Demeaning Naturalization Through Semantics

The Ninth Circuit Rides Again

By Dan Cadman, August 3, 2016
The Ninth Circuit Rides Again

Once again the Ninth Circuit has managed to thread a camel through the eye of a needle in its ongoing attempt to eliminate reason from the rule of law where immigration matters are concerned. The circuit court accepted the case de novo (as a case of first impression) because the case had been summarily dismissed in favor of the government by a lower court when presented there.

In a decision published on July 27, the court found that Lifeng Wang, who had been convicted of the federal crime of trafficking in counterfeit Microsoft software programs, could not be held to have been convicted of an aggravated felony as it is defined in the Immigration and Nationality Act (INA), and therefore the government's holding that she lacked the good moral character needed to naturalize was a mistake.

Reading the opinion, one quickly realizes that Lifeng Wang was no casual software pirate who illegally copied a movie rented from the local Redbox outside a convenience store. She and her partners in crime engaged in this enterprise commercially from 1997 to 2002 when caught. On conviction they were levied heavy restitution penalties, a minimum two months in prison, and a period of probation. Wang violated her probation and was reincarcerated for four months, and had her probation extended.

The court did backflips to arrive at the conclusion that Wang was not in fact an aggravated felon within the meaning of INA Section 101(a)(43)(M)(i), holding that by the language of the law under which she was convicted (trafficking in counterfeit goods or services, 18 U.S.C. Section 2320) "a defendant can be convicted of trafficking in counterfeit goods for conduct that is merely likely to cause 'mistake' or 'confusion.' "

That is a tortured a reading of the statute no reasonable person might arrive at. The plain language of Section 2320 clearly requires knowledge and intent. But the circuit court has hung its collective hat on the fact that the statute defines a counterfeit marking as "a spurious mark...the use of which is likely to cause confusion, to cause mistake, or to deceive". To apply this definition in the void, and without reference to the prior repeated emphases in the statute on knowledge and intent, is absurd. Any reasonable person reading the statute would understand that the statute is prohibiting counterfeiters from deliberately creating counterfeit packaging and trademarks remarkably close, but not identical to, the original in order to cause purchasers to think they are buying the real thing — while ostensibly permitting the counterfeiters to dodge the law by claiming they didn't in fact infringe the real trademark or packaging.

It is ironic that the counterfeiters, including Wang, didn't manage to escape the long arm of the criminal law through such sophistry, but that the Circuit Court has chosen to go down that path on its own in a case. In the process, through a bizarre parsing of words, the Court has also managed to cheapen and demean the greatest gift our nation can confer — naturalization — to a convicted swindler.

If the government hasn't already thrown up its hands on this case and given Wang citizenship, they should file a request for rehearing en banc, and push it to the Supreme Court if needed to put an end to this travesty.

As a parenthetical afterthought, I note that Ms. Wang procured her resident alien status during the time she and her cohorts were operating their bogus software companies. The government should also have prosecuted her (and thereafter stripped her of her residency) for having concealed her participation in an ongoing criminal enterprise at the time she filed her application, because there is little doubt that she had to do so in order to obtain the green card. One wonders why the prosecutors didn't lump that charge into the mix from the start. Unfortunately, the statute of limitations has now tolled for that criminal violation.