Abdul Alocozy v. USCIS, et al

Filing

FILED OPINION (STEPHEN S. TROTT, JOHNNIE B. RAWLINSON and FREDERIC BLOCK) AFFIRMED. Judge: SST Authoring, FILED AND ENTERED JUDGMENT. [8454623]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ABDUL H. ALOCOZY ,
Petitioner-Appellant,

No. 11-16557

v.

D.C. No.
2:10-cv-01597JAM-KJN

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES;
ALEJANDRO MAYORKAS, Director,
United States Citizenship &
Immigration Services; MICHAEL C.
BIGGS, Field Director of United
States Citizenship & Immigration
Services; JANET A. NAPOLITANO ,
Secretary of the Department of
Homeland Security,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
December 6, 2012—San Francisco, California
Filed December 28, 2012

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ALOCOZY V . USCIS
Before: Stephen S. Trott and Johnnie B. Rawlinson,
Circuit Judges, and Frederic Block, District Judge.*
Opinion by Judge Trott

*

The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

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SUMMARY**

Immigration
The panel affirmed the district court’s summary judgment
in favor of the United States Citizenship and Immigration
Services, in Abdul H. Alocozy’s action challenging the
USCIS’ determination finding him ineligible for
naturalization due to his felony conviction for assault with
intent to commit rape.
The panel held that the government’s prior grant of INA
§ 212(c) relief to Alocozy did not constitute a waiver by the
government of 8 U.S.C. § 1101(f)(8)'s permanent bar to
naturalization. The panel also held that IIRIRA’s addition of
“crime of violence” offenses to the list of aggravated felonies
that bar naturalization was not an improper retroactive
application of the statute.

COUNSEL
Stephen Shaiken, San Francisco, California, for PetitionerAppellant.
Audrey B. Hemesath, Department of Justice, Sacramento,
California, for Respondents-Appellees.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION

TROTT, Circuit Judge:
Abdul H. Alocozy appeals a decision by the district court
denying his petition for review of a determination by the
United States Citizenship and Immigration Services
(“USCIS”) that his felony conviction of assault with intent to
commit rape renders him ineligible to become naturalized as
a United States citizen. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
I
The facts and circumstances surrounding this case are
largely undisputed. Alocozy, a native and citizen of
Afghanistan, came to the United States in 1983. On October
15, 1984, his status was adjusted pursuant to section 209(a)
of the Immigration and Naturalization Act (“INA”) to “lawful
permanent resident.” On October 3, 1990, he was charged in
Alameda County, California with rape, in violation of
California Penal Code section 261. He subsequently pleaded
nolo contendere on January 9, 1991 to felonious assault with
the intent to commit rape, in violation of California Penal
Code section 220, as a stipulated related offense to the crime
originally charged.
In 1999, the Immigration and Naturalization Service
(“INS”) initiated removal proceedings against Alocozy on
account of his conviction of an aggravated felony as defined
in section 101(a)(43) of the INA. On May 27, 2004, an
immigration judge (“IJ”) granted his application for a
discretionary waiver of deportation under former INA section

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212(c), and removal proceedings against him were
terminated.
Five months later, on October 6, 2004, he applied to the
USCIS for naturalization as a United States citizen. On
September 28, 2005, the USCIS’s District Director denied
Alocozy’s application on the ground that his conviction on
January 9, 1991 of an aggravated felony automatically
prevented him from establishing the good moral character
required by law to support his application, thus barring him
from naturalization.
Alocozy’s administrative appeal of the District Director’s
decision was unsuccessful, and he then filed a petition for de
novo review in the district court pursuant to the INA.
8 U.S.C. § 1421(c). On cross-motions for summary
judgment, the court granted judgment to the USCIS.
Based upon the litigants’ agreement that Alocozy was
convicted on January 9, 1991 of an aggravated felony,
8 U.S.C. § 1101(a)(43), the district court held as follows:
1) In 1996, Congress added “a crime of violence” to the
list of aggravated felonies in 8 U.S.C. § 1101(a)(43) as part
of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”).
2) In section 321(b) of IIRIRA, Congress intended this
addition to apply retroactively to the aggravated felony bar to
naturalization established by the Immigration Act of 1990
(“IMMACT 90”).1

1

See also 8 C.F.R. § 316.10(b)(1).

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3) Because IMMACT 90 is not retroactive, the good
moral character bar “applies only to aggravated felonies [such
as Alocozy’s] entered on or after November 29, 1990,” the
effective date of IMMACT 90.
4) Because Alocozy’s aggravated felony conviction
postdates November 29, 1990, it “permanently bar[s] him
from establishing good moral character for naturalization.”
II
Alocozy does not dispute the first three of these
conclusions. However, he asserts nevertheless that the grant
to him of former INA section 212(c) relief from deportation
(now removal) constituted a waiver by the Government of
8 U.S.C. § 1101(f)(8)’s permanent bar to naturalization. He
bolsters this contention with the argument that because the
crime of which he was convicted was not an “aggravated
felony” in 1991 at the time of his plea, INS v. St. Cyr,
533 U.S. 289 (2001) precludes the application to him “of an
adverse immigration consequence not foreseeable” at the time
he entered his plea. Thus, he contends, even though “the
definition of aggravated felony is applied retroactively, the
creation of a new immigration consequence is barred by St.
Cyr.”
Relying in part on the Second Circuit’s opinion in Chan
v. Gantner, 464 F.3d 289, 294 (2d Cir. 2006) (per curiam),
the district court dismissed these arguments, noting that
section 212(c)’s shield in the context of deportation/removal
does not permit him to use it “as a sword in the naturalization
context to bar the Government’s reliance on his aggravated
felony conviction in denying him the wholly separate
immigration benefit of naturalization.” The district court also

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held that Alocozy “could not have had a settled expectation
at the time of his conviction that a potential discretionary
grant of 212(c) relief would also render him eligible to
naturalize, and thus INS v. St. Cyr[] does not require that the
former Section 212(c)[] waiver be honored in the
naturalization context.” (internal citation omitted).
III
Alocozy’s waiver argument is easily answered. “Waiver”
is the intentional relinquishment of a known right. United
States v. Olano, 507 U.S. 725, 733 (1993). There is nothing
in this record even remotely suggesting that when a
removable alien is granted discretionary relief in the form of
a waiver of deportation, the Government waives any
objection based on the ground for which he was removable to
his naturalization as a citizen. “Indeed, a finding of ‘good
moral character,’ was not a statutory prerequisite or
necessarily a consideration for relief under section 212(c).”
Chan, 464 F.3d at 295. Legally, Alocozy offers no precedent
or principle supporting his claim of waiver, nor do we see
how there could be any. In this respect, we agree with the
Second Circuit: “[N]o authority supports the proposition that
the government is foreclosed by a waiver of deportation from
considering a conviction when determining the unrelated
question of fitness for naturalization.” Id. at 294. Moreover,
we have held, as recognized by Chan, “that a waiver under
section 212(c) does not preclude the INS or the courts from
relying on the underlying offense to bar other forms of
immigration relief or benefits.” Id. at 295; Molina-Amezcua
v. INS, 6 F.3d 646, 647 (9th Cir. 1993) (per curiam) (a
conviction for a crime of moral turpitude can be used as a
ground for deportation even though the INS had previously
waived its right to deport based in part on that conviction).

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IV

St. Cyr also is unhelpful to Alocozy. The issue there was
whether in 1997 section 304(b) of IIRIRA, which repealed
section 212(c), retroactively extinguished an alien’s eligibility
for discretionary section 212(c) relief when at the time of his
previous conviction before that date he would have been
eligible for such consideration. 533 U.S. at 292–93.
In tackling this question, the Court first indicated that “it
is beyond dispute that, within constitutional limits, Congress
has the power to enact laws with retrospective effect.” Id. at
316. The Court qualified this statement, saying, “A statute
may not be applied retroactively, however, absent a clear
indication from Congress that it intended such a result.” Id.
The Court noted that the “standard for finding such
unambiguous direction is a demanding one,” and that it can
only be satisfied by statutory language “‘so clear that it could
sustain only one interpretation.’” Id. at 316–17 (quoting
Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). The Court
then used this demanding test to determine that Congress did
“not communicate with unmistakable clarity” an intention
retroactively to repeal § 212(c). Id. at 318.
Most notably for our case, the Court in St. Cyr chose for
comparative and illustrative purposes to highlight other
sections of IIRIRA, sections 321(b) and (c), where Congress
did adequately and unmistakably express its intent
retroactively to apply the provisions of those sections.
Another reason for declining to accept the
INS’ invitation to read § 309(c)(1) as dictating
the temporal reach of IIRIRA § 304(b) is
provided by Congress’ willingness, in other

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s ect i ons of IIRIRA, to indicat e
unambiguously its intention to apply specific
provisions retroactively.
IIRIRA’s
amendment of the definition of “aggravated
felony,” for example, clearly states that it
applies with respect to “convictions entered
before, on, or after” the statute’s enactment
date. § 321(b). As the Court of Appeals
noted, the fact that Congress made some
provisions of IIRIRA expressly applicable to
prior convictions, but did not do so in regard
to § 304(b), is an indication that Congress did
not definitively decide the issue of § 304’s
retroactive application to pre-enactment
convictions. The “saving provision” is
therefore no more significant than the
specification of an effective date.
Id. at 318–20 (internal quotation marks, citation, alterations,
and footnote omitted). The Court’s analysis forecloses any
argument that section 321(b) is not retroactive.
Moreover, the Court in St. Cyr relied in large measure on
what it considered to be an alien in St. Cyr’s situation’s
“settled expectations,” i.e., that a plea of guilty to a felony
would not make him ineligible for section 212(c) relief from
deportation. Id. at 321, 323. Even if we were to conclude
that section 321(b) is not retroactive, which we do not, we are
convinced that a person in Alocozy’s situation could not have
had any “settled” or even reasonable belief or expectation that
a plea to a serious felony would not impair any future attempt
to pursue naturalization as a United States citizen. Whereas
the Court found considerable authoritative support in St. Cyr
for the reasonableness of St. Cyr’s expectations, id. at 322

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(citing inter alia Magana-Pizano v. INS, 200 F.3d 603, 612
(9th Cir. 1999)), Alocozy offers nothing similar.
The requirements of becoming a naturalized citizen and
the grounds for avoiding deportation as a felon are as
different as chalk is from cheese. To quote the Supreme
Court,
When the Government seeks to strip a person
of citizenship already acquired, or deport a
resident alien and send him from our shores,
it carries the heavy burden of proving its case
by clear, unequivocal, and convincing
evidence. But when an alien seeks to obtain
the privileges and benefits of citizenship, the
shoe is on the other foot. He is the moving
party, affirmatively asking the Government to
endow him with all the advantages of
citizenship. Because that status, once granted,
cannot lightly be taken away, the Government
has a strong and legitimate interest in ensuring
that only qualified persons are granted
citizenship.
Berenyi v. Dist. Dir., INS, 385 U.S. 630, 636–37 (1967)
(internal quotation marks and footnotes omitted). Any doubts
regarding an alien’s eligibility for citizenship are “resolved in
favor of the United States and against the claimant.” Id. at
637 (internal quotation marks omitted).
Also, unlike the grounds for section 212(c) relief from
deportation, 8 U.S.C. § 1427(a)’s statutory provisions do
include a requirement of demonstration by the applicant that
he “has been and still is a person of good moral character.”

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8 U.S.C. § 1427(a)(3). No one convicted by a plea of guilty
to a felony involving assault with the intent to commit rape
and thereby becoming a registered sex offender in his state of
residence could reasonably believe that his moral character
would not be seriously impaired.
CONCLUSION
The district court’s grant of summary judgment to the
USCIS as a matter of law was justified. Contrary to
Alocozy’s claims, he has not been deprived of due process of
law or been the victim of the improper retroactive application
of a statute. Although he is barred from naturalization as a
citizen, his status as a legal permanent resident remains in full
force.
AFFIRMED.