Awad v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2009
No. 08-60583 Charles R. Fulbruge III
Summary Calendar Clerk
JAMAL M AWAD
Plaintiff-Appellant
v.
ERIC H HOLDER, JR; BUREAU OF CITIZENSHIP AND IMMIGRATION
SERVICES, Department of Homeland Security
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:06-cv-870
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jamal M Awad, pro se, appeals the district court’s denial of his application
for naturalization. For the following reasons, we affirm.
I. BACKGROUND
Awad arrived in the United States in 1991. He was granted asylum in
1992 and became a lawful permanent resident in 1994. In January 1999, Awad
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60583
applied for naturalization. The Department of Homeland Security (“DHS”)1
interviewed him in March 1999 and later rejected his application. During his
interview, a DHS representative asked Awad if he had ever been arrested. He
conceded that he had—“for family matters”—which was consistent with the
disclosures in his naturalization application. The DHS discovered, however, that
Awad had been charged with embezzlement sometime in 1994 (the “1994
embezzlement charge”), which he had not disclosed.2 The DHS found that, by
failing to disclose this prior charge, Awad had provided false statements in an
effort to obtain naturalization. Because of his embezzlement charge and his
failure to disclose it, the DHS denied Awad’s naturalization application.
Awad filed an administrative appeal, contending that his application was
denied due to a lack of information and his misunderstanding the questions
asked of him. Awad asserted that the 1994 embezzlement charge stemmed from
a civil dispute between him and a customer of his auto-body shop. Moreover, the
charge had been reduced to “trespass less than larceny,” to which Awad had
pleaded guilty. Awad argued that his failure to disclose this charge was an
insufficient ground for denying his application. The DHS granted Awad a
hearing and reopened his application March 2000.
In October 2003, while Awad’s appeal was pending, he pleaded guilty to
conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 371, 1341,
and 1343 (the “2003 federal conspiracy conviction”). Awad was sentenced to
twelve months’ imprisonment and ordered to pay $63,485.82 in restitution. DHS
1
Some of the events concerning Awad’s case involve the Immigration and
Naturalization Service. As of March 1, 2003, however, many of the Service’s duties have been
transferred to the DHS. See Zaidi v. Ashcroft, 374 F.3d 357, 358 n.1 (5th Cir. 2004) (per
curiam). For clarity’s sake, we refer only to the DHS as the relevant government agency
throughout this opinion.
2
Although the DHS’s decision is unclear on this point, it appears to have believed that
Awad pleaded guilty to this charge.
2
No. 08-60583
later served Awad with a Notice to Appear, asserting that he was deportable as
an alien convicted of an aggravated felony due to his 2003 federal conspiracy
conviction. An immigration judge eventually ordered Awad deported. The
Board of Immigration Appeals dismissed Awad’s administrative appeal, and this
court denied Awad’s petition for review. See Awad v. Gonzales, 235 F. App’x 203
(5th Cir. 2007).
In July 2006, the DHS affirmed its original denial of Awad’s naturalization
application and reiterated its original reasoning. The DHS found that Awad was
convicted of a crime during the five years prior to his naturalization application,
apparently in reference to Awad’s embezzlement charge and the concomitant
guilty plea to a reduced charge. The DHS also stated that Awad had failed to
disclose nine arrests during his naturalization interview.3 Finally, the DHS
noted that Awad had been convicted of conspiracy to commit mail and wire fraud
after filing his application. Not persuaded by Awad’s explanation for his false
statements, the DHS again denied Awad’s naturalization application.
Awad, proceeding pro se, sought review of this decision in the Southern
District of Mississippi. See 8 U.S.C. § 1421(c) (authorizing federal district courts
to review naturalization applications de novo). The district court agreed with
the DHS and, on the government’s motion for summary judgment, held that
Awad was ineligible for naturalization as a matter of law. Awad now appeals.
II. DISCUSSION
We review a grant of summary judgment de novo, applying the same
standard as the district court. Shepherd v. Comptroller of Pub. Accounts, 168
F.3d 871, 873 (5th Cir. 1999). Because Awad is proceeding pro se, we liberally
construe his arguments. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam).
3
The record does not appear to contain evidence of all nine arrests.
3
No. 08-60583
On appeal, Awad does not directly challenge the district court’s decision.
But, broadly construing his brief, we find therein two general arguments. First,
Awad contends that the DHS and the district court erred in denying his
naturalization application. Second, he argues that the DHS’s six-year delay in
adjudicating his administrative appeal entitles him to relief in the form of
naturalization nunc pro tunc—that is, naturalization before his 2003 conviction.
We address each in turn.
A. Awad’s Naturalization Application
As a necessary prerequisite to obtaining naturalization, an applicant must
demonstrate that he or she is a person of good moral character during both the
five years prior to filing a naturalization application and the period between
filing the application and admission to citizenship. See 8 U.S.C. § 1427(a); 8
C.F.R. § 316.10(a). Although “good moral character” lacks a singular definition,
Congress and the DHS have set out conditions under which an applicant is
precluded from demonstrating the requisite good moral character. Of particular
relevance to the present case, giving false testimony to obtain naturalization
forecloses a finding of good moral character, see 8 U.S.C. § 1101(f)(6); 8 C.F.R.
§ 316.10(b)(2)(vi), as does a conviction for an aggravated felony, see 8 U.S.C.
§ 1101(f)(8).
Like the district court, we need look only to Awad’s failure to disclose his
1994 embezzlement charge and concomitant guilty plea to a lesser charge. The
district court affirmed the denial of Awad’s naturalization application on the
ground that he had given false testimony to obtain naturalization. Because
Awad had not disclosed this charge in his application, the district court
concluded that the DHS did not err in finding that he lacked the requisite good
moral character. We find no error in the district court’s conclusion. Moreover,
as the government notes, Awad is currently statutorily ineligible for
naturalization due to his 2003 federal conspiracy conviction, an aggravated
4
No. 08-60583
felony. See 8 U.S.C. § 1101(a)(43)(M) (defining an aggravated felony as including
an offense involving “fraud or deceit in which the loss to the victim or victims
exceeds $10,000”). Consequently, the district court did not err in affirming the
denial of Awad’s naturalization application.
B. DHS’s Delay in Deciding Awad’s Administrative Appeal
Awad raises several issues with the DHS’s taking six years to adjudicate
his administrative appeal. Awad contends that this delay was unreasonable and
suggests that it entitles him to naturalization nunc pro tunc. Awad essentially
argues that he was eligible for naturalization in March 2000, when his
application was reopened on administrative appeal. At this point, Awad
suggests, the DHS had a duty to decide his administrative appeal in a timely
manner. Its failure to do so, however, meant that Awad was not naturalized at
the time of his 2003 federal conspiracy conviction. This conviction rendered
Awad deportable and precluded him from establishing the good moral character
necessary to obtain naturalization. Awad asserts that if the DHS had decided
his appeal within a reasonable amount of time—that is, before his 2003 federal
conspiracy conviction—it would have determined Awad to be a person of good
moral character and granted his application. Moreover, because Awad would
have been a naturalized citizen at the time of his 2003 conviction, that conviction
would not have rendered him deportable. Thus, according to Awad, the court
should order the Government to approve his naturalization application nunc pro
tunc, thereby turning back the clock on both his citizenship and deportation.
We need not inquire into the DHS’s delay or what relief—if any—this
court could order, as Awad is mistaken in his assertion that he was entitled to
naturalization in March 2000. Although the DHS reopened his case on
administrative appeal, Awad has not demonstrated that he was entitled to
naturalization at that time. Moreover, the DHS and district court denied Awad’s
naturalization application due to his failure to disclose his 1994 embezzlement
5
No. 08-60583
charge and the concomitant guilty plea to a lesser charge. It therefore appears
that the 2003 federal conspiracy conviction was not necessary for DHS to
ultimately deny Awad’s application. Indeed, in Awad’s administrative appeal,
the DHS did not base its decision solely on Awad’s 2003 federal conspiracy
conviction. Instead, the DHS stated that Awad was ineligible for naturalization
under 8 U.S.C. § 1101(f)(6), which precludes the naturalization of anyone who
has made a false statement under oath to obtain a benefit under the
Immigration and Nationality Act. In the DHS’s eyes, Awad was statutorily
ineligible for naturalization upon his failure to disclose his 1994 embezzlement
charge. Although Awad attempted to explain his nondisclosure, the DHS later
found his explanation to be insufficient. Consequently, even without the 2003
federal conspiracy conviction, the DHS would have denied Awad’s naturalization
application. The delay in adjudicating his appeal, then, did not deprive Awad
of anything to which he was entitled.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is AFFIRMED.
6