FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-17529

Plaintiff-Appellee, D.C. No.

v.  CV-01-01514-WBS/

DAD THI MARILYN DANG,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted

December 7, 2006—San Francisco, California

Filed May 24, 2007

Before: Michael Daly Hawkins, A. Wallace Tashima, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

6177
COUNSEL

James P. Mayo, Segal & Kirby, Sacramento, California, for

the appellant. 

6180 UNITED STATES v. DANG
Peter D. Keisler, Barry J. Pettinato, and Patricia M. CorralesTalleda, Office of Immigration Litigation, Civil Division,

U.S. Department of Justice, Los Angeles, California, for the

appellee. 

OPINION

THOMAS, Circuit Judge: 

This appeal presents the question, among others, as to the

constitutionality and validity of the Department of Homeland

Security’s regulation pertaining to assessment of good moral

character in naturalization proceedings. We conclude that the

regulation passes constitutional muster and is not ultra vires

as to its governing statute. We affirm the judgment of the district court.

I

After thirteen years of lawful permanent residence, Marilyn

Thi Dang filed an Application for Naturalization with the

Immigration and Naturalization Service (“INS”) on June 28,

1995. On February 2, 1996, Dang intentionally set fire to her

van, severely burning herself and her four-month-old son.

Meanwhile, the INS had been processing Dang’s application

for naturalization. On March 12, 1996, after Dang had set fire

to the van, Dang was interviewed under oath by an INS officer regarding her citizenship application. During the interview, Dang was asked, “Have you ever knowingly committed

any crime for which you have not been arrested?” and Dang

answered in the negative. The INS approved her application

the same day. The next day, March 13, 1996, Dang was

arrested and charged with arson, willful injury to a child,

making a false report of a criminal offense, and two counts of

insurance fraud. 

UNITED STATES v. DANG 6181
On April 3, 1996, Dang—out on bail—was administered

the oath of allegiance and admitted to United States citizenship. As a prerequisite to naturalization, applicants were

required to complete questions on a Notice of Naturalization

Oath Ceremony Form N-455A. One of the questions on the

form asked: “After the date you were first interviewed . . .

have you been arrested, cited, charged, indicted, convicted,

fined or imprisoned for breaking or violating any law or ordinance, including traffic violations?” Dang’s form was

checked “No” in response. 

On September 30, 1996, Dang was sentenced to an elevenyear term of imprisonment after being convicted of all

charges arising out of the February 2, 1996 incident. 

Roughly five years later, on August 6, 2001, the government filed a two-count complaint in federal court against

Dang for denaturalization on the basis that Dang’s citizenship

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

material fact or by willful misrepresentation,” pursuant to 8

U.S.C. § 1451(a). As required by § 1451(a), the government

attached an “affidavit of good cause” for initiating denaturalization proceedings against Dang. The first count of the complaint alleged that Dang falsely testified during her

naturalization interview, revealing a lack of good moral character, and therefore illegally procured citizenship. The second

count alleged that Dang willfully misrepresented her criminal

history both during the naturalization interview and on the N455A, thereby falsely procuring citizenship. Both counts were

based on Dang’s purported misrepresentations to the INS. 

On December 18, 2002, the district court issued a Pre-Trial

Scheduling Order pursuant to Federal Rule of Civil Procedure

16. In accordance with Rule 16, the scheduling order provided

for the amendment of pleadings thenceforth only upon leave

of the court and a showing of “good cause.” See Fed. R. Civ.

P. 16(b). 

6182 UNITED STATES v. DANG
In October 2003—after learning of information that would

make it more difficult for it to prove its two

misrepresentation-based counts1—the government sought to

amend its complaint to include a third count, pursuant to 8

C.F.R. § 316.10(b)(3)(iii). Under this new Count III, the government would not be required to prove Dang’s willful misrepresentation to the INS. It would only need to show that

Dang committed unlawful acts—for which she was later convicted or imprisoned—during the statutory good moral character period. 8 C.F.R. § 316.10(b)(3)(iii). The district court

granted the government’s motion to amend the complaint pursuant to Rule 16(b) in November of 2003. 

Dang then filed a motion to dismiss the government’s

amended complaint, arguing that it was barred by laches, was

not accompanied by a second affidavit of good cause, and

failed to state a cause of action. The district court denied this

motion in its entirety. The government then filed a motion for

summary judgment with regard to Count III of the amended

complaint. The district court granted the motion, finding that,

based on her commission of unlawful acts during the relevant

statutory period, Dang had not established the good moral

character required for naturalization. See 8 C.F.R.

§ 316.10(b)(3)(iii). The court entered judgment against Dang

that revoked Dang’s citizenship and cancelled her certificate

of naturalization. 

II

American citizenship is “a right no less precious than life

or liberty, indeed of one which today comprehends those

rights and almost all others.” Klapprott v. United States, 335

U.S. 601, 616 (1949) (Rutledge, J., concurring). In order to be

naturalized, an applicant must demonstrate that he or she satisfies the numerous statutory criteria of the Immigration and

1Specifically, the government learned that it may have been Dang’s

daughter who filled out form N-455A, not Dang herself. 

UNITED STATES v. DANG 6183
Naturalization Act, including the requirement that the applicant “has been and still is a person of good moral character”

during the statutorily defined period of residency. 8 U.S.C.

§ 1427(a). 

Because citizenship is a precious right, “once citizenship

has been acquired, its loss can have severe and unsettling consequences.” Fedorenko v. United States, 449 U.S. 490, 505

(1981). Because of this, “the Government ‘carries a heavy

burden of proof in a proceeding to divest a naturalized citizen

of his citizenship.’ ” Id. (quoting Costello v. United States,

365 U.S. 265, 269 (1961)). “The evidence justifying revocation of citizenship must be clear, unequivocal, and convincing

and not leave the issue in doubt.” Id. (internal quotation marks

and citations omitted). 

[1] The denaturalization statute, 8 U.S.C. § 1451(a), provides that denaturalization may be commenced if the citizen’s

naturalization was (1) “illegally procured,” or (2) “procured

by concealment of a material fact or by willful misrepresentation.” In order lawfully to obtain U.S. citizenship, a person

must be of “good moral character” for the five years immediately preceding the date of filing her citizenship application,

as well as from the date of filing this application until the date

she or he is admitted to citizenship. Under 8 U.S.C. § 1101(f),

a person shall not “be regarded as, or found to be, a person

of good moral character” if, within the statutory period, he or

she fell into any of seven enumerated categories.2 Section

1101(f) concludes: “The fact that any person is not within any

2The categories are as follows: (1) a habitual drunkard, (2) an admitted

or convicted prostitute, smuggler, polygamist, moral turpitude criminal,

drug user as defined by statute, or drug trafficker (during the relevant good

moral character period), (3) gambler deriving substantial income from

gambling, (4) one convicted of two or more gambling offenses during the

statutory period, (5) one who gives false testimony for obtaining naturalization, (6) one who has been confined in a penal institution for more than

180 days during the statutory period, (7) one convicted of an aggravated

felony, at any time. 

6184 UNITED STATES v. DANG
of the foregoing classes shall not preclude a finding that for

other reasons such a person is or was not of good moral character.” Id. (“catch-all provision”). 

[2] Pursuant to § 1101(f), the Department of Homeland

Security (subsuming the former Immigration and Naturalization Service) promulgated regulation 8 C.F.R. § 316.10. The

regulation offers guidance to officials making moral character

determinations, stating as a general matter that “the Service

shall evaluate claims of good moral character on a case-bycase basis taking into account the elements enumerated in this

section and the standards of the average citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2). Among those elements to be considered, the regulation restates the enumerated

categories of § 1101(f) in § 316.10(b)(1)-(2). Among those

“elements enumerated in this section” are the same seven categories as are listed in 8 U.S.C. § 1101(f), see 8 C.F.R.

§ 316.10(b)(1)-(2), as well as the following:

Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good

moral character if, during the statutory period, the

applicant . . . [c]ommitted unlawful acts that

adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts,

although the acts do not fall within the purview of

§ 316.10(b)(1) or (2). 

8 U.S.C. § 316.10(b)(3)(iii). The Supreme Court has required

“strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply

with any of these conditions renders the certificate of citizenship ‘illegally procured’ . . . .” Fedorenko, 449 U.S. at 506.

The government’s final theory, upon which the district court

granted summary judgment, was that Dang committed the

unlawful acts during the statutory period prior to naturalization and, thus, her naturalization was illegally procured even

UNITED STATES v. DANG 6185
though the conviction for those acts did not occur until after

naturalization. 

A

Dang argues that the regulation, 8 C.F.R. § 316.10(b)

(3)(iii), is ultra vires to the statute. In particular, Dang contends that because § 1107(f)(3) specifically limits an unfavorable moral character determination based on criminal activity

to people who were convicted of—or had admitted to—the

relevant crime during the statutory good moral character

period, Congress has unambiguously prohibited adverse

“good moral character” findings based on conduct underlying

convictions that were entered outside the five-year good

moral character period. 

In deciding whether an administrative agency’s regulation

is a permissive construction of the governing statute, we

employ the analysis set forth by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-45 (1984), as further explained in Food &

Drug Admin. v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000). Under Chevron, we must consider first

“whether Congress has directly spoken to the precise question

at issue.” 467 U.S. at 842. “If Congress has done so, the

inquiry is at an end; [we] ‘must give effect to the unambiguously expressed intent of Congress.’ ” Brown & Williamson,

529 U.S. at 132 (quoting Chevron, 467 U.S. at 843). In making that assessment, we not only look at the precise statutory

section in question, but we also analyze the provision in the

context of the governing statute as a whole, presuming congressional intent to create a “symmetrical and coherent regulatory scheme.” Id. at 133 (quoting Gustafson v. Alloyd Co.,

513 U.S. 561, 569 (1995)). Finally, “we must be guided to a

degree by common sense as to the manner in which Congress

is likely to delegate [such an important] policy decision . . . .”

Id. If, after conducting such an analysis, we conclude that

Congress has not addressed the issue, we “must respect the

6186 UNITED STATES v. DANG
agency’s construction of the statute so long as it is permissible.” Id. at 132 (citing INS v. Aguirre-Aguirre, 526 U.S. 415,

424 (1999), and Auer v. Robbins, 519 U.S. 452, 457 (1997)).

[3] The key question in the present context is whether Congress directly addressed the issue, or left a statutory gap for

the agency to fill. “In Chevron, [the Supreme] Court held that

ambiguities in statutes within an agency’s jurisdiction to

administer are delegations of authority to the agency to fill the

statutory gap in reasonable fashion.” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980

(2005). “Chevron’s premise is that it is for agencies, not

courts, to fill statutory gaps.” Id. at 982. 

[4] Here, a plain reading of the statute indicates that Congress intended to leave a statutory gap for the administrative

agency to fill. Section 1101(f)’s catch-all provision, stating

that “other reasons” can be considered in determining that a

person is not of good moral character, demonstrates a gap that

“Congress explicitly left for the agency to fill.” Chevron, 467

U.S. at 843. Therefore, given the statutory gap deliberately

established by Congress, the question before us is whether the

agency’s regulatory interpretation of the statute is permissible.

We conclude that it is. 

[5] Denaturalization based on the commission of unlawful

acts during the statutory period is a permissible exercise of

congressional delegation. Because the authorizing statute covers conduct both legal and illegal,

3

 and literally invites the

agency to expand the list of acts warranting adverse moral

character determinations, see § 1101(f) (catch-all provision),

it cannot be reasonably argued that the regulation at issue here

3The statute itself requires finding an applicant lacking in good moral

character if he or she is a habitual drunkard, see 8 U.S.C. § 1101(f)(1), or

has given false testimony in an immigration-related proceeding, see id.

§ 1101(f)(6), not to mention if he or she has been convicted of or has

engaged in particular types of illegal behavior. 

UNITED STATES v. DANG 6187
is arbitrary or capricious. Thus, requiring consideration of an

applicant’s unlawful acts during the five-year moral character

period—whether or not the applicant is convicted for the acts

during that period—is not beyond the agency’s statutory mandate. 8 C.F.R. § 316.10(b)(3)(iii) is entitled to Chevron deference and, therefore, is not ultra vires to the governing statute,

8 U.S.C. § 1101(f).4

B

[6] Dang also argues that the regulation is void for vagueness. “[A] party challenging the facial validity of [a regulation] on vagueness grounds outside the domain of the First

Amendment must demonstrate that the enactment is impermissibly vague in all of its applications.” Hotel & Motel Ass’n

of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir.

2003) (internal quotation marks omitted). Of course, under

this rubric, if the statute is constitutional as applied to the

individual asserting the challenge, the statute is facially valid.

See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir.

2003). 

[7] The statute is not unconstitutionally vague as applied to

Dang. “In examining a statute for vagueness, we must determine whether a person of average intelligence would reasonably understand that the charged conduct is proscribed.”

4The Eleventh Circuit recently reached this very question, explaining

that a naturalized citizen “who committed certain unlawful acts during the

statutory period prior to taking the oath of allegiance but for which he was

indicted, arrested and convicted after naturalization stands to lose his precious acquisition for lack of good moral character.” United States v. JeanBaptiste, 395 F.3d 1190, 1191 (11th Cir. 2005) (emphasis in original).

That court expressly found that § 316.10(b)(3)(iii) was entitled to Chevron

deference, reasoning that the catch-all provision provided the agency with

significant deference. Id. at 1193-94. The court also noted that “this determination is supported by case law.” Id. at 1194 (citing DeLuca v. Ashcroft,

203 F. Supp. 2d 1276, 1279 (M.D. Ala. 2002); Jiminez v. Eddy, 153 F.

Supp. 2d 1105, 1107 (D. Alaska 2001). 

6188 UNITED STATES v. DANG
United States v. Williams, 441 F.3d 716, 724 (9th Cir. 2006).

Dang—convicted of arson, fraud and willful injury of a child

—intentionally set fire to her vehicle, severely burning herself

and her four-month-old son, with the specific intent to defraud

her insurance carrier. A person of ordinary capacity would

reasonably understand that those actions constituted “unlawful acts.” Cf. Posters ‘N’ Things, Ltd. v. United States, 511

U.S. 513, 515, 526 (1994) (holding anti-drug paraphernalia

statute was not unconstitutionally vague as applied to defendant’s case when defendant operated a “full-scale ‘head

shop,’ ” selling items such as “pipes, bongs, scales, roach

clips, and drug diluents including mannital and inositol”

(footnotes omitted)). Therefore, Dang may not properly bring

a vagueness challenge to the regulation. 

C

[8] Dang asserts that the regulation is impermissibly overbroad. The overbreadth doctrine is inapposite to a case in

which First Amendment protections are not implicated. See,

e.g., Members of City Council v. Taxpayers for Vincent, 466

U.S. 789, 798-801 (1984) (noting the source of the overbreadth doctrine was a recognition of “the deterrent effect on

free expression” under broadly written statutes and evaluating

potential overbreadth in the First Amendment context exclusively). This constitutional claim must, therefore, also fail. 

D

[9] Finally, Dang contends that, as applied to her, 8 C.F.R.

§ 316.10(b)(3)(iii) runs afoul of the Uniformity Clause of the

Constitution. The Uniformity Clause grants Congress the

power to “establish an uniform Rule of Naturalization.” U.S.

Const. art. I, § 8, cl. 4 (emphasis added). Dang argues that 8

C.F.R. § 316.10(b)(3)(iii) violates the Uniformity Clause

because acts that are unlawful in one state may be lawful in

another state due to the variations in state laws, thus making

the rule “not uniform” from state to state. 

UNITED STATES v. DANG 6189
[10] To bring a successful facial challenge outside the First

Amendment context, “the challenger must establish that no

set of circumstances exists under which the [regulation]

would be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987). As with Dang’s vagueness challenge, we need not

decide whether 8 C.F.R. § 316.10(b)(3)(iii) would withstand

a Uniformity Clause challenge in every context: 8 C.F.R.

§ 316.10(b)(3)(iii) is unquestionably constitutional as applied

to Dang. See United States v. Cheely, 36 F.3d 1439, 1443-44

n.10 (9th Cir. 1994) (“ ‘Embedded in the traditional rules governing constitutional adjudication is the principle that a person

to whom a statute may constitutionally be applied will not be

heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.’ ” (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 610 (1973) (alteration in original)).

Dang does not contend that the crimes of arson, willful injury

of a child, and fraud would be considered lawful in any

United States jurisdiction; thus, no uniformity concerns are

implicated in this case. 

E

[11] In sum, 8 C.F.R. § 316.10(b)(3)(iii) is not ultra vires

to the governing statute and survives constitutional scrutiny as

applied to Dang. 

III

[12] The district court did not abuse its discretion in granting the government’s motion to amend its complaint to

include the fatal third count. The government filed its twocount complaint against Dang on August 6, 2001. Although

the court’s Pre-Trial Scheduling order was entered on December 18, 2002, the government moved to amend its complaint

to include Count III in October of 2003. Because the government sought to amend its complaint well after the court issued

its Rule 16 scheduling order, the government was required to

6190 UNITED STATES v. DANG
demonstrate “good cause” for modifying the order. See Fed.

R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 608 (9th Cir. 1992). 

[13] To support her claim, Dang points out that the facts

and theories underlying Count III were available to the government since the inception of the action. We agree with this

assertion and conclude that the district court could have properly denied the motion to amend on this basis. The district

court did acknowledge that the government was able to bring

the claim earlier in the proceedings and indicated its disapproval with the government for not doing so.5

 Nevertheless,

the court granted the motion based on an overall evaluation of

“[t]he rights of the parties, the ends of justice, and judicial

economy.” We cannot say that this was an abuse of discretion.

Indeed, “the district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will not be

disturbed unless they evidence a clear abuse of discretion.” Id.

at 607 (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364,

369 (9th Cir. 1985)). 

IV

Nor did the district court err by allowing the government to

file the amended complaint without submitting a supplementary affidavit of good cause. Under 8 U.S.C. § 1451, the government is required to submit an affidavit of good cause to

institute naturalization proceedings against a naturalized citizen. 8 U.S.C. § 1451(a). Conceding that the original complaint was filed with a proper affidavit, Dang argues that the

5We note, however, that new facts came to the government’s attention

shortly before it moved to amend its complaint in the form of the deposition of a late-identified witness, Dang’s daughter, Rachel Nguyen, who

was not made available for her deposition until after the Pre-Trial Conference. Nguyen testified that it was she, and not Dang, who filled out the

answers on Dang’s Form N-455A. 

UNITED STATES v. DANG 6191
government’s amended complaint should have included a second, supplementary affidavit of good cause. 

An affidavit of good cause is only required at the initiation

of a denaturalization proceeding. See 8 U.S.C. § 1451(a) (“It

shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to

institute proceedings . . . .” (emphasis added)); United States

v. Zucca, 351 U.S. 91, 100 (1956) (announcing the principle

that the affidavit showing good cause is “a prerequisite to the

initiation of [denaturalization] proceedings” (emphasis

added)). This reading of the statute is consistent with its purposes. The Supreme Court has noted: “Even if his citizenship

is not cancelled, his reputation is tarnished and his standing

in the community damaged. Congress recognized this danger

and provided that a person, once admitted to American citizenship, should not be subject to legal proceedings to defend

his citizenship without a preliminary showing of good cause.”

Id. at 99-100. By the time the amended complaint was filed,

the denaturalization proceeding had already commenced;

Dang’s reputation had been compromised and the preliminary

showing of good cause had been made.6

6We should also note that any hypothetical supplementary affidavit of

good cause would be substantially identical to the one originally filed. The

affidavit submitted by the government stated: 

[O]n February 2, 1996, approximately one month before her naturalization interview, Ms. Dang committed the crimes of arson,

willful injury to a child, and filing a false report of a criminal

offense. Additionally, between February 2, 1996 and April 15,

1996, Ms. Dang committed the crime of making false or fraudulent claims or statements. 

This very allegation remained the basis of the government’s amended

complaint, which added Count III for committing “unlawful acts” during

the good moral character period. 

6192 UNITED STATES v. DANG
V

Dang’s laches defense must also fail. It remains an open

question in this circuit as to whether laches is a permissible

defense to a denaturalization proceeding. Dang relies on Costello, the most recent Supreme Court case to examine the

question. Although noting that laches is not, as a general matter, a defense against the sovereign, Costello reserved judgment on the applicability of the defense to a denaturalization

action. 365 U.S. at 281. The Court held: “[E]ven if we assume

the applicability of laches, we think that the petitioner failed

to prove both elements which are necessary to the recognition

of the defense.” Id. at 282. As in Costello, we hold that even

assuming that laches is a permissible defense, Dang did not

make out the required elements of the defense.7

[14] “Laches requires proof of (1) lack of diligence by the

party against whom the defense is asserted, and (2) prejudice

to the party asserting the defense.” Id. at 282. Dang has not

shown a lack of diligence on the part of the government. She

argues that the government was dilatory because it filed its

initial complaint five years after Dang’s naturalization and

convictions. However, the government was working to denaturalize Dang administratively until this court’s decision in

Gorbach v. Reno, which held that the Attorney General

lacked statutory authority to revoke citizenship through

administrative denaturalization proceedings. 219 F.3d 1087,

1092-98 (9th Cir. 2000) (en banc). Soon thereafter, the government filed its complaint in federal district court. Further,

7Other courts—including district courts within our circuit—have interpreted Costello as actually foreclosing applicability of the defense. See,

e.g., United States v. Mandycz, 447 F.3d 951, 965 (6th Cir. 2006) (“the

‘primary holding’ of Costello, we have already decided, is that ‘laches [is]

inapplicable,’ ” (quoting United States v. Weintraub, 613 F.2d 612, 618-19

(6th Cir. 1979))); United States v. Wang, 404 F. Supp. 2d 1155, 1158-59

(N.D. Cal. 2005); United States v. Shuck, 565 F. Supp. 613, 615 (E.D. Pa.

1983). Because Dang fails to assert a viable laches defense, we do not

resolve the question here. 

UNITED STATES v. DANG 6193
most denaturalization proceedings are instituted beyond the

five-year period Dang argues is objectionable. See, e.g., Costello, 365 U.S. at 268 (claim brought 27 years after naturalization); Kungys v. United States, 485 U.S. 759, 764 (1988) (34

years); Fedorenko, 449 U.S. 490, 497 (1981) (7 years). The

government was adequately diligent in bringing suit; Dang

cannot assert a successful laches defense. 

AFFIRMED.

6194 UNITED STATES v. DANG