FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-35998 Plaintiff-Appellee, D.C. No. v. 3:17-cv-00247-JWS- MMS PHODAY BABA PHATTEY, a.k.a. Foday Fatty, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding Submitted August 5, 2019* Anchorage, Alaska Filed December 5, 2019 Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges. Opinion by Judge Ikuta * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. PHATTEY SUMMARY** Immigration Affirming the district court’s grant of summary judgment in favor of the government, the panel held that the five-year statute of limitations set out by 28 U.S.C. § 2462, which generally applies to actions to enforce civil penalties, does not apply to denaturalization proceedings. In 2010, Phoday Phattey was issued a certificate of naturalization. In 2017, the government learned that Phattey had obtained his citizenship by fraud and filed a complaint to revoke naturalization under 8 U.S.C. § 1451(a). Although § 1451(a) does not contain a statute of limitations, Phattey argued that the five-year statute of limitations set out by 28 U.S.C. § 2462 applies to revocation proceedings and that, therefore, the statute of limitations to bring the denaturalization action had expired. Observing that the Supreme Court has long held that revocation of citizenship is not a penalty, the panel held that § 2462 does not provide Phattey a statute-of-limitations defense because denaturalization is not a penalty for purposes of § 2462. The panel rejected Phattey’s argument that the relevant precedent had been superseded by Kokesh v. SEC, 137 S. Ct. 1635 (2017), in which the Supreme Court concluded that § 2462 applies to disgorgement actions brought by the Securities Exchange Commission. The panel observed that the Supreme Court set out two principles in ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. PHATTEY 3 Kokesh: 1) whether a sanction represents a penalty turns in part on whether the wrong sought to be addressed is a wrong to the public or a wrong to an individual; and 2) a pecuniary sanction operates as a penalty only if it is sought for the purpose of punishment, and to deter others from offending. The panel explained that, although the wrong sought to be redressed by denaturalization is a wrong to the public, revocation of citizenship is not sought for the purpose of punishment or to deter future violations. 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. COUNSEL Nicolas A. Olano and Lara E. Nations, Nations Law Group, Anchorage, Alaska, for Defendant-Appellant. Joseph F. Carilli, Jr., Trial Attorney; Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, District ...
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