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Abdul H. Alocozy v. United States Citizenship and

December 28, 2012

ABDUL H. ALOCOZY, PETITIONER-APPELLANT,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ALEJANDROMAYORKAS, 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.



Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:10-cv-01597-JAM-KJN

The opinion of the court was delivered by: Trott, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 6, 2012-San Francisco, California

Before: Stephen S. Trott and Johnnie B. Rawlinson, Circuit Judges, and Frederic Block, District Judge.*fn1

Opinion by Judge Trott

SUMMARY*fn2

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.

OPINION

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 ...


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