[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2005
No. 04-10144 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-22057-CV-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIONEL JEAN-BAPTISTE,
Defendant-Appellant.
___________
Appeal from the United States District Court
for the Southern District of Florida
___________
(January 4, 2005)
Before BIRCH, KRAVITCH and CUDAHY*, Circuit Judges.
CUDAHY, Circuit Judge:
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
The right to acquire United States citizenship is precious and coveted and its
successful exercise rarer than many aspirants would hope for. See Fedorenko v.
United States, 449 U.S. 490, 505 (1981). Accordingly, when the government
seeks to strip citizenship from one who has acquired it, denaturalization
proceedings can have “severe and unsettling consequences.” Id. Here, we address
the question whether a naturalized citizen who committed certain unlawful acts
during the statutory period prior to taking the oath of allegiance but for which he
was indicted, arrested and convicted after naturalization stands to lose his precious
acquisition for lack of good moral character. Unfortunately, the answer is yes.
I.
Lionel Jean-Baptiste is a Haitian citizen and native who was paroled into
the United States on September 10, 1980, and became a permanent resident here
on January 1, 1982. He applied for naturalization on November 21, 1994 on the
ground that he had been a lawful permanent resident for at least five years. His
application was approved on February 13, 1996, and on April 23, 1996, Jean-
Baptiste took the oath of allegiance and became a naturalized citizen.
Unbeknownst to immigration officials, however, Jean-Baptiste had entangled
himself in a conspiracy to distribute crack cocaine at some point between March
17 and March 23, 1995, in violation of 23 U.S.C. § 841(a)(1), 18 U.S.C. § 2, and
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21 U.S.C. § 846. Jean-Baptiste was indicted for this crime by a grand jury on
October 11, 1996, was arrested on October 30, 1996, and was convicted by a jury
on January 8, 1997. He thereafter received a sentence of 97 months’
imprisonment, five years of supervised release and a $50,000 fine.
Consequently, the United States government sought to revoke Jean-
Baptiste’s citizenship on the ground that he was barred from establishing “good
moral character” under 8 U.S.C. § 1101(f) because he had committed unlawful
acts reflecting adversely upon his moral character during the statutory period.1
The district court granted summary judgment for the government, finding that
Jean-Baptiste must be denaturalized for illegally procuring his citizenship in the
face of commission during the statutory period of acts sufficient to negate and
belie a showing of good moral character. The district court stayed the order of
denaturalization so that Jean-Baptiste could pursue this appeal. We review the
1
In its first complaint filed on July 15, 2002, the government initially sought to revoke
Jean-Baptiste’s citizenship on two other grounds. Count 1 of the complaint alleged that Jean-
Baptiste had illegally procured his citizenship because he had lacked “good moral character”
during the requisite five-year period in violation of 8 U.S.C. § 1451(a) and was statutorily barred
from establishing good moral character under 8 U.S.C § 1101(f)(6) because he had provided false
testimony under oath. Count 2 of the complaint alleged that Jean-Baptiste had procured
naturalization through willful misrepresentation and concealment of his criminal conduct and
that his citizenship should be revoked under 8 U.S.C. § 1451(a). In an amended complaint filed
on December 11, 2002, the government added a third count alleging that Jean-Baptiste was
barred from establishing “good moral character” under 8 U.S.C. § 1101(f) because he had
committed unlawful acts adversely reflecting upon his moral character during the statutory
period. Finally, on May 27, 2003, the government filed a second amended complaint dismissing
Counts 1 and 2 of the first complaint, and elected to proceed only with Count 3.
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district court’s grant of summary judgment to the government de novo. O’Ferrell
v. United States, 253 F.3d 1257 (11th Cir. 2001).
II.
An applicant who seeks to become a naturalized United States citizen must
fully comply with several statutory prerequisites before taking the oath of
allegiance. Fedorenko, 449 U.S. at 506. These requirements demand that
applicants for naturalization reside continuously in the United States for at least
five years after being lawfully admitted for permanent residence; maintain
physical presence in the United States for the five years immediately preceding the
application date; reside in the United States “from the date of the application up to
the time of admission to citizenship”; and during all such periods establish and
maintain “good moral character.” 8 U.S.C. § 1427(a). In view of these
requirements, the district court concluded that applicants had to maintain good
moral character at least from the date on which the application was filed until the
date the oath of allegiance was taken.2 We concur in this interpretation.
Once applicants have complied with the arduous naturalization
2
The district court also relied on 8 C.F.R. §316.10(a)(1), which states that “[a]n applicant
for naturalization bears the burden of demonstrating that, during the statutorily prescribed period,
he or she has been and continues to be a person of good moral character. This includes the
period between the examination and the administration of the oath of allegiance.”
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requirements and have taken the oath of allegiance, they are, to use a baseball
analogy, safe at home plate. If, however, evidence later comes to light suggesting
that citizenship was illegally procured, the government may challenge the
naturalized citizen’s certificate of citizenship and demand its cancellation.
Fedorenko, 449 U.S. at 505. But the government bears a heavy burden of proof in
denaturalization proceedings, and a court should only revoke citizenship if the
government presents “clear, unequivocal, and convincing” evidence establishing
that citizenship was illegally procured. United States v. Koziy, 782 F.2d 1314,
1318 (11th Cir. 1984) (citing Fedorenko, 449 U.S. at 505). When the government
succeeds in carrying this heavy burden, a district court must revoke citizenship “on
the ground that such order and certificate of naturalization were illegally
procured.” 8 U.S.C. § 1451(a). In these circumstances, a court lacks discretion
but is compelled to enter a judgment of denaturalization. Fedorenko, 449 U.S. at
517.
A.
Before addressing the substance of this case, we note that one of Jean-
Baptiste’s arguments is not relevant to the instant appeal. Jean-Baptiste asserts
that the issue before us is whether he illegally procured his citizenship by willfully
and knowingly misrepresenting or concealing a material fact during the
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naturalization process. But, to the contrary, this case does in fact require us to
determine whether Jean-Baptiste pursued citizenship without possessing the
requisite good moral character and not to determine whether he committed fraud.
Therefore, the only fact relevant to the count contained in the government’s
second amended complaint is whether Jean-Baptiste, during the statutory period,
committed the crime of conspiring to distribute cocaine, thereby negating his
possession of good moral character.
B.
Since Jean-Baptiste committed his unlawful acts while his naturalization
application was pending, but was convicted of those offenses after he became a
naturalized citizen, the specific question here is whether the commission, in
contrast to the conviction, of a crime negates good character during the critical
statutory period. While the Immigration and Naturalization Act (INA) does not
specifically define what “good moral character” is, it quite explicitly states what it
is not. Among the entries in a non-exhaustive list of categories of persons who
cannot establish good moral character for purposes of the statute are individuals
convicted of trafficking in controlled substances and those convicted of other
crimes. 8 U.S.C. § 1101(f)(3), (8). While this section is not directly on point to
the present facts because it speaks to conviction and not to commission of a crime,
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it does illustrate what types of unlawful behavior may bar an applicant from
establishing good moral character in that context, particularly in view of the
expansive “catch-all” provision in the last section of 8 U.S.C. § 1101(f). The final
section of 8 U.S.C. § 1101(f) contains a “catch-all” provision which cautions that
“the fact that any person is not within any of the foregoing classes shall not
preclude a finding that for such reasons such person is or was not of good moral
character.”
Numerous other statutory and regulatory provisions also suggest the
contours of a definition of good moral character. Under 8 U.S.C. § 1182(a)(2),
which is referenced in 8 U.S.C. § 1101(f)(3), aliens who are inadmissible to
citizenship on criminal and related grounds include those who commit or conspire
to commit a crime of moral turpitude as well as aliens who assist others in
trafficking in controlled substances. In addition, 8 C.F.R. § 316.10, a regulation
based on 8 U.S.C. § 1101(f), sets forth additional categories of persons who
cannot establish good moral character, including applicants convicted of an
aggravated felony, a crime of moral turpitude or a controlled substance violation.
The “catch-all” provision of 8 C.F.R § 316.10(b) states that applicants who have
committed acts adversely reflecting on moral character during the statutory period
cannot establish the requisite good moral character.
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Jean-Baptiste does not deny that he was required to maintain good moral
character from the date of application until he took the oath of allegiance, but he
instead claims that he did possess good moral character throughout this period.
Jean-Baptiste was convicted of knowingly and intentionally conspiring to possess
crack cocaine with intent to distribute. This offense is an aggravated felony, a
crime of moral turpitude4 and a controlled substances violation–all categories of
offenses the commission of which bar an applicant for naturalization from
establishing the requisite good moral character.
The district court narrowed the issue by finding that Jean-Baptiste’s failure
to establish good moral character was not as an alien who was convicted of or who
admitted trafficking in controlled substances under 8 U.S.C. § 1101(f)(3) or as an
alien convicted of an aggravated felony under 8 U.S.C. § 1101(f)(8), before the
taking of the oath of allegiance. Indeed, at or before the time of his naturalization
Jean-Baptiste had not been indicted for, much less convicted of, a drug offense,
nor is there evidence to suggest that he had admitted such an act at that time.
Thus, the district court seized upon the final “catch-all” section of 8 U.S.C. §
1101(f)(8), in which Congress delegated authority to the former INS to set forth
4
See In re Khourn, 21 I & N. Dec. 1041 (BIA 1997) (holding that distribution of cocaine
in violation of 21 U.S.C. § 841(a)(1), constitutes a crime involving moral turpitude under 8
U.S.C. § 1251(a)(2)(A)(ii)).
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“other reasons” affecting determinations of good moral character. Pursuant to this
authority, Congress delegated to the Attorney General authority to issue 8 C.F.R. §
316.10, including §316.10(b)(3)(iii), which states that “the applicant shall be
found to lack good moral character if, during the statutory period, the applicant . . .
(iii) Committed unlawful acts that adversely reflect upon the applicant’s moral
character, or was convicted or imprisoned for such acts, although the acts do not
fall within the purview of § 316.10(b)(1) or (2).” This regulation is entitled to
deference. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843-44 (1984) (“if Congress has explicitly left a gap for the agency
to fill, there is an express delegation of authority to the agency to elucidate a
specific provision of the statute by regulation.”) Further, as the district court
noted, this determination is supported by case law. See, e.g., United States v.
Kiang, 2003 WL 24495 (6th Cir. 2003) (unpublished) (“8 C.F.R. § 316.10(c)(1)
represents a reasonable interpretation of the statutory requirement of good moral
character and is not ultra vires”), Deluca v. Ashcroft, 203 F.Supp.2d 1276, 1279
(M.D. Ala. 2002) (8 C.F.R. § 316.10 is a fair interpretation of Congress’
intentions); Jimenez v. Eddy, 153 F.Supp.2d 1105, 1107 (D. Ark. 2001) (stating
that 8 C.F.R. § 316.10(c)(1) is not an arbitrary or capricious interpretation of 8
C.F.R. § 316(a) and § 1101(f)). Accordingly, we affirm the district court’s well-
9
reasoned determination that, because he committed a drug offense as established
by his later conviction, Jean-Baptiste was precluded under 8 U.S.C. § 1101(f)(8),
as elaborated in 8 C.F.R. § 316.10(b)(3)(iii), from establishing good moral
character, and was therefore barred from acquiring citizenship.
B.
In an attempt to escape the consequences of his criminal act, Jean-Baptiste
argues that he is not barred by the doctrine of collateral estoppel from asserting
that he did not know at the time of his naturalization that he had committed a
crime, and contends that he would not have known that participation in the
cocaine conspiracy was a crime prior to his arrest and conviction. However,
scienter was an element of the crime of which Jean-Baptiste was convicted, and
this defeats his present claim of lack of knowledge.
Moreover, Jean-Baptiste’s arguments concerning the doctrine of collateral
estoppel are also flawed. Collateral estoppel bars a defendant who is convicted in
a criminal trial from contesting this conviction in a subsequent civil action with
respect to issues necessarily decided in the criminal trial. See Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 157 (1963); In re Bilzerian, 153 F.3d 1278,
1281 (11th Cir. 1998) (defendant convicted of securities fraud was collaterally
estopped from challenging issues litigated in criminal trial in subsequent civil
10
action brought by the SEC). For collateral estoppel to apply, the issue in question
must be “identical in both the prior and current action,” the issue must have been
“actually litigated” in the criminal trial, the determination of the issue must have
been “critical and necessary to the judgment in the prior action” and the burden of
persuasion in the subsequent action cannot be “significantly heavier.” In re
Bilzerian, 153 F.3d at 1281. The district court determined that all of these
preconditions had been satisfied and stated that the issue that the government
sought to prove in the denaturalization proceeding–Jean-Baptiste’s conspiracy to
possess crack cocaine with the intent to distribute–was the same issue it sought to
prove in the criminal trial; that Jean-Baptiste’s commission of this offense was
actually litigated and that his conviction was affirmed on appeal; that the
commission of the offense was indeed critical and necessary to the criminal
judgment; and that the “beyond a reasonable doubt” standard carried by the
government in the criminal trial was higher than its burden of “clear, unequivocal,
and convincing evidence” in the civil denaturalization proceeding. As a matter of
law therefore Jean-Baptiste was precluded from challenging his conviction or his
knowledge of having committed the crime.
C.
In a further attempt to retain his citizenship, Jean-Baptiste alleges that there
11
are sufficient extenuating circumstances to preclude denaturalization for lack of
good moral character. He asserts that, if denaturalized and deported to Haiti, he
will be placed on a government flight with other Haitian deportees with criminal
convictions and then detained and incarcerated by the Haitian government in
prisons “unfit for human habitation” because he is a “pariah” who has “lost his
chance to live in the United States.” (Defendant’s Br. at 15). Jean-Baptiste also
contends that his wife and children will suffer “extreme hardship” as a result of his
deportation, confinement and eventual death in a Haitian prison. (Id.).
Though we certainly do not take Jean-Baptiste’s concerns about future
hardships lightly, they do not involve “extenuating circumstances,” which must
pertain to his culpability for the drug crime, and its negative impact on his moral
character. See 8 C.F.R. § 316.10(b)(3); BLACK’S LAW DICTIONARY 236 (7th ed.
1999). Case law discussions of extenuating circumstances in the context of a
determination of good moral character establish that such circumstances must
pertain to the reasons showing lack of good character, including acts negating
good character, not to the consequences of these matters, including the
consequences of denaturalization. See, e.g., Rico v. INS, 262 F.Supp.2d 6
(E.D.N.Y. 2003) (finding that a naturalization applicant who did not show
extenuating circumstances affecting his DWI conviction in the statutory period
12
could not establish good moral character because he failed to accept responsibility
for his crime, failed to establish a claimed rehabilitation and lacked candor); In re
Briedis, 238 F.Supp. 149 (N.D. Ill. 1965) (discussing extenuating circumstances
that made the adulterous conduct of the naturalization applicant “merely
technical”); Petition of Spak, 164 F.Supp. 257 (D.C. Pa. 1958) (finding that
naturalization applicant lacked good moral character and no extenuating
circumstances explained his failure to provide support for his mentally deficient
child for three and one-half years). Jean-Baptiste has therefore failed to establish
extenuating circumstances going to the reasons for his denaturalization. He may
pursue further his serious concerns noted above if he becomes subject to
administrative removal proceedings under 8 U.S.C. § 1229a.
IV.
In the words of the late Supreme Court Justice Hugo Black, United States
citizenship is certainly “no light trifle to be jeopardized.” Afroyim v. Rusk, 387
U.S. 267-68 (1967). Nonetheless, upon determining that a naturalized citizen
illegally procured citizenship, the district court lacked discretion to withhold an
order of denaturalization, with all its negative consequences for the denaturalized
person and his family. Because Jean-Baptiste, through his commission of a
serious crime, lacked the good moral character requisite for naturalization, we
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must find under 8 C.F.R. § 316.10(b)(3)(iii) that his citizenship was illegally
procured, and so we must AFFIRM the judgment of the district court.
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