USA v. Fernando Arango

Filing

FILED OPINION (KIM MCLANE WARDLAW, JAY S. BYBEE and MILAN D. SMITH, JR.) REVERSED in part, VACATED in part, AND REMANDED. Judge: KMW Authoring, FILED AND ENTERED JUDGMENT. [8029127]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO ARANGO, AKA
Fernando Arango-Villegas,
Defendant-Appellant.





No. 10-15821
D.C. No.
4:09-cv-00178-DCB
OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
April 14, 2011—Pasadena, California
Filed January 12, 2012
Before: Kim McLane Wardlaw, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wardlaw

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UNITED STATES v. ARANGO

COUNSEL
Charles Lifland, Sabrina H. Strong, and Shaun M. Simmons,
O’Melveny & Myers LLP, Los Angeles, California, for the
appellant.
Tony West, Assistant Attorney Genera; Joshua E.T. Braunstein, Assistant Director Office of Immigration Litigation; and

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Kristen L. Daubler, Trial Attorney, Office of Immigration Litigation, Washington, D.C., for the appellee.

OPINION
WARDLAW, Circuit Judge:
In 1989, Fernando Arango was naturalized as a United
States citizen. Twenty years later, in 2009, the United States
instituted this action in Arizona district court to strip Arango
of his citizenship. The complaint alleged that (1) Arango
unlawfully procured his citizenship, and (2) Arango misrepresented and concealed material facts during the naturalization
process.
The district court rejected Arango’s argument that his
incarceration in a federal prison in the Central District of California at the time the government filed its complaint meant
that venue was improper in the District of Arizona. The district court then granted the government’s motion for summary
judgment, concluding that because Arango’s Lawful Permanent Resident (LPR) status was unlawfully obtained, there
was no material issue of fact as to whether he had procured
his citizenship unlawfully.
Although it is undisputed that Arango acquired his LPR
status on the basis of a fraudulent marriage, Arango adduced
evidence that he had entered into a cooperation agreement
with the Immigration and Naturalization Service (INS) permitting him to retain his status as an LPR and to naturalize.
The district court improperly weighed the evidence in the
record, however, and concluded that such a cooperation
agreement did not exist. Because there are genuine issues of
material fact as to whether the INS entered into an agreement
permitting Arango to retain his LPR status and to naturalize
in exchange for cooperating in the investigation of a fraudu-

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lent marriage operation, summary judgment was improper,
and we reverse.
Because the district court did not permit Arango to rebut
the presumption that his place of residence remained where he
lived prior to his incarceration, we also vacate the denial of
Arango’s motion to dismiss the complaint for improper
venue, and remand with instructions for the district court to
allow Arango to argue that his residence is now his place of
incarceration.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Arango is a native of Colombia who was admitted to the
United States as an LPR in 1980. He acquired this status
through a fraudulent marriage to a United States citizen
arranged by a marriage broker, Miguel Diaz. Arango’s sister,
Amparo Valbuena, worked as a secretary for Diaz, and Valbuena acquired her own LPR status through a sham marriage
arranged by him.
In 1982, the INS began to investigate Diaz’s fraudulent
activities. As part of the investigation, three INS agents met
with Valbuena and Arango and obtained sworn affidavits
from both that detailed their involvement with the marriagefraud scheme. In Arango’s affidavit, he admitted that he
obtained his green card as a result of a sham marriage
arranged by Diaz. As a result of Arango and Valbuena’s assistance, the INS seized evidence of over 200 immigration applications that were based on sham marriages arranged by Diaz.
The INS agents admit that Valbuena was “an important witness” in their case against Diaz, and that they met with her
multiple times during the course of their investigation.
Arango asserts that the INS agents promised both him
his sister that, in exchange for their cooperation with
investigation, their immigration status would be secure,
that both would be permitted to naturalize. Both Arango

and
the
and
and

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Valbuena remained LPRs and naturalized without any complications. Valbuena naturalized in 1984, and Arango naturalized in 1989. Arango later became a U.S. Customs Border
Protection Officer in Arizona.
In 2005, Arango was arrested on unrelated federal drug
charges. After pleading guilty, he began to serve his sentence
at the Federal Correctional Institution in San Pedro, California. In 2009, the Department of Justice filed a civil action in
the District of Arizona to revoke Arango’s citizenship pursuant to Section 340 of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1451. The complaint alleged that Arango’s
citizenship should be revoked because (1) his citizenship was
procured unlawfully as his fraudulent marriage meant that he
was never lawfully admitted as an LPR, and (2) Arango misrepresented and concealed material facts regarding his participation in the marriage-fraud scheme during the naturalization
process.
Arango argued that venue was improper in the District of
Arizona because he had been living in California since his
incarceration in San Pedro, California in May of 2007, and he
retained no ties to Arizona. The district court disagreed, concluding that Arango’s last known residence was Arizona and
that “a person does not acquire a domicil while imprisoned.”
Opposing the government’s motion for summary judgment,
Arango submitted a sworn declaration stating that he had
entered into a cooperation agreement with INS that permitted
him to retain his LPR status and to naturalize in exchange for
his assistance with the agency’s investigation into the
marriage-fraud scheme. Arango also swore that he had not
misrepresented or concealed any facts during the naturalization process because he had reasonably assumed that 1) the
INS officer was aware of the contents of his immigration file,
and (2) his 1982 affidavit and evidence of the cooperation
agreement was in his file. Arango also submitted translated
emails from his sister that suggested that the siblings had

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entered into some type of cooperation agreement with the
INS. The government’s evidence in support of summary judgment included (1) declarations denying the existence of an
agreement from the INS agents who met with Arango and
Valbuena in 1982; (2) declarations from Valbuena stating that
she was not aware of an agreement between INS and her
brother; and (3) a declaration from the INS agent who conducted Arango’s 1989 naturalization interview indicating that,
while she could not remember meeting with Arango, she
would not have granted his naturalization application if he
had disclosed information about his sham marriage during his
interview.
Granting the government’s motion for summary judgment,1
the court concluded that “the Government provides clear, convincing, and unequivocal evidence that leaves no issue in
doubt that Defendant Arango, a naturalized citizen, obtained
his citizenship illegally.”
II.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over Arango’s timely appeal under 28
U.S.C. § 1291, and we review the district court’s grant of
summary judgment de novo. See Balint v. Carson City, 180
F.3d 1047, 1050 (9th Cir. 1999) (en banc). We must determine whether the district court applied the substantive law
correctly and whether, viewing the evidence in the light most
favorable to the nonmoving party, there are any genuine
issues of material fact. Id.
We review the district court’s determination as to proper
venue de novo. United States v. Childs, 5 F.3d 1328, 1331
(9th Cir. 1993).
1

The district court also denied Arango’s request to conduct additional
discovery under former Federal Rule of Civil Procedure 56(f). Because we
reverse the grant of summary judgment, we do not reach Arango’s argument that the district court abused its discretion in denying this motion.

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III.
A.

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DISCUSSION

Summary Judgment

Summary judgment is appropriate only if there are no genuine issues of material fact, entitling the moving party to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). Although “the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment,” id. at 247-48, summary judgment is not warranted
if a “reasonable jury could return a verdict for the nonmoving
party,” id. at 248.
[1] In a denaturalization proceeding, the government bears
the “heavy burden” of providing “clear, unequivocal, and convincing” evidence that citizenship should be revoked. United
States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007) (quoting
Fedorenko v. United States, 449 U.S. 490, 505 (1981)). The
government’s evidence justifying denaturalization must “not
leave the issue in doubt.” Id. (quoting Fedorenko, 499 U.S. at
505). As the Supreme Court has recognized, “the clear-andconvincing standard of proof should be taken into account in
ruling on summary judgment motions. . . .” Anderson, 477
U.S. at 255. Thus, summary judgment for the government in
a denaturalization proceeding is warranted in narrow circumstances: if, viewing the evidence in the light most favorable
to the naturalized citizen, there is no genuine issue of material
fact as to whether clear, unequivocal, and convincing evidence supports denaturalization.
[2] The government bears the burden of such a high degree
of proof in denaturalization proceedings because of the “importance of the right that is at stake.” Fedorenko, 449 U.S. at
505-06; see also id. at 505 (“[O]nce citizenship has been
acquired, its loss can have severe and unsettling consequences.”); Schneiderman v. United States, 320 U.S. 118, 122
(1943) (“[Citizenship] once conferred should not be taken

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away without the clearest sort of justification and proof.”).
Thus, although summary judgment may be appropriate in certain circumstances, see, e.g., Dang, 488 F.3d at 1137-38
(affirming district court’s grant of summary judgment when
the evidence established that the citizen had committed criminal acts precluding a finding of good moral character during
the relevant statutory time period, thus warranting denaturalization), it should not be granted lightly.
[3] The denaturalization statute, 8 U.S.C. § 1451(a), permits the government to revoke citizenship if naturalization
was “illegally procured” or “procured by concealment of a
material fact or by willful misrepresentation.” Although the
district court relied exclusively on illegal procurement of citizenship, the government contends that summary judgment
was appropriate on either ground. The government argues
that: (1) Arango was not a lawful permanent resident at the
time he applied for naturalization because of his fraudulent
marriage, so his naturalization was illegally procured;2 and (2)
Arango willfully concealed and misrepresented the nature of
his marriage in connection with his 1989 naturalization application.
The evidence submitted by Arango, however, created genuine issues of material fact as to whether the government had
met its burden of proving by clear, convincing, and unequivocal evidence that Arango was subject to denaturalization on
either of these grounds. In deciding whether to grant summary
judgment, “the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to deter2

If Arango was not a lawful permanent resident at the time of his naturalization because of his fraudulent marriage, then his citizenship was illegally procured. See Fedorenko, 449 U.S. at 514 (“[A] naturalized citizen’s
failure to comply with the statutory prerequisites for naturalization renders
his certificate of citizenship revocable as ‘illegally procured’ under 8
U.S.C. § 1451(a). . . . 8 U.S.C. §§ 1427(a) and 1429[ ] require[ ] an applicant for citizenship to be lawfully admitted to the United States for permanent residence”).

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mine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249. This is because “[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge. . . .” Id. at 255.
1.

Illegal Procurement of Citizenship

[4] The evidence submitted by Arango created a genuine
issue of material fact as to the existence of a cooperation
agreement permitting Arango to retain his LPR status and to
naturalize. Arango’s sworn affidavit in opposition to summary
judgment states that his sister entered into an agreement with
the INS covering both her and him in exchange for her cooperation with the marriage fraud investigation. The affidavit
references an agreement that “pardoned” both Arango and his
sister, and the agents’ assurances that “this was a closed case”
and that “there would be no problem in [Arango’s] applying
for naturalization.” The emails from Valbuena that Arango
submitted suggest the existence of a cooperation agreement;
in one email Valbuena states that the INS agent told her “that
there was no problem for neither you [(Arango)] or me [(his
sister)]” in applying for citizenship. Arango’s affidavit also
questioned why he would have been “allowed to continue to
reside in the U.S. after [his] meeting with the INS agents in
Manhattan, NY, become a U.S. citizen in 1989, and . . . eventually become employed to work for the government as a border protection agent” if no cooperation agreement existed.
[5] Although the government submitted declarations from
the INS Agents and Valbuena in an effort to disprove the
existence of a cooperation agreement, these declarations do
not show that there are no disputed issues of material fact
warranting a trial. To the contrary: the conflicting evidence
submitted by the government and Arango presented the district court with a genuine dispute of material fact as to the
existence of the cooperation agreement. See Chevron USA,
Inc. v. Cayetano, 224 F.3d 1030, 1038 (9th Cir. 2000)

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(regarding conflicting affidavits). These statements were not
conclusory, self-serving statements devoid of any factual support. See FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168,
1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit,
lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”). Arango’s
affidavit set forth a detailed description of the circumstances
surrounding the cooperation agreement. A defendant’s sworn
statements cannot be disbelieved at the summary judgment
stage simply because his statements are in his interest and in
conflict with other evidence. See, e.g., Leslie v. Grupo ICA,
198 F.3d 1152, 1159 (9th Cir. 1999) (“Although we can
understand the district court’s disbelief of [the plaintiff’s]
assertions in his deposition and sworn declaration, such disbelief cannot support summary judgment.”); McLaughlin v. Liu,
849 F.2d 1205, 1207-08 (9th Cir. 1988) (“[The defendant’s]
sworn statements . . . are direct evidence of the central fact in
dispute. [He] does not ask that inferences be drawn in his
favor, but that his testimony be taken as true. To this he is
clearly entitled under Anderson . . . .”).
Moreover, the circumstantial evidence provides some support for Arango’s claim that some type of agreement existed.
Despite having a signed affidavit from Arango admitting to
marriage fraud, the government did not attempt to revoke
Arango’s LPR status, and Arango was permitted to naturalize
in 1989. His sister was also permitted to remain an LPR and
naturalize, despite her more extensive involvement with the
marriage fraud scheme. In addition, Arango was later hired as
a U.S. Customs Border Protection Officer, even though the
INS had direct knowledge of his immigration fraud.
[6] The existence of this agreement is a material issue of
fact relevant to Arango’s alleged illegal procurement of citizenship.3 The district court, however, improperly weighed the
3

We have previously recognized that the government can be bound by
a cooperation agreement in the immigration context. See Thomas v. INS,

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evidence and gave full credence to the government’s version
of the events, even though the court was required to view the
evidence in the light most favorable to Arango at the summary judgment stage. The district court’s weighing of the evidence was improper, especially given the government’s heavy
burden to provide clear, unequivocal, and convincing evidence that the grounds for denaturalization have been met.
Because there existed genuine issues of material fact, summary judgment was not warranted.
2.

Willful Concealment or Misrepresentation of a
Material Fact

The government, however, argues that the record supports
affirming the district court’s grant of summary judgment on
alternative grounds: Arango’s alleged willful concealment or
misrepresentation of a material fact during the naturalization
process.
[7] The Supreme Court has stated that this ground for
denaturalization “plainly contains four independent requirements: the naturalized citizen must have misrepresented or
concealed some fact, the misrepresentation or concealment
must have been willful, the fact must have been material, and
the naturalized citizen must have procured citizenship as a
result of the misrepresentation or concealment.” Kungys v.
United States, 485 U.S. 759, 767 (1988). We have previously
held that an alien who seeks to obtain immigration status by
misrepresenting a material fact has done so “willfully” if the
misrepresentation was “deliberate and voluntary.” EspinozaEspinoza v. INS, 554 F.2d 921, 925 (9th Cir. 1977). The gov35 F.3d 1332, 1337 (9th Cir. 1994) (holding that the alien “was entitled
to performance by the government of its promise” that the government
would not oppose any of his motions for relief from deportation).
Although the government now argues that, regardless of whether an agreement existed, the INS agents did not have the authority to enter into such
an agreement, it provides no legal authority to support this statement or
the inferences it wishes us to draw from it.

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ernment argues that Arango willfully “misrepresented and
concealed the true nature [of] his [prior] ‘marriage’ ” throughout the naturalization process by (1) not disclosing his sham
marriage to the INS agent during his naturalization interview,
and (2) listing the sham marriage on his naturalization application, which he signed under penalty of perjury.
[8] Arango, however, raised genuine issues of material fact
as to whether any alleged concealment and misrepresentations
were willful. During Arango’s interview with the immigration
officer, he asked her whether she had reviewed his immigration file, on the assumption that information regarding his
prior admissions to INS would be contained in his file. The
immigration officer who conducted Arango’s naturalization
interview does not contradict Arango’s version of the events
in her declaration. Instead she relies on her own customary
practices. She states that, while she cannot remember Arango’s interview, she knows that Arango “did not disclose this
information” about the prior sham marriage, because she is
“certain” that if this information had been disclosed, she
would not have permitted his naturalization. Viewing these
facts in the light most favorable to Arango, his failure to bring
up the topic of his sham marriage, when he reasonably
assumed that the immigration officer already knew about it,
does not show deliberate or voluntary concealment or misrepresentation.
[9] On the naturalization application, Arango indicated that
he was married to Vicky Tirado from 1980 to 1984, and he
attested to this statement under penalty of perjury. The government argues that this was a material misrepresentation
because he was never actually married to Tirado. Even if
Arango was not legally married to Tirado during this time
period, there are material issues of fact as to whether the misrepresentation was deliberate or voluntary given that Arango’s affidavit states that he believed that the INS was aware
of the fraudulent nature of this marriage. In fact, if he had
failed to mention his marriage to Tirado on his naturalization

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application, that would be a willful misrepresentation,
because the marriage existed, even if it was later deemed
fraudulent. Accordingly, we reject the government’s argument
that the record supports affirming the district court’s grant of
summary judgment on these alternative grounds.
B.

Proper Venue Under INA § 340, 8 U.S.C. § 1451(a)

[10] Under the denaturalization statute, “[i]t shall be the
duty of the United States attorneys . . . to institute proceedings
. . . in the judicial district in which the naturalized citizen may
reside at the time of bringing suit.” INA § 340(a), 8 U.S.C.
§ 1451(a). If the naturalized citizen
does not reside in any judicial district in the United
States at the time of bringing such suit, the proceedings may be instituted in the United States District
Court for the District of Columbia or in the United
States district court in the judicial district in which
such person last had his residence.
Id. We must decide whether Arango “resided” in Arizona
within the meaning of this statute at the time the denaturalization complaint was filed.
[11] The Immigration and Nationality Act (INA) defines
the term “residence” as “the place of general abode; the place
of general abode of a person means his principal, actual
dwelling place in fact, without regard to intent.” INA
§ 101(a)(33), 8 U.S.C. § 1101(a)(33). It is undisputed that at
the time the suit was filed, Arango was serving his nine-year
prison sentence at a federal correctional institution in San
Pedro, California.
The district court, however, relied on a Third Circuit case,
United States v. Stabler, 169 F.2d 995, 998 (3d Cir. 1948), to
conclude that the district of Arizona was the proper venue
because “a person does not acquire a domicil while impris-

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oned.” In this 1948 case, the Third Circuit held that the denaturalization statute’s reference to the naturalized citizen’s
residence requires “some picking out of a place to live in by
the individual concerned,” and that the forced nature of
imprisonment means that a prisoner’s residency remains
where he lived prior to his incarceration. 169 F.2d at 998.
However, at the time that Stabler was decided, Congress had
yet to define the term “residence” for the purposes of the
denaturalization statute.4 It was not until 1952, with the enactment of the original INA, that the aforementioned general definition of residence (as in the current statute) was made
applicable to all immigration provisions, including the denaturalization provision. See Immigration and Nationality Act of
1952, Pub. L. 82-414, § 101(a)(33), 66 Stat. 163, 170 (1952).
This definition makes clear that “intent” has no bearing on
“residency” when applying the denaturalization statute’s
venue provision, so the district court’s reliance on Arango’s
lack of intent to be incarcerated in California was misplaced.5
We previously addressed the denaturalization statute’s
4

Although the Nationality Act of 1940 defines “place of residence” as
the “place of general abode,” this definition is restricted to only certain
sections of the Act, and the section permitting denaturalization is not
included in the list of affected sections. See The Nationality Act of 1940,
Pub. L. No. 76-876, § 104, 54 Stat. 1137, 1138 (1940).
5
Because of the specific definition of “residence” within the INA, we
are unpersuaded by the government’s reliance on Cohen v. United States,
297 F.2d 760 (9th Cir. 1962), for the proposition that “[o]ne does not
change his residence to the prison by virtue of his being incarcerated
there,” 297 F.2d at 774. Cohen addresses whether it was error to send the
petitioner’s tax assessment notices to the petitioner’s last known address,
when the tax commissioner knew that the petitioner was incarcerated at
the time the notice was sent. Id. at 771. The panel found that sending the
notice to the petitioner’s last known address was adequate, given that the
tax assessment was for the joint liability of the petitioner and his wife, and
the government had no knowledge that the wife had established a separate
or different residence from the one on file. Id. at 771-74. Thus Cohen is
not particularly probative on the question of proper venue in denaturalization proceedings.

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venue provision in Stacher v. United States, 258 F.2d 112 (9th
Cir. 1958), albeit for a non-incarcerated defendant. In Stacher,
although the INA’s definition of “residence” was not explicitly referenced, the court stated that “there is an essential difference between ‘domicile’ which generally involves intent,
and ‘residence’ which generally involves an actual place of
abode.” Id. at 116. We concluded that we were not “concerned with ‘intent’ ” under the denaturalization statute’s
venue provision, and determined that the trial court’s findings
of fact as to place of residency were not clearly erroneous.6 Id.
at 116-17, 119.
Given the INA’s specific definition of residence, we must
determine Arango’s “place of general abode” at the time that
the government filed the denaturalization complaint. While an
individual’s residence under the INA is distinguishable from
his domicile7 because of the lack of concern with intent, this
does not necessarily mean that an incarcerated individual is
per se a resident of his place of incarceration. There is no evidence that Congress intended to adopt such a per se rule for
incarcerated individuals when defining “residence” under the
INA. In fact, the 1952 Senate Judiciary Committee Report
6

The relevant factors the trial court evaluated included the location of
the naturalized citizen’s business and real estate interests, the address
listed on his income tax returns, where he worked, where his car was registered, where he was listed as residing in the telephone directory, and the
location of the various hotels and residences where the naturalized citizen
stayed during the relevant time period. Stacher, 258 F.2d at 116-19 &
nn.11-12.
7
We do not decide whether a prisoner can establish domicile in his place
of incarceration for purposes of federal diversity jurisdiction, a question
that the Ninth Circuit has yet to address. Cf. Stifel v. Hopkins, 477 F.2d
1116, 1124 (6th Cir. 1973) (adopting a rebuttable presumption that a prisoner retains residency in the place where he lived prior to incarceration for
the purposes of diversity jurisdiction: “the prisoner . . . should not be precluded from showing that he has developed the intention to be domiciled
at the place to which he has been forced to remove”). This appeal presents
only the narrow question of proper venue under the denaturalization statute, given the INA’s definition of residence.

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accompanying the INA explains that the Act’s definition of
residence “is a codification of judicial constructions of the
term ‘residence’ as expressed by the Supreme Court of the
United States in Savorgnan v. United States, [338 U.S. 491,
505 (1950)].” S. Rep. No. 82-1137, at 4-5 (1952). The Report
then quotes Savorgnan’s holding that it is irrelevant, for the
purposes of determining whether an individual resided
abroad, what her
intent was on leaving the United States, nor whether,
at any later time, it was her intent to have a permanent residence abroad or to have a residence in the
United States. . . . The test of such ‘residence’ is
whether, at any time during that period, she did, in
fact, have a ‘principal dwelling place’ or ‘place of
general abode’ abroad. . . . Her intent as to her
‘domicile’ or as to her ‘permanent residence,’ as distinguished from her actual ‘residence,’ ‘principal
dwelling place,’ and ‘place of abode,’ is not material.
Id. at 5 (quoting Savorgnan, 338 U.S. at 505). The Senate
Report shows that Congress’s goal in adopting this definition
of residence was to make explicit that one does not have to
intend to remain in a place permanently to have “residence”
there. Congress did not necessarily intend to prohibit an incarcerated individual from establishing that his “residence” is
outside his place of incarceration.
[12] The INA’s definition of residence requires us to evaluate Arango’s “place of general abode,” further defined by the
INA as his “principal, actual dwelling place in fact.” This definition of residence requires more than mere physical presence in a particular location, so Arango’s mere presence in the
Central District of California at the time the complaint was
filed does not establish his residence there. Cf. Barrios v.
Holder, 581 F.3d 849, 862-65 (9th Cir. 2009) (defining physical presence under the INA as a “state of being, not a state of

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mind” that “depends on no legal construct”). The Oxford
English Dictionary defines an abode, particularly when used
in the phrase “place of abode,” as “the action of dwelling or
living permanently in a place; habitual residence.” Oxford
Eng. Dictionary, http://www.oed.com/view/Entry/439 (last
updated Sept. 2011). This dictionary also defines abode as “a
place of ordinary residence; a dwelling place; a house or
home,” id., and defines a dwelling as “continued, esp. habitual, residence; abode,” http://www.oed.com/view/Entry/
58767 (last updated Sept. 2011). Although we have yet to
interpret the INA’s definition of residence, the Second Circuit
has interpreted it to mean “an established abode, for personal
or business reasons, permanent for a time.” Michael v. INS, 48
F.3d 657, 663 n.5 (2d Cir. 1995) (quoting Rosario v. INS, 962
F.2d 220, 224 (2d Cir. 1992).
One does not usually describe a prison as a “house or
home,” or as an individual’s “place of ordinary residence,”
and an incarcerated individual has little, if any, control over
how permanent or temporary his stay in a particular prison
will be. However, an incarcerated individual does sleep, eat,
and spend all of his time within the prison walls. Furthermore,
as Arango argued in his filings before the district court, some
incarcerated individuals do not retain any property or personal
ties in the judicial district where they lived prior to incarceration. However, the factors bearing on Arango’s place of residency were never evaluated by the district court because of
the court’s erroneous conclusion that the forced nature of
Arango’s presence in California meant that he was per se
unable to establish residence in the Central District.
[13] Given the specific definition of residence in the INA,
we adopt a rebuttable presumption that an incarcerated individual retains residence in the judicial district where he lived
prior to incarceration. Residence means something more than
mere physical presence, even though intent is irrelevant, and
an individual who is involuntarily incarcerated ordinarily
retains a “principal, actual dwelling place” elsewhere. How-

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ever, an incarcerated individual should be permitted to rebut
this presumption by showing that the prison has become his
“principal, actual dwelling place.” Here, Arango sought to
establish that his place of residence at the time the complaint
was filed was his place of incarceration because he did not
retain any “home [in], family [in], or contacts with the State
of Arizona.” However, the district court applied a per se rule
that improperly precluded Arango from establishing that his
residence was in the Central District of California at the time
the complaint was filed.8
[14] If an incarcerated individual seeks to rebut the presumption that he retains residence in the district where he
lived prior to incarceration, the fact-based inquiry referenced
in Stacher sets forth the correct approach for evaluating his
place of residency. Arango may be able to establish that he
resided in the Central District of California when the denaturalization complaint was filed by adducing evidence as to
whether he owned or rented a home in that judicial district,
where he paid taxes, where any car was registered and
licensed, the length of his overall prison sentence, the length
of time he had been imprisoned in the Central District, where
his possessions were located, and where his family members
resided. See Stacher, 258 F.2d at 116-19 & nn.11-12. These
8

We note that a per se rule in the other direction, holding that an incarcerated individual’s place of residence is always his place of incarceration,
could permit forum shopping by the government. Because the government
has the power to transfer prisoners within the federal prison system, a per
se rule would permit the government to transfer a federal prisoner to the
government’s favored judicial district prior to instituting denaturalization
proceedings. We have expressed our concern with adopting a rule that
would facilitate forum shopping by the government in analogous circumstances. See United States v. Hernandez, 189 F.3d 785, 791 (9th Cir. 1999)
(rejecting the argument that the government can file charges for illegal
reentry after prior deportation in any judicial district where a defendant is
incarcerated and noting that accepting this argument “would produce
unfair and absurd results. . . . [A] deported alien who was moved around
the country to various penal institutions could be prosecuted, at the government’s option, in any of the districts where the alien set foot.”).

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factors are not exhaustive; different factors bearing on the
place of actual abode may emerge as determinative. We note
that if an individual rebuts the presumption that he retains residence in the district where he lived prior to incarceration, but
cannot establish that his residence is in his district of incarceration, the district court may conclude under the statute that the
prisoner did “not reside in any judicial district in the United
States” when the complaint was filed. 8 U.S.C. § 1451(a). The
denaturalization statute then permits the government to file
suit in “the United States District Court for the District of
Columbia or in the United States district court in the judicial
district in which such person last had his residence.” Id.
[15] Because the INA makes clear that the term “residence” refers to one’s principal dwelling place, without
regard to intent, we reverse the district court’s ruling that
venue was proper in the district of Arizona. On remand, if
Arango chooses to attempt to rebut the presumption that his
residence was in Arizona, the district court must make a factual finding as to Arango’s “principal, actual dwelling place
in fact, without regard to intent,” INA § 101(a)(33), 8 U.S.C.
§ 1101(a)(33), at the time the complaint was filed.
IV.

CONCLUSION

The district court improperly weighed the evidence in concluding that there were no genuine issues of material fact as
to whether the government could strip Arango of his citizenship. The existence and nature of the cooperation agreement
were the subjects of pending FOIA requests, and further evidence should have been allowed. Because of the importance
of citizenship, which in turn confers significant rights and
responsibilities, the government bears a heavy burden when it
seeks to take away an individual’s citizenship. We also vacate
the district court’s denial of Arango’s motion to dismiss for
improper venue, and remand with instructions that the district
court conduct the proper inquiry consistent with the INA
§ 101(a)(33), 8 U.S.C. § 1101(a)(33).

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REVERSED in part, VACATED in part, AND
REMANDED.