Lifeng Wang v. Leon Rodriguez
2016 U.S. App. LEXIS 13665
| 9th Cir. | 2016Background
- Lifeng Wang, a lawful permanent resident, pled guilty in 2005 to trafficking in counterfeit goods under 18 U.S.C. § 2320(a) based on sale/distribution of counterfeit software; restitution of $93,611 was ordered to Microsoft.
- Wang later applied for naturalization (2010); USCIS denied the application, concluding her § 2320 conviction was an aggravated felony involving fraud/deceit with loss over $10,000 under 8 U.S.C. § 1101(a)(43)(M)(i), permanently barring naturalization.
- Wang sought de novo review in district court; both parties moved for summary judgment. The district court sided with USCIS, holding § 2320 necessarily involves fraud or deceit and that loss exceeded $10,000.
- Wang appealed. The Ninth Circuit reviewed de novo whether § 2320 is categorically a crime that "involves fraud or deceit" for purposes of subsection (M)(i), applying the categorical approach and circumstance-specific inquiry for loss.
- The Ninth Circuit concluded § 2320's definition of a "counterfeit mark" (use "likely to cause confusion, to cause mistake, or to deceive") encompasses non-fraudulent conduct (e.g., post-sale confusion), so a conviction under § 2320 does not necessarily involve fraud or deceit.
- Court reversed the district court and remanded for further proceedings, leaving open the separate question of whether the victim loss exceeded $10,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 2320 conviction "necessarily entail[s] fraud or deceit" for 8 U.S.C. § 1101(a)(43)(M)(i) | Wang: § 2320 can be violated without fraud or deceit (covers confusion/mistake, post-sale confusion), so it is not categorically an aggravated felony | Government: § 2320 criminalizes trademark counterfeiting that necessarily involves fraud/deceit and thus qualifies as an aggravated felony | Held for Wang: § 2320 does not necessarily involve fraud or deceit; conviction cannot categorically be an aggravated felony under (M)(i) |
Key Cases Cited
- Kawashima v. Holder, 132 S. Ct. 1166 (Sup. Ct.) (categorical approach to determine whether offense necessarily involves fraud or deceit)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (presume conviction rests on least culpable conduct)
- Nijhawan v. Holder, 557 U.S. 29 (Sup. Ct.) (circumstance-specific approach for measuring victim loss)
- United States v. Torkington, 812 F.2d 1347 (11th Cir.) (post-sale confusion can satisfy counterfeit statute)
- United States v. Yamin, 868 F.2d 130 (5th Cir.) (actual confusion not required; potential to cause confusion suffices)
- United States v. Foote, 413 F.3d 1240 (10th Cir.) (conviction upheld despite seller advertising goods as reproductions)
- United States v. Gantos, 817 F.2d 41 (8th Cir.) (conviction upheld though seller told buyer items were copies)
- Tall v. Mukasey, 517 F.3d 1115 (9th Cir.) (distinguished — state statute wording differs and involved CIMT analysis rather than aggravated felony)