United States v. Sammy Yetisen

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 19-35200
Plaintiff-Appellee, D.C. No. 3:18-cv-00570-HZ
District of Oregon,
v. Portland
SAMMY RASEMA YETISEN, AKA ORDER
Rasema Handanovic, AKA Zolja,
Defendant-Appellant.
Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,* District
Judge.
The government’s motion to amend the Memorandum filed on August 12,
2021, is granted as follows:
1. On page 3, lines 10-11, replace “looks backward from the date of application
for naturalization” with “applies to the five years immediately preceding the
date of filing of an application for naturalization, as well as from the date of
filing the application until the applicant is admitted to citizenship. See
Dang, 488 F.3d at 1139.”
2. On page 3, lines 11-13, replace “Yetisen had not been convicted of any
crime as of the date of her application, these conviction-based bars to
*
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
establishing good moral character cannot apply.” with “Yetisen had not been
convicted of any crime as of the date of her naturalization, so 8 U.S.C. §
1101(f)(8) and 8 C.F.R § 316.10(b)(1)(i) do not apply, and because the
relevant conduct occurred before the statutory period, the parties agree that 8
U.S.C. § 1101(f)(3) does not apply.1”
3. On page 3, insert footnote 1: “The parties disagree whether 8 U.S.C. §
1101(f)(3) requires that the applicant have been convicted of or admitted
guilt for the offense during the statutory period. We need not address this
issue because the parties agree that the provision does not apply here.”
An Amended Memorandum is filed concurrently with this order. Judge
Rawlinson takes no position on the amendments.
No future petitions for rehearing or rehearing en banc may be filed in
response to the amended disposition.
2
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-35200
Plaintiff-Appellee, D.C. No. 3:18-cv-00570-HZ
v.
AMENDED MEMORANDUM*
SAMMY RASEMA YETISEN, AKA
Rasema Handanovic, AKA Zolja,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Argued and Submitted October 6, 2020
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District
Judge.
Concurrence by Judge RAWLINSON
Defendant-Appellant Sammy Yetisen appeals the district court’s order
granting the government’s motion for judgment on the pleadings, and revoking her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
citizenship. We reverse and remand.
The government may commence a denaturalization proceeding “if the
citizen’s naturalization was (1) ‘illegally procured,’ or (2) ‘procured by
concealment of a material fact or by willful misrepresentation.’” United States v.
Dang, 488 F.3d 1135, 1139 (9th Cir. 2007) (quoting 8 U.S.C. § 1451(a)). The
government must prove by “clear, unequivocal, and convincing” evidence that the
applicant did not meet the legal criteria for naturalization at the time of application.
Id. (quoting Fedorenko v. United States, 449 U.S. 490, 505 (1981)).
The government moved for judgment on the pleadings on counts four and
five. Count four alleged that Yetisen illegally procured her citizenship, asserting
that her participation in the 1993 Trusina murders precluded her from establishing
the good moral character required for naturalization. Count five alleged that
Yetisen procured her citizenship through willful misrepresentation and
concealment of material facts. The district court granted the government’s motion
as to count four and entered judgment revoking Yetisen’s naturalization. The
district court did not address the allegations in count five.
We review de novo a district court’s judgment on the pleadings. United
States v. Teng Jiao Zhou, 815 F.3d 639, 642 (9th Cir. 2016). “A judgment on the
pleadings is properly granted when, ‘taking all the allegations in the pleadings as
true, the moving party is entitled to judgment as a matter of law.’” Gregg v.
2
Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017) (quoting Nelson v.
City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998)).
1. The district court erred in granting the government judgment on the
pleadings as to count four. Naturalization is “illegally procured” if the applicant
did not possess the statutory requirements for citizenship, including good moral
character, at the time of naturalization. 8 U.S.C. §§ 1451(a), 1427(a). The district
court based its order on three provisions that bar an applicant from establishing
good moral character when the applicant “was” or “has been” convicted of
specified crimes. See 8 U.S.C. §§ 1101(f)(3), (f)(8); 8 C.F.R § 316.10(b)(1)(i).
Each of these provisions applies to the five years immediately preceding the date
of filing of an application for naturalization, as well as from the date of filing the
application until the applicant is admitted to citizenship. See Dang, 488 F.3d at
1139. Yetisen had not been convicted of any crime as of the date of her
naturalization, so 8 U.S.C. § 1101(f)(8) and 8 C.F.R § 316.10(b)(1)(i) do not apply,
and because the relevant conduct occurred before the statutory period, the parties
agree that 8 U.S.C. § 1101(f)(3) does not apply.1
2. A presumptive finding of a lack of good moral character under 8 C.F.R. §
1The parties disagree whether 8 U.S.C. § 1101(f)(3) requires that the applicant
have been convicted of or admitted guilt for the offense during the statutory period.
We need not address this issue because the parties agree that the provision does not
apply here.
3
316.10(b)(3)(iii), when an applicant has committed “unlawful acts” during the
relevant statutory period, also does not apply to Yetisen’s conviction. In applying
the limitations in 8 C.F.R. § 316.10(b)(3)(iii), we have held that when an applicant
commits criminal acts during the relevant statutory period, such acts can show that
the applicant lacks good moral character, even if a conviction for the wrongful acts
occurs post-naturalization. See Dang, 488 F.3d at 1137–38, 1141; Zhou, 815 F.3d
at 643–44. In contrast, Yetisen participated in the Trusina killings in 1993, before
the start of the five-year statutory period. Thus, 8 C.F.R. § 316.10(b)(3)(iii) could
not have barred Yetisen from establishing good moral character on the date of her
naturalization.2
Because the bars to establishing good moral character for convictions or
criminal acts committed during the statutory period do not apply to Yetisen, the
district court erred in granting judgment on the pleadings as to count four in favor
of the government.
Notably, the government does not defend the district court’s reasoning.
Instead, the government argues that under the catch-all provision of 8 U.S.C. §
1101(f), Yetisen’s participation in the Trusina killings “deprive her per se of good
2
As the government acknowledges, criminal or other wrongful conduct postdating
naturalization is irrelevant to a naturalized citizen’s moral character at the time of
naturalization, and provides no basis for denaturalization. Cf. Zhou, 815 F.3d at
644.
4
moral character.” The catch-all provision, however, simply provides that a person
who falls outside the enumerated per se categories may nevertheless be found to
lack good moral character. See 8 U.S.C. § 1101(f) (“The fact that any person is not
within any of the foregoing classes shall not preclude a finding that for other
reasons such person is or was not of good moral character.”). The fact that the
government “may”—but is not required to—consider out-of-period conduct does
not establish that any such conduct is necessarily disqualifying. See 8 U.S.C. §
1427(e); 8 C.F.R. § 316.10(a)(2); cf. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.
1997) (“Apart from the per se categories, . . . whether an alien has good moral
character is an inquiry appropriate for the Attorney General’s discretion.”). The
government could have, at the time of Yetisen’s application, exercised its
discretion to consider her out-of-period crimes, found her moral character wanting,
and denied her application.3 It did not do so. The government cannot now,
however, retroactively exercise that discretion to argue that Yetisen illegally
procured her citizenship because she lacked good moral character, as a matter of
law, all along.
3. The district court concluded that the delay between Yetisen’s return to the
United States following imprisonment in Bosnia and the government’s
3
Whether Yetisen deprived the government of that opportunity by concealing or
misrepresenting her crimes raises questions pertinent to count five, discussed
below.
5
commencement of denaturalization proceedings “does not implicate a laches
defense.” In light of our disposition, we need not address whether laches can be
raised as a defense to a denaturalization proceeding, or whether Yetisen’s laches
defense should succeed. The parties and the court may revisit this issue on
remand.
4. The government argues that it is entitled to judgment on the basis of the
pleadings related to count five. The district court did not address this count, and
we decline to address this issue. Given the serious consequences of revoking
Yetisen’s citizenship, the district court on remand should address this claim in the
first instance.
REVERSED AND REMANDED.
6
FILED
United States v. Yetisen, No. 19-35200
OCT 12 2021
Rawlinson, Circuit Judge, concurring in the judgment:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that this case should be remanded for the district
court to consider whether the government may denaturalize Defendant-Appellant
Sammy Yetisen on the basis that she is a war criminal. I do not join any other
portions of the disposition.
1