Opinion
CIVIL ACTION NO. 7:19-CV-345
2020-12-15
UNITED STATES of America v. Luis Alberto MARTINEZ ; aka Martinez-Sanchez; aka Sanchez Martinez
Daniel P. Chung, Pro Hac Vice, James Jiann Wen, U.S. Department of Justice, CIvil Division, Washington, DC, David Louis Guerra, Office of the US Attorney, McAllen, TX, for United States of America. Amber Qureshi, National Immigration Project of the National Lawyers Guild, Washington, D.C., Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, P.L.L.C., McAllen, TX, for Luis Alberto Martinez.
Daniel P. Chung, Pro Hac Vice, James Jiann Wen, U.S. Department of Justice, CIvil Division, Washington, DC, David Louis Guerra, Office of the US Attorney, McAllen, TX, for United States of America.
Amber Qureshi, National Immigration Project of the National Lawyers Guild, Washington, D.C., Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, P.L.L.C., McAllen, TX, for Luis Alberto Martinez.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Randy Crane, United States District Judge
Now before the Court is Defendant Luis Alberto Martinez's Motion to Dismiss Plaintiff's Complaint (Dkt. No. 11). Through its Complaint, the United States of America ("the government" or "Plaintiff") seeks to revoke and set aside the 2011 grant of U.S. citizenship to Defendant Luis Alberto Martinez ("Martinez" or "Defendant"). Dkt. No. 1 at ¶ 1. Defendant now moves to dismiss Plaintiff's action under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the government is time-barred from bringing this proceeding, did not comply with statutory requirements, and that the government has not alleged sufficient facts. Dkt. No. 11 at 1. After considering the Motion, the applicable law, and the parties' responsive briefings (Dkt Nos. 20, 23), the Court is of the opinion that Defendant's Motion (Dkt. No. 11) should be denied.
I. Factual and Procedural Background
As this Order concerns a motion to dismiss under Federal Rule of Civil Procedure 12(b), the facts presented herein are as alleged by Plaintiff. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.").
Martinez was born in Mexico in 1981 and became a U.S. lawful permanent resident in 2001. Dkt. No. 1 at ¶¶ 11–12. In June of 2011, Martinez filed an application for naturalization to become a U.S. citizen. Id. at ¶ 21. In the written application and during the interview process, Martinez repeatedly answered "no" to questions asking whether he had committed any crimes or lied to government officials. Id. at ¶¶ 22–33. The government approved Martinez's naturalization application on September 14, 2011 and on November 4, 2011 Martinez was sworn in as a naturalized U.S. citizen. Id. at ¶¶ 34, 39–40. Almost two years later, on June 22, 2013, Martinez was charged with Medicaid fraud and theft in violation of the Texas Penal Code. Id. at ¶ 14. Martinez plead guilty to Medicaid fraud and the court entered an Order of Deferred Adjudication and Community Supervision. Id. at ¶¶ 15, 19. The plea agreement states that
on or about the 17th day of September A.D., 2007, and before the presentment of this indictment, in Hidalgo County, Texas, did then and there knowingly enter into an agreement with Safaa Nazif and Christine Rodriguez to defraud the state by aiding another person in obtaining an unauthorized payment from the Medicaid program, and the amount of said payment provided under the Medicaid program, directly or indirectly, as a result of said conduct was $20,000 or more but less than $100,000.
Dkt. No. 1 at ¶ 17, Ex. B at 1.
As a result of Martinez's guilty plea, the government initiated a civil denaturalization action. See Dkt. No. 1. The government lists several reasons why denaturalization is warranted, all of which revolve around allegations that Martinez illegally procured his naturalization because he provided false testimony about his past criminal activity during the naturalization application process. Id. at ¶¶ 56–96. Martinez now moves to dismiss the government's claims against him. See Dkt. No. 11.
II. Standard of Review
When a district court has pending before it both a 12(b)(1) motion and a 12(b)(6) motion, the generally preferable approach, if the 12(b)(1) motion essentially challenges the existence of a federal cause of action, is for the court to find jurisdiction and then decide the 12(b)(6) motion. Jones v. State of Ga. , 725 F.2d 622, 623 (11th Cir. 1984) (citing Williamson v. Tucker , 645 F.2d 404, 415 (5th Cir. 1981), cert. denied , 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981) ).
A court properly dismisses a case for lack of subject-matter jurisdiction under Rule 12(b)(1) "when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund , 81 F.3d 1182, 1187 (2d Cir. 1996) ); see FED. R. CIV. P. 12(b)(1). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction," who "constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) ; see also Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("It is to be presumed that a cause lies outside [federal courts'] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]") (internal citations omitted). Subject matter jurisdiction is determined at the time of the filing of the complaint. Whatley v. Resolution Tr. Corp. , 32 F.3d 905, 907 (5th Cir. 1994).
Should the Court find it has subject-matter jurisdiction under 12(b)(1), it must then address the Federal Rule of Civil Procedure 12(b)(6) challenge for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in conjunction with the pleading standard set forth in Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2) ; see Ashcroft v. Iqbal , 556 U.S. 662, 677-68, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This standard does not require detailed factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). However, a party's "obligation to provide the ‘grounds’ of his ‘entitle[ment]’ to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). To survive a Rule 12(b)(6) motion, the complaint and any other matters properly considered must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim has facial plausibility when the pleaded factual content allows the court, drawing upon its "judicial experience and common sense," to reasonably infer that the defendant is liable for the misconduct alleged. Id. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ), 679. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " Id. at 679, 129 S.Ct. 1937 (quoting FED. R. CIV. P. 8(a)(2) ).
"Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’ " Randall D. Wolcott, M.D., P.A. v. Sebelius , 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio Equities, Inc. , 540 F.3d 333, 338 (5th Cir. 2008) ); see also Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 387 (5th Cir. 2010) (court's review on 12(b)(6) motion "is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint").
III. Defendant's 12(b)(1) Motion to Dismiss
Martinez argues the Court does not have subject-matter jurisdiction because the government filed its Complaint several years too late, in violation of the statute of limitation or the doctrine of laches. Dkt. No. 11 at 8–10. Martinez also argues the government did not comply with the statutory prerequisites to bringing suit, as the Complaint is allegedly not accompanied by an affidavit of good cause. Id. at 7–8. The Court takes these arguments in turn.
A. Statute of Limitations
It is well-settled that there is no statute of limitations for civil denaturalization actions. Costello v. United States , 365 U.S. 265, 283, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) ("Congress has not enacted a time bar applicable to proceedings to revoke citizenship procured by fraud."). The Supreme Court and various circuits have allowed the government to maintain denaturalization proceedings well beyond the 8 years at issue in this case. See e.g., Kungys v. United States , 485 U.S. 759, 765, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (denaturalization proceedings allowed 34 years after naturalization); United States v. Szehinskyj , 277 F.3d 331, 333 (3d Cir. 2002) (41 years); Costello , 365 U.S. at 282–84, 81 S.Ct. 534 (27 years) ; United States v. Arango , No. 09-cv-178, 2014 WL 7179578, at *7 (D. Ariz. Dec. 17, 2017), aff'd , 686 Fed.Appx. 489 (9th Cir. 2017) (19 years); United States v. Schmidt , No. 88 C 9475, 1990 WL 6667, at *1 (N.D. Ill. Jan. 3, 1990), aff'd , 923 F.2d 1253 (7th Cir. 1991) (two decades).
Martinez argues that 28 U.S.C. § 2462 provides the appropriate statute of limitations in this case: five years. Dkt. No. 11 at 8–11. The government filed this lawsuit almost eight years after Martinez's naturalization and over six years after Martinez signed the plea agreement in the Medicaid fraud case. See Dkt. No. 1 (filed October 2, 2019). Therefore, according to Martinez, the government did not file its claim within the five-year statute of limitation and the Court must dismiss the case. Dkt. No. 11 at 8–11. Section 2462 provides that "[e]xcept as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years ...." 28 U.S.C. § 2462. Martinez claims denaturalization is a penalty (and therefore falls within § 2462 ) under the Supreme Court decision Kokesh v. Securities and Exchange Commission. In Kokesh , the Court held a civil action may be a penalty when it seeks to redress wrongs to the public and is "for the purpose of punishment, and to deter others from offending in like manner—as opposed to compensating a victim for loss." ––– U.S. ––––, 137 S. Ct. 1635, 1642, 198 L.Ed.2d 86 (2017) ; Dkt. No. 11. Kokesh dealt with a SEC disgorgement action, not a denaturalization proceeding. Kokesh , 137 S. Ct. at 1642. All the denaturalization cases that have discussed Kokesh have held it inapplicable to denaturalization proceedings. See e.g., United States v. Phattey , 943 F.3d 1277, 1282 (9th Cir. 2019) ("Under the principles set out in Kokesh , revocation of citizenship does not qualify as a "penalty."); United States v. Rahman , No. 19-cv-1113-PB, 2020 WL 5236941, at *3 (D.N.H. Sep. 2, 2020) ("An expansive reading of [ Kokesh ] to overrule longstanding precedent specific to denaturalization is inconsistent with the [Supreme] Court's narrow holding."); United States v. Dhanoa , 402 F.Supp.3d 296, 299–301 (D.S.C. 2019) ("In absence of a more forthright directive from either the Supreme Court or Congress, the court declines to apply the five-year statute of limitations in § 2642 to denaturalization actions brought under § 1452(a)."). Circuit courts, including the Fifth Circuit, have held § 2462 to be inapplicable to denaturalization cases. See Phattey , 943 F.3d at 1283 ("Because denaturalization proceedings do not constitute a penalty for purposes of 28 U.S.C. § 2462, that statute does not provide [the defendant] a statute-of-limitations defense."); United States v. Hongyan Li , 619 Fed.Appx. 298, 303 (5th Cir. 2015) ("Because the denaturalization action is not punitive, the limitations period in § 2462 is inapplicable to [defendant's] case"); United States v. Rebelo , 394 Fed.Appx. 850, 853 (3d Cir. 2010) (holding "the catch-all statute of limitations of 28 U.S.C. § 2462 —like its predecessor—does not apply to denaturalization proceedings brought pursuant to 8 U.S.C. § 1451(a)"); United States v. Hauck , 155 F.2d 141, 143 (2d Cir. 1946) (finding that "[r]eliance on 28 U.S.C.A. § 791 [1947] [the predecessor statute to 28 U.S.C. § 2462 ] as the applicable statute of limitations [to a denaturalization action] is a hopeless clutching at straws; that statute is completely irrelevant"). In Hongyan Li , the Fifth Circuit specifically addressed the question of whether denaturalization was meant to punish. It held that "denaturalization is the withdrawal of something to which the individual was never entitled; denaturalization is a restorative or remedial action, not an action that seeks to punish the commission of a crime." Hongyan Li , 619 Fed.Appx. at 302 (citing Accord Coghlan v. Nat'l Transp. Safety Bd. , 470 F.3d 1300, 1305–07 (11th Cir. 2006) ). This binding case law provides there is no statute of limitations applicable in this case.
B. Laches
Laches is an equitable defense that "derive[s] from the maxim that those who sleep on their rights, lose them." Navarro v. Neal , 716 F.3d 425, 429 (7th Cir. 2013). To prove that laches is applicable, a party must show (1) a lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. Costello , 365 U.S. at 282, 81 S.Ct. 534.
Defendant claims he satisfies both elements. See Dkt. No. 11 at 8. The government focuses on the second element, arguing that Martinez has not proved he suffered prejudice as a result of the delay. Dkt. No. 20 at 9. More broadly, however, the government argues laches is not applicable to denaturalization cases. Id. at 7–9 (citing Arango , 686 Fed.Appx. at 491 (Wallace, J., concurring) ("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.")).
This Court need not decide whether laches is applicable to denaturalization cases because it finds Martinez does not present evidence of prejudice. Martinez points to several reasons to argue he is prejudiced. First, Martinez is settled here in the United States. He is married, has two U.S. citizen children, and is getting older. Dkt. No. 11 at 8. He has nowhere to live in Mexico if he is deported. Id. Additionally, he argues that the "passage of eight years has made disproving the allegations more difficult, as adjudicators retire and memory fades." Id.
Costello is instructive. There, the Supreme Court—without holding laches applicable to denaturalization proceeding—found a lack of prejudice despite a 27-year delay. Costello , 365 U.S. at 282–84, 81 S.Ct. 534.
[The defendant] suffered no prejudice from any inability to prove his defenses. Rather, the harm he may suffer lies in the harsh consequences which may attend his loss of citizenship. He has been a resident of the United States for over 65 years, since the age of four. We may assume that he has built a life in reliance upon that citizenship. But Congress has not enacted a time bar applicable to proceedings to revoke citizenship procured by fraud. On this record, the petitioner never had a right to his citizenship. Depriving him of his fraudulently acquired privilege, even after the lapse of many years, is not so unreasonable as to constitute a denial of due process.
Id. at 283–84, 81 S.Ct. 534. As the Supreme Court held, an inability to prove defenses does not equate to prejudice under a laches analysis. Id. at 283, 81 S.Ct. 534. Similar to the defendant in Costello , Martinez's argues that the "passage of eight years has made disproving the allegations more difficult, as adjudicators retire and memory fades." Dkt. No. 11 at 8. "Because of the severe delay in bringing this proceeding, even if the government were to provide testimony from the officer who actually conducted Martinez's naturalization interview, that officer will likely not remember key details of Martinez's interview," Defendant argues. Dkt. No. 23 at 2. The evidence the government relies on, however, appears to be written or recorded in some way. The affidavit of Juan R. Cienega, a CBP Enforcement Officer, is based on the immigration file of Martinez. Dkt. No. 1, Ex. A at ¶ 1–2. According to the file, the government can show that Martinez stated under oath during his naturalization interview that "he had never committed a crime or offense for which he had not been arrested." Id. , Ex. A at ¶ 6. Additionally, the government points to Martinez's answers on his written application and notice of naturalization as further evidence of his false testimony. See Dkt. No. 1, Ex. E at 8 (answers on Application for Naturalization), Ex. F at 3 (answers on Notice of Naturalization). The government is not relying on memories, but on written records. Further, Martinez does not suggest how any material fact would be impacted by potentially faded memories. In fact, the basis of his attack on the government's claim revolves around an issue the interviewing officer would have no insight into—the timing of Martinez's crime. See Costello , 365 U.S. at 283–84, 81 S.Ct. 534 (holding no prejudice where Naturalization Examinees, witnesses who appeared for defendant, and the judge who admitted him to citizenship were all dead).
Martinez's reliance on the life he has created here in the United States is also unavailing. The defendant in Costello had lived in the United States for over 65 years, yet the Supreme Court did not find that fact to be evidence of prejudice because revoking a fraudulently acquired privilege does not constitute a denial of due process. Id. at 283–84, 81 S.Ct. 534 (citing cf. Johannessen v. United States , 225 U.S. 227, 242–243, 32 S.Ct. 613, 56 L.Ed. 1066 (1912) ).
C. Affidavit
Section 1451, relating to revocation of naturalization, states "[i]t shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor , to institute [denaturalization] proceedings ...." 8 U.S.C. § 1451(a) (emphasis added). An unsworn declaration can have the same force and effect of a sworn affidavit if it is attested to as true under penalty of perjury and includes certain language. 28 U.S.C. § 1746. "The mere filing of a proceeding for denaturalization results in serious consequences to a defendant." United States v. Zucca , 351 U.S. 91, 99–100, 76 S.Ct. 671, 100 L.Ed. 964 (1956). Therefore, Congress "provided that a person, once admitted to American citizenship, should not be subject to legal proceedings to defend his citizenship without a preliminary showing of good cause." Id.
Martinez challenges the government's affidavit, arguing that it is does not legally meet the requirements of an affidavit because it is not based on actual knowledge and contains unknowable facts. See Dkt. No. 11 at 3–7. The Supreme Court has held that an affidavit of good cause sworn by an immigration officer reciting facts appearing in official government records setting forth in substance the same matters upon which the complaint is based is sufficient to comply with § 1451(a). Nowak v. United States , 356 U.S. 660, 662, 78 S.Ct. 963, 2 L.Ed.2d 1048 (1958). The affidavit need not be based on personal knowledge. Id. (rejecting petitioner's argument that the government's affidavit of good cause must be made by a person having personal knowledge). It is enough that the affidavit is based on the official government immigration records. Id.; see also United States v. Borgono , No. 18-cv-21835, 2019 WL 1755709, at *3 (S.D. Fla. April 19, 2019) (finding an ICE officer's affidavit based on his review of official immigration records to be "enough to establish the good cause necessary to institute these proceedings"); United States v. Malik , No. 15-cv-9092, 2015 WL 6871491, at *3 (D. Kan. Nov. 9, 2015) ("Although Officer Bruggeman used the terminology ‘upon information and belief,’ the affidavit need not be based on personal knowledge. Instead, it may be based upon facts disclosed by official records which the declarant had access.") (internal citations and alterations omitted).
The affidavit attached to the government's Complaint in this case satisfies these requirements. In the affidavit, CBP Enforcement Officer Juan R. Cienega states that he has reviewed the official Department of Homeland Security immigration file of Martinez and that the information set forth in the affidavit is based on his review of those records. Dkt. No. 1, Ex. A at ¶ 1–2 ("Based upon my review of these records, I state, on information and belief, that the information set forth in this Affidavit of Good Cause is true and correct."). The affidavit describes Martinez's answers to questions relating to his criminal background which conflict with his 2013 guilty plea:
On his Form N-400, in response to the question, "Have you ever committed a crime or offense for which you were not arrested?" Mr. Martinez checked the box marked "No." ... On August 12, 2011, Mr. Martinez appeared before Officer Robert Sanchez, an Immigration Services Officer with USCIS, in Harlingen, Texas, for an interview to determine his eligibility for naturalization. At the time, Mr. Martinez states, under oath, that he had never committed a crime or offense for which he had not been arrested. At the completion of his interview Mr. Martinez swore or affirmed that the contents of his application were true and correct.
Dkt. No. 1, Ex. A ¶¶ 4–5. The information provided in the affidavit and the substance of the Complaint set forth the same matters.
The affidavit also complies with § 1746. Section 1746 requires the declaration to be signed and include the following statement: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)." 28 U.S.C. § 1746. Right above CBP Officer Cienega's signature at the end of the affidavit, this language appears word-for-word. Dkt. No. 1, Ex. A at 10.
IV. Defendant's 12(b)(6) Motion to Dismiss
Considering the above analysis rejecting Defendant's jurisdictional arguments, the Court now must address Defendant's 12(b)(6) arguments. Defendant argues that the government's Complaint fails to state a claim for which relief can be granted. Dkt. No. 11 at 11–18. The government's Complaint lists four reasons for denaturalization:
(1) Defendant illegally procured his naturalization because the crimes committed during the statutory period constitute a crime involving moral turpitude ("CIMT"), thereby preventing him from establishing
the good moral character required to naturalize under 8 U.S.C. § 1101(f)(3).
(2) Defendant was unable to establish the requisite good moral character because his conduct amounted to "unlawful acts" that adversely reflected on his moral character under 8 C.F.R. § 316.10(b)(3)(iii) and 8 U.S.C. § 1101(f).
(3) Defendant provided false testimony during the statutory period when he testified at his naturalization interview that he had never committed a crime for which he had not been arrested, thus precluding him from establishing good moral character under 8 U.S.C. § 1101(f)(6).
(4) Defendant obtained his naturalization by willfully representing and concealing his criminal history during the naturalization process.
Martinez argues that if the government is interpreting "unlawful acts that adversely reflect upon the applicant's moral character" to mean criminal acts that involve moral turpitude, then Count II is duplicative of Count I. Count II relies on § 316.10(b)(3)(iii), which states that "[u]nless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant ... [c]ommitted unlawful acts that adversely reflect upon the applicant's moral character or was convicted or imprisoned for such act...." 8 C.F.R. § 316.10(b)(3)(iii). This section provides one of multiple ways a person can be found to lack good moral character. Counts I and II illustrate two different ways this can be established: (1) CIMT and (2) unlawful acts. An unlawful act involving moral turpitude is not necessarily an unlawful act, and vice versa. Count II is therefore not duplicative.
Dkt. No. 1 at ¶¶ 56–96.
In support of these allegations, the government relies on the affidavit from CBP officer Cienega, copies of Martinez's 2013 indictment and plea agreement, Martinez's written naturalization application and Notice of Oath Ceremony (which includes written answers to questions), and Martinez's Certification of Naturalization.
Martinez argues the government's claims against him should be dismissed for numerous reasons. The Court addresses Martinez's arguments below.
A. Date of Medicaid Fraud
Martinez argues that many of the government's claims fail because the government has not adequately alleged that Martinez's criminal actions took place during the "statutory period." Section 1101(f)(6) provides that "[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was ... one who has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. § 1101(f)(6). To have been eligible for naturalization, Defendant was required to establish he was a person of good moral character during the statutory period, from June 3, 2006 (five years before he filed his naturalization application) until he was naturalized on November 4, 2011. See 8 U.S.C. § 1427(a)(3) ; 8 C.F.R. § 316.10(a)(1). Martinez's indictment, which was presented in 2013, indicates the offense took place "on or about the 17th day of September A.D., 2007, and before the presentment of this indictment ...." Dkt. No. 11 at 16; Dkt. No. 1, Ex. B (Indictment) (emphasis added). Therefore, Martinez argues, he could have committed the offense after his naturalization in November 2011—thus, not lying on his application—but before the presented of the indictment in 2013. Dkt. No. 11 at 16. The plain language of the indictment does not support Martinez's allegation. The indictment uses the word "and." The second clause stating "and before the presentment of this indictment," therefore, does not negate the first clause of the sentence indicating the crime did in fact take place within the statutory period, on September 17, 2007. Further, the actual plea agreement shows that Martinez freely and voluntarily plead guilty to Medicaid fraud "committed on SEPTEMBER 17, 2007." Dkt. No. 1, Ex. C at 1. This evidence, accepted as true, is enough to state a claim upon which relief may be granted.
B. Good Moral Character
Martinez presents multiple arguments on the issue of his good moral character classification. First, he argues that the government has not alleged he was acting for the purpose of obtaining immigration benefits, as required by § 1101(f)(6), because the government's Complaint does not specify what Martinez would have gained from his actions. See 8 U.S.C. § 1101(f)(6) ; Dkt. No. 11 at 15. This is a factually incorrect claim. The government states in its Complaint that Martinez lied about his past criminal activity for the purpose of securing naturalization, which is obviously an immigration benefit. See Dkt. No. 1 at ¶ 85. The government states Martinez's misrepresentations "would have had a natural tendency to influence the government's decision whether to approve his naturalization application." Id. at ¶ 94.
On the question of whether Medicaid fraud constitutes a crime involving moral turpitude (CIMT), Martinez argues the government does not provide sufficient allegations. Dkt. No. 11 at 12. The government's Complaint provides an analysis of how Medicaid fraud is a CIMT. Id. at ¶ 62. The government cites case law arguing "[c]rimes that involve intentionally deceiving the government and where dishonesty is an essential element are regarded as crimes involving moral turpitude." Id. (citing Hyder v. Keisler , 506 F.3d 388, 392 (5th Cir. 2007) ). The Fifth Circuit has held that insurance fraud "necessarily entails fraud or deceit." Martinez v. Mukasey , 508 F.3d 255, 259 (5th Cir. 2007).
Martinez also argues that the government's Complaint is deficient because it has not sufficiently alleged that an Order of Deferred Adjudication and Community Supervision constitutes a conviction. Dkt. No. 11 at 12–13. This argument focuses on the fact that the Immigration and Nationality Act ("INA") definition of "conviction" only refers to convictions of "aliens." Id. (citing 8 U.S.C. § 1101(a)(48)(A) ). The statute states
The term "conviction" means, with respect to an alien , a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A) (emphasis added). "Alien" is defined in the INA as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). The government, however, does not need to allege an Order of Deferred Adjudication and Community Supervision is a "conviction." It is enough to show that the commission of a crime of moral turpitude took place during the statutory period. "An applicant shall be found to lack good moral character if during the statutory period the applicant ... [a]dmits committing [a crime of moral turpitude] for which there was never a formal charge, indictment, arrest, or conviction ...." 8 C.F.R. § 316.10(b)(2)(iv) ; see United States v. Ekpin , 214 F. Supp. 2d 707, 714 (S.D. Tex. 2002) ("[A]n applicant for naturalization lacks good moral character if he admits the commission of one or more [CIMTs] during the statutory period, even if there was never a formal charge, indictment, arrest, or conviction."). The indictment and plea agreement provide sufficient evidence of the commission of a crime during the statutory period to survive a motion to dismiss.
C. Willfulness
A court may revoke a person's naturalization if the naturalization was "procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a). This provision "plainly contains four independent requirements: the naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment." Kungys v. United States , 485 U.S. 759, 767, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Under a willful misrepresentation or concealment claim, the government can prevail by proving the fraud occurred during any part of the naturalization process, including in written form on the naturalization application or interview. See Kungys , 485 U.S. at 767, 108 S.Ct. 1537. The government's evidence discussed above, including Defendant's answers on throughout his naturalization application process, the affidavit, and the guilty plea, provides sufficient information as to these elements. Defendant's claim that the government has not proved he acted willfully is premature at this stage in the litigation.
V. Conclusion
For the foregoing reasons, the Court finds that it has subject-matter jurisdiction over the government's claims and that sufficient factual matter has been presented to state plausible claims. The Court hereby ORDERS that Defendant's Motion to Dismiss (Dkt. No. 11) is DENIED.
SO ORDERED this 15th day of December, 2020, at McAllen, Texas.