Submitted August 5, 2019 [*] Anchorage, Alaska
from the United States District Court for the District of
Alaska No. 3:17-cv-00247-JWS-MMS John W. Sedwick, District
Nicolas A. Olano and Lara E. Nations, Nations Law Group,
Anchorage, Alaska, for Defendant-Appellant.
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.
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.
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.
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the relevant precedent had been superseded by Kokesh v.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
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.
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