United States v. Muthara ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 11, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3024
(D.C. No. 2:15-CV-09091-CM)
ERNEST NJAGI MUTHARA, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
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Ernest Njagi Muthara appeals the district court’s order revoking his citizenship
and canceling his certificate of naturalization. See 8 U.S.C. § 1451(a). We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
Mr. Muthara was born in Kenya. He became a permanent resident of the
United States in 2005 and a naturalized citizen in July 2008. Nearly seven years
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
later, the government initiated denaturalization proceedings against him, alleging he
had illegally procured his citizenship because (1) he was not lawfully admitted for
permanent residence, (2) he failed to live in marital union with his United States
citizen spouse, (3) he concealed material facts and made willful misrepresentations in
connection with his naturalization application and interview, and (4) he failed to
demonstrate good moral character by providing false testimony related to his
naturalization application.
The district court held a bench trial and concluded that each ground supported
revoking Mr. Muthara’s citizenship. Mr. Muthara argues that the district court erred
by ruling that (1) he willfully submitted a fraudulent divorce decree, (2) he willfully
misrepresented that he lived at the same address as his wife, (3) he willfully
misrepresented the number of children he had, and (4) he lacked good moral
character. We affirm because his third and fourth arguments lack merit and each of
these grounds supports revocation.
II. Analysis
“In an appeal from a bench trial, we review the district court’s factual findings
for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of
Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001).
The government may bring denaturalization proceedings under § 1451(a)
against a naturalized citizen who has “illegally procured” his citizenship or has
procured it “by concealment of a material fact or by willful misrepresentation.”
Failure to “compl[y] with all the congressionally imposed prerequisites to the
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acquisition of citizenship . . . renders the certificate of citizenship illegally procured.”
Fedorenko v. United States, 449 U.S. 490, 506 (1981) (internal quotation marks
omitted). The concealment provision is satisfied where “the naturalized citizen [has]
misrepresented or concealed some fact, the misrepresentation or concealment [is]
willful, the fact [is] material, and the naturalized citizen . . . procured citizenship as a
result of the misrepresentation or concealment.” Kungys v. United States, 485 U.S.
759, 767 (1988). “The evidence justifying revocation of citizenship must be clear,
unequivocal, and convincing and not leave the issue in doubt.” Fedorenko, 449 U.S.
at 505 (internal quotation marks omitted).
It is undisputed that in August 2007, Mr. Muthara, while claiming to be
married to a U.S. citizen, had a child with a woman who was not his wife. Yet he did
not disclose the child’s existence on his naturalization application or during the
naturalization interview. Although Mr. Muthara was present for the child’s birth and
is listed as the father on her birth certificate, which he signed, he argues that he
initially had reason to doubt his paternity. He also argues that “the issue of
paternity/parentage under Kansas laws is not closed because the child after attaining
majority may petition the court to make a determination of her parentage.” Aplt.
Opening Br. at 13. Before the district court, however, he stipulated that he is the
child’s father. The district court properly concluded that Mr. Muthara willfully
misrepresented the number of children he had in sworn testimony during his
naturalization interview. Indeed, in his opening brief Mr. Muthara concedes that due
to his daughter’s pronounced resemblance to him, “he was no more doubting
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paternity” by February 2008, two months before the interview. Id. at 6. Mr. Muthara
does not challenge the district court’s conclusions that he obtained an immigration
benefit and that the misrepresentation was material, so we will not consider those
issues. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he
omission of an issue in an opening brief generally forfeits appellate consideration of
that issue.”). Thus, we discern no basis for reversing the district court’s conclusion
that the concealment provision was satisfied by clear and convincing evidence.
Further, because “[n]o person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral character is
required to be established . . . has given false testimony for the purpose of obtaining
[immigration] benefits,” 8 U.S.C. § 1101(f)(6), the district court also properly
concluded that revocation was supported on the basis of Mr. Muthara’s lack of good
moral character. See United States v. Sheshtawy, 714 F.2d 1038, 1041 (10th Cir.
1983) (“[I]n denaturalization proceedings, section 1101(f)(6) applies . . . to false
testimony concerning material facts.”).
III. Conclusion
We affirm the district court’s judgment. We deny Mr. Muthara’s motions to
seal, see 10th Cir. R. 30.1(D)(6), because despite two orders from this court directing
him to address whether sealing could be avoided by redaction, he has not done so,
see Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135-36
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(10th Cir. 2011) (noting the strong presumption in favor of public access to judicial
records).
Entered for the Court
Bobby R. Baldock
Circuit Judge
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