United States of America v. Li

Filing 45

ORDER denying 25 Motion for Judgment on the Pleadings. Signed by Judge David G Campbell on 1/14/2013.(NVO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

United States of America,
Plaintiff,

10
11

ORDER

v.

12

No. CV-12-00482-PHX-DGC

Grace Xunmei Li,
Defendant.

13
14

Before the Court is the motion for judgment on the pleadings by Plaintiff the

15

United States of America (“the Government”). The motion is fully briefed. For the

16

reasons set forth below, the Court will deny the motion.1

17

I.

Background.

18

Defendant Grace Xunmei Li (“Li”) was born in the People’s Republic of China

19

and is now a naturalized U.S. citizen. Doc. 16 at ¶ 3; Doc. 20 at ¶ 3. On February 11,

20

1997, Li married a naturalized U.S. citizen, Antony Bambrough (“Bambrough”). Doc. 16

21

at ¶ 7; Doc, 20 at ¶ 7. In 1997, Bambrough filed Form I-130, “Petition for Alien

22

Relative,” on Li’s behalf, and at the same time Li filed an I-485 petition for adjustment of

23

status with the former Immigration and Naturalization Service (“INS”). Doc. 16 at ¶ 8;

24

Doc. 20 at ¶ 8. The INS approved both petitions and conditionally adjusted Li’s status to

25

that of a lawful permanent resident. Doc. 16 at ¶ 9; Doc. 20 at ¶ 9. Li gave birth to

26
27
28

1

Defendant’s request for oral argument is denied. The parties have amply
addressed the issues and oral argument will not aid the Court’s decision. See Fed. R. Civ.
P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

1

Daphne Elizabeth Li-Chen on September 8, 1999. Doc. 16 at ¶ 10; Doc. 20 at ¶ 10. The

2

child’s birth certificate originally listed the father as Bambrough, but on November 9,

3

1999, Li amended the certificate to show Gang Chen (“Chen”) as the father. Id. On

4

July 10, 2000, Li and Bambrough jointly filed a Form I-751, “Petition to Remove the

5

Conditions on Residence,” with the INS. Doc. 16 at ¶ 11; Doc. 20 at ¶ 11.

6

On February 7, 2002, Li gave birth to Esther Jade Li-Chen, and the birth

7

certificate listed Chen as the father. Doc. 16 at ¶ 12; Doc. 20 at ¶ 12. On March 21,

8

2002, the INS approved the Form I-751 petition and removed the conditions on Li’s

9

permanent residence. Doc. 16 at ¶ 13; Doc. 20 at ¶ 13.

10

Li participated in a mock marriage ceremony in California on July 5, 2002, but

11

had no intention of legally marrying Chen, as she was still married to Bambrough at the

12

time. Doc. 16 at ¶ 14; Doc. 20 at ¶ 14. Li and Bambrough divorced on March 9, 2004.

13

Doc. 16 at ¶ 15; Doc. 20 at ¶ 15.

14

On September 24, 2004, Li filed a Form N-400 Application for Naturalization

15

with the U.S. Citizenship and Immigration Services (“USCIS”). Doc. 16 at ¶ 17; Doc. 20

16

at ¶ 17. Part 3, Question G of the N-400 asked Li her “current marital status,” and Li

17

checked the box labeled “Divorced.” Doc. 16 at ¶ 18; Doc. 20 at ¶ 18. Part 8, question A

18

asked Li how many times she had been married, including annulled marriages, and she

19

wrote “1.” Doc. 16 at ¶ 19; Doc. 20 at ¶19. Part 9, questions A and B asked Li about her

20

children, and Li provided no information in response. Doc. 16 at ¶ 20; Doc. 20 at ¶ 20.

21

Part 10, question 15 asked Li if she had ever committed a crime or offense for which she

22

was not arrested, and Li answered “No.” Doc. 16 at ¶ 21; Doc. 20 at ¶ 21. Part 10,

23

question 22(d) asked whether Li had ever been married to more than one person at the

24

same time, and she answered “No.” Doc. 16 at ¶ 22; Doc. 20 at ¶ 22. Part 10, question

25

23 asked Li whether she had ever given false or misleading information to any U.S.

26

government official while applying for any immigration benefit or to prevent deportation,

27

exclusion, or removal, and she answered “No.” Doc. 16 at ¶ 23; Doc. 20 at ¶ 23.

28

On April 18, 2005, a USCIS officer interviewed Li regarding her naturalization
‐ 2 ‐ 

1

application to determine her eligibility for naturalization. Doc. 16 at ¶ 24; Doc. 20 at

2

¶ 24. Based on Li’s statements under oath at this interview, as well as her Form N-400

3

application, Li’s naturalization application was approved on April 18, 2005. Doc. 16 at

4

¶ 34; Doc. 20 at ¶ 34. On May 5, 2005, Li took the Oath of Allegiance to the United

5

States, and USCIS admitted her to U.S. citizenship and issued her Certificate of

6

Naturalization No. 28 687 569. Doc. 16 at ¶ 35; Doc. 20 at ¶ 35.

7

In June 2008, the Government filed a criminal complaint against Li and Chen

8

alleging that they had fraudulently obtained naturalization in violation of 18 U.S.C.

9

§§ 371 and 1425(b). Doc. 37-1, Ex. A. These charges carried with them automatic

10

revocation of citizenship upon conviction. See 8 U.S.C. § 1451(e). The Government

11

filed an Information and Superseding Information against Li, ultimately charging her

12

with making a knowing false statement in relation to naturalization in violation of 18

13

U.S.C. § 1015(a). Doc. 37-2, Exs. F, G; Doc. 25-2, Ex. 2. This reduced charge did not

14

require automatic revocation of citizenship upon conviction.

15

amended its charges, Li pled guilty to violating § 1015(a). As part of the plea, Li agreed

16

that, at her April 18, 2005 naturalization interview, she affirmed under “penalty of

17

perjury that every statement contained in my naturalization petition was correct, knowing

18

that certain statements in my naturalization petition, and specifically those described in

19

the previous paragraph [relating to her marital status, marital history and children], were

20

false or intentionally misleading.” Doc. 25-3, Ex. 3 (“Plea Agreement”) at ¶ 2. Li has

21

advised the Court that she intends to challenge the validity of the criminal conviction that

22

resulted from this plea. Doc. 43.

After the Government

23

In this case, the Government filed a complaint to revoke Li’s naturalization on

24

March 8, 2012 (Doc. 1), and an amended complaint on July 19, 2012 (Doc. 16). The

25

amended complaint alleges that the Court must revoke Li’s citizenship based on any of

26

the following six grounds: (1) Li illegally procured U.S. citizenship because she gave

27

false testimony for the purpose of obtaining an immigration benefit during the statutory

28

period and therefore lacked the requisite good moral character (Doc. 16 at 7-8); (2) Li
‐ 3 ‐ 

1

illegally procured her U.S. citizenship because her commission of a crime involving

2

moral turpitude – false statements related to naturalization – precluded her ability to

3

demonstrate the statutorily requisite good moral conduct (Doc. 16 at 8-9); (3) Li illegally

4

procured her U.S. citizenship because her commission of a crime involving moral

5

turpitude – bigamy – precluded her ability to demonstrate good moral conduct (Doc. 16

6

at 9-10); (4) Li illegally procured her U.S. citizenship because she committed unlawful

7

acts that adversely reflect on her moral character – bigamy – during the statutory period

8

(Doc. 16 at 10-11); (5) Li illegally procured her U.S. citizenship because she had an

9

extra-marital affair that destroyed her marriage during the statutory period (Doc. 16 at 11-

10

12); and (6) Li procured her U.S. citizenship by willful misrepresentation and by

11

concealing her bigamous marriage and extra-marital children (Doc. 16 at 12-14). The

12

Government seeks a judgment on the pleadings based on Count I (illegal procurement

13

based on false testimony) and Count VI (willful misrepresentation).2

14

II.

Legal Standard.

15

“Judgment on the pleadings is proper when, taking all allegations in the pleadings

16

as true and construed in the light most favorable to the nonmoving party, the moving

17

party is entitled to judgment as a matter of law.” Living Designs, Inc. v. E.I. Dupont de

18

Nemours & Co., 431 F. 3d 353, 360 (9th Cir. 2005); see also Hal Roach Studios, Inc. v.

19

Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989) (“For the purposes of

20

the [12(c)] motion, the allegations of the non-moving party must be accepted as true,

21

while the allegations of the moving party which have been denied are assumed to be

22

false.”). Like a Rule 12(b)(6) motion to dismiss, a motion for judgment on the pleadings

23

“is directed at the legal sufficiency of the opposing party’s pleadings.” Ansel Commc’ns,

24

Inc. v. Novell, Inc., No. C9721088RMWENE, 1999 WL 33298162, *2 (N.D. Cal. Mar.

25
26
27
28

2

The Government’s motion states that it seeks a judgment on the pleadings based
on Counts I and IV (Doc. 25 at 2, n. 1), but Count VI of the amended complaint asserts a
claim for willful misrepresentation, which is the second basis on which the Government
seeks judgment on the pleadings. The Court therefore construes the motion as seeking a
judgment on the pleadings based on Counts I and VI.
‐ 4 ‐ 

1

24, 1999); see also Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, (9th Cir. 1989)

2

(noting that motions filed pursuant to Rules 12(b) and 12(c) are “functionally identical”

3

but for the time of filing). “Federal courts generally hesitate to grant judgment on the

4

pleadings, because ‘hasty or imprudent use of this summary procedure by the courts

5

violates the policy in favor of ensuring to each litigant a full and fair hearing on the

6

merits of his claim or defense.’” Carrasco v. Fiore Enters., 985 F. Supp. 931, 934 (D.

7

Ariz. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and

8

Procedure, Civil 2d § 1368 (1990)).

9

Generally, the Court will not consider evidence or documents beyond the

10

pleadings when ruling on a Rule 12(c) motion. Fed. R. Civ. P. 12(d); see also Hal Roach

11

Studios, 896 F.2d at 1550. “[M]aterial which is properly submitted as part of [a pleading]

12

may be considered,” Hal Roach Studios, 896 F.2d at 1555 n. 19, and “a document is not

13

‘outside’ the [pleading] if the [pleading] specifically refers to the document and its

14

authenticity is not questioned.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)

15

(overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th

16

Cir. 2002)).

17

In support of its amended complaint (Doc. 16), the Government submitted an

18

affidavit showing good cause (Doc. 19, Ex. A). Attached to Li’s answer (Doc. 20) was

19

the Government’s reply brief in a prior action against Chen (Doc. 20, Ex. A), and the

20

Affidavit of Steven Greschner, the Chief Executive Officer of Hummingbird Defense

21

Systems, Inc., for whom Li worked as a contractor (Doc. 20, Ex. B). Because these

22

exhibits were submitted as part of the parties’ pleadings, the Court will consider them in

23

ruling on the Government’s motion.

24

The Court may also take judicial notice of public records. See, e.g., Tellabs, Inc.

25

v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (Rule 12(b)(6) motion); Lee v.

26

City of L.A., 250 F.3d 668, 689-90 (9th Cir. 2001). Both the Government and Li ask the

27

Court to take judicial notice of various documents, including court documents pertaining

28

to Li’s criminal conviction (Doc. 25-1, Exs. 1-4; Doc. 37-1, Exs. A, F-H), the birth
‐ 5 ‐ 

1

certificates of Li’s children (Doc. 37-1, Exs. B, D), Li’s affidavit and application for a

2

license to marry Chen (Doc. 37-1, Ex. C), and Li’s naturalization application (Doc. 37-1,

3

Ex. E). The Court will take judicial notice of these documents.

4

III.

Facts Deemed Admitted for Purposes of the Government’s Motion.

5

The Government argues that judgment on the pleadings should be entered on the

6

basis of judicial notice, collateral estoppel, and Li’s admission to having been convicted

7

of violating 18 U.S.C. § 1015(a). Doc. 25 at 2-3.

8

A.

Judicial Notice.

9

The Government asks Court to take judicial notice not only of the existence of the

10

submitted records, but also of the truth of their underlying facts. Doc. 25 at 3, n. 2. To

11

take judicial notice of prior court proceedings and the findings of that court as true, the

12

evidence must satisfy the indisputably requirement of Federal Rule of Evidence 201(b).

13

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either

14

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of

15

accurate and ready determination by resort to sources whose accuracy cannot reasonably

16

be questioned.” Fed. R. Ev. 201(b). Courts may take judicial notice of “undisputed

17

matters of public record,” but generally may not take judicial notice of “disputed facts

18

stated in public records.” Brown v. Am. Airlines, Inc., 285 F.R.D. 546, 551 (C.D. Cal.

19

2011) (citing Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir.2001) (emphasis in

20

original)).

21

In a criminal case where the conviction was the result of a guilty plea, judicial

22

notice is limited to “the terms of a plea agreement or transcript of colloquy between judge

23

and defendant.” Shepard v. United States, 544 U.S. 13, 20 & 26 (2005) (limiting the

24

inquiry under the Armed Career Criminal Act to determine whether a plea of guilty to

25

burglary defined by a nongeneric statute necessarily admitted elements of the generic

26

offense). “[T]he ‘better rule’ is the one that treats the plea as ‘an admission of only those

27

facts that are essential to the conviction.’” Young v. Holder, 697 F.3d 976, 988 (9th Cir.

28

2012) (quoting 1A C. Wright et al., Federal Practice and Procedure § 172 (4th ed.
‐ 6 ‐ 

1

2012)).3 Accordingly, in taking judicial notice of the public records related to Li’s

2

criminal conviction, the Court will not treat Li’s guilty plea as an admission of every

3

factual allegation in the superseding information (Doc. 25-2, Ex. 2), but as an admission

4

of only those facts essential to the conviction. Li pled guilty to violating § 1015(a) and,

5

in her plea agreement, confirmed “that the elements of the offense [we]re as follows: (1)

6

I knowingly made a false statement under oath; (2) in a matter relating to naturalization

7

or citizenship under the laws of the United States.” Doc. 25-3 at 2-3. After reviewing the

8

plea agreement, the Court will treat the following admission as true in this proceeding:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 [relating to marital status, marital history and children], were
false or intentionally misleading.
Id. at 3.
This portion of Li’s plea agreement admitted facts essential to her conviction.
Other factual allegations made in the superseding information (Doc. 25-2, Ex. 2) do not
appear essential to the conviction.

The Court’s judicial notice of the superseding

information and other public records thus serves only to establish their existence.
B.

Collateral Estoppel.

The doctrine of collateral estoppel prevents relitigation by the parties of identical
issues actually litigated and necessarily decided in a prior action. Parklane Hosiery Co.
3

The Government cites United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857
(9th Cir. 2004), United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir.
2006), and United States v. Hernandez-Hernandez, 431 F.3d 1212, 1218-19 (9th Cir.
2005), for the proposition that “[b]y pleading guilty, a defendant admits the factual
allegations of the indictment or information.” Doc. 25 at 4, n. 4. In Young v. Holder, 697
F.3d 976, 986-87 (9th Cir. 2012), however, the Ninth Circuit abrogated this line of cases
and held that “when a conjunctively phrased charging document alleges several theories
of crime, a guilty plea establishes conviction under at least one of those theories, but not
necessarily all them . . . [and] admission of any one of those theories constitutes an
admission of each and every element required to establish the offense.”
‐ 7 ‐ 

1

v. Shore, 439 U.S. 322, 326 n. 5 (1979); Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d

2

1352, 1357 (9th Cir.1985). “Federal law governs the collateral estoppel effect of a

3

federal case decided by a federal court.” Fireman’s Fund Ins. Co. v. Int’l Mkt. Place, 773

4

F.2d 1068, 1069 (9th Cir. 1985) (citing Blonder-Tongue Labs. v. Univ.of Ill. Found., 402

5

U.S. 313, 324 n. 13 (1971)). The party asserting the doctrine bears the burden of

6

showing that “the estopped issues are identical to issues litigated in the prior action.”

7

Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1116 (9th Cir. 1999).

8

“Although it is settled law in this circuit that a guilty plea may be used to establish

9

issue preclusion in a subsequent civil suit, preclusion has only been allowed where an

10

element of the crime to which the defendant pled guilty or of which he was convicted was

11

at issue in the second suit.” United States v. Section 18, Twp. 23, Range 9, Sunnyview

12

Plat, Lots 4 & 5, Block 4, Lakeview Dr., Quinault Lake, Olympic Nat. Park, Grays

13

Harbor Cnty., WA., 976 F.2d 515, 519 (9th Cir. 1992) (citations omitted). The following

14

criteria are used to analyze issue preclusion in a case involving a criminal matter:

15
16
17
18
19
20

(1) the prior conviction must have been for a serious offense so that
defendant was motivated to fully litigate charges; (2) there must have been
a full and fair trial to prevent convictions of doubtful validity from being
used; (3) the issue on which the prior conviction is offered must of
necessity have been decided at the criminal trial; and (4) the party against
whom collateral estoppel is asserted was party or in privity with party to
prior trial.

21

Section 18, 976 F.2d at 518 (citing Ayers v. City of Richmond, 895 F.2d 1267, 1271 (9th

22

Cir. 1990)).

23

The Government’s assertion of collateral estoppel is based on Li’s prior conviction

24

for knowingly making a false statement under oath in a matter relating to naturalization in

25

violation of 18 U.S.C. § 1015(a). Doc. 25 at 12. The Government states that the issues in

26

this action “are identical” to those in the prior action “in that both rely on the falsity of

27

Li’s representations in the course of her naturalization proceedings.” Doc. 25 at 12. The

28
‐ 8 ‐ 

1

Government states that this issue was actually litigated because it resulted in a guilty

2

plea, and that the determination that Li knowingly made a false statement was critical to

3

her conviction because the elements of a § 1015(a) violation include knowingly making a

4

false statement under oath in a proceeding relating to naturalization. Id.
The Court finds that the Government has not met its burden in establishing that the

5
6

issues in this action are identical to the issues decided by Li’s guilty plea.

7

The

Government must do more than conclusively state that the issues “are identical.”

8

C.

Li’s Admission to Having Pled Guilty to Violating 18 U.S.C. § 1015(a).

9

Li admitted that she pled guilty to violating 18 U.S.C. § 1015(a). Doc. 16 at ¶ 52;

10

Doc. 20 at ¶ 52. Li’s answer clarifies that she admits only to “‘statement’ (singular) not

11

‘statements’ (plural),” and that she “pled guilty to this offense because she believed

12

‘knowingly’ meant that she knew at the time of the plea not at the time of the

13

application.” Doc. 20 at ¶ 52. The Court has taken judicial notice of the fact that Li

14

knowingly made a false statement and will not consider Li’s conflicting contentions here.

15

The court is not required to accept as true allegations contradicted by judicially noticed

16

facts. See Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); see also Rein v.

17

Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001) (“The collateral attack doctrine

18

precludes litigants from collaterally attacking the judgments of other courts.”).

19

Accordingly, in ruling on the Government’s motion, the Court will accept as true the fact

20

that Li “knowingly ma[de] [a] false statement under oath, in any case, proceeding, or

21

matter relating to, or under, or by virtue of the law of the United States relating to

22

naturalization, citizenship, or registry of aliens.” 18 U.S.C. § 1015(a).

23

IV.

Discussion.

24

American citizenship is a precious right, the loss of which “can have severe and

25

unsettling consequences.” United States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007)

26

(quoting Fedorenko v. United States, 449 U.S. 490, 505 (1981)); see also Klapprott v.

27

United States, 335 U.S. 601, 616 (1949). Therefore, “[i]n a denaturalization proceeding,

28

the government bears the heavy burden of providing ‘clear, unequivocal, and convincing’
‐ 9 ‐ 

1

evidence that citizenship should be revoked.” United States v. Arango, 670 F.3d 988,

2

992 (9th Cir. 2012) (quotation marks and citations omitted); see also Schneiderman v.

3

United States, 320 U.S. 118, 122 (1943) (“[Citizenship] once conferred should not be

4

taken away without the clearest sort of justification and proof.”). Under this exacting

5

standard, summary judgment, and in turn judgment on the pleadings, “should not be

6

granted lightly.” Arango, 670 F.3d at 992.

7

The denaturalization statute, 8 U.S.C. § 1451(a), permits the government to revoke

8

citizenship if naturalization was (1) “illegally procured” or (2) “procured by concealment

9

of a material fact or by willful misrepresentation.” Arango, 670 F.3d at 992-93; Dang,

10

488 F.3d at 1139. The government argues that it is entitled to judgment on the pleadings

11

under both grounds: illegal procurement based on false testimony (Count I) and willful

12

misrepresentation (Count VI). Doc. 25 at 2, n. 1.

13

A.

Count I.

14

Failure to comply with all congressionally imposed prerequisites to the acquisition

15

of citizenship renders a certificate of citizenship “illegally procured.” Fedorenko, 449

16

U.S. at 506. “In order lawfully to obtain U.S. citizenship, a person must be of ‘good

17

moral character’ for the five years immediately preceding the date of filing her

18

citizenship application, as well as from the date of filing this application until the date she

19

or he is admitted to citizenship.” Dang, 488 F.3d at 1139; see also 8 U.S.C. § 1427(a).

20

“Under 8 U.S.C. § 1101(f), a person shall not ‘be regarded as, or found to be, a person of

21

good moral character’ if, within the statutory period, he or she fell into any of the seven

22

enumerated categories.” Dang, 488 F.3d at 1139. These categories include “one who has

23

given false testimony for the purpose of obtaining” immigration or naturalization

24

benefits. 8 U.S.C. § 1101(f)(6). Section 1101(f)(6) does not include a materiality

25

requirement for false testimony, Kungys v. United States, 485 U.S. 759, 779 (1988), but

26

“‘testimony’ is limited to oral statements made under oath” and must have been given

27

“with the subjective intent of obtaining immigration benefits.” Id. at 780.

28
‐ 10 ‐ 

1.

1

Statutory Time Period.

2

The Government contends that Li was required to demonstrate good moral

3

character from September 4, 1999, through May 5, 2005. Doc. 25 at 8. Li admits that

4

she was interviewed by a USCIS officer on April 18, 2005 (Doc. 16 at ¶ 24; Doc. 20 at

5

¶ 24). The Government contends that Li gave false testimony during this interview and

6

thus was not a person of good moral character during the statutory time period. Li denies

7

that the interview took place during the statutory time period. Doc. 20 at ¶ 54; Doc. 16 at

8

¶ 54. Li did admit, however, that she filed her Form N-400 application for Naturalization

9

on September 24, 2004 (Doc. 16 at ¶ 17; Doc. 20 at ¶ 17), and that she was admitted to

10

U.S. citizenship on May 5, 2005 (Doc. 16 at ¶ 25; Doc. 20 at ¶ 25). Thus, according to

11

the pleadings and 8 U.S.C. § 1427(a), the Court finds that the statutory time period ran

12

between September 24, 1999, five years prior to the date Li submitted her N-400

13

application, and May 5, 2005, the date of her admission to citizenship. Because the

14

April 18, 2005 interview took place during this period, it occurred within the statutory

15

time period.

16

2.

False Testimony.

17

Except for admitting that she was convicted of violating 18 U.S.C. § 1015(a)

18

(Doc. 20 at ¶ 52; Doc. 16 at ¶ 52), Li’s answer denies the factual allegations underlying

19

Count I (Doc. 20 at ¶¶46-51, 53-47).

20

statement under oath during the April 2005 interview (Doc. 20 at ¶¶ 25, 47), but the

21

Court accepts the allegation of a false statement as true based on Li’s judicially noticed

22

plea agreement and the elements of § 1015(a).

Specifically, Li denies having made a false

23

Li also denies that she made any oral false statement during the interview as

24

required to satisfy the false “testimony” requirement for revocation of citizenship under 8

25

U.S.C. § 1101(f)(6). Doc. 20 at ¶ 47; Kungys, 485 U.S. at 780. While Li did admit in her

26

plea agreement to having “stated under penalty of perjury that every statement contained

27

in my naturalization petition was correct, knowing that certain statements in my

28

naturalization petition . . . were false or intentionally misleading” (Doc. 25-3 at 3), and
‐ 11 ‐ 

1

the Court thereby could infer that a false statement was made during the oral interview in

2

April of 2005, the Court may take judicial notice of the truth of only those facts essential

3

to a conviction under § 1015(a), Young, 697 F.3d at 988, and an oral false statement is

4

not required, United States v. Youssef, 547 F.3d 1090, 1091-93 & 1095 (9th Cir. 2010)

5

(affirming conviction under § 1015(a) for knowingly making a written false statement in

6

an immigration application). The Court therefore cannot take judicial notice of the fact

7

that Li made an oral false statement during the statutory period.4

8

Moreover, the Government’s amended complaint fails to allege the one false

9

statement the Court could view as having been made orally – Li’s statement that “every

10

statement contained in my naturalization petition was correct.” Doc. 25-3 at 3. The

11

amended complaint alleges only that Li “made several false statements and material

12

omissions in her application for naturalization.” Doc. 16 at ¶ 53 (emphasis added); see

13

also Doc. 16 at ¶¶ 48-51.

14

The Government has failed to establish in its motion for judgment on the

15

pleadings that Li provided false testimony within the meaning of 8 U.S.C. § 1101(f)(6).

16

The Court therefore will deny the motion on Count I.

17

B.

18

Under

Count VI.
8

U.S.C.

§

1451(a)’s

second

basis

for

denaturalization,

the

19

misrepresentations or concealments must be both willful and material. Kungys, 485 U.S.

20

at 767. “So understood, the provision plainly contains four independent requirements:

21

the naturalized citizen must have misrepresented or concealed some fact, the

22

misrepresentation or concealment must have been willful, the fact must have been

23

material, and the naturalized citizen must have procured citizenship as a result of the

24
25
26
27
28

4

The Government argues in its reply brief that the Court must infer that the
statement was made orally because naturalization interviews must be conducted orally,
see 8 C.F.R. §§ 316.14(a), 335.2(c), and the Court must infer that such interviews are
conducted in accordance with applicable regulations, Brown v. Plata, 131 S.Ct. 1910,
1965 (2011). The Court will not consider arguments raised for the first time in a reply
brief. Bach v. Forever Living Prods. United States, Inc., 473 F. Supp. 2d 1110, 1122 n. 6
(W.D. Wash. 2007) (citing Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 n. 6 (9th Cir.
2004)); see Gadda v. State Bar of Cal., 511 F.3d 933, 937 n. 2 (9th Cir. 2007).
‐ 12 ‐ 

1

misrepresentation or concealment.” Id.
1.

2

Misrepresented or Concealed Some Fact.

3

The Government argues that the first element is established by Li’s guilty plea and

4

conviction. Doc. 25 at 16. Li contends that she did not make a misrepresentation or a

5

concealment of fact, and that the Government is wrong as a matter of fact and law in

6

arguing that she misrepresented facts concerning her marital status and marital history

7

because she never intended to marry Chen. Doc. 37 at 22. The Court agrees with the

8

Government and finds that Li’s conviction for making a false statement establishes this

9

element.

10

2.

Willfulness.

11

“[A]n alien who seeks to obtain immigration status by misrepresenting a material

12

fact has done so ‘willfully’ if the misrepresentation was deliberate and voluntary.”

13

Arango, 670 F.3d at 995 (quoting Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.

14

1977) (noting that intent to deceive is not required and that knowledge of the falsity of a

15

representation is sufficient)). The Government argues that Li’s conviction for knowingly

16

making a false statement in violation of 18 U.S.C. § 1015(a) establishes that she did so

17

willfully for purposes of 8 U.S.C. § 1451(a). Doc. 25 at 16. Li contends that this does

18

not follow, and cites Bryan v. United States, 524 U.S. 184, 191-94 (1998), for the

19

proposition that “willfully” and “knowingly” are distinct terms. Doc. 37 at 22-23. The

20

Court disagrees with Li.

21

Bryan dealt with “willfully” and “knowingly” in a criminal context unrelated to an

22

immigration proceeding.

In Forbes v. INS, the Ninth Circuit determined that the

23

requirement of a willful misrepresentation was established by the petitioner having been

24

aware that he should have answered differently. 48 F.3d 439, 442 (9th Cir. 1995). In

25

Arango, the Ninth Circuit found that a willful misrepresentation had not been established

26

where the petitioner believed that the immigration officer had read his file and was aware

27

of the fraudulent nature of his marriage, and therefore failed to bring up the topic during

28

his naturalization interview. 670 F.3d at 995. Unlike Arango, Li admitted to knowingly
‐ 13 ‐ 

1

making a false statement, an admission sufficient to show that she acted deliberately,

2

voluntarily, and willfully.

3

3.

Materiality.

4

A misrepresentation or concealment is material to one’s naturalization if clear,

5

unequivocal, and convincing evidence shows that that the misrepresentation or

6

concealment “ha[s] a natural tendency to produce the conclusion that the applicant was

7

qualified.” Kungys, 485 U.S. at 772 (“predictably capable of affecting” or “natural

8

tendency to influence”). Materiality under § 1451(a) is an issue of law. Id. In United

9

States v. Puerta, the Ninth Circuit applied a heightened materiality requirement in the

10

context of denaturalization and held that the Government must also produce sufficient

11

evidence to raise a fair inference that the applicant was ineligible. 982 F.2d 1297,

12

1303-04 (9th Cir. 1992).

13

The Court finds that the disclosure of Li’s marital history would predictably have

14

had a natural tendency to influence the decision of the USCIS. In seeking to raise a “‘fair

15

inference’ of ineligibility,” id. at 1304, the Government contends that Li concealed her

16

bigamous marriage and that bigamy is a crime involving moral turpitude, a disqualifying

17

act. Doc. 25 at 17. Li responds that she did not commit bigamy, and, even if she had,

18

bigamy is not a disqualifying crime of moral turpitude. Doc. 37 at 24-25.

19

Bigamy is a crime of moral turpitude, Gonzales-Martinez v. Landon, 203 F.2d

20

196, 197 (9th Cir. 1953), but the Government has not identified the specific criminal

21

bigamy statute Li allegedly violated (Doc. 37 at 19, n. 13). If it is California law, the

22

parties appear to agree that bigamy under California law requires intent (Doc. 42 at 13;

23

Doc. 37 at 18; see CAL. FAM. CODE § 2201, and People v. Vogel, 299 P.2d 850 (Cal.

24

1956) (one must have “wrongful intent” to commit bigamy”)), and Li denies that she ever

25

intended to commit bigamy (Doc. 37 at 18-19). Given this record, the Court cannot

26

conclude, merely from the fact of two marriages, that Li committed bigamy under an

27

unspecified statute and thereby draw the inference that she was ineligible to naturalize.

28

The inference may be reasonable on a more complete record, but the Court cannot draw it
‐ 14 ‐ 

1

on the basis of these pleadings. The Government argues that Li’s denial of an intent to

2

commit bigamy is not plausible, citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), but

3

the Court cannot reach such a plausibility conclusion on the basis of these pleadings,

4

particularly when it must construe the pleadings in favor of Li and against the

5

Government. Living Designs, Inc., 431 F. 3d at 360.

6

The Court concludes that the Government has not met its burden of establishing

7

the materiality of the false statement. The Court will deny the motion for judgment on

8

the pleadings on Count VI.

9
10
11

IT IS ORDERED that the Government’s motion for judgment on the pleadings
(Doc. 25) is denied.
Dated this 14th day of January, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
‐ 15 ‐