United States v. Roger Nepal

Citation: 894 F.3d 204Docket: 17-10228

Court: Court of Appeals for the Fifth Circuit; June 27, 2018; Federal Appellate Court

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Roger Nepal, a naturalized U.S. citizen originally from Nepal, pleaded guilty to violating 18 U.S.C. § 1425(a), which prohibits knowingly procuring citizenship contrary to law. He falsely stated on his Application for Naturalization and during his citizenship interview that he had no children, despite having four. This misrepresentation prevented immigration officials from discovering that he had failed to provide adequate financial support to one of his children. The district court accepted his plea agreement, convicted him, and revoked his citizenship.

Nepal appealed the conviction, arguing that a subsequent Supreme Court ruling in Maslenjak v. United States clarified the burden of proof in such cases and established that qualification for citizenship could serve as a complete defense against prosecution. He contended that this change meant his guilty plea lacked a sufficient factual basis and that he could invoke the new defense. The court found both arguments unpersuasive and affirmed the conviction.

Initially, a grand jury indicted Nepal on three counts related to immigration fraud, including unlawful procurement of naturalization. He ultimately agreed to plead guilty to the unlawful procurement count, and the government dismissed the other charges. In his plea agreement, Nepal acknowledged his false statements regarding his children and admitted that disclosing accurate information would have revealed his statutory ineligibility for citizenship due to a lack of good moral character during the relevant period.

Nepal admitted to failing to provide adequate financial support for Ashwin Dahal, acknowledging that this conduct violated Section 1425(a). During the change of plea hearing, he confirmed his understanding of the factual resume and did not challenge the basis for his plea. The district court determined that Nepal was competent to enter a knowing and voluntary plea, accepted the plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), and convicted him of violating Section 1425(a). The court sentenced him to 366 days in prison, ordered $200,000 in restitution, and revoked his citizenship under 8 U.S.C. § 1451. Nepal appealed, and jurisdiction was established under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

The review of guilty pleas is conducted for compliance with Rule 11, which ensures pleas are knowing and voluntary, requiring a sufficient factual basis for the plea. The court assesses whether the admitted conduct meets the legal elements of the offense. If a defendant does not object to the factual basis at the district court but raises it on appeal, the review is limited to plain error. To succeed on plain error review, the defendant must demonstrate a clear and obvious error that impacted substantial rights, prompting courts to correct such errors if they undermine the integrity of judicial proceedings.

The Supreme Court's decision in Maslenjak v. United States establishes that under Section 1425(a), the Government must demonstrate a causal relationship between a defendant’s false statements and the acquisition of citizenship for a conviction to stand. Section 1425(a) prohibits the procurement of citizenship through deceit. The Court identifies two causal theories: the first involves direct misrepresentation of disqualifying facts, where a lie directly links to the defendant's eligibility; the second, an investigation-based theory, posits that even if a false statement isn’t disqualifying on its own, it could mislead investigators and prevent the discovery of disqualifying facts. For this theory to succeed, the Government must prove the misrepresented fact’s relevance to naturalization criteria and that a reasonable investigation would have revealed disqualifying information. If the defendant can establish actual qualification for citizenship, that serves as a complete defense, regardless of the false statement.

In Nepal's case, his claim of having no children does not disqualify him from citizenship, necessitating reliance on the investigation-based theory. The indictment and factual resume sufficiently meet the Government's burden under this theory, indicating that the evidence supports the claim of deception affecting the naturalization process.

Nepal's misrepresentations regarding his fatherhood are relevant to the naturalization criteria outlined in the Immigration and Nationality Act (INA). According to 8 U.S.C. § 1427(a)(3), an applicant must demonstrate good moral character during a specified period, and the burden of proof lies with the applicant. Section 101 of the INA lists conditions that can negate good moral character, while Department of Homeland Security regulations provide a more detailed list. Specifically, 8 C.F.R. § 316.10(b)(3)(i) states that an applicant lacks good moral character if they willfully failed to support dependents during the statutory period.

The analysis first considers whether a reasonable investigator would pursue further inquiries upon discovering that an applicant has children. Given the implications of 8 C.F.R. § 316.10(b)(3)(i), it is concluded that further investigation is warranted. The second prong of the analysis, based on the Supreme Court's Maslenjak decision, requires the Government to show that an investigation would likely reveal a legal disqualification. The expectation is that inquiries about the applicant’s dependents—such as their names, ages, residency, and financial support—would uncover any willful failure to provide support, thus establishing grounds for disqualification.

Ultimately, the indictment and factual resume sufficiently support Nepal's plea and the necessary statutory elements of Section 1425(a). Additionally, Nepal seeks to invoke a defense against Section 1425(a) prosecution as outlined in Maslenjak, which asserts that citizenship should not be stripped from individuals who meet the legal criteria for citizenship. This defense applies only if the defendant can prove that no disqualifying fact exists despite the Government’s evidence.

The district court's acceptance of Nepal's plea, without allowing him to assert an affirmative defense, may be considered an error. However, Nepal has not demonstrated that this error impacted his substantial rights, which requires showing a reasonable probability that he would not have entered the plea but for the error. In assessing this, the entire record can be reviewed. Nepal claims his rights were affected by the introduction of a new defense, arguing this constitutes a structural error, which is defined as an error that disrupts the foundational framework of a trial. The Supreme Court has identified three categories of structural error: (1) errors protecting interests beyond preventing wrongful convictions, (2) errors with effects too difficult to measure, and (3) errors leading to fundamental unfairness. Nepal's situation does not meet these criteria, as the announcement of a new defense does not equate to deprivation of counsel or other significant errors categorized as structural. Additionally, the cases establishing structural error typically arise from state court appeals or federal habeas challenges, not direct federal appeals from convictions like Nepal's. The error claimed does not warrant an exception under Rule 52(b), which governs direct appeals in federal cases, and Nepal's reliance on the concept of structural error is misplaced. His alternative reference to a prior case does not support his argument.

The court evaluated Knowles's case in light of the precedent set by United States v. Lopez, which deemed the Gun Free School Zones Act unconstitutional under the Commerce Clause. Knowles did not challenge this constitutionality in the district court, leading the court to apply a plain error review to his conviction. It was determined that had the Lopez argument been raised, it would have likely resulted in the dismissal of the Gun Free School Zones Act count against Knowles. The court acknowledged that Knowles could not be blamed for not raising this argument earlier due to the historical context where similar statutes had not been deemed unconstitutional.

In contrast, the court found no direct correlation between the ruling in Maslenjak and Nepal's case. While Maslenjak introduced a potential defense, it did not change existing regulations under which Nepal was convicted. The court noted that Nepal conceded to facts in his plea that allowed the government to prove his violation of the pertinent regulation, undermining his claim that he might have pleaded differently had he known of the Maslenjak defense. Ultimately, the court concluded that Nepal failed to demonstrate a reasonable probability that knowledge of the defense would have affected his decision to plead guilty, leading to the affirmation of his conviction and sentence.