                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 11 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    14-17536

                Plaintiff-Appellee,             D.C. No. 4:09-cv-00178-DCB

 v.
                                                MEMORANDUM *
FERNANDO ARANGO, AKA Fernando
Arango-Villegas,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and Submitted March 17, 2017
                           San Francisco, California

Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      Fernando Arango appeals the revocation of his citizenship under 8 U.S.C.

§ 1451(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Arango first argues that laches bars this denaturalization action. “Laches

requires proof of (1) lack of diligence by the party against whom the defense is

asserted, and (2) prejudice to the party asserting the defense.” Costello v. United


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
States, 365 U.S. 265, 282 (1961). We need not decide whether laches applies. See

United States v. Dang, 488 F.3d 1135, 1143–44 (9th Cir. 2007) (“It remains an

open question in this circuit as to whether laches is a permissible defense to a

denaturalization proceeding.”). Even assuming laches is a permissible defense,

Arango’s claim fails as the district court did not err in concluding that Arango

failed to prove lack of diligence by the government.1

      The government’s delay in bringing this denaturalization action was

reasonable. When Arango applied for naturalization, his own false statements

before and during his interview caused the government’s delay in uncovering his

sham marriage, which was ultimately the basis of these denaturalization

proceedings. In addition, the decision to hire Arango as a border patrol agent does

not prove a lack of diligence because the government did no more than check that

his naturalization certificate bore his name and was not forged, and Arango does

not show why the government had to do more. Once Agent Stanley Ward pieced

together Arango’s full immigration history, the government moved swiftly to begin

denaturalization proceedings. Any delay was reasonable, especially considering

that no statute places a time limit on denaturalization actions and the government



1
 Because Arango’s argument fails under any potential standard of review, we need
not resolve the intracircuit split over the correct standard for reviewing laches
decisions. Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1226 n.1
(9th Cir. 2012).

                                          2
has broad discretion when prioritizing resources in the immigration context. See

Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).2

      Arango next argues that he had a Sixth Amendment right to a jury trial in

these denaturalization proceedings. As the Supreme Court has made clear,

denaturalization actions, which in nature are civil, not criminal, “assuredly [do] not

involve an adjudication to which the Sixth Amendment right to jury trial attaches.”

United States v. Gaudin, 515 U.S. 506, 522 (1995).

      AFFIRMED.




2
  In light of this conclusion, we need not reach Arango’s evidentiary argument
related to prejudice.

                                          3
                                                                             FILED
United States v. Arango, No. 14-17536
                                                                             APR 11 2017
WALLACE, Circuit Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I concur in the majority’s judgment. I write separately because the majority

does not address the threshold question in this case: whether laches is a viable

defense against the United States in a denaturalization proceeding. In United States

v. Dang, we acknowledged that “[i]t remains an open question in this circuit as to

whether laches is a permissible defense to a denaturalization proceeding.” 488 F.3d

1135, 1143–44 (9th Cir. 2007). Dang, however, assumed for the sake of argument

that laches was a permissible defense, and held that the defendant had failed to

establish laches. Id. at 1144. The majority follows the Dang approach in the

present case. Instead of pitching around this issue, we should address it head on.

      The only circuit to have answered this question directly is the Sixth Circuit,

which held that laches is not a permissible defense in this context. See United

States v. Mandycz, 447 F.3d 951, 964–965 (6th Cir. 2006). Mandycz examined the

history of the laches defense and concluded that “[b]ecause the United States acted

in its sovereign capacity when it sought to denaturalize Mandycz, the common law

doctrine of laches does not apply.” Id. at 964. I believe we should endorse the Sixth

Circuit’s reasoning and I advocate that our circuit adopt it. The words of the

immigration statute, combined with the history and purpose of the laches defense,

suggest that it should not apply to this context against sovereigns such as the
United States. Moreover, in the immigration arena, people who have procured

citizenship by way of fraud should not be allowed to escape denaturalization via

the laches trap door.

      Our circuit possesses an overwhelming immigration docket. There is no

indication that our immigration docket will decrease in the foreseeable future.

Accordingly, we should resolve this issue now and provide appropriate guidance to

the lower courts.
