UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 19-cv-1113-PB Opinion No.

Sheikh Enamur Rahman a/k/a Mohammed Enam

MEMORANDUM AND ORDER

More than twelve years after Sheikh Enamur Rahman became a

naturalized U.S. citizen, the government filed this civil action

to strip him of his citizenship. The complaint alleges that

Rahman illegally procured naturalization in violation of

(a). Rahman moves for judgment on the pleadings on

the ground that the action is subject to a five-year statute of

limitations under

. The government opposes

Rahman’s motion. Because the five-year statute of limitations

does not apply to denaturalization actions, I deny Rahman’s

motion.

I. BACKGROUND

Rahman is a former citizen of Bangladesh who became a

permanent resident in 2004 based on his marriage to a U.S.

citizen. He applied for naturalization in 2006 and became a

naturalized U.S. citizen in 2007. In 2019, the government commenced this action to revoke

Rahman’s citizenship. The complaint alleges that Rahman applied

for asylum in 1994 using the identity Mohammed Enam, withdrew

that application in 1997, and was ordered deported in 2000.

When he subsequently applied for lawful permanent residence,

Rahman allegedly lied about and concealed his prior use of the

other identity and his immigration history. As a result, the

government contends that he was not eligible for the permanent

residence on which his naturalization is premised and that his

naturalization was, therefore, unlawfully procured.1

II. STANDARD OF REVIEW

A party may move for judgment on the pleadings at any time

“[a]fter the pleadings are closed but early enough not to delay

trial.” Fed. R. Civ. P. 12(c); see R.G. Fin. Corp. v. Vergara-

Nuñez,

(1st Cir. 2006). A motion for judgment

on the pleadings is subject to the same standard of review as a

motion to dismiss for failure to state a claim under Rule

12(b)(6). Collier v. City of Chicopee,

(1st

Cir. 1998). Accordingly, in reviewing a motion for judgment on

the pleadings, I “must accept all of the nonmovant’s well-

1 The complaint presents additional claims as to why Rahman’s naturalization must be revoked, but the specifics of those claims are not relevant to the present motion. 2 pleaded factual averments as true, and draw all reasonable

inferences in his favor.” Rivera–Gomez v. de Castro,

(1st Cir. 1988) (internal citations omitted). I may

enter judgment on the pleadings “only if the uncontested and

properly considered facts conclusively establish the movant’s

entitlement to a favorable judgment.” Zipperer v. Raytheon Co.,

(1st Cir. 2007) (internal quotation marks

omitted).

The parties agree that the applicability of the statute of

limitations is a question of law that I may resolve on the

pleadings.

III. ANALYSIS

Rahman argues that a denaturalization action constitutes a

“penalty” for purposes of the five-year “catch-all” statute of

limitations generally applicable to civil fines, penalties, and

forfeitures. See

. Because more than five

years have passed since he was naturalized, Rahman contends that

the government cannot now revoke his citizenship. In its

opposition to Rahman’s motion, the government argues that § 2462

does not apply to denaturalization proceedings and that there is

no time limit on such actions.2

2 The government also has filed a cross-motion for judgment on the pleadings, arguing that I must revoke Rahman’s citizenship 3 Under

(a), the government may file a civil

complaint to revoke citizenship if a citizen’s naturalization

was “illegally procured” or was “procured by concealment of a

material fact or by willful misrepresentation.” Naturalization

was “illegally procured” if the individual did not meet the

statutory requirements for citizenship. Fedorenko v. United

States,

(1981). “Nothing in the statute

provides for the imposition of a fine, penalty, or sentence of

imprisonment—only the revocation of citizenship.” United States

v. Phattey,

(9th Cir. 2019) (citing

(a)).

The Immigration and Nationality Act “does not contain an

express period of limitations for initiating denaturalization

proceedings.” United States v. Rebelo,

(3d Cir. 2010); see Costello v. United States,

(1961) (“Congress has not enacted a time bar applicable to

proceedings to revoke citizenship procured by fraud.”).3 The

question, then, is whether the catch-all statute of limitations,

generally applicable to actions “for the enforcement of any

because the undisputed facts established in the pleadings show that he procured it illegally. I address the government’s motion in a separate order. 3 By contrast, Congress has imposed a ten-year statute of limitations to a criminal proceeding for unlawful procurement of naturalization under

. See

. 4 civil fine, penalty, or forfeiture, pecuniary or otherwise,” see

, applies to denaturalization actions.

Specifically, Rahman argues that denaturalization is a “penalty”

for the purposes of § 2462. In resolving this question, I am

guided by the principle that “[s]tatutes of limitation sought to

be applied to bar rights of the Government, must receive a

strict construction in favor of the Government.” Badaracco v.

C.I.R.,

(1984) (quoting E.I. Dupont De Nemours

& Co. v. Davis,

(1924)); see United States v.

Li,

(5th Cir. 2015) (applying this

principle in analyzing applicability of § 2462 to

denaturalization actions); Rebelo,

(same).

As Rahman acknowledges, the Supreme Court has long declared

that denaturalization is not a penalty but rather a means to

deprive a naturalized citizen of a privilege that should never

have been conferred. See Trop v. Dulles,

(1958)

(plurality opinion) (“Denaturalization is not imposed to

penalize the alien for having falsified his application for

citizenship . . . .”); Johannessen v. United States,

(1912) (explaining that denaturalization “imposes no

punishment upon an alien who has previously procured a

certificate of citizenship by fraud or other illegal conduct”

but rather “simply deprives him of his ill-gotten privileges”).

Applying this principle, federal circuit and district courts

5 have uniformly held that the catch-all statute of limitations

does not apply to denaturalization actions. See, e.g., Phattey,

; Li,

; Rebelo,

; United States v. Wasel, No. 2:17-cv-12296,

, at *2 (E.D. Mich. Aug. 10, 2020); United States v.

Becker, No. CV 18-2049,

, at *5 (C.D. Cal. June

20, 2019); United States v. Borgono, No. 18-cv-21835,

, at *4 (S.D. Fla. Apr. 18, 2019); United States v.

Malik, No. 15-9092-CM,

, at *3-4 (D.

Kan. Apr. 17, 2019); United States v. Dhanoa,

, 301 (D.S.C. 2019); see also United States v. Hauck,

(2d Cir. 1946) (concluding that reliance on

predecessor statute to § 2462 in denaturalization action

amounted to “a hopeless clutching at straws; that statute is

completely irrelevant”) (citing United States v. Brass,

(E.D.N.Y. 1941); United States v. Ali,

(E.D. Mich. 1925)).

Not to be deterred, Rahman argues that the case law needs

to be reassessed in light of the Supreme Court’s decision in

Kokesh v. SEC,

(2017). In Kokesh, the

Supreme Court held that § 2462 applies to disgorgement actions

filed by the Securities and Exchange Commission (“SEC”) to

enforce federal securities laws. Id. at 1645. Disgorgement

qualifies as a penalty, the Court reasoned, because (1) the

6 wrong it seeks to redress is a wrong to the public, rather than

to an individual, and (2) its primary purposes are punishment

and deterrence, rather than compensating victims for their

losses. Id. at 1642. The Court rejected the government’s

argument that SEC disgorgement is remedial because it does not

necessarily “simply restore the status quo.” Id. at 1644-45.

Instead, disgorgement may “leave[] the defendant worse off”

because the sanction can exceed the profits the defendant gained

as a result of the violation. Id.

Rahman’s reliance on Kokesh to support his position that

denaturalization operates as a penalty is misplaced. First, the

Supreme Court in Kokesh addressed a pecuniary sanction, not a

revocation of status. An expansive reading of that opinion to

overrule longstanding precedent specific to denaturalization is

inconsistent with the Court’s narrow holding. See id. at 1642

n.3 (“The sole question presented in this case is whether

disgorgement, as applied in SEC enforcement actions, is subject

to § 2462’s limitations period.”); see also Wasel,

, at *1 (“The Supreme Court’s discussion of monetary

penalties in the context of SEC enforcement actions in . . .

Kokesh cannot overrule longstanding precedent solely by

implication.”); Becker,

, at *5 (declining to

“break from . . . decades of contrary cases . . . based only on

an expansive reading of the Court’s arguably narrow decision in

7 Kokesh”); Dhanoa, 402 F. Supp. 3d at 301 (reasoning that Kokesh

did not compel a conclusion that denaturalization claims are

subject to § 2462 because “the Court was specifically only

addressing a pecuniary penalty”).

More fundamentally, under the principles announced in

Kokesh, denaturalization is not a penalty within the meaning of

§ 2462. As the government concedes, denaturalization redresses

a public wrong and therefore meets the first prong of the Kokesh

test. See

. But denaturalization does not

satisfy the second prong because, unlike disgorgement, its

purpose is remedial, not punitive. See

The statute pursuant to which the government seeks to

denaturalize Rahman - § 1451(a) – provides that denaturalization

proceedings may be instituted “for the purpose of revoking and

setting aside the order admitting such person to citizenship and

canceling the certificate of naturalization.”

(a). Unlike its counterpart that sanctions criminal

proceedings for unlawful procurement of naturalization,

§ 1451(a) does not authorize imposition of a fine or

imprisonment. Compare id. with

. Revoking

citizenship pursuant to this civil statute solely withdraws a

privilege that should not have been bestowed in the first place,

restoring the defendant to the same position he would occupy but

for his illegal conduct. See Johannessen,

.

8 Denaturalization corrects the mistake of granting citizenship to

someone who was not entitled to it in the first place in order

to “safeguard the integrity of this priceless treasure.”

Fedorenko,

(internal quotation marks omitted).

Accordingly, the language and structure of § 1451(a) confirm

that “denaturalization is a restorative or remedial action, not

an action that seeks to punish.” Li,

.

The fact that denaturalization is purely restorative

distinguishes it from SEC disgorgement, which may exceed the

defendant’s illicit gains and leave him in a worse position than

if he had never violated securities laws. See Kokesh,

. Indeed, every court to apply the Kokesh test in

the context of denaturalization has held that, unlike

disgorgement, the purpose of denaturalization is not to punish

or deter but to restore the status quo ante. See Phattey,

; Wasel,

, at *1; Becker,

, at *5; Malik,

, at *3-4;

Dhanoa, 402 F. Supp. 3d at 301.

To be sure, denaturalization actions may have a deterrent

effect. Citizenship is a “precious right,” Costello,

, and its loss carries “severe and unsettling

consequences.” Fedorenko,

. But, as the Ninth

Circuit recently concluded, any deterrence is “simply an

incidental effect” of denaturalization, rather than its “primary

9 purpose.” Phattey,

(quoting Kokesh,

).

Rahman nonetheless contends that denaturalization functions

as a penalty because in recent press releases the Department of

Justice (“DOJ”) described denaturalization actions as promoting

deterrence and punishment. This argument is meritless.

Statements by the executive branch tasked with the enforcement

of a statute cannot override the statute’s legislative purpose.

As discussed above, the objectively manifested legislative

purpose of § 1451(a) is restorative, not punitive. It is no

surprise, then, that other courts have rejected the same

argument. See Becker,

, at *5; Malik,

, at *3-4; United States v. Phattey, No. 3:17-

cv-00247, ECF No. 32 (D. Alaska Oct. 2, 2018). Because DOJ’s

press releases cannot supersede a contrary legislative purpose,

I am not persuaded to depart from uniform case law precluding

the imposition of § 2462’s limitations period to

denaturalization actions.4

4 Rahman also points to two cases where the revocation of a defendant’s status was deemed to be a penalty within the meaning of § 2462. See Sheinbein v. Dudas,

(Fed. Cir. 2006); Proffitt v. FDIC,

(D.C. Cir. 2000). Those cases are inapposite. In each case, the defendant lawfully obtained a status, proceeded to commit some act of wrongdoing, and then had the status revoked as punishment. See Sheinbein,

(addressing order excluding attorney from practicing before USPTO because of disbarment in other jurisdictions for committing criminal act while member of those 10 IV. CONCLUSION

Because denaturalization is not a penalty within the

meaning of

, the catch-all statute of

limitations does not apply to this action. Accordingly, I deny

Rahman’s motion for judgment on the pleadings (Doc. No. 20).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 2, 2020

cc: Troy Liggett, Esq. Michele E. Kenney, Esq.

bars); Proffitt,

(addressing FDIC’s removal of bank director due to misconduct committed while in office). By contrast, the government alleges that Rahman committed an unlawful act to obtain the status in question. Revocation, therefore, would restore his ex-ante status, correcting the erroneous grant of citizenship, rather than punishing him for any wrongdoing. 11