. In United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992), we held that § 1425(a) contains a materiality requirement. See id. at 1305.

Once the government has carried its burden and proven the naturalized citizen improperly procured his naturalization, a “presumption of ineligibility” arises, “which the naturalized citizen is then called upon to rebut.” United States v. Puerta, 982 F.2d 1297, 1303–04 (9th Cir.1992) (quoting Kungys, 485 U.S. at 783–84, 108 S.Ct. 1537 (Brennan, J., concurring)). The burden-shifting of § 1451(a)'s denaturalization procedure underscores the fact that “[a] denaturalization suit is not a criminal proceeding,” Schneiderman v. United States, 320 U.S. 118, 160, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), but a “civil case.”

See also Forbes v. INS, 48 F.3d 439, 442-43 (9th Cir. 1995) (specifically applying Kungys's definition of "material" in proceedings under section 1182). The Ninth Circuit, in United States v. Puerta, 982 F.2d 1297, 1303-04 (9th Cir. 1992), reviewed the Kungys decision and concluded that Justice Brennan's view of materiality, described in a concurring opinion, controls. Justice Brennan, the Ninth Circuit concluded, had "apparently viewed his opinion as a narrowing construction of Justice Scalia's opinion," and because his was the fifth vote required to establish a "controlling" standard, his view therefore represented the holding of the Court.

That is, the production of truthful information would have raised a fair inference that the Defendant was statutorily ineligible for naturalization. (D.E. 45.) The Defendant argues that the Supreme Court's decision in Kungys v. United States, 485 U.S. 759 (1988), the Eleventh Circuit's decision in United States v. PirelaPirela, 809 F.3d 1195 (11th Cir. 2015), the Seventh Circuit's decision in United States v. Latchin, 554 F.3d 709, 715 (7th Cir. 2009), and the Ninth Circuit's decision in United States v. Puerta, 982 F.2d 1297, 1304 (9th Cir. 1992) suggest, if not compel, the conclusion that § 1425 contains a materiality element. Defendant's proposed jury instruction ignores an express element of § 1425(a) - that the Defendant's procurement of citizenship be contrary to law; and instead includes both (competing) materiality standards that were developed in the Supreme Court's fractured decision in Kungys, 485 U.S. at 759.

" The statute does not define the phrase "contrary to law," but "it has been interpreted to mean a violation of the laws governing naturalization." United States v. Djanson, 13-4854, 2014 WL 3378125, at *1 (4th Cir. July 11, 2014) (citing Fedorenko v. United States, 449 U.S. 490, 506 (1981); United States v. Puerta, 982 F.2d 1297, 1300-01 (9th Cir. 1992)). The Court of Appeals for the Ninth Circuit has explained that, "in order to obtain a conviction under [§1425(a)], the government must prove" the following elements: "(1) that the false information provided by the defendant has a tendency to suggest that he was qualified for naturalization, (2) that the production of truthful information would have led to the discovery of facts relevant to the alien's petition for naturalization, and (3) that there must be evidence sufficient to 'give rise to a fair inference' that the applicant was statutorily ineligible for naturalization."

Id. at 784, 108 S.Ct. 1537 (Brennan J., concurring).Latchin , 554 F.3d at 713–14 (first and second alterations in original) (footnote omitted); accord United States v. Mensah , 737 F.3d 789, 808 (1st Cir. 2013) ; United States v. Alferahin , 433 F.3d 1148, 1155 (9th Cir. 2006) ; United States v. Puerta , 982 F.2d 1297, 1302–04 (9th Cir. 1992) ; United States v. Agunbiade , 172 F.3d 864, 1999 WL 26937, at *2–3 (4th Cir. Jan. 25, 1999) (unpublished per curiam).Applying the Latchin court's rationale, Justice Brennan's concurring opinion in Kungys controls.

The Ninth Circuit has recognized Justice Brennan's concurrence as the controlling standard of materiality in section 1425(a) prosecutions. See United States v. Puerta, 982 F.2d 1297, 1304 (9th Cir.1992). “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quotation omitted).

As a general rule, a "movant may not raise new facts or arguments in [a] reply brief." Quinstreet, Inc. v. Ferguson, 2008 WL 5102378, at *4 (W.D. Wash. 2008), citing United States v. Puerta, 982 F.2d 1297, 1300 n. 1 (9th Cir. 1992). The Court will grant Defendant's request through its surreply to strike any arguments and exhibits raised by Plaintiff for the first time in her Reply.

The Court finds that the evidence presented was more than sufficient as to deny the extraordinary measure of granting a motion for acquittal. Al-Kadumi cites United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992), to support his position that the Court should acquit him based on a lack of "materiality" to his false statements. (Def.'s Reply 2). The present case involves facts significantly distinguishable from those in Puerta. In that case, the interviewer had "no recollection" of the defendant's N-400 interview. Puerta, 982 F.2d at 1299.

The Ninth Circuit has explained that "a misrepresentation is material if it has a natural tendency to produce the conclusion that the applicant was qualified for citizenship. A misrepresentation or concealment can be said to have such a tendency if honest representations would predictably have disclosed other facts relevant to the applicant's qualifications." United States v. Puerta, 982 F.2d 1297, 1303-04 (9th Cir. 1992) (citing Kungys, 485 U.S. at 783-84) (emphasis added; internal quotes omitted). Count VI alleges that Li misrepresented her marital status and concealed the existence of her children in her N-400 application and her interview with Officer Cass. For the reasons set forth above, the Court finds that Li did misrepresent and conceal these facts, and that the misrepresentation and concealment were willful. The Court must therefore decide whether the true facts would have been material and whether Li procured citizenship as a result.