FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 10-15821

v. D.C. No.  4:09-cv-00178-DCB FERNANDO ARANGO, AKA

Fernando Arango-Villegas, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

April 14, 2011—Pasadena, California

Filed January 12, 2012

Before: Kim McLane Wardlaw, Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Wardlaw

215
COUNSEL

Charles Lifland, Sabrina H. Strong, and Shaun M. Simmons,

O’Melveny & Myers LLP, Los Angeles, California, for the

appellant. 

Tony West, Assistant Attorney Genera; Joshua E.T. Braunstein, Assistant Director Office of Immigration Litigation; and

218 UNITED STATES v. ARANGO
Kristen L. Daubler, Trial Attorney, Office of Immigration Litigation, Washington, D.C., for the appellee.

OPINION

WARDLAW, Circuit Judge:

In 1989, Fernando Arango was naturalized as a United

States citizen. Twenty years later, in 2009, the United States

instituted this action in Arizona district court to strip Arango

of his citizenship. The complaint alleged that (1) Arango

unlawfully procured his citizenship, and (2) Arango misrepresented and concealed material facts during the naturalization

process. 

The district court rejected Arango’s argument that his

incarceration in a federal prison in the Central District of California at the time the government filed its complaint meant

that venue was improper in the District of Arizona. The district court then granted the government’s motion for summary

judgment, concluding that because Arango’s Lawful Permanent Resident (LPR) status was unlawfully obtained, there

was no material issue of fact as to whether he had procured

his citizenship unlawfully. 

Although it is undisputed that Arango acquired his LPR

status on the basis of a fraudulent marriage, Arango adduced

evidence that he had entered into a cooperation agreement

with the Immigration and Naturalization Service (INS) permitting him to retain his status as an LPR and to naturalize.

The district court improperly weighed the evidence in the

record, however, and concluded that such a cooperation

agreement did not exist. Because there are genuine issues of

material fact as to whether the INS entered into an agreement

permitting Arango to retain his LPR status and to naturalize

in exchange for cooperating in the investigation of a frauduUNITED STATES v. ARANGO 219
lent marriage operation, summary judgment was improper,

and we reverse. 

Because the district court did not permit Arango to rebut

the presumption that his place of residence remained where he

lived prior to his incarceration, we also vacate the denial of

Arango’s motion to dismiss the complaint for improper

venue, and remand with instructions for the district court to

allow Arango to argue that his residence is now his place of

incarceration.

I. FACTUAL AND PROCEDURAL BACKGROUND

Arango is a native of Colombia who was admitted to the

United States as an LPR in 1980. He acquired this status

through a fraudulent marriage to a United States citizen

arranged by a marriage broker, Miguel Diaz. Arango’s sister,

Amparo Valbuena, worked as a secretary for Diaz, and Valbuena acquired her own LPR status through a sham marriage

arranged by him. 

In 1982, the INS began to investigate Diaz’s fraudulent

activities. As part of the investigation, three INS agents met

with Valbuena and Arango and obtained sworn affidavits

from both that detailed their involvement with the marriagefraud scheme. In Arango’s affidavit, he admitted that he

obtained his green card as a result of a sham marriage

arranged by Diaz. As a result of Arango and Valbuena’s assistance, the INS seized evidence of over 200 immigration applications that were based on sham marriages arranged by Diaz.

The INS agents admit that Valbuena was “an important witness” in their case against Diaz, and that they met with her

multiple times during the course of their investigation. 

Arango asserts that the INS agents promised both him and

his sister that, in exchange for their cooperation with the

investigation, their immigration status would be secure, and

that both would be permitted to naturalize. Both Arango and

220 UNITED STATES v. ARANGO
Valbuena remained LPRs and naturalized without any complications. Valbuena naturalized in 1984, and Arango naturalized in 1989. Arango later became a U.S. Customs Border

Protection Officer in Arizona. 

In 2005, Arango was arrested on unrelated federal drug

charges. After pleading guilty, he began to serve his sentence

at the Federal Correctional Institution in San Pedro, California. In 2009, the Department of Justice filed a civil action in

the District of Arizona to revoke Arango’s citizenship pursuant to Section 340 of the Immigration and Nationality Act

(INA), 8 U.S.C. § 1451. The complaint alleged that Arango’s

citizenship should be revoked because (1) his citizenship was

procured unlawfully as his fraudulent marriage meant that he

was never lawfully admitted as an LPR, and (2) Arango misrepresented and concealed material facts regarding his participation in the marriage-fraud scheme during the naturalization

process.

Arango argued that venue was improper in the District of

Arizona because he had been living in California since his

incarceration in San Pedro, California in May of 2007, and he

retained no ties to Arizona. The district court disagreed, concluding that Arango’s last known residence was Arizona and

that “a person does not acquire a domicil while imprisoned.”

Opposing the government’s motion for summary judgment,

Arango submitted a sworn declaration stating that he had

entered into a cooperation agreement with INS that permitted

him to retain his LPR status and to naturalize in exchange for

his assistance with the agency’s investigation into the

marriage-fraud scheme. Arango also swore that he had not

misrepresented or concealed any facts during the naturalization process because he had reasonably assumed that 1) the

INS officer was aware of the contents of his immigration file,

and (2) his 1982 affidavit and evidence of the cooperation

agreement was in his file. Arango also submitted translated

emails from his sister that suggested that the siblings had

UNITED STATES v. ARANGO 221
entered into some type of cooperation agreement with the

INS. The government’s evidence in support of summary judgment included (1) declarations denying the existence of an

agreement from the INS agents who met with Arango and

Valbuena in 1982; (2) declarations from Valbuena stating that

she was not aware of an agreement between INS and her

brother; and (3) a declaration from the INS agent who conducted Arango’s 1989 naturalization interview indicating that,

while she could not remember meeting with Arango, she

would not have granted his naturalization application if he

had disclosed information about his sham marriage during his

interview.

Granting the government’s motion for summary judgment,1

the court concluded that “the Government provides clear, convincing, and unequivocal evidence that leaves no issue in

doubt that Defendant Arango, a naturalized citizen, obtained

his citizenship illegally.”

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over Arango’s timely appeal under 28

U.S.C. § 1291, and we review the district court’s grant of

summary judgment de novo. See Balint v. Carson City, 180

F.3d 1047, 1050 (9th Cir. 1999) (en banc). We must determine whether the district court applied the substantive law

correctly and whether, viewing the evidence in the light most

favorable to the nonmoving party, there are any genuine

issues of material fact. Id. 

We review the district court’s determination as to proper

venue de novo. United States v. Childs, 5 F.3d 1328, 1331

(9th Cir. 1993).

1The district court also denied Arango’s request to conduct additional

discovery under former Federal Rule of Civil Procedure 56(f). Because we

reverse the grant of summary judgment, we do not reach Arango’s argument that the district court abused its discretion in denying this motion. 

222 UNITED STATES v. ARANGO
III. DISCUSSION

A. Summary Judgment

Summary judgment is appropriate only if there are no genuine issues of material fact, entitling the moving party to

judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986). Although “the mere existence of

some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary

judgment,” id. at 247-48, summary judgment is not warranted

if a “reasonable jury could return a verdict for the nonmoving

party,” id. at 248. 

[1] In a denaturalization proceeding, the government bears

the “heavy burden” of providing “clear, unequivocal, and convincing” evidence that citizenship should be revoked. United

States v. Dang, 488 F.3d 1135, 1139 (9th Cir. 2007) (quoting

Fedorenko v. United States, 449 U.S. 490, 505 (1981)). The

government’s evidence justifying denaturalization must “not

leave the issue in doubt.” Id. (quoting Fedorenko, 499 U.S. at

505). As the Supreme Court has recognized, “the clear-andconvincing standard of proof should be taken into account in

ruling on summary judgment motions. . . .” Anderson, 477

U.S. at 255. Thus, summary judgment for the government in

a denaturalization proceeding is warranted in narrow circumstances: if, viewing the evidence in the light most favorable

to the naturalized citizen, there is no genuine issue of material

fact as to whether clear, unequivocal, and convincing evidence supports denaturalization. 

[2] The government bears the burden of such a high degree

of proof in denaturalization proceedings because of the “importance of the right that is at stake.” Fedorenko, 449 U.S. at

505-06; see also id. at 505 (“[O]nce citizenship has been

acquired, its loss can have severe and unsettling consequences.”); Schneiderman v. United States, 320 U.S. 118, 122

(1943) (“[Citizenship] once conferred should not be taken

UNITED STATES v. ARANGO 223
away without the clearest sort of justification and proof.”).

Thus, although summary judgment may be appropriate in certain circumstances, see, e.g., Dang, 488 F.3d at 1137-38

(affirming district court’s grant of summary judgment when

the evidence established that the citizen had committed criminal acts precluding a finding of good moral character during

the relevant statutory time period, thus warranting denaturalization), it should not be granted lightly. 

[3] The denaturalization statute, 8 U.S.C. § 1451(a), permits the government to revoke citizenship if naturalization

was “illegally procured” or “procured by concealment of a

material fact or by willful misrepresentation.” Although the

district court relied exclusively on illegal procurement of citizenship, the government contends that summary judgment

was appropriate on either ground. The government argues

that: (1) Arango was not a lawful permanent resident at the

time he applied for naturalization because of his fraudulent

marriage, so his naturalization was illegally procured;2 and (2)

Arango willfully concealed and misrepresented the nature of

his marriage in connection with his 1989 naturalization application. 

The evidence submitted by Arango, however, created genuine issues of material fact as to whether the government had

met its burden of proving by clear, convincing, and unequivocal evidence that Arango was subject to denaturalization on

either of these grounds. In deciding whether to grant summary

judgment, “the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to deter2

If Arango was not a lawful permanent resident at the time of his naturalization because of his fraudulent marriage, then his citizenship was illegally procured. See Fedorenko, 449 U.S. at 514 (“[A] naturalized citizen’s

failure to comply with the statutory prerequisites for naturalization renders

his certificate of citizenship revocable as ‘illegally procured’ under 8

U.S.C. § 1451(a). . . . 8 U.S.C. §§ 1427(a) and 1429[ ] require[ ] an applicant for citizenship to be lawfully admitted to the United States for permanent residence”). 

224 UNITED STATES v. ARANGO
mine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249. This is because “[c]redibility determinations,

the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a

judge. . . .” Id. at 255. 

1. Illegal Procurement of Citizenship

[4] The evidence submitted by Arango created a genuine

issue of material fact as to the existence of a cooperation

agreement permitting Arango to retain his LPR status and to

naturalize. Arango’s sworn affidavit in opposition to summary

judgment states that his sister entered into an agreement with

the INS covering both her and him in exchange for her cooperation with the marriage fraud investigation. The affidavit

references an agreement that “pardoned” both Arango and his

sister, and the agents’ assurances that “this was a closed case”

and that “there would be no problem in [Arango’s] applying

for naturalization.” The emails from Valbuena that Arango

submitted suggest the existence of a cooperation agreement;

in one email Valbuena states that the INS agent told her “that

there was no problem for neither you [(Arango)] or me [(his

sister)]” in applying for citizenship. Arango’s affidavit also

questioned why he would have been “allowed to continue to

reside in the U.S. after [his] meeting with the INS agents in

Manhattan, NY, become a U.S. citizen in 1989, and . . . eventually become employed to work for the government as a border protection agent” if no cooperation agreement existed. 

[5] Although the government submitted declarations from

the INS Agents and Valbuena in an effort to disprove the

existence of a cooperation agreement, these declarations do

not show that there are no disputed issues of material fact

warranting a trial. To the contrary: the conflicting evidence

submitted by the government and Arango presented the district court with a genuine dispute of material fact as to the

existence of the cooperation agreement. See Chevron USA,

Inc. v. Cayetano, 224 F.3d 1030, 1038 (9th Cir. 2000)

UNITED STATES v. ARANGO 225
(regarding conflicting affidavits). These statements were not

conclusory, self-serving statements devoid of any factual support. See FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168,

1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit,

lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”). Arango’s

affidavit set forth a detailed description of the circumstances

surrounding the cooperation agreement. A defendant’s sworn

statements cannot be disbelieved at the summary judgment

stage simply because his statements are in his interest and in

conflict with other evidence. See, e.g., Leslie v. Grupo ICA,

198 F.3d 1152, 1159 (9th Cir. 1999) (“Although we can

understand the district court’s disbelief of [the plaintiff’s]

assertions in his deposition and sworn declaration, such disbelief cannot support summary judgment.”); McLaughlin v. Liu,

849 F.2d 1205, 1207-08 (9th Cir. 1988) (“[The defendant’s]

sworn statements . . . are direct evidence of the central fact in

dispute. [He] does not ask that inferences be drawn in his

favor, but that his testimony be taken as true. To this he is

clearly entitled under Anderson . . . .”). 

Moreover, the circumstantial evidence provides some support for Arango’s claim that some type of agreement existed.

Despite having a signed affidavit from Arango admitting to

marriage fraud, the government did not attempt to revoke

Arango’s LPR status, and Arango was permitted to naturalize

in 1989. His sister was also permitted to remain an LPR and

naturalize, despite her more extensive involvement with the

marriage fraud scheme. In addition, Arango was later hired as

a U.S. Customs Border Protection Officer, even though the

INS had direct knowledge of his immigration fraud. 

[6] The existence of this agreement is a material issue of

fact relevant to Arango’s alleged illegal procurement of citizenship.3

 The district court, however, improperly weighed the

3We have previously recognized that the government can be bound by

a cooperation agreement in the immigration context. See Thomas v. INS,

226 UNITED STATES v. ARANGO
evidence and gave full credence to the government’s version

of the events, even though the court was required to view the

evidence in the light most favorable to Arango at the summary judgment stage. The district court’s weighing of the evidence was improper, especially given the government’s heavy

burden to provide clear, unequivocal, and convincing evidence that the grounds for denaturalization have been met.

Because there existed genuine issues of material fact, summary judgment was not warranted. 

2. Willful Concealment or Misrepresentation of a 

Material Fact

The government, however, argues that the record supports

affirming the district court’s grant of summary judgment on

alternative grounds: Arango’s alleged willful concealment or

misrepresentation of a material fact during the naturalization

process.

[7] The Supreme Court has stated that this ground for

denaturalization “plainly contains four independent requirements: the naturalized citizen must have misrepresented or

concealed some fact, the misrepresentation or concealment

must have been willful, the fact must have been material, and

the naturalized citizen must have procured citizenship as a

result of the misrepresentation or concealment.” Kungys v.

United States, 485 U.S. 759, 767 (1988). We have previously

held that an alien who seeks to obtain immigration status by

misrepresenting a material fact has done so “willfully” if the

misrepresentation was “deliberate and voluntary.” EspinozaEspinoza v. INS, 554 F.2d 921, 925 (9th Cir. 1977). The gov35 F.3d 1332, 1337 (9th Cir. 1994) (holding that the alien “was entitled

to performance by the government of its promise” that the government

would not oppose any of his motions for relief from deportation).

Although the government now argues that, regardless of whether an agreement existed, the INS agents did not have the authority to enter into such

an agreement, it provides no legal authority to support this statement or

the inferences it wishes us to draw from it. 

UNITED STATES v. ARANGO 227
ernment argues that Arango willfully “misrepresented and

concealed the true nature [of] his [prior] ‘marriage’ ” throughout the naturalization process by (1) not disclosing his sham

marriage to the INS agent during his naturalization interview,

and (2) listing the sham marriage on his naturalization application, which he signed under penalty of perjury.

[8] Arango, however, raised genuine issues of material fact

as to whether any alleged concealment and misrepresentations

were willful. During Arango’s interview with the immigration

officer, he asked her whether she had reviewed his immigration file, on the assumption that information regarding his

prior admissions to INS would be contained in his file. The

immigration officer who conducted Arango’s naturalization

interview does not contradict Arango’s version of the events

in her declaration. Instead she relies on her own customary

practices. She states that, while she cannot remember Arango’s interview, she knows that Arango “did not disclose this

information” about the prior sham marriage, because she is

“certain” that if this information had been disclosed, she

would not have permitted his naturalization. Viewing these

facts in the light most favorable to Arango, his failure to bring

up the topic of his sham marriage, when he reasonably

assumed that the immigration officer already knew about it,

does not show deliberate or voluntary concealment or misrepresentation. 

[9] On the naturalization application, Arango indicated that

he was married to Vicky Tirado from 1980 to 1984, and he

attested to this statement under penalty of perjury. The government argues that this was a material misrepresentation

because he was never actually married to Tirado. Even if

Arango was not legally married to Tirado during this time

period, there are material issues of fact as to whether the misrepresentation was deliberate or voluntary given that Arango’s affidavit states that he believed that the INS was aware

of the fraudulent nature of this marriage. In fact, if he had

failed to mention his marriage to Tirado on his naturalization

228 UNITED STATES v. ARANGO
application, that would be a willful misrepresentation,

because the marriage existed, even if it was later deemed

fraudulent. Accordingly, we reject the government’s argument

that the record supports affirming the district court’s grant of

summary judgment on these alternative grounds.

B. Proper Venue Under INA § 340, 8 U.S.C. § 1451(a) 

[10] Under the denaturalization statute, “[i]t shall be the

duty of the United States attorneys . . . to institute proceedings

. . . in the judicial district in which the naturalized citizen may

reside at the time of bringing suit.” INA § 340(a), 8 U.S.C.

§ 1451(a). If the naturalized citizen 

does not reside in any judicial district in the United

States at the time of bringing such suit, the proceedings may be instituted in the United States District

Court for the District of Columbia or in the United

States district court in the judicial district in which

such person last had his residence. 

Id. We must decide whether Arango “resided” in Arizona

within the meaning of this statute at the time the denaturalization complaint was filed. 

[11] The Immigration and Nationality Act (INA) defines

the term “residence” as “the place of general abode; the place

of general abode of a person means his principal, actual

dwelling place in fact, without regard to intent.” INA

§ 101(a)(33), 8 U.S.C. § 1101(a)(33). It is undisputed that at

the time the suit was filed, Arango was serving his nine-year

prison sentence at a federal correctional institution in San

Pedro, California. 

The district court, however, relied on a Third Circuit case,

United States v. Stabler, 169 F.2d 995, 998 (3d Cir. 1948), to

conclude that the district of Arizona was the proper venue

because “a person does not acquire a domicil while imprisUNITED STATES v. ARANGO 229
oned.” In this 1948 case, the Third Circuit held that the denaturalization statute’s reference to the naturalized citizen’s

residence requires “some picking out of a place to live in by

the individual concerned,” and that the forced nature of

imprisonment means that a prisoner’s residency remains

where he lived prior to his incarceration. 169 F.2d at 998.

However, at the time that Stabler was decided, Congress had

yet to define the term “residence” for the purposes of the

denaturalization statute.4 It was not until 1952, with the enactment of the original INA, that the aforementioned general definition of residence (as in the current statute) was made

applicable to all immigration provisions, including the denaturalization provision. See Immigration and Nationality Act of

1952, Pub. L. 82-414, § 101(a)(33), 66 Stat. 163, 170 (1952).

This definition makes clear that “intent” has no bearing on

“residency” when applying the denaturalization statute’s

venue provision, so the district court’s reliance on Arango’s

lack of intent to be incarcerated in California was misplaced.5

We previously addressed the denaturalization statute’s

4Although the Nationality Act of 1940 defines “place of residence” as

the “place of general abode,” this definition is restricted to only certain

sections of the Act, and the section permitting denaturalization is not

included in the list of affected sections. See The Nationality Act of 1940,

Pub. L. No. 76-876, § 104, 54 Stat. 1137, 1138 (1940). 

5Because of the specific definition of “residence” within the INA, we

are unpersuaded by the government’s reliance on Cohen v. United States,

297 F.2d 760 (9th Cir. 1962), for the proposition that “[o]ne does not

change his residence to the prison by virtue of his being incarcerated

there,” 297 F.2d at 774. Cohen addresses whether it was error to send the

petitioner’s tax assessment notices to the petitioner’s last known address,

when the tax commissioner knew that the petitioner was incarcerated at

the time the notice was sent. Id. at 771. The panel found that sending the

notice to the petitioner’s last known address was adequate, given that the

tax assessment was for the joint liability of the petitioner and his wife, and

the government had no knowledge that the wife had established a separate

or different residence from the one on file. Id. at 771-74. Thus Cohen is

not particularly probative on the question of proper venue in denaturalization proceedings. 

230 UNITED STATES v. ARANGO
venue provision in Stacher v. United States, 258 F.2d 112 (9th

Cir. 1958), albeit for a non-incarcerated defendant. In Stacher,

although the INA’s definition of “residence” was not explicitly referenced, the court stated that “there is an essential difference between ‘domicile’ which generally involves intent,

and ‘residence’ which generally involves an actual place of

abode.” Id. at 116. We concluded that we were not “concerned with ‘intent’ ” under the denaturalization statute’s

venue provision, and determined that the trial court’s findings

of fact as to place of residency were not clearly erroneous.6Id.

at 116-17, 119.

Given the INA’s specific definition of residence, we must

determine Arango’s “place of general abode” at the time that

the government filed the denaturalization complaint. While an

individual’s residence under the INA is distinguishable from

his domicile7 because of the lack of concern with intent, this

does not necessarily mean that an incarcerated individual is

per se a resident of his place of incarceration. There is no evidence that Congress intended to adopt such a per se rule for

incarcerated individuals when defining “residence” under the

INA. In fact, the 1952 Senate Judiciary Committee Report

6The relevant factors the trial court evaluated included the location of

the naturalized citizen’s business and real estate interests, the address

listed on his income tax returns, where he worked, where his car was registered, where he was listed as residing in the telephone directory, and the

location of the various hotels and residences where the naturalized citizen

stayed during the relevant time period. Stacher, 258 F.2d at 116-19 &

nn.11-12. 

7We do not decide whether a prisoner can establish domicile in his place

of incarceration for purposes of federal diversity jurisdiction, a question

that the Ninth Circuit has yet to address. Cf. Stifel v. Hopkins, 477 F.2d

1116, 1124 (6th Cir. 1973) (adopting a rebuttable presumption that a prisoner retains residency in the place where he lived prior to incarceration for

the purposes of diversity jurisdiction: “the prisoner . . . should not be precluded from showing that he has developed the intention to be domiciled

at the place to which he has been forced to remove”). This appeal presents

only the narrow question of proper venue under the denaturalization statute, given the INA’s definition of residence. 

UNITED STATES v. ARANGO 231
accompanying the INA explains that the Act’s definition of

residence “is a codification of judicial constructions of the

term ‘residence’ as expressed by the Supreme Court of the

United States in Savorgnan v. United States, [338 U.S. 491,

505 (1950)].” S. Rep. No. 82-1137, at 4-5 (1952). The Report

then quotes Savorgnan’s holding that it is irrelevant, for the

purposes of determining whether an individual resided

abroad, what her

intent was on leaving the United States, nor whether,

at any later time, it was her intent to have a permanent residence abroad or to have a residence in the

United States. . . . The test of such ‘residence’ is

whether, at any time during that period, she did, in

fact, have a ‘principal dwelling place’ or ‘place of

general abode’ abroad. . . . Her intent as to her

‘domicile’ or as to her ‘permanent residence,’ as distinguished from her actual ‘residence,’ ‘principal

dwelling place,’ and ‘place of abode,’ is not material.

Id. at 5 (quoting Savorgnan, 338 U.S. at 505). The Senate

Report shows that Congress’s goal in adopting this definition

of residence was to make explicit that one does not have to

intend to remain in a place permanently to have “residence”

there. Congress did not necessarily intend to prohibit an incarcerated individual from establishing that his “residence” is

outside his place of incarceration. 

[12] The INA’s definition of residence requires us to evaluate Arango’s “place of general abode,” further defined by the

INA as his “principal, actual dwelling place in fact.” This definition of residence requires more than mere physical presence in a particular location, so Arango’s mere presence in the

Central District of California at the time the complaint was

filed does not establish his residence there. Cf. Barrios v.

Holder, 581 F.3d 849, 862-65 (9th Cir. 2009) (defining physical presence under the INA as a “state of being, not a state of

232 UNITED STATES v. ARANGO
mind” that “depends on no legal construct”). The Oxford

English Dictionary defines an abode, particularly when used

in the phrase “place of abode,” as “the action of dwelling or

living permanently in a place; habitual residence.” Oxford

Eng. Dictionary, http://www.oed.com/view/Entry/439 (last

updated Sept. 2011). This dictionary also defines abode as “a

place of ordinary residence; a dwelling place; a house or

home,” id., and defines a dwelling as “continued, esp. habitual, residence; abode,” http://www.oed.com/view/Entry/

58767 (last updated Sept. 2011). Although we have yet to

interpret the INA’s definition of residence, the Second Circuit

has interpreted it to mean “an established abode, for personal

or business reasons, permanent for a time.” Michael v. INS, 48

F.3d 657, 663 n.5 (2d Cir. 1995) (quoting Rosario v. INS, 962

F.2d 220, 224 (2d Cir. 1992). 

One does not usually describe a prison as a “house or

home,” or as an individual’s “place of ordinary residence,”

and an incarcerated individual has little, if any, control over

how permanent or temporary his stay in a particular prison

will be. However, an incarcerated individual does sleep, eat,

and spend all of his time within the prison walls. Furthermore,

as Arango argued in his filings before the district court, some

incarcerated individuals do not retain any property or personal

ties in the judicial district where they lived prior to incarceration. However, the factors bearing on Arango’s place of residency were never evaluated by the district court because of

the court’s erroneous conclusion that the forced nature of

Arango’s presence in California meant that he was per se

unable to establish residence in the Central District. 

[13] Given the specific definition of residence in the INA,

we adopt a rebuttable presumption that an incarcerated individual retains residence in the judicial district where he lived

prior to incarceration. Residence means something more than

mere physical presence, even though intent is irrelevant, and

an individual who is involuntarily incarcerated ordinarily

retains a “principal, actual dwelling place” elsewhere. HowUNITED STATES v. ARANGO 233
ever, an incarcerated individual should be permitted to rebut

this presumption by showing that the prison has become his

“principal, actual dwelling place.” Here, Arango sought to

establish that his place of residence at the time the complaint

was filed was his place of incarceration because he did not

retain any “home [in], family [in], or contacts with the State

of Arizona.” However, the district court applied a per se rule

that improperly precluded Arango from establishing that his

residence was in the Central District of California at the time

the complaint was filed.8

[14] If an incarcerated individual seeks to rebut the presumption that he retains residence in the district where he

lived prior to incarceration, the fact-based inquiry referenced

in Stacher sets forth the correct approach for evaluating his

place of residency. Arango may be able to establish that he

resided in the Central District of California when the denaturalization complaint was filed by adducing evidence as to

whether he owned or rented a home in that judicial district,

where he paid taxes, where any car was registered and

licensed, the length of his overall prison sentence, the length

of time he had been imprisoned in the Central District, where

his possessions were located, and where his family members

resided. See Stacher, 258 F.2d at 116-19 & nn.11-12. These

8We note that a per se rule in the other direction, holding that an incarcerated individual’s place of residence is always his place of incarceration,

could permit forum shopping by the government. Because the government

has the power to transfer prisoners within the federal prison system, a per

se rule would permit the government to transfer a federal prisoner to the

government’s favored judicial district prior to instituting denaturalization

proceedings. We have expressed our concern with adopting a rule that

would facilitate forum shopping by the government in analogous circumstances. See United States v. Hernandez, 189 F.3d 785, 791 (9th Cir. 1999)

(rejecting the argument that the government can file charges for illegal

reentry after prior deportation in any judicial district where a defendant is

incarcerated and noting that accepting this argument “would produce

unfair and absurd results. . . . [A] deported alien who was moved around

the country to various penal institutions could be prosecuted, at the government’s option, in any of the districts where the alien set foot.”).

234 UNITED STATES v. ARANGO
factors are not exhaustive; different factors bearing on the

place of actual abode may emerge as determinative. We note

that if an individual rebuts the presumption that he retains residence in the district where he lived prior to incarceration, but

cannot establish that his residence is in his district of incarceration, the district court may conclude under the statute that the

prisoner did “not reside in any judicial district in the United

States” when the complaint was filed. 8 U.S.C. § 1451(a). The

denaturalization statute then permits the government to file

suit in “the United States District Court for the District of

Columbia or in the United States district court in the judicial

district in which such person last had his residence.” Id. 

[15] Because the INA makes clear that the term “residence” refers to one’s principal dwelling place, without

regard to intent, we reverse the district court’s ruling that

venue was proper in the district of Arizona. On remand, if

Arango chooses to attempt to rebut the presumption that his

residence was in Arizona, the district court must make a factual finding as to Arango’s “principal, actual dwelling place

in fact, without regard to intent,” INA § 101(a)(33), 8 U.S.C.

§ 1101(a)(33), at the time the complaint was filed.

IV. CONCLUSION

The district court improperly weighed the evidence in concluding that there were no genuine issues of material fact as

to whether the government could strip Arango of his citizenship. The existence and nature of the cooperation agreement

were the subjects of pending FOIA requests, and further evidence should have been allowed. Because of the importance

of citizenship, which in turn confers significant rights and

responsibilities, the government bears a heavy burden when it

seeks to take away an individual’s citizenship. We also vacate

the district court’s denial of Arango’s motion to dismiss for

improper venue, and remand with instructions that the district

court conduct the proper inquiry consistent with the INA

§ 101(a)(33), 8 U.S.C. § 1101(a)(33). 

UNITED STATES v. ARANGO 235
REVERSED in part, VACATED in part, AND

REMANDED. 

236 UNITED STATES v. ARANGO