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United States v. Phattey

United States Court of Appeals, Ninth Circuit

December 5, 2019

United States of America, Plaintiff-Appellee,
v.
Phoday Baba Phattey, a.k.a. Foday Fatty, Defendant-Appellant.

          Submitted August 5, 2019 [*] Anchorage, Alaska

          Appeal from the United States District Court for the District of Alaska No. 3:17-cv-00247-JWS-MMS John W. Sedwick, District Judge, Presiding.

          Nicolas A. Olano and Lara E. Nations, Nations Law Group, Anchorage, Alaska, for Defendant-Appellant.

          Joseph F. Carilli, Jr., Trial Attorney; Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, District Court Section; Timothy M. Belsan, Chief, National Security & Affirmative Litigation Unit; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

          Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.

         SUMMARY [**]

         Immigration

         Affirming the district court's grant of summary judgment in favor of the government, the panel held that the five-year statute of limitations set out by 28 U.S.C. § 2462, which generally applies to actions to enforce civil penalties, does not apply to denaturalization proceedings.

         In 2010, Phoday Phattey was issued a certificate of naturalization. In 2017, the government learned that Phattey had obtained his citizenship by fraud and filed a complaint to revoke naturalization under 8 U.S.C. § 1451(a). Although § 1451(a) does not contain a statute of limitations, Phattey argued that the five-year statute of limitations set out by 28 U.S.C. § 2462 applies to revocation proceedings and that, therefore, the statute of limitations to bring the denaturalization action had expired.

         Observing that the Supreme Court has long held that revocation of citizenship is not a penalty, the panel held that § 2462 does not provide Phattey a statute-of-limitations defense because denaturalization is not a penalty for purposes of § 2462. The panel rejected Phattey's argument that the relevant precedent had been superseded by Kokesh v. SEC, 137 S.Ct. 1635 (2017), in which the Supreme Court concluded that § 2462 applies to disgorgement actions brought by the Securities Exchange Commission. The panel observed that the Supreme Court set out two principles in Kokesh: 1) whether a sanction represents a penalty turns in part on whether the wrong sought to be addressed is a wrong to the public or a wrong to an individual; and 2) a pecuniary sanction operates as a penalty only if it is sought for the purpose of punishment, and to deter others from offending.

         The panel explained that, although the wrong sought to be redressed by denaturalization is a wrong to the public, revocation of citizenship is not sought for the purpose of punishment or to deter future violations. Rather, the purpose of denaturalization is to remedy a past fraud by taking back a benefit to which the alien is not entitled and thus restoring the status quo ante.

          OPINION

          IKUTA, CIRCUIT JUDGE

         This appeal raises the question whether the revocation of citizenship on the ground that the grant of citizenship was "illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation," 8 U.S.C. § 1451(a), constitutes a "penalty" for purposes of the five-year statute of limitations generally applicable to civil fines, penalties, and forfeitures, see 28 U.S.C. § 2462. Because the purpose of denaturalization is to remedy a past fraud by taking back a benefit to which an alien is not entitled, see ...


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