                                                                                       FILED
                               NOT FOR PUBLICATION
                                                                                       APR 18 2016

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


                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                              No. 14-55336

                Plaintiff-Appellee,                     D.C. No. 2-12-cv-9134-RGK

 v.
                                                        MEMORANDUM*
 CEFERINO ORDEN OLIVAR, JR.,

                Defendant-Appellant.


                       Appeal from the United States District Court
                          for the Central District of California
                       R. Gary Klausner, District Judge, Presiding

                           Argued and Submitted April 5, 2016
                                  Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,** District Judge.

        Appellant Ceferino Orden Olivar, Jr., was naturalized as a United States

citizen in May 2002; in April 2009, he pled guilty to conspiracy to commit visa

fraud in violation of 18 U.S.C. §§ 2, 371, and 1546. According to the plea, the

conspiracy began in July 2001, though Appellant did not commit an overt act in

         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable David A. Ezra, United States District Judge for the District of
Hawaii, sitting by designation.
furtherance of the conspiracy until after he was naturalized. In 2012, the United

States Department of Justice’s Office of Immigration Litigation (“OIL”), with

written authorization from the United States Attorney, moved to revoke

Appellant’s citizenship. The district court found at the conclusion of a bench trial

that Appellant’s naturalization should be revoked because he lacked good moral

character during the relevant statutory period.

      Appellant argues that the district court lacked jurisdiction over the

revocation proceedings, because they were not instituted by the United States

Attorney for the Central District of California. The district court’s determination

that it had jurisdiction is a question of law reviewed de novo. Reebok Int’l Ltd.

v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir. 1995). Title 8 U.S.C. § 1451(a)

requires the United States Attorney for the relevant district “to institute

[denaturalization] proceedings.” Here, OIL sent a letter and affidavit of good

cause to the appropriate United States Attorney seeking authorization to file the

denaturalization suit; the United States Attorney signed an authorization letter, but

did not sign the complaint bringing the proceeding into court. Permitting OIL,

rather than the United States Attorney, to commence the suit does not change the

government’s burden to provide “‘clear, unequivocal, and convincing’ evidence

that citizenship should be revoked,” nor does it create a new mechanism for


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revoking citizenship. United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)

(quoting United States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007)). However, it

is clear that when the United States Attorney for the district signs a complaint, she

initiates the lawsuit. Signing an authorization letter, although sufficient to satisfy

jurisdictional requirements here, is not good practice; similar jurisdictional

challenges should be avoided in the future by ensuring that the United States

Attorney for the district has actually signed the complaint bringing denaturalization

proceedings before the district court.

      Appellant also argues that the district court incorrectly found that entering

into a criminal conspiracy to violate the law is evidence of bad moral character,

where no overt act was taken in furtherance of the conspiracy until after the date of

naturalization. The trial court’s conclusion of law is reviewed de novo. Star v.

West, 237 F.3d 1036, 1038 (9th Cir. 2001). An individual seeking citizenship must

be “a person of good moral character” in the five years prior to naturalization. 8

U.S.C. § 1427(a). An individual lacks the good moral character required for

naturalization if, in the absence of exigent circumstances, he or she “[c]ommitted

unlawful acts that adversely reflect upon the applicant’s moral character” during

the statutory period. 8 C.F.R. § 316.10(b)(3)(iii); see 8 U.S.C. § 1101(f), Dang,

488 F.3d at 1141. A court may consider acts during the good moral character


                                           3
period “whether or not the applicant is convicted for the acts during that period.”

Dang, 488 F.3d at 1141. Where an overt act has been committed in furtherance of

the conspiracy, the conspiracy itself began at the time the defendant agreed to

commit the crime. United States v. Garcia-Santana, 774 F.3d 528, 537 (9th Cir.

2014). A conspiracy to commit visa fraud in the naturalization context involves

the “intent to defraud” and is necessarily “a crime involving moral turpitude.”

Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993) (quoting McNaughton v. INS,

612 F.2d 457, 459 (9th Cir. 1980) (per curiam)). Appellant admitted to entering

into the conspiracy during the good moral character period and undertook several

overt acts in furtherance of the conspiracy. He therefore did not have good moral

character when he applied for naturalization, because he had already agreed to

commit visa fraud. Accordingly, he procured his naturalization illegally.

      Finally, Appellant argues that the district court’s denaturalization order was

in error because there was no conclusive evidence that his failure to disclose his

involvement in a conspiracy was material. The district court made clear that

Appellant was denaturalized because he lacked good moral character during the

statutory period, and did not find that Olivar should be denaturalized because he

made a material misrepresentation on his N-400 form. Accordingly, this issue is

not pertinent to the questions raised on appeal.


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AFFIRMED.




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