Appeal from an order of the United States District Court for the Southern District of New York (Rakoff, J.) granting summary judgment in favor of the Government and affirming the denial by the U.S. Citizenship and Immigration Services ("CIS") of Plaintiff's application for United States citizenship. CIS denied Plaintiff's application on the ground that Plaintiff was statutorily barred from qualifying for naturalization because he was convicted of an "aggravated felony" as defined in 8 U.S.C. §§ 1101(a)(43)(M)(i). On appeal, Plaintiff argues that his conviction of attempted bank fraud under 18 U.S.C. § 1344 does not qualify as an aggravated felony under the immigration statute and that res judicata applies as a result of earlier deportation proceedings. Finding no merit to Plaintiff's arguments, the Court of Appeals (Leval, J.) affirms.
The opinion of the court was delivered by: Leval, Circuit Judge
Before: JACOBS, Chief Judge, LEVAL, and SACK, Circuit Judges.
Plaintiff appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) granting summary judgment in favor of the Government. Plaintiff contended in his suit that, in denying him citizenship, the U.S. Citizenship and Immigration Services ("CIS") relied on a legally erroneous ground. CIS denied Plaintiff's application on the ground that Plaintiff's conviction under 18 U.S.C. § 1344 for attempting to execute a fraudulent scheme to obtain money from a bank constitutes an "aggravated felony" as defined in 8 U.S.C. §§ 1101(a)(43)(M)(i) and that conviction for an aggravated felony makes one ineligible for naturalization under 8 U.S.C. §§ 1101(f)(8), 1427(a)(3). On de novo review, the district court affirmed, finding that Plaintiff is an aggravated felon as defined in Subsections (M)(i) and (U). On appeal, Plaintiff argues primarily that the statutory bar is inapplicable to his crime because he was convicted of bank fraud rather than attempted bank fraud (rendering Subsection (U) inapplicable) and because the bank suffered no actual loss, as he was caught before he could withdraw the money (rendering Subsection (M)(i) inapplicable). We find Plaintiff's arguments to be without merit.
Plaintiff is a citizen of the Republic of Montenegro who entered the United States as a visitor in October 1987 and adjusted his status to that of permanent resident in November 1988. In December 1993, Plaintiff was convicted of violating 18 U.S.C. §§ 1344 and 2 upon his plea of guilty to attempting to execute a fraudulent scheme to obtain $475,025.25 from Security Pacific National Trust Company ("Security Pacific"). The scheme was detected after the money was wired from Security Pacific to Plaintiff's account at another bank, but before Plaintiff could withdraw it from that account. Plaintiff was sentenced to 16 months imprisonment and two years of supervised release.
As a result of the conviction, the Immigration and Naturalization Service ("INS") charged Plaintiff with deportability under § 241(a)(2)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(A) (recodified at 8 U.S.C. § 1227(a)(2)(A)), as an alien who had been convicted of a crime involving moral turpitude, committed within five years of entry, and sentenced to imprisonment for one year or more. On April 29, 1996, Plaintiff was granted a waiver of deportation under § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).
In March 2005, Plaintiff applied to CIS to become a naturalized citizen of the United States. CIS denied Plaintiff's application on the ground that Plaintiff's conviction was for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i) and therefore statutorily precluded him from demonstrating "good moral character." On appeal, Defendant-Appellee Andrea J. Quarantillo, CIS's New York District Director, affirmed the denial.
Plaintiff filed a complaint in the United States District Court for the Southern District of New York seeking de novo review of his application, arguing that his conviction was not an aggravated felony within the meaning of the relevant statute and that res judicata deriving from his prior deportation proceedings and § 212(c) waiver established his good moral character. Plaintiff and the Government moved for summary judgment.
The district court denied Plaintiff's motion and granted the Government's motion for summary judgment. Ljutica v. Mukasey, No. 07 Civ. 6129 (JSR), 2007 WL 4145275, at *1 (S.D.N.Y. Nov. 19, 2007). After reviewing the record of Plaintiff's plea and conviction, the court concluded that, based on "the undisputed facts and clear law, Ljutica is statutorily ineligible for naturalization because he is an aggravated felon and thus barred by 8 U.S.C. § 1101(f) from establishing the good moral character required for naturalization." Id. at *2.
We review the district court's grant of a motion for summary judgment de novo. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there are genuine issues of material fact, we "resolve all ambiguities and draw all permissible factual inferences in favor of the party against ...