Ralord Tung v. Jeh Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1252
RALORD ALLAH LAO TUNG,
Plaintiff - Appellant,
v.
JEH CHARLES JOHNSON, Secretary of Homeland Security; SARAH
TAYLOR, District Director and Field Office Director, USCIS
Washington District Office; KIMBERLY ZANOTTI, District
Director and Field Office Director, USCIS Washington
District Office; LEON RODRIGUEZ, Director U.S. Citizenship
and Immigration Services; LORI SCIALABBA, Acting Deputy
Director U.S. Citizenship and Immigration Services; LORETTA
LYNCH, Attorney General U.S. Department of Justice,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:15-cv-01216-LMB-IDD)
Submitted: November 29, 2016 Decided: December 13, 2016
Before GREGORY, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Arnedo S. Valera, LAW OFFICES OF VALERA & ASSOCIATES, Fairfax,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Antonia Konkoly, Assistant United States Attorney,
Alexandria, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ralord Allah Lao Tung appeals from the district court’s
order granting summary judgment to Defendants and denying his
motion for summary judgment on his petition seeking review of
the denial by the United States Citizenship and Immigration
Services (USCIS) of his application for naturalization.
We affirm.
We review a decision denying a naturalization application
de novo and similarly review de novo a district court’s award of
summary judgment. Injeti v. USCIS, 737 F.3d 311, 315 (4th Cir.
2013). The district court’s denial of Tung’s summary judgment
motion also is subject to review in this appeal, Bauer v. Lynch,
812 F.3d 340, 351 (4th Cir.), cert. denied, ___ S. Ct. ___, No.
15–1489, 2016 WL 3219060 (U.S. Oct. 31, 2016), and, like the
award of summary judgment to Defendants, is reviewed de novo.
See Henson v. Liggett Grp., Inc., 61 F.3d 270, 274 (4th Cir.
1995). We conclude after review of the record and the parties’
briefs that the district court did not reversibly err in
granting summary judgment to Defendants, denying Tung’s motion
for summary judgment, and affirming the USCIS’ denial of Tung’s
application for naturalization.
The district court determined that Tung’s 1995 Virginia
state conviction for robbery qualified as an aggravated felony
under the Immigration and Nationality Act (INA) in that it was
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both a crime of violence and a theft offense, see 8 U.S.C.
§ 1101(a)(43)(F)-(G) (2012), that the conviction served as an
absolute bar to establishing the prerequisite of good moral
character required for naturalization, and that the waiver of
removability Tung received under former § 212(c) of the INA had
no bearing on the status of his robbery conviction as an
aggravated felony and thus no bearing on whether he could
establish good moral character. Tung v. Johnson, 159
F. Supp. 3d 677, 681-88 (E.D. Va. 2016).
On appeal, Tung argues that the district court erred in
concluding that his robbery conviction was an aggravated felony
under the INA because it does not qualify as a crime of
violence. Tung, however, does not challenge the district
court’s conclusion that his robbery conviction qualifies as an
aggravated felony under the INA because it also is a theft
offense. By failing to challenge this additional determination,
Tung has waived review of it. See Snyder v. Phelps, 580 F.3d
206, 216-17 (4th Cir. 2009). Tung thus fails to establish
reversible error in the conclusion that his robbery conviction
qualifies as an aggravated felony under the INA because it is a
theft offense, and there is no need for this court to determine
whether the conviction additionally qualifies as an aggravated
felony under the INA because it is a crime of violence.
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Next, Tung argues that, even if his robbery conviction
qualifies as an aggravated felony, the district court erred in
determining that the conviction categorically barred him from
establishing good moral character because the conviction
occurred more than five years prior to the date on which he
filed his naturalization application. See 8 U.S.C. § 1427(a)
(2012). We reject Tung’s argument in this regard as a meritless
effort that would render null applicable amendments to the INA
imposed by the Immigration Act of 1990, the Immigration and
Nationality Technical Corrections Act of 1994, and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996.
See Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts
to amend a statute, we presume it intends its amendment to have
real and substantial effect.”); Chan v. Gantner, 464 F.3d 289,
293-94 (2d Cir. 2006) (rejecting applicant’s arguments that only
the five-year period referenced in 8 U.S.C. § 1427(a) applied to
aggravated felony conviction and confirming that “an applicant
convicted of an aggravated felony is precluded under 8 U.S.C. §
1101(f)(8) [(2012)] from establishing good moral character”).
We also reject as without merit Tung’s argument that 8 C.F.R.
§ 316.10(b)(1)(ii) (2016) — which provides that any conviction
for an aggravated felony that occurred on or after November 29,
1990, is a permanent bar to naturalization — is an improper
construction of the INA. Further, because the legal support for
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Tung’s argument that the requirement of good moral character is
“forward-looking” and functions not to punish the applicant’s
past misconduct but to assess who the applicant will be as a
citizen in the future comes from non-relevant authority, we
reject this argument.
Finally, Tung challenges the district court’s determination
that the waiver he received under former § 212(c) of the INA had
no bearing on the status of his robbery conviction as an
aggravated felony and thus no bearing on whether he could
establish good moral character. We reject this challenge as
meritless as well. See 8 U.S.C. § 1429 (2012); Esquivel v.
Mukasey, 543 F.3d 919, 922 (7th Cir. 2008) (noting that a
§ 212(c) waiver merely waives the finding of excludability, not
the basis for excludability); Amouzadeh v. Winfrey, 467 F.3d
451, 458 (5th Cir. 2006) (“A waiver under section 212(c) does
not remove an aggravated felony conviction from an alien’s
record.”); Chan, 464 F.3d at 295 (noting that a § 212(c) waiver
does not pardon or expunge a prior conviction);
Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005)
(noting that the “grant of [] section 212(c) relief merely
waives the finding of deportability rather than the basis of the
deportability itself” and that “the crimes alleged to be grounds
for deportability do not disappear from the alien’s record for
immigration purposes” (internal quotation marks and alteration
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omitted)); see also Alocozy v. USCIS, 704 F.3d 795, 798
(9th Cir. 2012) (reiterating that a finding of good moral
character is “not a statutory prerequisite or necessarily a
consideration for relief under section 212(c)” (internal
quotation marks omitted)).
Tung fails to establish reversible error by the district
court, and we therefore affirm its judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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