Nanje v. Chaves

United States Court of Appeals
For the First Circuit

No. 15-2254

JANARIUS ELANJWE NANJE,

Petitioner, Appellant,

v.

LUIS CHAVES, Lawrence Field Office Director,
United States Citizenship and Immigration Services, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Judith G. Dein, U.S. Magistrate Judge]

Before

Torruella, Selya and Thompson,
Circuit Judges.

Todd C. Pomerleau, with whom Rubin Pomerleau P.C. was on
brief, for appellant.
Emma C. Winger and Wendy S. Wayne on brief for the
Massachusetts Committee for Public Counsel Services Immigration
Impact Unit and the National Immigration Project of the National
Lawyers Guild, amici curiae.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellees.

September 9, 2016
 SELYA, Circuit Judge. The lead-in to a serialized radio

program, wildly popular in the mid-1900s, warned that "the weed of

crime bears bitter fruit." In his quest for naturalization (which

rests at the epicenter of this appeal), the petitioner has learned

that hard lesson at first hand. The tale follows.

I. BACKGROUND

Petitioner-appellant Janarius Elanjwe Nanje is a native

of Cameroon who has been a lawful permanent resident of the United

States since 2002. In March of 2005, he was charged in a

Massachusetts court with two counts of filing false health care

claims, one count of larceny, and one count of attempted larceny

all in violation of various Massachusetts statutes.

The record reflects that the appellant submitted a claim

to Harvard Pilgrim Health Care (Harvard Pilgrim) for reimbursement

of medical expenses allegedly incurred during a trip to Cameroon.

Harvard Pilgrim took the appellant at his word and paid him $11,965

without investigating his claim. When the appellant submitted a

second claim for an even larger sum, however, Harvard Pilgrim

investigated and, with the help of a federal agent stationed in

Cameroon, determined that the appellant had not received any of

the care for which reimbursement was sought. The second claim was

denied, the first claim was deemed fraudulent, and the matter was

turned over to the authorities.

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 The appellant ultimately pleaded guilty to one count of

filing a false health care claim, in violation of Mass. Gen. Laws

ch. 175H, § 2; one count of larceny, in violation of Mass. Gen.

Laws ch. 266, § 30(1); and one count of attempted larceny, in

violation of Mass. Gen. Laws ch. 274, § 6.1 The Boston Municipal

Court (the BMC) continued the case for nine months without a

finding and ordered the appellant to pay $12,000 in restitution.2

The court did not allocate the restitution among the counts of

conviction. By April of 2006, the appellant had paid the full

restitution amount and his case was dismissed.

In the meantime, the appellant had filed a petition for

naturalization with the appropriate agency, United States

Citizenship and Immigration Services (USCIS). He was scheduled to

attend a naturalization hearing in 2011 but — having been advised

1 This final count was charged under the general attempt
statute. Throughout, however, the parties have described the
offense as attempted larceny.

2 A continuance without a finding occurs when the defendant
agrees to satisfy particular terms during a probationary period
without an express finding of guilt. See United States v. Mensah,
737 F.3d 789, 793 n.4 (1st Cir. 2013) (citing Mass. Gen. Laws ch.
278, § 18). As long as the defendant satisfies the imposed terms,
his case will be dismissed when the probationary period expires.
See id. The BMC's continuance without a finding nonetheless serves
as a conviction for present purposes: where, as here, an alien
admits "sufficient facts to warrant a finding of guilt" and a
judicial officer orders some form of punishment, the Immigration
and Nationality Act (INA) treats the matter as a conviction. See
8 U.S.C. § 1101(a)(48)(A); Herrera-Inirio v. INS, 208 F.3d 299,
304 (1st Cir. 2000).

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that his criminal record not only might thwart his quest for

naturalization but also might render him deportable — he withdrew

his application before any hearing was held.

Faced with this unwelcome prospect, the appellant tried

in various ways to revise his criminal record. We chronicle only

those efforts that are relevant to this appeal.

In December of 2010, the appellant (represented by new

counsel) moved in the BMC to vacate his admission to sufficient

facts. He maintained that his lawyer had failed to inform him of

the immigration consequences of his plea, thus depriving him of

the effective assistance of counsel. See Padilla v. Kentucky, 559

U.S. 356, 366-69 (2010); see also Commonwealth v. Saferian, 315

N.E.2d 878, 882-83 (Mass. 1974). The BMC denied the motion,

concluding that even if counsel's performance was objectively

unreasonable, no cognizable prejudice resulted. The appellant

eschewed any appeal of this adverse ruling.

Early in 2012, the appellant moved to amend the sentence

in the criminal case. That motion sought an order to the effect

that the $12,000 restitution amount should be considered equally

divided between the false health care and larceny counts.

"[R]earranging the restitution amount amongst the counts in the

complaint," the appellant asserted, would protect his ability to

become a naturalized citizen because the amount of restitution

paid with respect to the false health care count would be less

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than $10,000. In July of 2012, the BMC entered a one-line order

allowing the appellant's motion to clarify the docket with respect

to the amount of restitution that applied to each count.

With this supplementary order in place, the appellant

again applied for naturalization. USCIS denied this renewed

application in March of 2013. It concluded that the appellant had

been convicted of an aggravated felony (the false health care

charge) and was therefore unable to demonstrate good moral

character — a prerequisite for naturalization. See 8 U.S.C.

§ 1101(a)(43)(M)(i) (classifying as an aggravated felony any

offense that involves fraud or deceit in which the loss to the

victim exceeds $10,000). Although USCIS acknowledged that the BMC

had subsequently split the appellant's restitutionary obligation

evenly between the false health care and larceny counts, it

nevertheless determined that the record reflected a loss to the

victim of the false health care claim of more than $10,000.

In response, the appellant requested a hearing before

the agency. After the hearing was held — but before USCIS issued

its final decision — the appellant returned to the BMC and filed

yet another motion in November of 2013. This motion sought to

"clarify" his sentence, asking the court to specify that the total

amount of loss attributable to the false health care charge was no

more than $6,000 and that this sum was separate and distinct from

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the amount of loss attributable to the larceny charge.3 The court

obliged, signing an order to that effect in January of 2014 (the

2014 Order).

That same month, USCIS again denied the appellant's

petition for naturalization. In so ruling, USCIS reiterated that

the record established that the appellant had been convicted of an

aggravated felony. In its view, then, the appellant remained

ineligible for naturalization.

The appellant did not go quietly into this bleak night.

Instead, he filed a petition for judicial review in the federal

district court. See 8 U.S.C. § 1421(c). The parties agreed to

proceed before a magistrate judge. See 28 U.S.C. § 636(c); Fed.

R. Civ. P. 73(a). In due course, they cross-moved for summary

judgment.

In his motion, the appellant argued that his petition

for naturalization had been improperly rebuffed because — even

though he had been convicted of a crime of fraud or deceit — the

2014 Order established that the amount of loss to the victim of

that crime was less than $10,000. The government demurred, arguing

that the totality of the circumstances plainly supported USCIS's

3 One impetus for this motion was the appellant's apparent
concern that the earlier order of the BMC might be disregarded by
USCIS because it dealt with "restitution" rather than "amount of
loss." See, e.g., Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir.
2003) (acknowledging that restitution amounts might not reflect
amount of loss).

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finding that the amount of loss to the victim (Harvard Pilgrim)

exceeded $10,000. Following oral argument, the court denied the

appellant's motion and granted the government's motion. See Nanje

v. Chavez, 134 F. Supp. 3d 544, 556 (D. Mass. 2015). This timely

appeal ensued.

II. ANALYSIS

The statutory provision that authorizes judicial review

of USCIS's decision entitled the appellant to de novo review in

the district court. See 8 U.S.C. § 1421(c); see also Aparicio v.

Blakeway, 302 F.3d 437, 445 (5th Cir. 2002). We, in turn, afford

de novo review to the district court's entry of summary judgment

in favor of the government in this naturalization case. See

Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013); Chan v.

Gantner, 464 F.3d 289, 292 (2d Cir. 2006) (per curiam). The

conventional summary judgment paradigm requires the moving party

to show that "there is no genuine dispute as to any material fact"

and that he is "entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a). A reviewing court reads the record in the light

most hospitable to the non-moving party and draws all reasonable

inferences in his favor. See Gomez v. Stop & Shop Supermkt. Co.,

670 F.3d 395, 396 (1st Cir. 2012).

Here, the parties quarrel over whether this conventional

framework applies in the naturalization context. The appellant

asserts that it does. The government disagrees, noting that "it

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has been universally accepted that the burden is on the alien

applicant to show his eligibility for citizenship in every

respect." Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).

It adds that "doubts should be resolved in favor of the United

States and against the claimant." Id. (internal quotation marks

omitted).

We need not resolve this contretemps. The parties agree

on the facts, and neither has suggested that any additional facts

outside the existing record bear on the salient issues.4 Moreover,

in this case all roads lead to Rome: even if we assume, favorably

to the appellant, that all reasonable inferences are to be drawn

in his favor, his appeal fails.

The INA provides that "[n]o person . . . shall be

naturalized" unless he can show that he is "a person of good moral

character." 8 U.S.C. § 1427(a)(3); see Berenyi, 385 U.S. at 636-

37. Persons who have been convicted of aggravated felonies are

categorically disqualified from attempting to show good moral

character. See 8 U.S.C. § 1101(f)(8). An aggravated felony is an

4
Given that all of the pertinent facts were before the
district court on the cross-motions for summary judgment, it would
have been prudent for the court to advise the parties that it
planned to decide the case as a case stated. See, e.g., TLT
Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st Cir. 2007);
EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 (1st
Cir. 1995); see also Pac. Indem. Co. v. Deming, ___ F.3d ___, ___
(1st Cir. 2016) [No. 15-2386, slip op. at 7-9]. That course of
action would have rendered irrelevant any question about the
contours of the summary judgment standard in a naturalization case.

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offense that "involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000." Id. § 1101(a)(43)(M). Filing

a false health care claim is therefore considered a crime of fraud

or deceit.5 See Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012)

(explaining that crimes that "necessarily entail fraudulent or

deceitful conduct" fall within this statutory taxonomy).

It is undisputed that the appellant was convicted of a

crime involving fraud or deceit (namely, filing a false health

care claim). The critical issue here is whether the loss

attributable to that crime exceeded $10,000. The appellant argues

that, in resolving this issue, USCIS was required to give the 2014

Order dispositive weight and erred in looking beyond this order.

We do not agree.

The beacon by which we must steer is the Supreme Court's

decision in Nijhawan v. Holder, 557 U.S. 29 (2009). There, the

Court fashioned a circumstance-specific approach for determining

whether a particular crime of fraud or deceit caused losses greater

than $10,000. See id. at 36-38. The Court started with the

premise that the INA's monetary threshold could be crossed even if

a particular crime did not require a loss of $10,000 or more as an

5
In contrast, larceny is not considered a crime of fraud or
deceit. See De Vega v. Gonzales, 503 F.3d 45, 49-50 (1st Cir.
2007). That is presumably why the appellant made so determined an
effort to allocate a substantial portion of the loss to the larceny
charge.

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element of the offense. See id. at 38-40. "Rather, the monetary

threshold applies to the specific circumstances surrounding an

offender's commission of a fraud and deceit crime on a specific

occasion." Id. at 40. Thus, a court tasked with assessing the

amount of loss must consider not only findings of fact made by

juries and judges but also other facts in the record. See id.

Employing Nijhawan's circumstance-specific approach, it

is luminously clear that Harvard Pilgrim's loss was greater than

$10,000. After all, only a single false claim was honored — and

that claim, on its face, was for more than $10,000. Moreover, the

record shows, without any hint of contradiction, that Harvard

Pilgrim paid the appellant $11,965 in satisfaction of that

fraudulent claim for reimbursement. In addition, the record shows

that Harvard Pilgrim later paid around $8,000 to investigate the

appellant's fraudulent claims. To cap matters, the appellant

admitted to essentially these facts when he entered his guilty

plea, and he indicated a willingness at that time to pay a full

$20,000 in restitution.

Given this historical record, we cannot fault USCIS's

determination that the appellant's false health care claim caused

more than $10,000 in losses. Indeed, the totality of the relevant

circumstances admits of no other reasonable conclusion.

The appellant protests this circumstance-specific

approach and labors to distinguish Nijhawan. His case is

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distinguishable, he submits, because the BMC's 2014 Order found a

specific amount of loss. In his view, the Full Faith and Credit

Clause, U.S. Const. art. IV, § 1, and its implementing statute, 28

U.S.C. § 1738, demand that USCIS ignore the other circumstances

and give dispositive weight to the BMC's statement.

The appellant cites no authority — and we are aware of

none — for the proposition that the Full Faith and Credit Clause

compels a federal court (or a federal agency, for that matter) to

give non-essential findings of fact in state court proceedings

conclusive weight.6 We reject that ambitious proposition and hold

that the 2014 Order is but one circumstance to be considered in

the circumstance-specific analysis that Nijhawan requires.

The appellant gains no traction through his reliance on

our decision in Rodriguez v. INS, 204 F.3d 25 (1st Cir. 2000). In

Rodriguez, we upheld a decision of the Board of Immigration Appeals

(the BIA) ordering an alien's removal due to marriage fraud. See

id. at 26. The BIA had relied, inter alia, on a state court's

annulment of the alien's marriage based on a finding of fraudulent

intent to evade the immigration laws. See id. at 28. In denying

the alien's petition for review, we observed that the state court's

6 Of course, the situation might be different if the federal
government had been a party to the state court proceedings such
that principles of claim preclusion or issue preclusion applied.
See, e.g., R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182-83
(1st Cir. 2006). Those principles are inapposite here.

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judgment terminating the alien's marriage was entitled to full

faith and credit and that the finding within it (that the alien

had engaged in marriage fraud) was a "presumption plus." See id.

We were careful, however, to note that the factual finding was not

entitled to dispositive weight. See id. The same is true here.

Nor does the inclusion of the 2014 Order in the mix of

relevant circumstances tip the decisional scales. The BMC entered

the 2014 Order years after the crime was committed, years after

the appellant pled guilty, years after the nine-month continued-

without-a-finding period had elapsed, years after the appellant

had paid the full restitution amount, and years after the criminal

case had been dismissed. There was no longer anything at stake in

the criminal case, and the BMC's statements about amount of loss

were not essential to either its judgment of conviction or any

outstanding restitution order. Rather — in the appellant's own

words — those statements were "purely administrative." We reject

the notion that non-essential statements of fact in an order issued

years after a defendant's sentence has been imposed and carried

out are entitled to dispositive weight in the Nijhawan

circumstance-specific calculus.

If more were needed — and we doubt that it is — the case

at hand fits neatly alongside our opinion in Conteh v. Gonzales,

461 F.3d 45 (1st Cir. 2006). There, we stated that "when a

restitution award has been artificially manipulated for the sole

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purpose of influencing an alien's immigration status, that award

is not controlling with respect to the amount of loss." Id. at

61-62. The record here shows unmistakably that the appellant filed

the series of post-conviction motions solely to (in his lawyer's

words) "allow him to pursue his desire to become a U.S. citizen."

These motions were filed years after his criminal case was closed

and his restitution obligation satisfied. The BMC's further orders

were useful to the appellant (if at all) only insofar as they might

affect his immigration status. To deny that these maneuverings

were anything but artificial manipulations of his restitution

record would be to blink reality.

We summarize succinctly. Our review of the record

convinces us that USCIS properly undertook a circumstance-specific

analysis and, in the course of that analysis, appropriately

discounted the appellant's attempts at revisionist history. We

discern no error: giving dispositive weight to nunc pro tunc orders

entered by state courts years after the fact — orders that do not

fairly address the issues in the state case — would afford state

courts carte blanche to shield defendants from federal immigration

laws with the stroke of a pen. That is not the law. Cf. Fierro

v. Reno, 217 F.3d 1, 6 (1st Cir. 2000) (noting that "Congress'

rules for naturalization must be applied as they are written, and

a state court has no more power to modify them on equitable grounds

than does a federal court or agency").

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III. CONCLUSION

We need go no further.7 In the case at hand, the record

compels the conclusion that the appellant's fraud-and-deceit crime

caused a loss to the victim of more than $10,000. It follows

inexorably that both USCIS's denial of naturalization and the

district court's approval of that denial are impervious to the

appellant's attack.

Affirmed.

7
Throughout, the appellant, supported by the amici, has
suggested that reliance on the original record of his conviction
is especially problematic because he received ineffective
assistance of counsel in the plea-bargaining process. See, e.g.,
Padilla, 559 U.S. at 366-69. But the BMC has already addressed
this claim head-on and found it wanting. The appellant chose not
to appeal the BMC's decision. Consequently, the Padilla question
cannot be revisited here. See Gouveia v. INS, 980 F.2d 814, 817
(1st Cir. 1992) ("Criminal convictions cannot be collaterally
attacked during immigration proceedings.").

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