                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-3-2005

USA v. Moya
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1537




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-1537


                           UNITED STATES OF AMERICA

                                           v.

                           EUCLIDES HERMINIO MOYA,
                                           Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                            D.C. Civil No. 01-cv-00283
                  District Judge: The Honorable John C. Lifland


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 2, 2004


                Before: ALITO, BARRY, and FUENTES, Circuit Judges


                            (Opinion Filed: January 3, 2005)


                                       OPINION


BARRY, Circuit Judge

      Appellant Euclides Hermino M oya (“Moya”) seeks review of the District Court’s

February 4, 2004 denial of his Rule 60(b) motion seeking relief from an order revoking
and setting aside his naturalization and cancelling his Certificate of Naturalization. We

review the District Court’s refusal to set aside its order for abuse of discretion, see

Pridgen v. Shannon, 380 F.3d 721, 725 (3d Cir. 2004), and will affirm.

                                              I.

       Because we write only for the parties, our discussion of the facts and

circumstances underlying this appeal is limited. Moya signed and filed an Application for

Naturalization on November 6, 1995 and became a naturalized citizen of the United

States on May 14, 1996. Subsequently, in its Complaint to Revoke Naturalization, the

United States sought to have Moya’s naturalization revoked, pursuant to 8 U.S.C. §

1451(a), alleging, in Count I, that it was procured illegally and, in Count II, that it was

obtained as a result of the concealment of material facts or a willful misrepresentation.

The Complaint set forth a series of arrests and convictions which Moya failed to disclose

on his Application, including an April 8, 1993 New Jersey conviction for receiving stolen

property in the fourth degree, which the United States maintained qualified as a crime of

moral turpitude, thereby rendering Moya ineligible for naturalization.

       After M oya answered the Complaint, the United States moved for summary

judgment. Pursuant to Appendix N to the Local Rules of the U.S. District Court for the

District of New Jersey, the motion was treated as unopposed when M oya failed to timely

serve papers in opposition. Ultimately, the District Court granted summary judgment in

favor of the United States and ordered Moya’s denaturalization. Moya did not appeal, but



                                              2
instead invoked Rule 60(b)(1) and Rule 60(b)(6), seeking relief from the order granting

summary judgment and permission to belatedly respond to the United States’ motion for

summary judgment. It is the denial of this relief that is the subject of Moya’s appeal.

                                            II.

       Rule 60(b)(1) empowers a district court to relieve a party from a final judgment on

the basis of demonstrated “mistake, inadvertance, surprise, or excusable neglect.” Fed. R.

Civ. P. 60(b)(1). Moya argues that Rule 60(b)(1) should apply to relieve him of the

consequences of failing to file a response to the summary judgment motion of the United

States because he was “under the impression that the motion was being held in abeyance

until . . . settlement negotiations were exhausted.” Appellant’s Br. at 7. Nothing in the

record before the District Court even suggests that this “impression” was reasonable, and

there is no evidence that a stay was requested from or granted by the District Court.

Moreover, as required by Appendix N, the United States made reasonable efforts, in the

form of telephone calls and a February 19, 2002 facsimile, to remind Moya’s attorney of

the impending deadline for filing papers in opposition to its motion. These reminders

were ignored. The District Court acted well within its discretion when it refused to find

that the failure to oppose the motion was the product of mistake, inadvertance, surprise,

or excusable neglect.

       Even if Moya could establish that his failure to oppose motion for summary

judgment was in some way justified or excusable, he could not obtain relief under Rule



                                             3
60(b)(1) because he failed to raise a viable defense on the merits before the District

Court, and fails to raise one now. See Lorenzo v. Griffith, 12 F.3d 23, 27 (3d Cir. 1993).

For example, he did not and does not now even suggest any defense to his conviction for

receiving stolen property, a conviction which evidenced to the District Court’s

satisfaction that he lacked the requisite good moral character during the five-year period

immediately preceding his Application for Naturalization.1 See 8 U.S.C. § 1427(a)(3).

That conviction, under N.J.S.A. § 2C:20-7 (requiring that the accused “knowingly

receives” the property of another “knowing that it has been stolen, or believing that it is

probably stolen”), clearly qualifies as a crime of moral turpitude. Leon-Reynoso v.

Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002) (“Courts have held that knowingly receiving

stolen property is a crime of moral turpitude.”). See also 8 U.S.C. § 1101(f)(3).

       Moya’s argument for the application of Rule 60(b)(6) is similarly without merit. A

party seeking relief under § (b)(6) must demonstrate “extraordinary circumstances” such

that, absent relief, “an extreme and unexpected hardship would occur.” Sawka v.

Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993). While we recognize that, absent relief

from the order of the District Court, Moya will be denaturalized, this result is neither

extreme nor an unexpected hardship under the circumstances of this case; indeed, he tells

us that he was “willing to forgo naturalization so long as he did not admit to willful


   1
     Given our determination that Moya’s naturalization was illegally procured on the basis of his
inability to demonstrate good moral character, there is no need to consider the United States’
alternative theory that it was procured through the concealment of material facts or willful
misrepresentation.

                                                4
conduct [and he would thereafter] reapply for naturalization.” Appellant’s Br. at 13. The

District Court did not abuse its discretion in concluding that Moya failed to satisfy the

requirements of Rule 60(b)(6).

                                            III.

       The February 4, 2004 order of the District Court refusing to set aside the July 1,

2002 Order of Denaturalization will be affirmed.




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