . through the
date of the most recent hearing . . . .”). We believe this construction of Section
316.10(a)(2) is sensible.
After all, the language in Section 316.10(a)(2)’s second prong, that the
tribunal may take prior conduct into consideration “if the earlier conduct and
acts appear relevant to a determination of the applicant’s present moral
character,” is unmistakably sweeping.

As documented above, Section

316.10(a)(1) and Berenyi squarely place the burden on the alien “to show his
eligibility for citizenship in every respect.” 385 U.S. at 637. Furthermore, in
Fedorenko, the Supreme Court admonished that we strictly comply “with the
statutory conditions precedent to naturalization.” 449 U.S. at 506. Thus, we do
not believe an alternative construction of Section 316.10(a)(2) would be
permissible.
Accordingly, evidence of Kariuki’s bad prior conduct was relevant to ruling
on his naturalization application, and Kariuki needed to rebut it with
sufficiently probative evidence of good present conduct to survive summary
judgment. As discussed in the proceeding section of this opinion, Kariuki failed
to do so.
C.

Affidavit Evidence of Present Conduct, Without More, Cannot
Create a Genuine Issue of Material Fact As to Moral Character
Where It Conflicts with Probative Evidence of Prior Conduct.
1.
Standard of Review
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“[S]elf-serving allegations are not the type of significant probative evidence
required to defeat summary judgment.” United States v. Lawrence, 276 F.3d
193, 197 (5th Cir. 2001) (internal quotation marks and citation omitted). Thus,
without more, a vague or conclusory affidavit is insufficient to create a genuine
issue of material fact in the face of conflicting probative evidence. See Copeland
v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 482 (5th Cir. 2002) (collecting
citations).
2.

Analysis

As discussed above, evidence of prior conduct is permissible if it is relevant
to a present determination of the applicant’s moral character. Hovsepian, 422
F.3d at 886. If such evidence is indicative of poor moral character, the applicant
must rebut it with sufficiently probative evidence of good present conduct to
withstand a motion under FRCP 56. See id.
Here, Kariuki maintains that he satisfied his Hovsepian burden by
submitting affidavits from “[himself] and his friends attest[ing] to his
volunteerism . . . and to his work in bringing parents and children together.” He
specifically quotes one such affidavit, which states that Kariuki “speaks to me
and to friends of ours about his need to live his life in conformance with the law.”
Kariuki contends that the district court erred by failing to address these
affidavits in its opinion granting Appellees summary judgment because the
affidavits created a genuine issue of material fact as to his moral character. We
are not persuaded.
In its opinion, the district court did address numerous instances of
dishonest conduct by Kariuki, both prior and present. In addition to his prior
conduct, the district court considered Kariuki’s recurring efforts to misrepresent
his employment status on rental applications and his provision of sworn
answers, in his naturalization interview and at his deposition, which conflicted
with the central premise of his prior conviction. These actions occurred within
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the one-year regulatory time limit and suggest that Kariuki has not reformed his
moral character at all. Under Lawrence and Copeland, vague, self-serving, and
conclusory affidavits from conceded friends, attesting to general “volunteerism”
and “work in bringing parents and children together,” are entirely insufficient
to create a genuine issue of material fact as to Kariuki’s moral character.
Therefore, summary judgment was appropriate.
D.

Collateral Estoppel Applies to an Applicant’s Testimony in
Naturalization Proceedings Where That Testimony, If Credited,
Attacks an Essential Premise Underlying a Prior Criminal
Conviction.
The district court determined that, because Kariuki had pled guilty in

2001 to violating 18 U.S.C. § 911, which criminalizes false representations of
U.S. citizenship, his testimony in his naturalization interview and at his
deposition, that he never had claimed to be a U.S. citizen, was necessarily “false”
within the meaning of 8 U.S.C. § 1101(f)(6).5 Thus, while the district court
declined to determine whether or not Kariuki had falsely represented himself
“for the purpose of obtaining any [immigration] benefits,” it ruled that he was
collaterally estopped from challenging the central premise of his 2001 plea,
which was that he had made the false representation.
Accordingly, the district court cited to Kariuki’s testimony at deposition
and before the USCIS, that he had not made the false representation, as
evidence of present conduct indicative of poor moral character. As discussed in
the preceding sections of this opinion, the district court then used this
determination to justify its consideration of Kariuki’s prior conduct pursuant to
8 C.F.R. § 316.10(a)(2).
1.

Standard of Review

5

Section 1101(f)(6) states: “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 . . . one who has given false testimony for the purpose of obtaining any
benefits under this chapter.” 8 U.S.C. § 1101(f)(6).

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The applicability of collateral estoppel is a question of law, which we
therefore review de novo. See Shaikh, 588 F.3d at 863.
“When an issue of fact or law is actually litigated and determined by a
valid and final judgment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the parties, whether
on the same or a different claim.” Restatement (Second) of Judgments § 27
(1982). With collateral estoppel, unlike with res judicata, “the subject matter of
the later suit need not have any relationship to the subject matter of the prior
suit.” United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994).
Collateral estoppel is appropriate where four conditions are met: (i) “The
issue under consideration in a subsequent action must be identical to the issue
litigated in a prior action”; (ii) “The issue must have been fully and vigorously
litigated in the prior action”; (iii) “The issue must have been necessary to support
the judgment in the prior case”; and (iv) “There must be no special circumstance
that would render [estoppel] inappropriate or unfair.” Id. (citations omitted).
The fourth element, special circumstances rendering estoppel unfair, applies
only to the use of offensive (non-mutual) collateral estoppel by the plaintiff. See
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1290-91 n.12 (5th Cir. 1995).6
While the provision of false assertions on a written naturalization
application does not, in itself, constitute false testimony within the meaning of
Section 1101(f)(6), subsequent oral testimony before an immigration officer that
the false assertions contained within the written application are true does
constitute false testimony. Kungys v. United States, 485 U.S. 759, 780 (1988).
2.

Analysis

6

Here, this fourth element does not apply because the party benefitting from the
application of collateral estoppel is the defendants-appellees (the government) and, regardless,
Kariuki “assum[es] that USCIS was in privity with the . . . government during [the] criminal
prosecution.” Appellant’s Opening Br. at 14.

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On appeal, Kariuki challenges the district court’s application of collateral
estoppel on three distinct grounds.
a.

Ground One

First, Kariuki attempts to distinguish naturalization proceedings before
the USCIS, which is an administrative tribunal, from criminal proceedings,
which unfold in the district courts.

Specifically, he argues that “[a]n

administrative naturalization proceeding is not an action between the parties,”
and, as a matter of agency policy, USCIS naturalization interviews “are nonadversarial in nature.”7
Upon closer review, we conclude that these non-material distinctions
between USCIS and district court proceedings are of no moment under our
precedents. Previously, we have ruled that, in subsequent civil proceedings, a
prior conviction is sufficient to establish all facts necessary to prove the elements
of the crime of conviction. In re Grothues, 226 F.3d 334, 339 (5th Cir. 2000)
(citing Johnson v. Sawyer, 47 F.3d 716, 722 n.13 (5th Cir. 1995) (en banc)); see
also United States v. Akamo, No. 11-20387, 2012 U.S. App. LEXIS 9786, at *3-4
(5th Cir. May 15, 2012) (per curiam) (unpublished) (applying estoppel pursuant
to Grothues, in district court denaturalization proceedings, where the applicant
had collaterally attacked a prior guilty plea). With no authority to the contrary,
we see no reason in logic or fairness that Grothues should not apply with equal
force to administrative proceedings as it does to district court proceedings
involving similar naturalization questions. Moreover, even if collateral estoppel
did not apply to Kariuki’s testimony in his USCIS naturalization interview, it
certainly applied to his deposition testimony in the district court proceedings.

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According to the “Interview Policies” set forth in Section 15.1 of the USCIS
Adjudicator’s Field Manual: “Interviews conducted by adjudication officers are nonadversarial in nature (as opposed to, say, a court proceeding involving two attorneys, each
representing a particular side before a judge).”

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For these reasons, Kariuki’s first challenge to the district court’s application of
collateral estoppel is unavailing.
b.

Ground Two

Second, Kariuki asserts that the box he checked on the INS Form I-9
attested that he was “a citizen or national of the United States.” Kariuki
maintains that he entered into the plea agreement only after his then-attorney
advised him he had violated 18 U.S.C. § 911, which criminalizes false and willful
representations of U.S. citizenship, “despite his subjectively believing that he did
not” and, instead, only had made false representations of U.S. nationality.
Kariuki provided an affidavit to the district court, attesting to this subjective
belief, that he only had made a false and willful representation of U.S.
nationality.
This argument cannot stand. As discussed in the preceding sections, “selfserving allegations” generally are not “significant” or “probative evidence,”
Lawrence, 276 F.3d at 197 (internal quotation marks omitted), nor is testimony
“based on conjecture or speculation,” Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513
(5th Cir. 1994). Without further explanation, an affidavit that conflicts with the
affiant’s prior sworn testimony, including a prior guilty plea, is insufficient to
avoid the application of collateral estoppel. See Copeland, 278 F.3d at 482
(citations omitted).
Here, Kariuki failed to provide the further explanatory evidence required
by Copeland, such as an affidavit from his then-attorney attesting to Kariuki’s
recollection of the circumstances surrounding his guilty plea. On Kariuki’s bare
affidavit, we are especially chary to dispense with the seemingly clear
applicability of the collateral estoppel doctrine. See, e.g., Akamo, 2012 U.S. App.
LEXIS 9786, at *3-4 (applying estoppel “regardless of [the applicant’s] intent”
with respect to his prior guilty plea).
c.

Ground Three
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Third and finally, Kariuki submits that collateral estoppel is an
affirmative defense, which Appellees waived by failing to plead in their answer.
In support of this proposition, Kariuki cites to FRCP 8(c) and to our precedent
from Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th Cir. 1985).
“In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including . . . estoppel . . . [and] res judicata.”
Fed. R. Civ. P. 8(c). “Collateral estoppel . . . is generally considered to be a
variant of the doctrine of res judicata. Under [FRCP 8(c)], res judicata, and
hence collateral estoppel, is an affirmative defense which if not pled is
considered waived.” Mozingo, 752 F.2d at 172 (footnotes omitted).
Notwithstanding the above, Kariuki fails to acknowledge that we have
recognized a good faith exception to waiver where raising the affirmative defense
after the pleadings does not cause undue prejudice:
Generally, under Rule 8(c) affirmative defenses must be
raised in the first responsive pleading. However, “[w]here
the matter is raised in the trial court in a manner that
does not result in unfair surprise . . . technical failure to
comply precisely with Rule 8(c) is not fatal.”
An
affirmative defense is not waived if the defendant “raised
the issue at a pragmatically sufficient time, and [the
plaintiff] was not prejudiced in its ability to respond.”
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (alterations
in original) (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th
Cir. 1983) (per curiam) (citation omitted)).
Here, Kariuki is collaterally attacking his prior criminal conviction. From
his complaint, which merely petitioned for review of his denied naturalization
application under 8 U.S.C. § 1421(c), Appellees had no reason to anticipate, in
drafting their answer, that Kariuki would collaterally attack the prior conviction
to which he voluntarily had pled guilty.
Furthermore, in these appellate proceedings, Kariuki has had ample
opportunity to brief the collateral estoppel issue, which is a question of law that
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we review de novo. Accordingly, these are precisely the circumstances to which
the Knoblauch good faith exception applies. In light of the above, Appellees did
not waive the collateral estoppel affirmative defense.
Thus, the district court did not err by applying collateral estoppel to
preclude Kariuki’s relitigation of the central premise underlying his prior
conviction, that he had falsely represented himself as a U.S. citizen. Moreover,
the district court did not err by determining that Kariuki’s testimony, in his
naturalization interview and at his deposition, was false and indicative of poor
moral character. Finally, the district court did not err by considering Kariuki’s
prior conduct, and then concluding that he could not establish good moral
character as a matter of law.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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