704 F.3d 795
9th Cir.2012Background
- Alocozy, Afghan native, entered the U.S. in 1983 and became a lawful permanent resident in 1984.
- In 1990 he was charged with rape in California and, in 1991, pled nolo contendere to felonious assault with intent to commit rape.
- In 1999 INS initiated removal proceedings based on an aggravated felony conviction.
- In 2004 an IJ granted a discretionary waiver of deportation under former INA §212(c); removal proceedings were terminated.
- In 2004 Alocozy applied for naturalization; USCIS denied in 2005, and the district court granted summary judgment for USCIS; the court affirmed on de novo review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §321(b) retroactively applies the aggravated-felony bar to naturalization. | Alocozy argues retroactivity should extend to pre-1990 convictions. | USCIS argues §321(b) retroactively applies to convictions and bars naturalization. | Yes; §321(b) applies retroactively to aggravate the bar. |
| Whether a §212(c) waiver from deportation can negate the naturalization bar. | Waiver should preclude using the conviction against naturalization. | Waiver does not foreclose reliance on the underlying offense for naturalization. | Waiver does not preclude using the offense to deny naturalization. |
| Whether St. Cyr limits retroactivity or relief for naturalization. | St. Cyr prevents applying new consequences if not foreseeable at plea. | St. Cyr does not require honoring 212(c) relief in naturalization context; no settled expectation. | St. Cyr does not undermine the retroactive application and naturalization denial. |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (retroactivity and expectations in immigration relief versus naturalization)
- Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006) (waiver of deportation does not bar consideration of naturalization)
- Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993) (waiver does not preclude reliance on underlying offense for other relief)
- Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999) (conviction can affect deportation despite waiver to some relief)
- Berenyi v. Dist. Dir., INS, 385 U.S. 630 (U.S. 1967) (strong government interest in eligibility for citizenship; doubts resolved against claimant)