Alocozy v. USCIS

A waiver of deportation under former INA section 212(c) does not foreclose the government's ability to use a person's conviction when it considers the "unrelated question of fitness for naturalization." Additionally, when determining whether a "new immigration consequence" was created by the retroactive application of the definition of aggravated felony, the Court will look at a person's "settled expectations."

Abdul H. Alocozy ("Alocozy") appealed the district court's denial to review the United States Citizenship and Immigration Services' (“USCIS”) denial of naturalization because of his felony conviction of assault with intent to commit rape. In 1991, Alocozy, a lawful permanent resident, entered a plea of nolo contendere to "felonious assault with the intent to commit rape." In 1999, removal proceedings were initiated against Alocozy but in 2004, the removal proceedings were terminated because an immigration judge ("IJ") granted Alocozy's "application for a discretionary waiver of deportation under former INA section 212(c)." Subsequently, Alocozy applied for and was denied naturalization because "his conviction [] of an aggravated felony automatically prevented him from establishing the good moral character required by law to support his application." Alocozy argued that he is not permanently barred from naturalization because the government waived its right to bar him when it issued the waiver of deportation under former INA section 212(c). The Ninth Circuit dismissed Alocozy's waiver argument because a waiver of deportation is unrelated to and does not foreclose the government's assessment of fitness for naturalization. Additionally, Alocozy argued that, although the government can retroactively apply the definition of what constitutes an aggravated felony, it cannot retroactively create a "new immigration consequence" unforeseen at the time Alocozy entered his plea to assault with intent to commit rape. The Ninth Circuit looks to a person's "settled expectations" and concluded that "[n]o one convicted by a plea of guilty to a felony involving assault with the intent to commit rape and thereby becoming a registered sex offender in his state of residence could reasonably believe that his moral character would not be seriously impaired." The Court therefore dismisses Alocozy's argument that he did not foresee the immigration consequence at the time he entered his plea. AFFIRMED.