United States v. Marco Rebelo

394 F. App'x 850
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 20, 2010
Docket09-3998
StatusUnpublished
Cited by7 cases

This text of 394 F. App'x 850 (United States v. Marco Rebelo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marco Rebelo, 394 F. App'x 850 (3d Cir. 2010).

Opinion

OPINION

BARRY, Circuit Judge.

Marco Paulo Rebelo appeals from the District Court’s grant of the government’s motion for summary judgment and his de-naturalization. We will affirm.

I.

Because we write solely for the parties, we discuss only the facts relevant to our analysis.

In May 1995, Rebelo was involved in an altercation with a police officer that led to numerous criminal charges. In June 1995, while those charges were pending, Rebelo applied for naturalization. In his application, Rebelo indicated that he had previously been “arrested.” In the required explanation of that arrest, Rebelo wrote: “May 14, 1995 — Disorderly Persons Offense — Charges Dismissed.” By signing the application, Rebelo acknowledged, under penalty of perjury, that the contents of his application were true and correct. Re-belo concedes that when he signed the application he “knew that [he] had been arrested,” that the pending charges were • “more than just a disorderly persons offense,” and that the charges “were not dismissed.”

In July 1995, Rebelo pled guilty to one count of aggravated assault arising from the May 1995 incident and was sentenced to two years probation. In December 1995, while on probation, Rebelo was granted naturalization. In a declaration, the District Adjudications Officer for the Bureau of Customs and Border Protection (an INS successor entity) who approved *852 Rebelo’s naturalization stated that had Re-belo been truthful in his application, he “would not have approved his naturalization application [but rjather ... would have scheduled an interview and continued his application for further review.” Moreover, had he known of Rebelo’s probation, he “would have recommended that his application for naturalization be denied.”

In November 1997, the INS issued a notice of intent to revoke Rebelo’s naturalization because he committed a crime of moral turpitude prior to his naturalization application and, thus, lacked good moral character; he was on probation at the time of his naturalization and, accordingly, was ineligible for naturalization pursuant to 8 C.F.R. § 316.10(c)(1); and he procured his naturalization by willfully misrepresenting a material fact. In 1998, the Court of Appeals for the Ninth Circuit declared the administrative denaturalization process invalid. See Gorbach v. Reno, 219 F.3d 1087 (9th Cir.2000) (en banc). Thus, in May 2001, the government initiated a civil de-naturalization action against Rebelo in federal court pursuant to 8 U.S.C. § 1451(a), asserting the same grounds for denatural-ization it raised in November 1997. In response, Rebelo argued, among other things, that Section 316.10(c)(1) was promulgated in interim final form in violation of the procedural mandates of the Administrative Procedure Act. The District Court disagreed, granted the government’s motion for summary judgment, and revoked Rebelo’s naturalization after finding him ineligible for naturalization because of his probation and finding that he willfully misrepresented a material fact on his naturalization application. Rebelo timely appealed. 1

II.

A.

“We exercise plenary review over a grant of summary judgment and apply the same standard used by the District Court.” Smith v. Johnson & Johnson, 593 F.3d 280, 284 (3d Cir.2010). Summary judgment shall be granted only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c)(2).

B.

A threshold issue is whether this civil denaturalization action is time-barred by the “catch-all” statute of limitations of 28 U.S.C. § 2462, which provides that:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

Because the INA does not contain an express period of limitations for initiating denaturalization proceedings, we are presented with the possibility that Section 2462 applies. Accordingly, Rebelo argues that denaturalization is a “penalty ... or forfeiture” as the phrase is used in Section 2462. We disagree.

“[SJtatutes of limitation sought to be applied to bar rights of the Government, *853 must receive a strict construction in favor of the Government.” Badaracco v. Comm’r, 464 U.S. 386, 891, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (quotation omitted); accord SEC v. Mohn, 465 F.3d 647, 654 (6th Cir.2006) (Section 2462 should be strictly construed in government’s favor).

The precise statute of limitations question raised by this appeal is one of first impression. Courts have, however, addressed the statute of limitations as it relates to 28 U.S.C. § 791, Section 2462’s predecessor statute which was substantively identical to Section 2462. 2 Interpreting Section 791, the Supreme Court held that “penalty or forfeiture” means “something imposed in a punitive way for an infraction of public law.” Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 423, 35 S.Ct. 328, 59 L.Ed. 644 (1915) (emphasis added). Where, as here, denaturalization serves “as a remedy for citizenship fraudulently obtained,” denaturalization “is regarded not as punishment but as a necessary part of regulating naturalization of aliens.” E.B. v. Verniero, 119 F.3d 1077, 1101-02 (3d Cir.1997). Thus, a denaturalization action is not an action seeking the enforcement of a penalty or forfeiture, the subject matter of Section 2462.

Instructive in this regard is United States v. Hauck, which addressed whether a denaturalization proceeding was time-barred under Section 791. 155 F.2d 141 (2d Cir.1946).

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Bluebook (online)
394 F. App'x 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marco-rebelo-ca3-2010.