BLANCA ESTELLA ORELLANA, Plaintiff-Appellant, v. ALEJANDRO MAYORKAS, Secretary of Homeland Security; TRACY RENAUD, Acting Director, U.S. Citizenship and Immigration Services; ROBERT LOONEY, San Francisco/San Jose District Director, U.S. Citizenship and Immigration Services, Defendants-Appellees.
No. 20-16092
United States Court of Appeals for the Ninth Circuit
Filed July 28, 2021
D.C. No. 4:19-cv-05759-DMR. Argued and Submitted March 8, 2021 San Francisco, California
Appeal from the United States District Court for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Opinion by Judge Ikuta
SUMMARY**
Immigration
The panel affirmed the district court’s dismissal of Blanca Orellana’s complaint challenging the United States Citizenship and Immigration Services’ denial of her application for naturalization because the complaint did not plausibly plead that Orellana had not been convicted of an offense that involves fraud or deceit in which “the loss to the victim or victims exceeds $10,000,”
The panel held that, under the circumstance-specific approach, the district court is not limited to reviewing the record in the applicant’s criminal case. The panel observed that Nijhawan did not expressly address whether a court could consider evidence beyond sentencing-related materials to determine loss. However, the panel concluded that the logic of Nijhawan made clear that the Supreme Court’s rules limiting the evidence that can be considered in cases involving the categorical approach (where a court is limited to reviewing the language of the statute of conviction) and the modified categorical approach (where a court is limited to reviewing a narrow category of documents to determine which part of a divisible statute is at issue) do not apply in this circumstance-specific context. Instead, the court must determine whether the actual conduct underlying the state
However, the panel concluded that Orellana’s complaint did not plausibly allege that the loss to Ocadian did not exceed $10,000. Observing that the loss must be tethered to the offense of conviction, the panel explained that Count 3 of the criminal complaint, Orellana’s offense of conviction, charged her with concealing the fact she had engaged in outside employment. Orellana, however, contended the only loss incurred by Ocadian that was tethered to Count 3, as opposed to counts that were dismissed in her criminal case, was at most the $5,010.98 in payments reflected in the printout of checks.
In light of its holding that a district court is not per se precluded from considering documents beyond criminal records, and the principle that a district court may consider materials outside the pleadings where, as here, they have been incorporated by reference into the complaint, the panel concluded that it could consider the printout. However, the panel concluded that the complaint itself undermined Orellana’s theory because the complaint alleged that, in addition to the payments of $5,010.98, Ocadian also incurred $5,146 in legal and investigation costs. The panel concluded these costs, which together exceeded $10,000, were tethered to Count 3 because Ocadian incurred these costs due to Orellana’s concealment of her employment. The panel also
COUNSEL
Kevin M. Crabtree (argued), Fuerza Immigration Lawyers LLP, Oakland, California, for Plaintiff-Appellant.
T. Monique Peoples (argued), Senior Litigation Counsel; Elianis N. Perez, Assistant Director; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
The United States Citizenship and Immigration Services (USCIS) denied an application for naturalization because the applicant had been convicted of “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”
I
According to her complaint, Blanca Orellana is a citizen of El Salvador. She has resided in the United States since 1990 and has been a lawful permanent resident since February 2003.
In February 2002, while working for Ocadian Care Center, Orellana injured her neck, right hand, left hand, right foot, and back. Orellana received emergency room treatment in February 2002, and was subsequently treated by several different physicians. Orellana filed a disability claim with Ocadian, claiming that the injuries she sustained from this incident left her unable to work. Ocadian accepted the claim, and Orellana began receiving temporary disability payments from Ocadian in February 2002. Ocadian also paid for Orellana’s ongoing medical treatment, which included therapy for her upper extremities, treatment for her right foot and ankle, and assistive devices (splints for both wrists and an elbow sleeve). As of December 2, 2002, Ocadian had paid $37,957.64. In connection with these injuries, Orellana also filed an application with the Workers’ Compensation Appeal Board (WCAB).
In May 2003, Orellana pleaded guilty to Count 3, and Counts 1 and 2 were dismissed subject to a Harvey waiver.2 She was ordered “to make restitution for damages as to Count(s) 3 in an amount and manner to be determined by the probation officer and ordered by the court,” as well as “to make restitution on counts, cases, and uncharged matters dismissed with Harvey waiver.”
In connection with the restitution proceedings, Ocadian provided a letter stating that as of August 4, 2003, Ocadian had paid $56,000 for Orellana’s claim and had “paid
In December 2004, the WCAB approved a separate agreement settling Orellana’s workers’ compensation claim against Ocadian. Under the agreement, the parties agreed that Orellana’s claim against Ocadian would be settled for $42,700. The $30,000 restitution payment to Ocadian would be deducted from this amount.
Years later, Orellana applied for naturalization. In January 2018, the USCIS denied her application based on its determination that Orellana’s state conviction for insurance fraud was an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”
In September 2019, Orellana filed suit in the district court, seeking to compel the USCIS to adjudicate her then-pending administrative appeal of the denial of her naturalization application. After the USCIS reaffirmed its decision to deny her application for naturalization, Orellana amended her complaint to challenge the USCIS’s determination. In the operative complaint, Orellana referenced documents that had not been part of the record in her criminal case. In particular, the complaint relied on a printout that it claimed listed the checks Ocadian sent to Orellana for the period between February 4, 2002 and February 2, 2003. According to the complaint, the printout showed that for the period between February 20, 2002 and August 14, 2002, Ocadian paid Orellana $5,010.98.
The district court dismissed the complaint without prejudice on the ground that Orellana failed to plead facts sufficient to show that she had not been convicted of an offense involving “fraud or deceit in which the loss to the victim or victims exceeds $10,000,”
After Orellana informed the court that she did not intend to file an amended complaint, the court entered final judgment, and Orellana brought this appeal.
II
We have jurisdiction to review the district court’s judgment under
On appeal, Orellana’s central argument is that the district court erred in declining to consider the printout, which provided evidence of the payments she received from Ocadian between February 20, 2002 and August 14, 2002. Because Orellana’s eligibility for naturalization turns on a showing that her prior conviction is not “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”
We consider this issue in the context of the Supreme Court’s evidentiary rules for determining whether a person’s prior state conviction qualifies as a generic federal offense described in the relevant federal statute.
First, under the categorical approach, a court must determine only whether the defendant was convicted under a criminal statute that categorically matches the generic federal offense, without considering the particular facts underlying the defendant’s conviction. Taylor, 495 U.S. at 600. When engaging in this analysis, a court considers only the statutory language of the criminal statute of conviction and the generic federal offense, and may not consider any evidence relating to the defendant’s conduct. Id. at 600–01; see also Descamps v. United States, 570 U.S. 254, 261 (2013).
Second, if the criminal statute of conviction is divisible, meaning it “sets out one or more elements of the offense in the alternative,” a court must address a single factual question: “which of the [alternative] statutory offenses (generic or non-generic) formed the basis of the defendant’s conviction.” Descamps, 570 U.S. at 257, 265. To make this determination, a court may review only a narrow category of documents, such as “the indictment or information and jury instructions or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or some comparable judicial record of the factual basis for the plea.” Nijhawan, 557 U.S. at 35 (cleaned up). The court may not look at other evidence to determine what crime the person actually committed, because that would amount to a collateral trial. Shepard v. United States, 544 U.S. 13, 23 (2005).
Nijhawan established a third approach, which it referred to as a “circumstance-specific” approach. 557 U.S. at 34. In considering
The Court rejected the alien’s argument that “fairness requires the evidentiary limitations” of the modified categorical approach. Id. at 41. The Court noted that aliens were already protected by procedural safeguards, including the Third Circuit’s rule that “loss to the victim” for purposes of
Although Nijhawan did not expressly address the question whether a court could consider evidence beyond sentencing-related materials introduced in immigration or judicial proceedings to determine the “loss to the victim,” the logic of Nijhawan makes clear that the Supreme Court’s rules limiting the evidence that can be considered in categorical cases do not apply in this circumstance-specific context. Because the “loss to the victim” inquiry in
The government argues that because Nijhawan relied solely on sentencing-related materials, a court may not consider documents beyond the record of the underlying criminal case. We disagree. Here, “nothing in prior law” limits the evidence that may be considered by the district court in its review of the denial of an application for naturalization, including its determination of the amount of the victim’s loss under “the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.” Nijhawan, 557 U.S. at 40–41. Although the materials at issue in Nijhawan included only sentencing-related materials, the Supreme Court did not limit its holding to that category of materials, or otherwise suggest that the nature of the materials was significant. Accordingly, a district court may consider any materials, subject only to the
B
Having determined that the district court was not precluded from considering evidence beyond the records underlying Orellana’s state criminal case, we now turn to the question whether the district court erred in dismissing Orellana’s complaint for failure to state a claim. We may affirm the dismissal upon any basis fairly supported by the record. See Burgert v. Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000).
The relevant framework for establishing eligibility for naturalization is set forth in
If the application is again denied, the applicant “may seek review of such denial” before a district court.
To survive a motion to dismiss a complaint in district court, a person challenging the denial of an application for naturalization must file a complaint that alleges “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Said otherwise, the allegations in the complaint must “plausibly
Where, as here, a plaintiff’s prior state conviction is at issue, a district court is not per se precluded from considering documents beyond the criminal case records relating to that conviction. See supra Section II.A. Nevertheless, the district court generally may not consider material outside the pleadings at the motion to dismiss stage, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), unless the documents have been incorporated into the complaint by reference, or are matters of which a court may take judicial notice, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). “Although mere mention of the existence of a document is insufficient to incorporate the contents of a document, the document is incorporated when its contents are described and the document is integral to the complaint.” Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018) (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)) (internal quotation marks omitted).
We now apply these principles to Orellana’s case. To survive a motion to dismiss, Orellana’s complaint and the documents incorporated by reference must allege facts that, taken in the light most favorable to Orellana, show that her conviction under
According to Orellana, her complaint plausibly alleges that “the actual loss amount caused by her conduct was at most $5,010.98, based on the sum total of the checks paid to her by Ocadian during the time period she was alleged to have failed to report outside income in the criminal complaint.” This argument is based on the financial details printout described in the complaint. We may consider the printout because the document is incorporated by reference in the complaint, despite the fact that it is not part of the records in Orellana’s criminal case. See supra Section II.A. The printout lists payments made to Orellana on a biweekly basis from February 4, 2002 to February 2, 2003. The complaint reprints a subset of the entries in the printout for the payments made during the period from February 20, 2002 through August 14, 2002 (the time period referenced in Count 3), and states that the “total of the above payments made during this
We disagree, because the complaint itself undermines Orellana’s theory of the case and renders it implausible. See Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 999 & n.8 (9th Cir. 2014) (holding that where allegations in the complaint were internally inconsistent, the allegations supported “at best—a ‘possible’ basis to believe [plaintiffs’ theory], not a ‘plausible’ one”). The complaint alleges that in addition to Ocadian’s payments of $5,010.98 to Orellana, Ocadian incurred $5,146 in legal and investigation costs leading to the discovery of Orellana’s fraud. Specifically, the complaint alleged that the investigator surveilled Orellana, which resulted in a report to the local district attorney that Orellana was employed during the period she claimed she was not working. Because Ocadian incurred these costs due to Orellana’s concealment of the fact that she was engaged in outside employment during the period from February 20, 2002 through August 14, 2002, these costs are tethered to Count 3. Accordingly, the complaint indicates that the losses to Ocadian, including its
Furthermore, as set out in the complaint, Ocadian was owed $30,000 from Orellana for restitution. Orellana argues that this $30,000 loss is not necessarily related to Count 3, the count of conviction, because the Harvey waiver in her criminal case supports the inference that the $30,000 in restitution was attributable to the dismissed counts. But even assuming that some part of the $30,000 is attributable to losses caused by Counts 1 and 2, the complaint does not raise a plausible inference that the loss attributable to Count 3 was less than or equal to $10,000. Orellana has not “explained what losses resulted from the dismissed counts or how those losses were calculated into the $30,000 restitution agreement.”
Taking all the allegations in the complaint together, the complaint fails to plausibly allege that the loss to Ocadian did not exceed $10,000. Iqbal, 556 U.S. at 678. At best, the complaint raises a “sheer possibility” that the losses did not exceed this amount, but when a complaint’s allegations are merely consistent with the plaintiff’s theory of relief, the complaint cannot survive a motion to dismiss. Id.
***
Accordingly, we hold that Orellana failed to state a plausible claim that the total loss to the victim of her violation of
AFFIRMED.
Notes
Count 3 states, in full:
Count: 003, for a further and separate cause of complaint, being a different offense from but connected in its commission with the charge set forth in Count 002, complainant further complains and says: on or about February 20, 2002 and through August 14, 2002, the crime of concealment of material fact affecting insurance benefit, in violation of section 550(b)(3) of the penal code, a misdemeanor was committed by Blanca Estela Orellana, in that said defendant(s) did conceal and knowingly fail to disclose the occurrence of an event and series of events that affected defendant’s initial and continued right or entitlement to insurance benefits or payments, and the amount of any benefits or payments to which defendant(s) was entitled, to wit: outside employment, sources of income.