Opinion
No. 04-17529. D.C. No. CV-01-01514-WBS/DAD.
Argued and Submitted December 7, 2006 San Francisco, California.
January 31, 2007.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, Chief District Judge, Presiding.
Before: HAWKINS, TASHIMA, and THOMAS, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Marilyn Thi Dang appeals the district court's partial summary judgment in favor of the government, revoking Dang's citizenship and cancelling her certificate of naturalization. The government brought this action on the basis of crimes committed by Dang during — but for which she was convicted only after — the statutory good moral character period required for naturalization under 8 U.S.C. § 1427(a). Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.
The district court did not abuse its discretion in granting the government's motion to amend its complaint to include a third count based on 8 C.F.R. § 316.10(b)(3)(iii). Because the government sought to amend its complaint well after the court issued its Rule 16 scheduling order, the government was required to demonstrate "good cause" for modifying the order. See Fed.R.Civ.P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). "Rule 16(b)'s `good cause' standard considers the diligence of the party seeking the amendment." Id. at 609. See also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000).
Here, although the district court acknowledged that the facts and theories underlying Count III were available to the government since the inception of its action against Dang, we cannot say that the district court abused its discretion in granting the leave to amend based on interests of judicial economy.
Dang's remaining claims are also without merit. First, even assuming that laches is a permissible defense to a denaturalization proceeding, see United States v. Costello, 365 U.S. 265, 281-82 (1961) (reserving on the applicability of the defense), Dang did not make out the elements of a laches defense. "Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Id. at 282. There is no showing in this record of a lack of diligence by the government.
Second, an "affidavit of good cause" is only required at the initiation of a denaturalization proceeding. See 8 U.S.C. § 1451(a) ("It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings. . . ." (emphasis added)); United States v. Zucca, 351 U.S. 91, 100 (1956) (announcing the principle that the affidavit showing good cause is "a prerequisite to the initiation of [denaturalization] proceedings" (emphasis added)). Therefore, the district court did not err in failing to dismiss the government's complaint on the basis that the government did not file and serve an additional good cause affidavit with its Amended Complaint.
Finally, Dang's assorted attacks on the constitutionality of 8 C.F.R. § 316.10(b)(3)(iii) are unavailing. Contrary to Dang's argument, the regulation is entitled to deference pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984): Congress has not "directly spoken to the precise question at issue" via 8 U.S.C. § 1101(f)(3), and the regulation is a "permissible construction of" 8 U.S.C. 1101(f).
We need not decide whether 8 C.F.R. § 316.10(b)(3)(iii) runs afoul of the Uniformity Clause, U.S. Const. art. I, § 8, cl. 4, because the regulation is unquestionably constitutional as applied to Dang. Dang's crimes of arson, willful injury of a child, and fraud would be considered unlawful in all jurisdictions; thus, no uniformity concerns are implicated in this case.
The Uniformity Clause grants Congress the power to "establish an uniform Rule of Naturalization." U.S. Const. art. I, § 8, cl. 4 (emphasis added). Under 8 C.F.R. § 316.10(b)(3)(iii), an applicant lacks good moral character — and, thus, cannot be naturalized — if the applicant "committed unlawful acts that adversely reflect upon the applicant's moral character" during the statutory period. Dang argues that this regulation violates the Uniformity Clause because acts that are unlawful in one state may be lawful in another state due to the variations in state laws, thus making the rule "not uniform" from state to state.
The overbreadth doctrine is inapposite to a case in which First Amendment protections are not implicated. See, e.g., Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798-801 (1984) (noting the source of the overbreadth doctrine was a recognition of "the deterrent effect on free expression" under broadly written statutes and evaluating potential overbreadth in the First Amendment context exclusively). The statute is not unconstitutionally vague as to Dang: Commission of arson, willful injury to a child, and fraud are, quite clearly, "unlawful acts" to a person of ordinary capacity. Therefore, Dang may not properly bring a vagueness challenge to the regulation. See United States v. Cheely, 36 F.3d 1439, 1443-44 n. 10 (9th Cir. 1994) ("`Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.'" (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973))).