FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDUL H. ALOCOZY,

Petitioner-Appellant,

v.

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES;

ALEJANDRO MAYORKAS, Director,

United States Citizenship &

Immigration Services; MICHAEL C.

BIGGS, Field Director of United

States Citizenship & Immigration

Services; JANET A. NAPOLITANO,

Secretary of the Department of

Homeland Security,

Respondents-Appellees.

No. 11-16557

D.C. No.

2:10-cv-01597-

JAM-KJN

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

December 6, 2012—San Francisco, California

Filed December 28, 2012
2 ALOCOZY V. USCIS

 The Honorable Frederic Block, Senior United States District Judge for *

the Eastern District of New York, sitting by designation.

Before: Stephen S. Trott and Johnnie B. Rawlinson,

Circuit Judges, and Frederic Block, District Judge.*

Opinion by Judge Trott
ALOCOZY V. USCIS 3

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel affirmed the district court’s summary judgment

in favor of the United States Citizenship and Immigration

Services, in Abdul H. Alocozy’s action challenging the

USCIS’ determination finding him ineligible for

naturalization due to his felony conviction for assault with

intent to commit rape.

The panel held that the government’s prior grant of INA

§ 212(c) relief to Alocozy did not constitute a waiver by the

government of 8 U.S.C. § 1101(f)(8)'s permanent bar to

naturalization. The panel also held that IIRIRA’s addition of

“crime of violence” offenses to the list of aggravated felonies

that bar naturalization was not an improper retroactive

application of the statute.

COUNSEL

Stephen Shaiken, San Francisco, California, for PetitionerAppellant.

Audrey B. Hemesath, Department of Justice, Sacramento,

California, for Respondents-Appellees.
4 ALOCOZY V. USCIS

OPINION

TROTT, Circuit Judge:

Abdul H. Alocozy appeals a decision by the district court

denying his petition for review of a determination by the

United States Citizenship and Immigration Services

(“USCIS”) that his felony conviction of assault with intent to

commit rape renders him ineligible to become naturalized as

a United States citizen. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

I

The facts and circumstances surrounding this case are

largely undisputed. Alocozy, a native and citizen of

Afghanistan, came to the United States in 1983. On October

15, 1984, his status was adjusted pursuant to section 209(a)

of the Immigration and Naturalization Act (“INA”) to “lawful

permanent resident.” On October 3, 1990, he was charged in

Alameda County, California with rape, in violation of

California Penal Code section 261. He subsequently pleaded

nolo contendere on January 9, 1991 to felonious assault with

the intent to commit rape, in violation of California Penal

Code section 220, as a stipulated related offense to the crime

originally charged.

In 1999, the Immigration and Naturalization Service

(“INS”) initiated removal proceedings against Alocozy on

account of his conviction of an aggravated felony as defined

in section 101(a)(43) of the INA. On May 27, 2004, an

immigration judge (“IJ”) granted his application for a

discretionary waiver of deportation under former INA section
ALOCOZY V. USCIS 5

 See also 8 C.F.R. § 316.10(b)(1). 1

212(c), and removal proceedings against him were

terminated.

Five months later, on October 6, 2004, he applied to the

USCIS for naturalization as a United States citizen. On

September 28, 2005, the USCIS’s District Director denied

Alocozy’s application on the ground that his conviction on

January 9, 1991 of an aggravated felony automatically

prevented him from establishing the good moral character

required by law to support his application, thus barring him

from naturalization.

Alocozy’s administrative appeal of the District Director’s

decision was unsuccessful, and he then filed a petition for de

novo review in the district court pursuant to the INA.

8 U.S.C. § 1421(c). On cross-motions for summary

judgment, the court granted judgment to the USCIS.

Based upon the litigants’ agreement that Alocozy was

convicted on January 9, 1991 of an aggravated felony,

8 U.S.C. § 1101(a)(43), the district court held as follows: 

1) In 1996, Congress added “a crime of violence” to the

list of aggravated felonies in 8 U.S.C. § 1101(a)(43) as part

of the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”).

2) In section 321(b) of IIRIRA, Congress intended this

addition to apply retroactively to the aggravated felony bar to

naturalization established by the Immigration Act of 1990

(“IMMACT 90”).1
6 ALOCOZY V. USCIS

3) Because IMMACT 90 is not retroactive, the good

moral character bar “applies only to aggravated felonies [such

as Alocozy’s] entered on or after November 29, 1990,” the

effective date of IMMACT 90.

4) Because Alocozy’s aggravated felony conviction

postdates November 29, 1990, it “permanently bar[s] him

from establishing good moral character for naturalization.”

II

Alocozy does not dispute the first three of these

conclusions. However, he asserts nevertheless that the grant

to him of former INA section 212(c) relief from deportation

(now removal) constituted a waiver by the Government of

8 U.S.C. § 1101(f)(8)’s permanent bar to naturalization. He

bolsters this contention with the argument that because the

crime of which he was convicted was not an “aggravated

felony” in 1991 at the time of his plea, INS v. St. Cyr,

533 U.S. 289 (2001) precludes the application to him “of an

adverse immigration consequence not foreseeable” at the time

he entered his plea. Thus, he contends, even though “the

definition of aggravated felony is applied retroactively, the

creation of a new immigration consequence is barred by St.

Cyr.”

Relying in part on the Second Circuit’s opinion in Chan

v. Gantner, 464 F.3d 289, 294 (2d Cir. 2006) (per curiam),

the district court dismissed these arguments, noting that

section 212(c)’s shield in the context of deportation/removal

does not permit him to use it “as a sword in the naturalization

context to bar the Government’s reliance on his aggravated

felony conviction in denying him the wholly separate

immigration benefit of naturalization.” The district court also
ALOCOZY V. USCIS 7

held that Alocozy “could not have had a settled expectation

at the time of his conviction that a potential discretionary

grant of 212(c) relief would also render him eligible to

naturalize, and thus INS v. St. Cyr[] does not require that the

former Section 212(c)[] waiver be honored in the

naturalization context.” (internal citation omitted).

III

Alocozy’s waiver argument is easily answered. “Waiver”

is the intentional relinquishment of a known right. United

States v. Olano, 507 U.S. 725, 733 (1993). There is nothing

in this record even remotely suggesting that when a

removable alien is granted discretionary relief in the form of

a waiver of deportation, the Government waives any

objection based on the ground for which he was removable to

his naturalization as a citizen. “Indeed, a finding of ‘good

moral character,’ was not a statutory prerequisite or

necessarily a consideration for relief under section 212(c).”

Chan, 464 F.3d at 295. Legally, Alocozy offers no precedent

or principle supporting his claim of waiver, nor do we see

how there could be any. In this respect, we agree with the

Second Circuit: “[N]o authority supports the proposition that

the government is foreclosed by a waiver of deportation from

considering a conviction when determining the unrelated

question of fitness for naturalization.” Id. at 294. Moreover,

we have held, as recognized by Chan, “that a waiver under

section 212(c) does not preclude the INS or the courts from

relying on the underlying offense to bar other forms of

immigration relief or benefits.” Id. at 295; Molina-Amezcua

v. INS, 6 F.3d 646, 647 (9th Cir. 1993) (per curiam) (a

conviction for a crime of moral turpitude can be used as a

ground for deportation even though the INS had previously

waived its right to deport based in part on that conviction). 
8 ALOCOZY V. USCIS

IV

St. Cyr also is unhelpful to Alocozy. The issue there was

whether in 1997 section 304(b) of IIRIRA, which repealed

section 212(c), retroactively extinguished an alien’s eligibility

for discretionary section 212(c) relief when at the time of his

previous conviction before that date he would have been

eligible for such consideration. 533 U.S. at 292–93.

In tackling this question, the Court first indicated that “it

is beyond dispute that, within constitutional limits, Congress

has the power to enact laws with retrospective effect.” Id. at

316. The Court qualified this statement, saying, “A statute

may not be applied retroactively, however, absent a clear

indication from Congress that it intended such a result.” Id.

The Court noted that the “standard for finding such

unambiguous direction is a demanding one,” and that it can

only be satisfied by statutory language “‘so clear that it could

sustain only one interpretation.’” Id. at 316–17 (quoting

Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). The Court

then used this demanding test to determine that Congress did

“not communicate with unmistakable clarity” an intention

retroactively to repeal § 212(c). Id. at 318.

Most notably for our case, the Court in St. Cyr chose for

comparative and illustrative purposes to highlight other

sections of IIRIRA, sections 321(b) and (c), where Congress

did adequately and unmistakably express its intent

retroactively to apply the provisions of those sections.

Another reason for declining to accept the

INS’ invitation to read § 309(c)(1) as dictating

the temporal reach of IIRIRA § 304(b) is

provided by Congress’ willingness, in other
ALOCOZY V. USCIS 9

sections of IIRIRA, to indicate

unambiguously its intention to apply specific

provisions retroactively. IIRIRA’s

amendment of the definition of “aggravated

felony,” for example, clearly states that it

applies with respect to “convictions entered

before, on, or after” the statute’s enactment

date. § 321(b). As the Court of Appeals

noted, the fact that Congress made some

provisions of IIRIRA expressly applicable to

prior convictions, but did not do so in regard

to § 304(b), is an indication that Congress did

not definitively decide the issue of § 304’s

retroactive application to pre-enactment

convictions. The “saving provision” is

therefore no more significant than the

specification of an effective date.

Id. at 318–20 (internal quotation marks, citation, alterations,

and footnote omitted). The Court’s analysis forecloses any

argument that section 321(b) is not retroactive.

Moreover, the Court in St. Cyr relied in large measure on

what it considered to be an alien in St. Cyr’s situation’s

“settled expectations,” i.e., that a plea of guilty to a felony

would not make him ineligible for section 212(c) relief from

deportation. Id. at 321, 323. Even if we were to conclude

that section 321(b) is not retroactive, which we do not, we are

convinced that a person in Alocozy’s situation could not have

had any “settled” or even reasonable belief or expectation that

a plea to a serious felony would not impair any future attempt

to pursue naturalization as a United States citizen. Whereas

the Court found considerable authoritative support in St. Cyr

for the reasonableness of St. Cyr’s expectations, id. at 322
10 ALOCOZY V. USCIS

(citing inter alia Magana-Pizano v. INS, 200 F.3d 603, 612

(9th Cir. 1999)), Alocozy offers nothing similar.

The requirements of becoming a naturalized citizen and

the grounds for avoiding deportation as a felon are as

different as chalk is from cheese. To quote the Supreme

Court,

When the Government seeks to strip a person

of citizenship already acquired, or deport a

resident alien and send him from our shores,

it carries the heavy burden of proving its case

by clear, unequivocal, and convincing

evidence. But when an alien seeks to obtain

the privileges and benefits of citizenship, the

shoe is on the other foot. He is the moving

party, affirmatively asking the Government to

endow him with all the advantages of

citizenship. Because that status, once granted,

cannot lightly be taken away, the Government

has a strong and legitimate interest in ensuring

that only qualified persons are granted

citizenship. 

Berenyi v. Dist. Dir., INS, 385 U.S. 630, 636–37 (1967)

(internal quotation marks and footnotes omitted). Any doubts

regarding an alien’s eligibility for citizenship are “resolved in

favor of the United States and against the claimant.” Id. at

637 (internal quotation marks omitted).

Also, unlike the grounds for section 212(c) relief from

deportation, 8 U.S.C. § 1427(a)’s statutory provisions do

include a requirement of demonstration by the applicant that

he “has been and still is a person of good moral character.”
ALOCOZY V. USCIS 11

8 U.S.C. § 1427(a)(3). No one convicted by a plea of guilty

to a felony involving assault with the intent to commit rape

and thereby becoming a registered sex offender in his state of

residence could reasonably believe that his moral character

would not be seriously impaired.

CONCLUSION

The district court’s grant of summary judgment to the

USCIS as a matter of law was justified. Contrary to

Alocozy’s claims, he has not been deprived of due process of

law or been the victim of the improper retroactive application

of a statute. Although he is barred from naturalization as a

citizen, his status as a legal permanent resident remains in full

force.

AFFIRMED.