United States of America v. Li
Filing
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ORDER granting in part and denying in part 134 Motion for Summary Judgment; denying 157 Motion for Summary Judgment. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 3/6/2014.(DGC, nvo)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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United States of America,
Plaintiff,
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ORDER
v.
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No. CV-12-00482-PHX-DGC
Grace Xunmei Li,
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Defendant.
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Defendant Grace Xunmei Li and Plaintiff United States of America (“the
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government”) have both filed motions for summary judgment. Docs. 134, 157. The
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motions have been fully briefed, and the Court held oral argument on February 27, 2014.
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For the reasons stated below, the Court will deny the government’s motion and grant
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Defendant’s motion in part.
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I.
Background.
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Li came to the United States in 1995 at the age of 25. Docs. 134 at 1, 151 at 8. Li
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met Antony Bambrough early that year at a swimming pool in Fort Lee, New Jersey.
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Doc. 135, ¶ 13, Doc. 151 at 8. The couple became romantically involved and were
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married two years later in February of 1997. Doc. 135 ¶¶ 14-18.
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Li met Gang Chen in May of 1997. Id., ¶ 20, Doc. 161 at 16. Although the exact
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date on which their relationship became romantic is disputed, Li asserts that she and
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Chen began an affair in December 1998. Doc. 135, ¶ 20. Li alleges that “sometime” in
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1998 she moved out of the house that she and Bambrough shared as a residence in Fort
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Lee, New Jersey, though the parties disagree on why she left. Doc. 161, ¶ 30. In August
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of 1998, Li and her mother purchased a house in Fort Lee where, according to Chen, he
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would “sometimes” stay. Doc. 161, ¶¶ 32-34.
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Although she remained married to Bambrough, over the next several years Li gave
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birth to two daughters fathered by Chen. Doc. 135, ¶¶ 7-8. In 1999, before the birth of
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her first daughter, Li informed Bambrough, who was still her husband at the time, that the
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child she was expecting was not his. Id., ¶ 21, Doc. 161 at 20. The first daughter of Li
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and Chen was born in September 1999. Doc. 135, ¶ 27.
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Li, Chen, and their daughter moved to California in 2000. Doc. 161, ¶¶ 72-73.
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They made an offer on a house together in December of that year. Id., ¶ 76. In 2002, Li
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gave birth to a second daughter, also fathered by Chen. Id., ¶ 28. At some point before
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July 5, 2002, Li and Chen went to the Santa Clara County Clerk’s office and applied for a
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marriage license. Id., ¶¶ 42-43. On July 5, 2002, Li and Chen participated in a church
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wedding ceremony with family and friends that was presided over by a Lutheran pastor
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flown in from out of state. Id., ¶¶ 38, 41. The couple then hosted a post-ceremony
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banquet for their guests. Id., ¶ 38. The pastor who performed the ceremony believed the
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marriage was legitimate. Id., ¶ 42. After the ceremony, a copy of the marriage license
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was sent to and recorded by the Santa Clara County Recorder’s Office. Id., ¶ 50. Li was
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fully aware that she was married to Bambrough at the time of the ceremony with Chen.
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Id., ¶ 35.
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The government asserts that Li and Chen thereafter represented themselves as
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husband and wife in a series of contracts and legal documents. Doc. 151 at 10-11. For
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example, the government submits evidence that they purchased a house, replied to a legal
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complaint under penalty of perjury, refinanced a home, submitted a residential loan
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application, purchased a second house, and filed tax returns, all as husband and wife.
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Doc. 152, ¶¶ 119-147. Li provides no evidence to the contrary, nor does she dispute the
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validity of the documents cited by the government. Despite her relationship with Chen,
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Li remained married to Antony Bambrough until they divorced in 2004. Doc. 135, ¶ 52.
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Eight months after her divorce from Bambrough, on September 24, 2004, Li
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submitted an N-400 application for naturalization to become a U.S. citizen. Id., ¶ 57. Li
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represented on the application that she was (1) divorced, (2) childless, (3) had been
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married only once, (4) had never committed a crime or offense for which she was not
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arrested, and (5) had never been married to more than one person at a time. Id., ¶ 59. On
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April 18, 2005, Li met with Officer Que-Huong Nguyen for her naturalization interview.
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Id., ¶ 60. Li’s application for naturalization was approved that day and Li became a U.S.
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citizen on May 5, 2005. Id., ¶ 60-62.
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In 2008, Li was charged with conspiracy to commit naturalization fraud under 18
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U.S.C. § 371 and unlawful procurement of naturalization of citizenship under 18 U.S.C.
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§ 1425. Li pled guilty in August of 2009 in the United States District Court for the
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Northern District of California to a violation of 18 U.S.C. § 1015(a). Id., ¶¶ 65-70. The
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elements of this offense included (1) knowingly making a false statement under oath,
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(2) in a matter relating to naturalization or citizenship under the laws of the United States.
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Id., ¶ 74. Li’s plea agreement included the following factual basis for her plea:
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On September 24, 2004, while living in San Jose, California, I submitted a
petition for naturalization to the United States Citizenship & Immigration
Services (CIS). In that petition, I knowingly made the following false
statements and omissions: (1) I claimed to be “divorced,” when in fact I
was married at the time to Gang “Steven” Chen (“Chen”); (2) I omitted that
I had any children, when in fact I had two children with Chen; (3) I claimed
that I had been married only once – referring to my prior marriage to a man
identified in the Superseding Information by his initials, A.B. – when in
fact I had been married twice; and (4) I responded “No” to a question
asking whether I had ever been married to more than one person at the
same time, when in fact, between July 5, 2002 and March 9, 2004, I was
married to both Chen and A.B.
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On April 18, 2005, I appeared for an interview with a CIS adjudicator in
San Jose, California. During that interview, among other false statements, I
stated under penalty of perjury that every statement contained in my
naturalization petition was correct, knowing that certain statements in my
naturalization petition, and specifically those described in the previous
paragraph were false or intentionally misleading.
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Id. at 7.
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At the sentencing hearing in December 2009, the district judge engaged in a
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lengthy colloquy with Li regarding her guilty plea. Docs. 135, ¶¶ 73-79; 158-8. Li
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initially maintained that she believed her marriage to Chen was not valid. Doc. 158-8 at
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111. After a lengthy and somewhat confusing explanation from the judge, Li was asked
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to affirm her admissions and said simply: “I admit to the – I admit that I knowingly made
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a false statement.” Doc. 15-8 at 114. Li did not specify which “false statement” she
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made. The prosecutor said that Li’s admission was “close enough,” and the judge
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sentenced Li to probation and a $500 fine. Id. at 114, 116, 118.
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II.
Legal Standard.
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A party seeking summary judgment “bears the initial responsibility of informing
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the district court of the basis for its motion, and identifying those portions of [the record]
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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the
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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is
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no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Milton H. Greene Archives, Inc. v. Marilyn
Monroe LLC, 692 F.3d 983, 992 (9th Cir. 2012). Summary judgment is also appropriate
against a party who “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the
outcome of the suit will preclude the entry of summary judgment, and the disputed
evidence must be “such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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. Arango, 670 F.3d 988, 992 (9th Cir. 2012) (citing United
States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007)). The government’s evidence
justifying denaturalization must “not leave the issue in doubt.” Dang, 488 F.3d at 1139.
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In short, “summary judgment for the government in a denaturalization proceeding is
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warranted in narrow circumstances: if, viewing the evidence in the light most favorable to
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the naturalized citizen, there is no genuine issue of material fact as to whether clear,
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unequivocal, and convincing evidence supports denaturalization.” Arango, 670 F.3d at
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992.
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III.
Judicial Notice.
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The government argues that Li’s guilty plea in her prior criminal case is a final
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decision that establishes the facts admitted by Li, including her false statements, false
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testimony in her naturalization interview, and her bigamous marriage to Chen. Doc. 157
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at 13-15. Li argues that the guilty plea does not have preclusive effect in this subsequent
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civil immigration action. Doc. 160 at 7-8.
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It is “settled law in this circuit that a guilty plea may be used to establish issue
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preclusion in a subsequent civil suit.” United States v. Real Prop. Located at Section 18,
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976 F.2d 515, 519 (9th Cir. 1992) (citing United States v. $31,697.59 Cash, 665 F.2d 903
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(9th Cir. 1982); United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir. 1980)). The
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Ninth Circuit has applied this principle in disposing of arguments in immigration cases
that attempt to re-litigate prior criminal convictions. See, e.g., Granados-Mondragon v.
I.N.S., 28 F. App’x 695 (9th Cir. 2002).
In ruling on the government’s motion for judgment on the pleadings, the Court
held that Young v. Holder requires that we “treat[] the plea as ‘an admission of only those
facts that are essential to the conviction.’” Doc. 45 at 6 (citing 697 F.3d 976, 988 (9th
Cir. 2012). Although this rule might not apply to a criminal conviction like Li’s that
included a detailed factual admission in the plea agreement, the record from Li’s
conviction is more complicated. As noted above, Li engaged in a colloquy with the judge
about what precisely she was admitting. Doc. 135-2 at 52. Li’s counsel raised concerns
about whether or not Li engaged in the acts described in the plea agreement, and the
judge provided a lengthy explanation before asking what Li was admitting. Id. at 55.
She responded: “I admit that I knowingly made a false statement,” without identifying the
false statement. Doc. 158-8 at 114.
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The government seeks Li’s denaturalization based on allegations that she gave
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false testimony during her naturalization interview, lied on her naturalization application,
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and was bigamously married to Gang Chen, among others. Although Li’s written plea
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agreement contained admissions of each of these acts, the colloquy with the judge left an
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imprecise record as to the specific basis for her conviction. At the key moment, when the
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judge sought to confirm that there was a factual basis for conviction, Li admitted only to
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making “a false statement,” an admission the prosecutor said was “close enough.” The
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judge proceeded on the basis of that admission.
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From this record, the Court cannot take judicial notice of Li’s admission to all of
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the false statements set forth in her plea agreement. “[O]nly matters necessarily decided
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in the prior action are barred from relitigation by collateral estoppel,” Section 18, 976
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F.2d at 519 (emphasis added), and the only matter necessarily decided prior to conviction
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was that Li knowingly made an unspecified false statement. As a result, the Court takes
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judicial notice only of this admission.1
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IV.
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Analysis.
The government seeks to denaturalize Li under 8 U.S.C. § 1451(a). This statute
provides that the Court must order the revocation of a person’s naturalization certificate if
(1) the naturalization was illegally procured, or (2) the naturalization was procured by
concealment of a material fact or by willful misrepresentation. The government asserts
six claims against Li that show that she either illegally procured her naturalization or
procured it through willful misrepresentation and concealment of material facts. Those
claims include the following: (1) Li gave false testimony during her naturalization
interview; (2) Li’s conviction under §1015(a) in the criminal case was a crime involving
moral turpitude that precluded her naturalization; (3) Li committed bigamy, which is a
crime involving moral turpitude; (4) Li committed bigamy, which is an unlawful act that
reflected poorly on her moral character and precluded her from naturalizing; (5) Li had an
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This conclusion will not necessarily prevent the Court from considering the
detailed admissions in her plea agreement as evidence during trial, assuming they are
admissible.
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extra-marital affair which tended to destroy her marriage to Bambrough and evidenced
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bad moral character; and (6) Li willfully misrepresented and concealed material facts in
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her naturalization application. Doc. 16.
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Counts I through V concern the first prong of 8 U.S.C. § 1451(a) – that Li illegally
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procured her naturalization. A certificate of citizenship is “illegally procured” when the
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applicant fails to comply with all congressionally-imposed prerequisites to the acquisition
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of citizenship. Fedorenko v. United States, 449 U.S. 490, 506 (1981). One of those
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prerequisites is that a person be “of good moral character” during a period from five
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years before filing an application for naturalization until the date the person takes the oath
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of allegiance to become a citizen. 8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10(a)(1). Count
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VI concerns the second prong of § 1415(a) and alleges that Li procured her citizenship by
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willfully concealing and misrepresenting her marital status and the existence of her
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extramarital children. The Court will address each count separately.
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A.
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Being of good moral character is a congressionally-imposed prerequisite to
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Count I – False testimony.
citizenship. “Under 8 U.S.C. § 1101(f)(6), a person shall be deemed not to be of good
moral character if he has given false testimony for the purpose of obtaining immigration
or naturalization benefits.” Kungys v. United States, 485 U.S. 759, 779 (1988). The false
statements need not be material, but they must be false, made orally and under oath, and
made for the purpose of obtaining an immigration benefit. Id.
The government alleges Li gave false oral testimony during her naturalization
interview on April 18, 2005 in response to four different questions. Doc. 16 at 7.
Specifically, the government asserts that Li testified she (1) had no children, (2) was
divorced, (3) had only been married once, and (4) had never committed a crime for which
she had not been arrested. Id. The government argues that Li lied about each of these
subjects during her naturalization interview. Doc. 151 at 20.
Li appeared for her naturalization interview and gave oral testimony under oath.
Doc. 135,¶ 60; Doc. 152, ¶ 157. Li’s interview took place during the statutory period in
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which she was required to be of good moral character.2 Li argues, however, that the
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government cannot show by clear and convincing evidence that the questions which Li
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allegedly answered falsely were asked during the interview. Doc. 160 at 9. She supports
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this contention by noting that the Court may not take judicial notice of her plea
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agreement in which she admitted making these false statements. Id.
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The Court has taken judicial notice only of Li’s admission that she made a false
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statement. The Court does not know whether that statement was made in her application
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for naturalization or during her interview because that fact was not specified in the
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colloquy.
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The Court therefore cannot conclude that Li’s admitted false statement
satisfies the oral testimony requirement in Count I.
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Although no audio or video recording of Li’s interview with Officer Nguyen is
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available, and Nguyen cannot recall the interview, the government argues that there is no
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question that Nguyen asked Li about her marital status and her children. Relying on
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Nguyen’s testimony and the government’s established procedures for such interviews, the
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government asserts that Nguyen made red ink annotations on Li’s N-400 form on each
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question asked of Li, including questions about Li’s marital status and children.
Doc. 157 at 21. In response, Li relies on the expert report of an immigration attorney
who has attended dozens of such naturalization interviews and who declares that while
“[i]t is common for interviewers to make marks on N-400 applications during an
interview . . . not every mark . . . is consistent with a specific question being asked or
answered.” Doc. 172-1 at 13. According to Li’s expert, such marks “do not necessarily
mean a question was asked orally or that an oral answer to a question was given during
the interview.” Id.
The Court concludes that a material issue of fact exists as to whether Li was asked
the relevant questions and provided oral testimony in response. As a result, the Court
cannot grant summary judgment for the government. The same factual issue precludes
summary judgment for Li on this claim.
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This period for Li ran from September 24, 1999, five years before she submitted
her N-400 application, until May 5, 2005, the date of her admission to citizenship.
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B.
Count II – Conviction under 18 U.S.C § 1015(a).
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The government argues that a violation of 18 U.S.C. § 1015(a) is a crime
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involving moral turpitude, and that Li’s conviction of that crime establishes that she was
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not of good moral character and was statutorily ineligible for naturalization. Docs. 16 at
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8-9, 151 at 29, 38. Li argues that a violation of § 1015(a) is not a crime involving moral
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turpitude. Doc. 134 at 28.
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In determining whether a crime is one of moral turpitude, the Court must examine,
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first, what offense the petitioner was convicted of committing, and second, whether such
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conduct is a crime involving moral turpitude as defined in the applicable section of the
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Immigration and Naturalization Act (“INA”). Marmolejo-Campos v. Holder, 558 F.3d
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903, 907 (9th Cir. 2009). The Court has taken judicial notice that Li committed a
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violation of § 1015(a) by knowingly making a false statement. A crime involving moral
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turpitude is defined as a crime “inherently base, vile, or depraved, and contrary to the
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accepted rules of morality and the duties owed between persons or to society in general.”
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Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012). Such crimes generally
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involve fraud or grave acts of baseness or depravity. Id.
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The government argues that Li’s violation of § 1015(a) is, by its very nature, a
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crime involving moral turpitude because an intent to defraud is implicit in making a false
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statement on a naturalization application and is akin to perjury in the immigration
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context. Doc. 151 at 39-40. Li responds that she did not plead guilty to fraud, which was
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initially charged. Doc. 160 at 2. She also argues that her plea was not knowingly made,
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and that the crime does not carry sufficient bad intent to constitute a crime involving
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moral turpitude. Id.
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The parties have not identified, nor has the Court found, any authority dictating
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whether violation of § 1015(a) constitutes a crime involving moral turpitude. Courts
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generally apply a categorical approach when answering this question, looking first to the
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statutory definition of the offense to see if it fits into one of the two identified categories,
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fraud or grave acts of baseness and depravity. Totaktly v. Ashcroft, 371 F.3d 613, 620
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(9th Cir. 2004). “If it is not clear from the statutory definition whether the offense is a
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qualifying offense, we apply the modified categorical approach, in which we may look
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beyond the language of the statute to a narrow, specified set of documents that are part of
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the record of conviction,” including the state charging document, a signed plea
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agreement, jury instructions, guilty pleas, transcripts of plea proceedings and the
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judgment. Notash v Gonzales, 427 F.3d 693, 697 (9th Cir. 2005) (citing Ferreira v.
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Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (internal cites omitted)). “If the record of
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conviction does not establish that the offense is a qualifying offense, the government has
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failed to meet its burden.” Id. at 697.
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“Not all false statements to the federal government are crimes of moral turpitude.”
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Fetamia v. Ridge, 3-03-CV-2841-BD, 2004 WL 1194458 (N.D. Tex. May 27, 2004).
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And while the elements of the crime at issue here do require that a party knowingly make
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false statements, the Ninth Circuit has held that “[w]illfulness alone . . . does not
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categorically indicate an intent to defraud.” Notash, 427 F.3d at 698.
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Categorical approach.
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A person violates § 1015(a) if he or she (1) “knowingly makes any false statement
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under oath, (2) in any case, proceeding, or matter relating to . . . naturalization,
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citizenship or registry of aliens.” The statute does not explicitly require fraudulent
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conduct on the part of the perpetrator, nor does it explicitly require that the perpetrator
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take the prohibited action in order to derive a benefit of some sort.
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Where the intent to defraud is inherent in the nature of a crime, the crime is one of
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moral turpitude even if there is no express element of fraud. Tijani v. Holder, 628 F.3d
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1071, 1076 (9th Cir. 2010). Courts have found an inherent fraud requirement when a
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criminal statute requires specific intent that a false statement be relied upon.
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example, the court in Tijani found inherent fraud in a statute that required “knowingly
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mak[ing] or caus[ing] to be made . . . any false statement in writing, with intent that it
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shall be relied upon . . . for the purpose of procuring [payment].” Id. at 1075 (emphasis
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added). In Carty v. Ashcroft, 1081 (9th Cir. 2005), the Ninth Circuit found fraud inherent
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in a tax evasion statute that made it a crime for a person to “willfully fail[] to file any
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return or to supply any information with intent to evade any tax[.]” Id. at 1083 (emphasis
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added). The Carty court found that the use of the word “evade” was so wound up with
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fraud that a violation of the tax section was “tantamount and equivalent to an intent to
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defraud for deportation purposes.” Id. at 1085.
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Section 1015(a) does not require that a false statement be made with any particular
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intent. In fact, the statute does not even require that the false statements be made to
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influence the immigration process or procure an immigration
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statements made “in relation to” an immigration proceeding will do.
benefit – any false
18 U.S.C.
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§ 1015(a). Other subsections of the same statute do criminalize behavior done with intent
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or in order to procure a benefit, but such intent is noticeably absent from the plain
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language of subsection § 1015(a). Cf. § 1015(b) (criminalizing “knowingly, with intent
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to avoid any duty or liability imposed or required by law,” denying citizenship) and
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§ 1015(e) (criminalizing knowingly making a false claim to citizenship “with the intent to
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obtain . . . any Federal or State benefit or service”).
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requirement or some other indication that a fraudulent state of mind is required, the Court
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finds no basis to conclude that a violation of § 1015(a) is inherently fraudulent.
In the absence of an intent
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The government also argues that a violation of § 1015(a) is “essentially
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naturalization-specific perjury,” and that perjury is a well-accepted crime involving moral
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turpitude. Doc. 157 at 38. But materiality is an essential element of perjury, Matter of S,
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2 I. & N. Dec. 353 (BIA 1945); see also Bronston v. United States, 409 U.S. 352, 355
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(2000), and materiality is not required for a violation of § 1015(a), United States v.
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Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008) (“The plain language of § 1015(a) does not
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require the false statement to be material.”).
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In sum, the Court concludes that a violation of § 1015(a) is not inherently
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fraudulent and does not include the element of materiality essential to perjury. As a
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result, the crime Li was convicted of committing is not categorically a crime involving
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moral turpitude.
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2.
Modified categorical approach.
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As noted above, if a crime is not categorically a crime involving moral turpitude,
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courts apply the modified categorical approach and “look beyond the language of the
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statute to a narrow, specified set of documents that are part of the record of conviction,”
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including the state charging document, a signed plea agreement, jury instructions, guilty
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pleas, transcripts of plea proceedings and the judgment. Notash, 427 F.3d at 697. The
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purpose of this inquiry is to identify, if possible, the precise crime that was committed,
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and the government carries the burden of showing that the conviction was for a crime
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involving moral turpitude. Id. at 698-700.
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As already noted, Li admitted only to knowingly making “a” false statement.
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Because Li did not admit during the colloquy that she possessed a fraudulent intent, or
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sought to procure some benefits through her false statement, the Court cannot conclude
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from her admission that she committed a crime involving fraud and therefore a crime of
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moral turpitude. For reasons described above, the Court takes judicial notice only of Li’s
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precise admission, not of other statements contained in her plea agreement.
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Nor can the Court conclude that Li committed the equivalent of perjury. As noted
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above, perjury requires a false statement that is material, and the materiality of the false
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statement Li made was never an issue in her criminal case. As already noted, § 1015(a)
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does not require materiality. Youssef, 547 F.3d at 1093.
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For these reasons, the Court concludes that Li’s § 1015(a) conviction is not a
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crime of moral turpitude under the modified categorical approach.
Review of the
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relevant documents from her 2009 conviction simply does not establish that the crime she
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committed involved fraud or was tantamount to perjury, and the government has
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provided no other basis on which to conclude that her conviction was for a crime
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involving moral turpitude.
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The Court will grant summary judgment for Li on Count II. There is no further
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issue of fact to be decided on this claim. The issue is not whether the government could
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show Li’s alleged false statements to be fraudulent or material at the trial in this case.
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The issue is whether her 2009 conviction was for a crime of moral turpitude, an issue that
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must be resolved by looking to that conviction. Because the Court cannot conclude that
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the conviction is a crime of moral turpitude under either the categorical or modified
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categorical approaches, the Court concludes as a matter of law that it is not.
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C.
Count III – Bigamy as a crime involving moral turpitude.
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The government asserts that Li was not of good moral character during the
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statutory period because she committed bigamy under California law by marrying Chen
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while still married to Bambrough. Bigamy is indeed a crime involving moral turpitude,
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Gonzales-Martinez v. Landon, 203 F.2d 196, 197 (9th Cir. 1953), but it cannot alone
10
justify Li’s denaturalization. A single crime of moral turpitude cannot be grounds for
11
denaturalization if the maximum statutory sentence for the crime does not exceed one
12
year, and, if the person was convicted of the crime, the person did not receive a sentence
13
of more than six months. 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Bigamy is punishable under
14
California law by a prison term “not exceeding one year,” Cal. Crim. Code § 283, and Li
15
was never convicted or imprisoned for bigamy. Because bigamy is the only crime
16
alleged in Count III (Doc. 16 at 11-12), summary judgment will be granted for Li.
17
D.
Count IV – Bigamy as evidence of bad moral character.
18
The government alleges that Li illegally procured her citizenship because she
19
committed an unlawful act of bigamy that reflected adversely on her moral character
20
during the statutory period. Doc. 16 at 10. Specifically, the government cites 8 C.F.R.
21
§ 316.10(b)(3)(ii), which provides that “unless the applicant establishes extenuating
22
circumstances, the applicant shall be found to lack good moral character if . . . the
23
applicant . . . Committed unlawful acts that adversely reflect upon the applicant’s moral
24
character.” The government asserts that Li cannot establish extenuating circumstances
25
with regard to her commission of bigamy. Doc. 16 at 10.
26
Li disputes that she ever committed bigamy. She argues that she never intended to
27
marry Chen, that her wedding to Chen was a “mock” ceremony staged to appease
28
members of his family, and that she did not believe their marriage to be legitimate from a
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1
legal standpoint. Docs. 134, 135, ¶ 6.3 Li submits deposition testimony from Chen, who
2
also asserts that they never intended to be legally married (Doc. 135, Ex. 10), an affidavit
3
from Li’s mother, Ruby Zhao, who states that she knew they never intended to marry
4
(Doc. 135, Ex. 11), and an affidavit from Steve Greschner, a friend of Li’s who later
5
became her husband, stating that he also knew that Li and Chen never intended to legally
6
marry (Doc. 135, Ex. 12).4 Li also testified in her own deposition that she did not intend
7
to marry Chen. Doc. 135-1 at 15.
8
The government has submitted many documents to show the nature of Li and
9
Chen’s relationship and their intent to marry and live as a married couple. Doc. 152,
10
¶¶ 52-61, 71-101. It has alleged that the ceremony was real, id., ¶¶ 102-118, and that
11
after the ceremony Li and Chen held themselves out as husband and wife, as evidenced
12
by numerous legal documents, id. ¶¶ 119-147.
13
The evidence presented by Li and the government creates an issue of fact as to
14
whether Li and Chen intended to marry and therefore committed bigamy under California
15
law. Summary judgment will be denied for both sides.
16
E.
Count V – Extramarital affair.
17
The government asserts that Li was not of good moral character during the
18
statutory period because she engaged in an extramarital affair that had a tendency to
19
destroy her marriage. See 8 C.F.R. § 316.10(b)(3)(ii) (“Unless the applicant establishes
20
extenuating circumstances, the applicant shall be found to lack good moral character if,
21
during the statutory period, the applicant . . . [h]ad an extramarital affair which tended to
22
destroy an existing marriage.”). There is no dispute that Li had an extramarital affair
23
with Chen. Li met Chen soon after she was married to Bambrough and began an affair
24
3
25
26
27
Li also argues that even if she had intended to marry Chen, the marriage would
have been illegal and void because she was already married to Antony Bambrough.
Docs. 134, 135, ¶ 6. This argument lacks merit. A person can be party to an illegal
marriage and still be prosecuted for bigamy under California law. Gersten v. C.I.R., 267
F.2d 195 (9th Cir. 1959).
4
28
The Court gives little weight to the affidavit from Li’s mother given Li’s own
assertion in this litigation that her mother was not capable of being deposed due to mental
health issues.
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1
with Chen in 1998. Doc. 135, ¶ 20. In late 1998 or early 1999, she was pregnant with
2
her first child by Chen. Id., ¶ 21.
3
There is, however, a factual dispute as to whether the affair tended to destroy Li
4
and Bambrough’s marriage. Doc. 160 at 22. Bambrough asserted in his deposition that
5
he found out about the affair when Li told him she was pregnant with another man’s child
6
sometime in the spring of 1999, and that it was the affair that caused the end of his
7
marriage to Li. Doc. 152, ¶ 39.5 Li, on the other hand, argues that the affair was not the
8
cause of her break-up with Bambrough. Doc. 160 at 22. She asserts that she left
9
Bambrough because he quit a job in 1998 against her wishes. Id. at 23. She also has
10
presented evidence that Bambrough accepted the relationship she had with Chen and that
11
the three of them got along well even after the affair came to light. Id. at 22.
12
Whether the extramarital affair between Li and Chen had a tendency to destroy the
13
marriage is an issue of fact that must be resolved at trial. Summary judgment is denied as
14
to both parties on this issue.
15
F.
Count VI – Willful misrepresentation and concealment.
16
The government argues that Li procured her citizenship by willfully concealing
17
and misrepresenting her marital status and the existence of her children, and that such
18
willful concealment and misrepresentation is a sufficient ground for denaturalization
19
under 8 U.S.C. § 1451(a). Doc. 16 at 12. Section 1451(a) contains four independent
20
requirements for revocation of citizenship based on concealment or misrepresentation:
21
(1) the naturalized citizen must have misrepresented or concealed some fact, (2) the
22
misrepresentation or concealment must have been willful, (3) the fact must have been
23
24
25
26
27
28
5
Li objects to admission of the affidavit of Antony Bambrough because she
contends that the affidavit is inconsistent with his deposition and therefore should be
disregarded under Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir 1991),
and Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir. 1975).
Doc. 161 at 2. Both Kennedy and Radobenko concern situations in which a party to a
lawsuit attempted to defeat summary judgment by creating an issue of fact through
submission of a sham affidavit. Bambrough is not a party to this lawsuit, nor has Li
provided a basis for concluding that differences between his affidavit and deposition are
“not the result of an honest discrepancy, a mistake, or the result of newly discovered
evidence.” Kennedy, 952 F.2d at 266-67.
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1
material, and (4) the naturalized citizen must have procured citizenship as a result of the
2
misrepresentation or concealment. Kungys, 485 U.S. at767.
3
In its motion for summary judgment, the government alleges several false
4
statements on Li’s N-400 and in her naturalization interview, including that she
5
concealed the existence of her children and misrepresented her marital history. Doc. 157
6
at 47-49.
7
summary judgment on Count VI, but also argues from the evidence that Li lied about
8
having no children and about her marital history. Id.
The government relies primarily on Li’s 2009 conviction as a basis for
9
The Court cannot grant summary judgment on this count. If the 2009 conviction
10
is not considered, the factual disputes discussed above prevent the Court from concluding
11
that Li knowingly made false statements concerning her marital status. Li also disputes
12
that she knowingly failed to disclose her children, contending that she misunderstood the
13
requirements of the naturalization form.
14
If the 2009 conviction is considered, the government still has not established its
15
right to summary judgment.
Although Li admitted to knowingly making a false
16
statement, she did not identify the false statement and the Court therefore cannot take
17
judicial notice that she admitted any particular false statement. As a result, even if the
18
Court could conclude from Li’s conviction that the first two requirements of § 1451(a)
19
are met – a misrepresentation of fact that is willful – the Court could grant summary
20
judgment for the government on this count only if it could also conclude that each of the
21
alleged misrepresentations was material and resulted in her procuring citizenship, the
22
third and fourth requirements under § 1451(a). Stated differently, because the record
23
from the 2009 conviction does not reveal which false statement Li admitted, the Court
24
would have to conclude that all of the possible false statements satisfy the materiality and
25
causation requirements of § 1451(a) before summary judgment could be entered. The
26
Court cannot reach such a conclusion.
27
The parties have presented conflicting evidence on whether the failure to disclose
28
Li’s children in the immigration process was material to or resulted in her naturalization.
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1
Docs. 172-1 at 13, 170-2 at 5-10. This factual issue on one of the alleged false statements
2
prevents the Court from granting summary judgment for the government.6
3
V.
Request for stay.
4
Li asks the Court to stay these proceedings pending resolution of a habeas petition
5
she has brought in the United States District Court of the Northern District of California
6
challenging the validity of her 2009 conviction. Doc. 160 at 2. Li contends that the
7
California court has not reached the merits of her petition because the petition was
8
dismissed on procedural grounds, and that she has since filed a Rule 59 motion to amend
9
the judgment. Id.
10
A district court has the inherent power to stay proceedings, and whether to grant a
11
stay is within the court’s discretion and appropriate when it serves the interests of judicial
12
economy and efficiency. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.
13
1997) (citing Weisman v. Se. Hotel Prop. Ltd., No. 91-6232, 1992 WL 131080, at *6
14
(S.D.N.Y. June 1, 1992)). The power to stay is “incidental to the power inherent in every
15
court to control the disposition of the causes on its docket with economy of time and
16
effort for itself, for counsel, and for litigants.” Rivers, 980 F. Supp. at 1360 (quoting
17
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Gold v. John-Manville Sales Corp., 723
18
F.2d 1068, 1077 (3d Cir. 1983). When considering a motion to stay, the district court
19
should consider three factors: (1) potential prejudice to the non-moving party;
20
(2) hardship and inequity to the moving party if the action is not stayed; and (3) the
21
judicial resources that would be saved by avoiding duplicative litigation if the cases are in
22
fact consolidated.
23
Processing, Inc., Nos. 92-1030, 92-1086 , 1992 WL 102762, at *1-2 (E.D. Penn. May 7,
24
1992)).
Rivers, 980 F. Supp. at 1360, (citing Am. Seafood v. Magnolia
25
Li’s habeas petition was denied by the California federal court as untimely.
26
United States v. Li, 5:09-CR-00177-EJD-1, 2013 WL 6140860 (N.D. Cal. Nov. 21,
27
6
28
Materiality is a question for the Court, but it “rests upon a factual evidentiary
showing” that is now in dispute and will be resolved at trial. Kungys, 485 U.S. at 772
(citation and quotation marks omitted).
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1
2013).
2
appealability so she can appeal the dismissal to the Ninth Circuit. If the motion is
3
granted and Li appeals, the appeal could take one or two years to resolve. If she prevails
4
on her argument that the petition was timely, the case would return to the district court
5
and start over, a process that could take several more years. The unsuccessful party then
6
would almost surely appeal to the Ninth Circuit, a process that could again take years to
7
resolve. Thus, even if Li were ultimately to prevail, the process could take six or more
8
years to complete. Although the Court understands that much is at stake here for Li, the
9
government also has an interest in seeing this case resolved, and a delay of many years
10
Li’s motion to amend simply asks the court to grant her a certificate of
would prejudice its position as evidence grew stale and memories faded.
11
To evaluate hardship to Li if a stay is denied, the Court has reviewed her filings in
12
the habeas proceeding. The Court finds it unlikely that Li will prevail in her arguments
13
that she had an available affirmative defense that counsel did not advise her of, and that
14
she did not know her conviction could have serious immigration consequences. The
15
affirmative defense that Li alleges her lawyer failed to inform her of is that, because
16
California law voids any bigamous marriage, she could have asserted that her statements
17
about her marriage on her naturalization form were true.
18
argument in this proceeding (Docs. 134, 135, ¶ 6) and the Court found above that it lacks
19
merit because a person can be party to an illegal marriage that is void and still be guilty
20
of bigamy. Gersten, 267 F.2d at 195. As to her argument that she was not advised of the
21
immigration consequences of her plea, in addition to the fact that her 2009 lawyer admits
22
having told her that a challenge to her naturalization was a possible (albeit unlikely)
23
consequence of her conviction (Doc. 158 at 130), the prosecutor specifically stated during
24
her change-of-plea hearing that the government could attempt to revoke her citizenship
25
on the basis of her conviction (Doc. 158-8 at 122). She nonetheless went forward with
26
her guilty plea.
But she made a similar
27
Because the Court finds it unlikely that Li will prevail on her habeas claim, the
28
Court concludes that the hardship she will experience as a result of this Court’s denial of
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1
her stay request does not outweigh the multi-year delay the government would endure if a
2
stay were granted.
3
4
Finally, the Court’s serious doubts about the merits of Li’s habeas petition causes
it to conclude that judicial resources are not likely to be saved by delaying this case.
5
Li’s unappealed conviction is final for purposes of this proceeding. Lackawanna
6
Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403 (2001). The Court concludes that this
7
action should not be stayed while Li pursues habeas relief in other courts.
8
IT IS ORDERED:
9
10
1.
Defendant’s motion for summary judgment (Doc. 134) is granted as to
Counts II and III and denied as to Counts, I, IV, V, and VI as set forth above.
11
2.
Plaintiff’s motion for summary judgment (Doc. 157) is denied.
12
3.
The Court will set a final pretrial conference by separate order.
13
Dated this 6th day of March, 2014.
14
15
16
17
18
19
20
21
22
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24
25
26
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