     09-0703-cr
     United States v. Terrazas

 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
17   of February , two thousand ten.
18
19   Present:
20              HON. Pierre N. Leval,
21              HON. Richard C. Wesley,
22                           Circuit Judges,
23              HON. John Gleeson
24                           District Judge.*
25
26   ________________________________________________
27
28   United States of America,
29
30              Appellee,
31
32                     v.                                            No. 09-0703-cr
33
34   Jose V. Terrazas, aka, Jose Victor Terrazas-Casares, aka, Roberto Martiniz-Rivera,
35
36              Defendant-Appellant.
37


            *
            The Honorable John Gleeson, of the United States District Court for the Eastern District
     of New York, sitting by designation.
 1   ________________________________________________
 2
 3   For Defendant-Appellant:          STEVEN R. PEIKIN , Sullivan & Cromwell, LLP, New York, NY
 4
 5   For Appellee:              ADAM S. HICKEY , United States Attorney’s Office for the
 6                              Southern District of New York, New York, New York
 7   ________________________________________________
 8
 9          Appeal from the United States District Court for the Southern District of New York

10   (Holwell, J.).

11          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

12   DECREED that the judgment of the district court entered February 17, 2009, is AFFIRMED.

13          Defendant Terrazas was convicted, following a one-day bench trial on stipulated facts, of

14   two counts of making a false statement under oath in a naturalization proceeding, in violation of

15   18 U.S.C. § 1015(a). Terrazas was sentenced to three years’ probation and a $200 special

16   assessment. On appeal, Terrazas asks us to find (1) that an implied element of a violation of

17   section 1015(a) is materiality of the false statement, and (2) that the misstatements he was

18   charged with making in his naturalization application were immaterial as a matter of law. We

19   assume the parties’ familiarity with the facts and the record of prior proceedings, which we

20   reference only as necessary to explain our decision.

21          We need not consider Terrazas’s first argument because, even if section 1015(a) does

22   contain an implied materiality requirement, any error in the district court’s failure to make a

23   finding on this question was harmless. Assuming that materiality is an element of section

24   1015(a), Terrazas was entitled to have the materiality of his false statements determined by the

25   fact finder. United States v. Gaudin, 515 U.S. 506, 523 (1995). However, “the omission of an


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 1   element is an error that is subject to harmless-error analysis.” Neder v. United States, 527 U.S. 1,

 2   15 (1999). Applying such an analysis, we will affirm if “it appears ‘beyond a reasonable doubt

 3   that the error complained of did not contribute to the verdict obtained.’” Id. (quoting Chapman v.

 4   California, 386 U.S. 18, 24 (1967)). Put another way, we will affirm if no fact finder could have

 5   reasonably found that Terrazas’s false statements were immaterial. See id. at 16.

 6          A “misrepresentation is material if it has a natural tendency to influence, or was capable

 7   of influencing, the decision of the decisionmaking body to which it was addressed,” Kungys v.

 8   United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted). Accordingly, the

 9   question is whether Terrazas’s criminal record, if candidly disclosed, would have “ha[d] a natural

10   tendency to influence” the decisions of the United States Citizenship and Immigration Services

11   (“USCIS”) officer examining him in the first instance. We find that no reasonable fact finder

12   could have answered that question in the negative. At an absolute minimum, those facts – that

13   Terrazas had been convicted of use of a false name to gain entry into the United States (with a

14   term of imprisonment imposed) and of harassment (in connection with an arrest for sexual abuse

15   and child endangerment), and in addition had been arrested two more times for sexual abuse –

16   would have reasonably been regarded by the USCIS officer as “relevant to a determination of

17   [his] present moral character.” See 8 C.F.R. § 316.10(a)(2). That suffices for materiality.

18          Terrazas’s only argument that his false statements were not material is based on an

19   incorrect reading of the governing statutes and regulations. Terrazas asserts that immigration

20   officials would have been precluded by regulations from considering his prior arrests and

21   convictions because they occurred more than five years before his naturalization application.


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 1   This argument, however, is without merit. While 8 C.F.R. §§ 316.2(a)(7) and 316.10 require

 2   that, in order to be eligible for naturalization, an alien establish that he has been a “person of

 3   good moral character” for at least the five years preceding the date of his application, 8 C.F.R. §

 4   316.10 explicitly provides that USCIS is “not limited to reviewing the applicant’s conduct during

 5   the five years immediately preceding the filing of the application, but may take into

 6   consideration, as a basis for its determination, the applicant’s conduct and acts at any time prior

 7   to that period, . . . if the earlier conduct and acts appear relevant to a determination of the

 8   applicant’s present moral character.” 8 C.F.R. § 316.10(a)(2) (emphases added). Certainly,

 9   Terrazas’s substantial criminal history fits this bill, and USCIS would have been free to consider

10   it.

11           For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

12

13                                                       FOR THE COURT:
14                                                       CATHERINE O’HAGAN WOLFE, CLERK
15
16




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