United States v. Anish Dave

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 13, 2016
Decided June 20, 2016
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-3329
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:13-cv-08867
ANISH DAVE, ALSO KNOWN AS
ANISH NARENDRAKUMAR PATEL, Jorge L. Alonso,
Defendant-Appellant. Judge.
ORDER
This is a straightforward immigration appeal brought by Anish Dave, who was
born in India and later naturalized as a United States citizen in 2005. Before he was
naturalized, Dave was charged with aggravated criminal sexual assault of a minor, and
he pleaded guilty to this charge after he was naturalized. As this order will discuss,
Dave was statutorily ineligible for naturalization when he received his certificate of
citizenship. We therefore affirm the district court’s decision, based on Dave’s illegal
procurement of his citizenship, to grant summary judgment in the government’s favor.
No. 15-3329 Page 2
Dave was a lawful permanent resident when he applied for naturalization on
May 17, 2004. Four days later, he had intercourse with a 15-year-old girl in Illinois. He
was 25. Within another week, Dave was arrested and charged with aggravated criminal
sexual abuse of a minor. As his criminal case unfolded, Dave was interviewed for
naturalization in February 2005, and his naturalization application was approved that
month. The parties disagree on whether Dave properly disclosed his Illinois criminal
charge during this process. Dave became a naturalized citizen in March 2005.
One year after receiving naturalized citizenship, Dave pleaded guilty in Illinois
state court to aggravated criminal sexual abuse of a minor. The statute under which he
was charged defines the crime as “commit[ting] an act of sexual penetration or sexual
conduct with a victim who is at least 13 years of age but under 17 years of age [when]
the [defendant] is at least 5 years older than the victim.” 720 ILCS 5/11-1.60(d). By
pleading guilty, Dave acknowledged that he sexually abused the 15-year-old girl with
whom he had intercourse. The Illinois court sentenced Dave to 24 months of probation.
In December 2013, the United States filed this civil suit against Dave, asking the
court to find that Dave was statutorily ineligible for naturalization when his citizenship
was conferred. The government filed a motion for summary judgment, which Dave
opposed. He urged that he did not commit a crime of moral turpitude, which would
have statutorily disqualified him for naturalization. He further argued that, if his crime
had been known to United States Citizenship and Immigration Services (USCIS), there
would still be a genuine question of material fact over whether USCIS would have
denied his application for citizenship. The district court granted summary judgment in
the government’s favor, and Dave now appeals that judgment to this court.
Denaturalizing an American citizen is not done lightly, given the value placed on
the right to acquire citizenship and given the severely unsettling consequences that can
flow from a divested citizenship. See Fedorenko v. United States, 449 U.S. 490, 505 (1981);
see also United States v. Firishchak, 468 F.3d 1015, 1023 (7th Cir. 2006). The government
bears the heavy burden of justifying revocation by evidence that is “clear, unequivocal,
and convincing” and does not leave “the issue in doubt.” Fedorenko, 449 U.S. at 505
(citations and internal marks omitted). As the Supreme Court has emphasized, “Any
less exacting standard would be inconsistent with the importance of the right that is at
stake.” Id. at 505–06. Yet we are also obligated to protect strict compliance with every
congressional requirement for naturalization. Id. at 506. If an applicant fails to satisfy
any condition, his certificate of citizenship is illegally procured and can be set aside. Id.
No. 15-3329 Page 3
To be statutorily eligible for naturalization in the United States, an applicant
must be “a person of good moral character” during the five years leading up to the
filing date of his naturalization application. 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10(a)(1).
Committing a crime which reflects adversely on the applicant’s moral character will
disqualify the applicant from obtaining citizenship. 8 C.F.R. § 316.10(b)(3)(iii).
Committing a crime of moral turpitude will also render the applicant ineligible. 8 C.F.R.
§ 316.10(b)(2)(i).
Dave chose to have intercourse with a 15-year-old girl, who was legally unable to
consent because this society has decided to protect its minors from sexual abuse. Under
the relevant Illinois statute, the minimum age difference that can be punished is a 22-
year-old molesting a 16-year-old. In this case, the facts are even worse than what the
statute would punish: Dave was 25, while his victim was 15. This is a crime under
Illinois law; this is a crime which reflects adversely on his moral character.
We thus apply Section 316.10(b)(3)(iii) in a direct manner: by pleading guilty to
aggravated criminal sexual abuse of a minor, Dave admitted a crime which reflected
adversely on his moral character. 1 By admitting this crime which reflected adversely on
his moral character, Dave rendered himself statutorily ineligible for naturalization in
this country. As a result, Dave’s guilty plea disqualified him from naturalization before
he received it. We recognize that the district court found a factual dispute regarding
what Dave disclosed to USCIS. Yet whether or not Dave told USCIS that he was facing a
sexual-abuse charge, the law dictates the same outcome. The independent fact of his
crime required, and continues to require, that Dave cannot hold citizenship.
In short, we find no genuine issue of material fact in this case. Dave was
statutorily ineligible for naturalization, which requires setting aside his certificate of
citizenship. The district court’s judgment in the government’s favor is thus AFFIRMED.
1
While Dave also appeals the district court’s finding that he committed a crime of moral
turpitude under Section 316.10(b)(2)(i), we do not reach the moral-turpitude issue because we conclude
that Dave was statutorily ineligible for naturalization under Section 316.10(b)(3)(iii).