FILED
NOT FOR PUBLICATION OCT 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAL ATALLA, M.D., No. 11-16987
Plaintiff - Appellee, D.C. No. 2:09-cv-01610-NVW
v.
MEMORANDUM*
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; JOHN
KRAMER, District Director of United
States Citizenship and Immigration
Services,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted September 12, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
Defendants United States Citizenship and Immigration Services (USCIS)
and its Director appeal the judgment of the district court following a trial in favor
of Jamal Atalla, M.D., in his action brought under 8 U.S.C. § 1421(c), seeking a
hearing de novo on the USCIS’ denial for lack of good moral character of his
naturalization application. The district court found that Atalla had not given false
testimony or given false testimony with the subjective intent to obtain an
immigration benefit, as USCIS claimed, and found, instead, that Atalla had proved
the requisite good moral character and granted his petition for naturalization. In
light of the highly deferential standard we show to the district court’s findings of
fact, we affirm.
On appeal, USCIS advances two arguments. (1) The district court clearly
erred in determining that Atalla did not provide false testimony for the purpose of
obtaining an immigration benefit during his three naturalization interviews, and,
(2) The district court committed legal error in precluding as waived the
government’s defense that Atalla committed a crime involving moral turpitude
(CIMT) by providing false testimony to the government regarding his relationship
with organizations that the U.S. government labeled as terorrist organizations after
September 11, 2001.
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1. To be eligible for naturalization, an applicant must establish, among other
things, good moral character. See 8 U.S.C. § 1427(a)(3). “No person shall be
regarded as . . . a person of good moral character who . . . has given false testimony
for the purpose of obtaining any [immigration] benefits.” 8 U.S.C. § 1101(f)(6). A
finding of good moral character is a “question of fact,” Yuen Jung v. Barber, 184
F.2d 491, 497 (9th Cir. 1950), that cannot be “set aside unless clearly erroneous . .
.” Fed. R. Civ. P. 52(a)(6). This court “may not disturb the district court’s findings
of fact unless [it] ha[s] the definite and firm conviction that the court has made a
mistake.” United States v. Hovsepian, 422 F.3d 883, 885 (9th Cir. 2005) (en banc).
The district court’s finding need only be “plausible” to be upheld: “If the district
court’s account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence differently.”
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985). “This
standard plainly does not entitle a reviewing court to reverse the finding of the trier
of fact simply because it is convinced that it would have decided the case
differently.” Id. at 573.
The record shows that Atalla answered the questions posed to him carefully
and, at times, ambiguously. For its part, the government’s approach was imprecise
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and muddled. USCIS officers mangled the text of questions during Atalla’s two
recorded interviews, failed to record or provide contemporaneous transcription of
his 2006 interview, and failed to follow up on some lines of questioning during the
two recorded ones. Upon reviewing the evidence, the district court determined that
Atalla had not given false testimony with the subjective intent of obtaining
citizenship. On this record, although the Government presents us with a close case,
we cannot conclude that the district court’s account of the evidence fell below the
low threshold of “plausib[ility]” even if this court, sitting as a trier-of-fact, would
have concluded differently. See id. at 573–74.
2. After the close of discovery, the government sought to introduce an
alternative defense that Atalla committed a CIMT by providing false testimony on
his written naturalization application regarding his relationship with terrorist
organizations. The government wished to argue that Atalla’s allegedly false
statements on his application were false statements to a federal officer under 18
U.S.C. § 1001(a)(3) and, thus, constituted a crime involving moral turpitude,
making Atalla ineligible for naturalization. 8 U.S.C. § 1101(f)(3). The trial court
found the introduction of the argument untimely and gratuitous. The government
argues this ruling constituted legal error. It did not. It was well within the district
court’s discretion to bar as untimely the introduction of new accusations of
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criminal activity after the close of discovery to avoid delaying a naturalization
process that had already spanned nearly nine years. See Campbell Indus. v. M/V
Gemini, 619 F.2d 24, 27 (9th Cir. 1980).
Accordingly, the judgment of the district court is
AFFIRMED.
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