United States v. Yetisen

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, No. 3:18-cv-00570-HZ

Plaintiff, OPINION & ORDER

v.

SAMMY RASEMA YETISEN,

Defendant.

Steven A. Platt

Devin Barrett

J. Max Weintraub

Nancy Pham

U.S. Department of Justice, Civil Division

Office of Immigration Litigation

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

Dianne Schweiner

U.S. Attorney’s Office – District of Oregon

Civil Division

1000 SW Third Avenue, Suite 600

Portland, OR 97204

Attorneys for Plaintiff

Ashley M. Simonsen

Isaac D. Chaput

Covington & Burling LLP

1999 Avenue of the Stars, Suite 3500

Los Angeles, CA 90067

Matthew J. Kalmanson

Hart Wagner, LLP

1000 SW Broadway, Suite 2000

Portland, OR 97205

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff the United States of America (“the Government”) seeks to revoke Defendant

Sammy Rasema Yetisen’s naturalized United States citizenship. The Government previously

moved for judgment on the pleadings as to Count IV and Count V of its Complaint. This Court

granted the Government’s motion as to Count IV for illegal procurement of naturalization due to

lack of good moral character and declined to address Count V (procurement of naturalization by

concealment of a material fact or by willful misrepresentation). See United States v. Yetisen, 370

F. Supp. 3d 1191 (D. Or. 2019). The Ninth Circuit Court of Appeals reversed and remanded.

United States v. Yetisen, No 19-35200, 2021 WL 4739293 (9th Cir. Oct. 12, 2021).

Defendant, who is now represented by counsel, filed an Amended Answer on February 7,

2022. ECF 69. The Government moves for judgment on the pleadings as to four of six

affirmative defenses that Defendant asserts in her Amended Answer. The Government also

moves to strike Defendant’s demand for a jury trial. The Court grants in part and denies in part

the Government’s motion.

BACKGROUND

Defendant, who was born in the former Socialist Federal Republic of Yugoslavia, became

a naturalized U.S. citizen on May 23, 2002. Compl. ¶¶ 7, 87, ECF 1. Defendant is a Bosnian

Muslim. Id. ¶ 11. In 1993, during the Croat-Bosniak War, she served in a special forces unit

within the Supreme Command Staff of the Army of the Republic of Bosnia and Herzegovina.

Id. ¶ 22. After the war, Defendant appeared at the U.S. embassy in Austria seeking refugee

status. Id. ¶ 44. Based on representations she made in her Form I-590, Form G-646, and her

sworn testimony during her refugee interview, the former Immigration and Naturalization

Service (“INS”) approved Defendant’s request for refugee status, and she entered the United

States as a refugee in May 1996. Id. ¶ 65. Defendant was granted lawful permanent resident

status in March 1998 and naturalized in May 2002. Id. ¶¶ 67, 87.

On September 21, 2009, the Prosecutors Office of Bosnia and Herzegovina issued a

warrant for Defendant’s arrest for war crimes committed during the Croat-Bosniak War. Id. ¶¶

90, 91. Prosecutors accused her of participating in the execution-style murders of several Croat

civilians and prisoners of war during an attack on the village of Trusina on April 16, 1993.

Id. ¶ 90. This Court granted the Government’s request for a certificate of extraditability, and

Defendant was extradited to Bosnia and Herzegovina in December 2011. Id. ¶¶ 97, 99;

In re Handanovic, 829 F. Supp. 2d 979 (D. Or. 2011). In April 2012, Defendant entered into a

plea agreement and was convicted of participating in war crimes against civilians and prisoners

of war under the criminal code of Bosnia and Herzegovina. Id. ¶¶ 101, 102. She was sentenced to

a term of imprisonment of five years and six months. Id. ¶ 103. Upon release after serving her

term, Defendant returned to Oregon where she currently resides.

In April 2018, the Government filed a civil action to revoke Defendant’s naturalized U.S.

citizenship. The Government contends that Defendant illegally procured her naturalization

because she did not meet the “good moral character” requirement under 8 U.S.C. § 1427(a)(3)

and because she willfully misrepresented and concealed her military service and her participation

in summary executions of civilians and prisoners of war during the Trusina massacre.

On October 12, 2021, the Ninth Circuit reversed this Court’s grant of judgment on the

pleadings for the Government as to Count IV (lack of good moral character) and remanded the

case for further proceedings. The Government now moves for judgment on the pleadings as to

Defendant’s affirmative defenses of laches, collateral estoppel, ambiguity, and ineffective

assistance of counsel and moves to strike Defendant’s demand for a jury trial.

STANDARDS

I. Rule 12(c)—Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “[T]he same standard of review applicable

to a Rule 12(b) motion applies to its Rule 12(c) analog,” because the motions are “functionally

identical.” Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). In reviewing a

motion brought under Rule 12(c), the court “must accept all factual allegations in the complaint

as true and construe them in the light most favorable to the non-moving party.” Fleming v.

Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The court will grant a motion for judgment on the

pleadings if there is no issue of material fact in dispute, and the moving party is entitled to

judgment as a matter of law. Id. A Rule 12(c) motion may be based on either (1) the lack of a

cognizable legal theory, or (2) insufficient facts to allege a cognizable claim. Godecke v. Kinetic

Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019).

II. Rule 12(f)–Motion to Strike

The court may order stricken from any pleading any insufficient defense or any

redundant, immaterial, impertinent or scandalous matter. Fed. R. Civ. P. 12(f). Granting a motion

to strike is within the discretion of the district court. See Whittlestone, Inc. v. Handi-Craft Co.,

618 F.3d 970, 975 (9th Cir. 2010) (motion to strike under Rule 12(f) reviewed for abuse of

discretion). Rule 12(f) motions to strike are viewed with disfavor and are infrequently granted.

Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 F. Supp. 2d 1187, 1189 (D. Or. 2008), aff'd,

608 F.3d 1084 (9th Cir. 2010); see also Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F. Supp.

3d 850, 858 (N.D. Cal. 2014) (“Motions to strike are regarded with disfavor because of the

limited importance of pleadings in federal practice and because they are often used solely to

delay proceedings.”) (quotation marks and alterations omitted).

DISCUSSION

The Government moves for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c) as to four of Defendant’s affirmative defenses: laches, collateral estoppel,

ambiguity, and ineffective assistance of counsel. The Government also moves to strike

Defendant’s demand for a trial by jury.

I. Motion for Judgment on the Pleadings under Rule 12(c)

As an initial matter, the Court addresses whether a motion under Rule 12(c) is the proper

vehicle for the Court to grant the relief the Government seeks. The usual goal of a Rule 12(c)

motion is entry of judgment in favor of the moving party. 5C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1369 (3d ed. 2022). In general, a plaintiff who seeks to

strike fewer than all defenses raised in the defendant’s pleading should proceed under Rule 12(f)

rather than Rule 12(c). Id. Some courts have held that when the substance of the motion is to

challenge the legal sufficiency of certain defenses, motions for judgment under Rule 12(c) are

not appropriate. E.g., Dysart v. Remington Rand, 31 F. Supp. 296, 297 (D. Conn. 1939). As one

court noted, “even if it should be held that each and every of the special defenses attacked was

insufficient in law, still it would not follow that the plaintiff would be entitled to judgment.” Id.

However, in more recent years, courts have granted partial motions for judgment on the

pleadings. Bradley v. Fontaine Trailer Co., Inc., No. 3:06-cv-62 (WWE), 2009 WL 763548, at

*3 (D. Conn. Mar. 20, 2009) (citing 5C Charles Alan Wright & Arthur C. Miller, Federal

Practice & Procedure § 1369 (3d ed. 2004)); see Savage v. Council on Am.-Islamic Relations,

Inc., No. C 07-6076 SI, 2008 WL 2951281, at *2 (N.D. Cal. July 25, 2008) (“Although Rule

12(c) neither specifically authorizes nor prohibits motions for judgment on the pleadings directed

to less than the entire complaint or answer . . . it is the practice of many judges to permit partial

judgment on the pleadings (e.g. on the first claim of relief, or the third affirmative defense).”)

(internal quotation, citation, and internal brackets omitted). “While Rule 12(c) does not expressly

provide for partial judgment on the pleadings, neither does it bar such a procedure.” New York v.

Micron Tech, Inc., No. C 06-6436 PJH, 2009 WL 29883, at *3 (N.D. Cal. Jan. 5, 2009).

Courts have recently held that both motions for judgment on the pleadings under Rule

12(c) and motions to strike under Rule 12(f) are appropriate ways to challenge the sufficiency of

an affirmative defense. Aaron v. Martin, No. 4:11CV1661 FRB, 2013 WL 466242, at *2 (E.D.

Miss. Feb. 7, 2013). Under either rule, courts apply the same standard of review. Spears v. First

Am. eAppraiselt, No. 5-08-CV-00868-RMW, 2013 WL 1748284, at *6 (N.D. Cal. Apr. 23,

2013); Silva v. B&G Foods, Inc., No. 20-cv-00137-JST, 2021 WL 3160865, at *2 (N.D. Cal.

July 23, 2021). But given the nature of the Government’s challenges and the relief sought, the

Court construes the motion as if it were a motion to strike and addresses it as such.1

1 A Rule 12(f) motion would technically be untimely. Under Rule 12(f)(2), a party must file a

Rule 12(f) motion within 21 days of being served with a responsive pleading. Defendant filed her

Amended Answer on February 7, 2022, and the Government filed this motion on March 21,

2022. However, “[t]he authority given the court by Rule 12(f)(1) to strike an insufficient defense

on its own initiative at any time has been interpreted to allow the district court to consider

untimely motions to strike and to grant them if doing so seems proper.” Aaron, 2013 WL

466242, at *2 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

II. Equitable Defenses

The Government contends that Defendant cannot assert the affirmative defenses of

laches, collateral estoppel, or ambiguity because they are equitable defenses, which according to

the Government, are never available in civil denaturalization cases. The Government argues that

equitable defenses are prohibited in such cases because: (1) “naturalization is not a traditional or

inherent equity power of the courts” and (2) “even if courts had traditional power to equitably

naturalize noncitizens, such power has been superseded by statute.” Pl. Mot. J. Pleadings 5-6,

ECF 72. Defendant asserts that the Government’s sovereign interest in naturalization does not

necessarily apply to civil denaturalization and argues that the Supreme Court has never held that

equitable defenses are per se unavailable in civil denaturalization cases.

A civil denaturalization proceeding is a suit in equity. Luria v. United States, 231 U.S. 9,

27-28 (1913). “The right asserted and the remedy sought” in a denaturalization proceeding are

“essentially equitable not legal.” Id. Nevertheless, the power to determine whether a person is

eligible for naturalization “has not been conferred upon federal courts . . . as one of their

generally applicable equitable powers.” I.N.S. v. Pangilinan, 486 U.S. 875, 883-84 (1988).

Rather, Congress has bestowed upon courts the specific function of naturalizing citizens only in

strict compliance with the terms and conditions of the authorizing statute. Id. at 884; see 8 U.S.C.

§ 1421(d) (“A person may only be naturalized as a citizen of the United States in the manner and

under the conditions prescribed in this subchapter and not otherwise.”). In other words, in

determining whether a person is eligible for naturalization, “courts of equity can no more

disregard statutory and constitutional requirements and provisions than can courts of law.”

Procedure § 1380 (3d ed. 2012)). Thus, even construing the Government’s motion as a motion to

strike, the Court has authority to rule on the motion.

Id. at 883 (citation omitted). Therefore, when a court determines that a person does not qualify

for citizenship, it has no equitable discretion “to ignore the defect and grant citizenship.”

Fedorenko v. United States, 449 U.S. 490, 517 (1981).

The Government relies on Fedorenko and Pangilinan to argue that because courts lack

equitable discretion to grant citizenship, Defendant’s equitable defenses of laches, collateral

estoppel, and ambiguity in this denaturalization case are improper. Defendant argues that

Pangilinan, which was a naturalization case, has no bearing on the question of whether equitable

defenses are available in denaturalization proceedings.

No binding precedent clearly defines whether federal courts lack of discretion to confer

citizenship precludes equitable defenses in denaturalization cases. The parties disagree as to

whether a distinction between naturalization and denaturalization proceedings is relevant to

whether equitable defenses apply to the later. On the one hand, courts have held that, unlike

naturalization proceedings, denaturalization is an unusual civil action because taking away a

person’s citizenship is an extraordinarily severe penalty. See Klapprott v. United States, 335 U.S.

601, 611 (1949) (“Denaturalization consequences may be more grave than consequences that

flow from conviction for crimes.”). Accordingly, “[t]he Government carries a heavy burden of

proof in a proceeding to divest a naturalized citizen of his citizenship.” Costello v. United States,

365 U.S. 265, 269 (1961). Because of the severe consequences to the citizen, “naturalization

decrees are not lightly to be set aside—the evidence must be ‘clear, unequivocal, and

convincing’ and must not leave ‘the issue in doubt.’” Id. (quoting Schneiderman v. United States,

320 U.S. 118, 125 (1943)).

On the other hand, some courts have held that the purpose of denaturalization is not

punishment or deterrence of future violations. United States v. Phattey, 943 F.3d 1277, 1282

(9th Cir. 2019). Rather, “the purpose of denaturalization is to remedy a past fraud by taking back

a benefit to which the alien is not entitled and thus restoring the status quo ante.” Id. at 1283.

Thus, based on the power conferred by statute, if the Government meets its high burden of

proving citizenship was fraudulently obtained, “a court must enter a judgment of

denaturalization—it lacks discretion to do otherwise.” United States v. Teng Jiao Zhou, 815 F.3d

639, 642 (9th Cir. 2016). “[O]nce a district court determines that the Government has met its

burden of proving that a naturalized citizen obtained his citizenship illegally or by willful

misrepresentation, it has no discretion to excuse the conduct.” Fedorenko, 449 U.S. at 517.

The Government relies on the principles established in cases like Fedorenko to assert that

equitable defenses are never available in denaturalization proceedings. But “Fedorenko’s holding

is narrower than the Government suggests.” United States v. Becker, No. CV 18-2049-GW

(AGRX), 2019 WL6167396, at *3, (C.D. Cal. June 20, 2019). The Supreme Court in Fedorenko

held that once the Government has established that the citizen did not meet the statutory

requirements for naturalization, a court lacks discretion to deny the Government’s requested

relief. 449 U.S. at 517. But such a holding does not preclude a court from considering

Defendant’s equitable defenses when it determines whether the Government has met its burden

of proof. The Government points to no case that definitively holds that equitable defenses are

unavailable to a naturalized citizen in civil denaturalization proceedings. Without clear

precedent, the Court declines to make such a finding. Thus, the Court holds that Defendant is not

categorically barred from asserting affirmative defenses that are equitable in nature.

III. Specific Defenses

Along with making the general assertion that equitable defenses are prohibited in civil

denaturalization cases, the Government specifically argues that the Court should strike

Defendant’s affirmative defenses of laches and ineffective assistance of counsel.

A. Laches

The Government contends that a laches defense is categorically unavailable in civil

denaturalization cases. The Government relies on a Supreme Court precedent, which establishes

that in its sovereign capacity, “the United States is not subject to a defense of laches in enforcing

its rights.” United States v. Summerlin, 310 U.S. 414, 416 (1940); see United States v. Hamed,

976 F.3d 825, 831 (8th Cir. 2020) (“Laches is unavailable against the United States when it is

proceeding in its sovereign capacity.”) (citation and brackets omitted). Regulation of

immigration and naturalization is generally considered a core inherent power of the United States

as sovereign. Arizona v. United States, 567 U.S. 387, 394 (2012). The Supreme Court has noted

that “[i]t has consistently been held in the lower courts that delay which might support a defense

of laches in ordinary equitable proceedings between private litigants will not bar a

denaturalization proceeding brought by the Government.” Costello, 365 U.S. at 281 (emphasis

added).

But in Costello, the Supreme Court also noted that it had not previously considered

whether laches applies in a denaturalization proceeding. Id. at 282. Importantly, the Court in

Costello did not hold that a laches defense was unavailable. Id. Rather the Court analyzed and

denied the defendant’s laches defense because the defendant had failed to prove the necessary

elements. Id. In no subsequent case has the Supreme Court held that a laches defense is barred in

denaturalization proceedings.

The Ninth Circuit has not yet determined whether a laches defense is available in

denaturalization proceedings. See United States v. Dang, 488 F.3d 1135, 1143-44 (9th Cir. 2007)

(“It remains an open question in this circuit as to whether laches is a permissible defense to a

denaturalization proceeding.”).2 “Both the Supreme Court and the Ninth Circuit have assumed

the availability of a laches defense to defendants in denaturalization suits, and have evaluated

their laches defenses on the merits.” United States v. Becker, No. CV 18-2049-GW(AGRX),

2021 WL4498649, at *14 (C.D. Cal. Apr. 12, 2021) (citing Costello, 365 U.S. at 281-82; Dang,

488 F.3d at 1444); see United States v. Arango, 686 F. App’x 489, 490 (2017) (“Even assuming

laches is a permissible defense, Arango’s claim fails as the district court did not err in concluding

that Arango failed to prove lack of diligence by the government.”).

The Court recognizes that the Government has often successfully brought

denaturalization cases many years after defendants had been granted naturalization. See, e.g.,

Teng Jiao Zhou, 815 F.3d at 641 (commencing denaturalizing proceedings twenty years after the

defendant naturalized); United States v. Arango, No. CV 09-178 TUC DCB, 2014 WL 7179578

(D. Ariz. Dec. 17, 2014), aff’d, 686 F. App’x 489 (2017) (denaturalizing suit brought sixteen

years after naturalization); United States v. Multani, No. 2:19-cv-01789-BJR, 2021 WL 633638

(W.D. Wash. Feb. 18, 2021) (initiating civil denaturalization proceeding thirteen years after the

defendant naturalized). And Defendant presents no case in which a citizen successfully prevailed

in a denaturalization case based on a laches defense. Nevertheless, because no binding precedent

establishes that a laches defense is categorically barred in civil denaturalization proceedings, the

Court denies the Government’s motion strike Defendant’s laches defense.

2 In remanding this case, the Ninth Circuit stated: “In light of our disposition, we need not

address whether laches can be raised as a defense to a denaturalization proceeding[.]” Yetisen,

2021 WL 4739293, at *3.

B. Ineffective Assistance of Counsel

In her Amended Answer, Defendant asserts that “Plaintiff’s claims are barred in whole or

in part because [Defendant’s] criminal defense counsel failed to advise her that a criminal plea in

Bosnia and Herzegovina could form the basis for the Government to seek denaturalization.” Am.

Ans., Sixth Affirmative Defense. Thus, Defendant claims that ineffective assistance of counsel

during her foreign criminal proceedings is a defense to the Government’s claim for

denaturalization. The Government argues that such a defense is impermissible in Defendant’s

civil case because, if she were successful in asserting ineffective assistance of counsel, the

remedy would be to reopen her foreign criminal case. In her Response Brief, Defendant asserts

that her “ineffective assistance claim is not a true affirmative defense.” Def. Resp. Pl. Mot. J.

Pleadings 12, ECF 76. Rather, Defendant argues that because she was not fully informed about

the consequence of her guilty plea to her United States citizenship, the Government should not

be permitted to rely on the plea as evidence to support revoking her naturalization. In essence,

Defendant appears to claim that the criminal judgment in Bosnia based on her guilty plea should

not be given preclusive effect.

To the extent that Defendant asserts an affirmative defense of ineffective assistance of

counsel, such a defense is unavailable. Defendant cannot challenge her criminal conviction in

Bosnia and Herzegovina through a civil denaturalization proceeding in this Court. See United

States v. Salem, 496 F. Supp. 3d 1167, 1183 (N.D. Ill. 2020) (“A denaturalization case is not the

right time or place to challenge a criminal conviction.”). Thus, the Court grants the

Government’s motion as to Defendant’s affirmative defense of ineffective assistance of counsel.

IV. Demand for a Jury Trial

The Government moves to strike Defendant’s demand for a jury trial. A party may have a

right to a civil trial by jury under the Seventh Amendment of the United States Constitution. Fed.

R. Civ. P. 38(a)(1). But under Rule 39(a)(2), a district court has the authority to deny a party’s

jury trial demand if the court finds that the party does not have a federal right to trial by jury.

“The Seventh Amendment preserves the right of a trial by jury to suits at common law, but not in

equity.” Becker, 2019 WL 6167396, at *6 (citing Ross v. Bernhard, 396 U.S. 531, 533 (1970)).

“[D]enaturalization actions are suits in equity to which the Seventh Amendment does not

apply[.]” Id. at 7 (citation omitted); see Luria, 231 U.S. at 27-28. Thus, there is no federal right

to a jury trial under the Seventh Amendment for denaturalization proceedings.

Defendant argues that even if the Seventh Amendment does not apply, she has a right to a

jury trial under the Fifth Amendment Due Process Clause. Defendant asserts that despite being

the result of a civil proceeding, denaturalization is “an extraordinarily severe penalty.” Klapprott,

335 U.S. at 612. Thus, Defendant contends, due process requires greater procedural protections

than ordinary civil cases.

But despite the potentially grave consequences of a denaturalization and the high burden

on the Government to prove its case, “the Supreme Court has long held that the revocation of

citizenship under these denaturalization provisions is not a penalty.” Phattey, 943 F.3d at 1281.

Indeed, the Supreme Court has held that denaturalization “merely deprives the alien of a

privilege that was never rightfully his.” Id. (quoting Johannessen v. United States, 225 U.S. 227,

242-43 (1912)). Thus, Defendant cannot show that the rights at stake are so severe that

procedural protection akin to the Sixth Amendment right to a jury trial in criminal cases would

be required.

In addition, Defendant fails to adequately show that her procedural due process rights

would not be adequately protected by procedures provided by statute. “Though revocation of

citizenship is a severe sanction, due process [is] satisfied by a fair trial before an impartial

decision maker.” United States v. Schellong, 717 F.3d 329, 336 (7th Cir. 1983), cert. denied, 465

U.S. 1007 (1984). As one court noted:

Defendants in revocation of naturalization proceedings are provided with numerous

procedural protections. The Supreme Court has established a “heavy burden of

proof” in denaturalization proceedings, including that evidence justifying

revocation of citizenship must be clear, unequivocal, and convincing and not leave

the issue in doubt. . . . [8 U.S.C. § 1451] itself contains additional procedural

protections. The government is required to initiate denaturalization proceedings in

federal court, which encompasses all the procedural protections afforded therein by

the Federal Rules of Civil Procedure including entitlement to discovery . . . and an

impartial judge.

Multani, 2021 WL 633638, at *7. Analyzing the factors outlined in Mathews v. Eldridge, 424

U.S. 319 (1976), the court in Multani found that procedural due process is satisfied by the

statutory procedures for denaturalization Congress provided in 8 U.S.C. § 1451(a), which does

not include the right to a jury trial. 2021 WL 633638, at *7; see Becker, 2019 WL 6167396, at *7

(citation omitted) (“[T]he denaturalization statute, 8 U.S.C. § 1451(a) does not provide a jury

trial.”)

Accordingly, the Court grants the Government’s motion to strike Defendant’s demand for

a jury trial.

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CONCLUSION

The Court GRANTS in part and DENIES in part the Plaintiff’s Motion for Judgment on

the Pleadings and Motion to Strike Jury Demand [72].

IT IS SO ORDERED.

DATED:____A_u_g_u__s_t _2_2_, _2_0_2_2______.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge