                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MUHAMMAD ZAHID CHAUDHRY,                         No. 10-36156

              Plaintiff - Appellant,             D.C. No. 2:09-cv-03097-LRS

  v.
                                                 MEMORANDUM*
JANET A. NAPOLITANO, Secretary of
the United States Department of Homeland
Security; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                      Argued and Submitted August 26, 2013
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

       Plaintiff Muhammad Zahid Chaudhry sought review of the USCIS’s denial

of his application for naturalization based on his active-duty service in the United

States armed forces. See 8 U.S.C. § 1440(a). The district court granted summary



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment in favor of the Government, concluding that Chaudhry could not

demonstrate the requisite “good moral character,” 8 C.F.R. § 329.2(d), to be

eligible for naturalization because he had given false testimony to obtain

immigration benefits, 8 U.S.C. § 1101(f)(6). Reviewing de novo, we affirm. See,

e.g., Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (“We

review de novo the district court’s grant of summary judgment.”).

1.    Chaudhry failed to establish a “genuine issue of material fact” regarding

whether he gave false statements. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Drawing all inferences in favor of Chaudhry, we conclude that a

reasonable factfinder would have insufficient evidence to find that Chaudhry

lacked a “subjective intent to deceive.” United States v. Hovsepian, 422 F.3d 883,

887 (9th Cir. 2005); see Anderson, 477 U.S. at 249-50 (“If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.”

(citations omitted)). It was Chaudhry’s burden to prove by clear and convincing

evidence that he was eligible for naturalization, Berenyi v. Dist. Dir., Immigration

& Naturalization Serv., 385 U.S. 630, 637 (1967), but the evidence in the record

did not meet that burden of proof. See Anderson, 477 U.S. at 252 (“[T]he inquiry

involved in a ruling on a motion for summary judgment . . . necessarily implicates




                                          2
the substantive evidentiary standard of proof that would apply at the trial on the

merits.”).

2.    It was not improper for the district court to consider the events that were the

subject of the false testimony at issue, even though those events occurred outside

the statutory period.

      AFFIRMED.




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