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Media Alerts - Nizar Al-Sharif v. USCIS - Third Circuit
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August 20, 2013
  Nizar Al-Sharif v. USCIS - Third Circuit
Headline: Third Circuit Affirms District Court's Denial of Citizenship to Convicted Immigrant

Area of Law: Immigration Law

Issue(s) Presented: Whether the District Court erred by upholding the denial of an immigrant's application for citizenship after the USCIS determined him to be an aggravated felon and therefore ineligible for U.S. citizenship?

Brief Summary: The United States Citizenship and Immigration Services (USCIS) denied Nizar Al-Sharif United States citizenship because he had been convicted of conspiracy to commit wire fraud, which the USCIS determined to be an aggravated felony. Al-Sharif contested the decision in the District Court, and summary judgment was entered in favor of USCIS. Al-Sharif appealed to the Third Circuit, arguing that based on the Third Circuit's decision in Nugent v. Ashcroft, his conviction was not an aggravated felony and he was therefore entitled to citizenship. The Third Circuit, acting en banc, affirmed the District Court's judgment, holding that Nugent is no longer good law.

Extended Summary: Nizar Al-Sharif, a permanent resident of the United States, was convicted in 1993 of conspiracy to commit wire fraud. Al-Sharif and others began connecting callers in Israel to callers in countries with no direct phone service to Israel for a fee, by routing calls through an apartment that Al-Sharif rented in New Jersey. Al-Sharif had rented the apartment, as well as set up phone service, using a false name and Social Security number. He eventually abandoned the apartment without paying the phone bill. As a result of his conviction, Al-Sharif was sentenced to six months' home confinement and five years probation, and ordered to pay $128,838 in restitution to the phone company.
After applying for citizenship in 2004, Al-Sharif's application was denied by USCIS because his conviction was for an "aggravated felony," which precluded him from demonstrating the "good moral character" necessary for naturalization. Al-Sharif appealed the denial in the United States District Court for the District of New Jersey, arguing that his conviction was not an aggravated felony for naturalization purposes. The District Court granted summary judgment in favor of USCIS, and Al-Sharif appealed to the Third Circuit.
Al-Sharif argued that under Section 1101(a)(43) of Title 8, which lists offenses that are considered aggravated felonies for immigration purposes, his offense was a hybrid theft/fraud offense under Nugent v. Ashcroft and therefore he is not an aggravated felon. In Nugent, an alien was convicted in Pennsylvania State Court and sentenced to six to twenty-three months' imprisonment for theft by deception for passing a bad check. The Third Circuit found that the alien's offense was both a "theft offense" under § 1101(a)(43)(G), and an offense "involving fraud or deceit" under § 1101(a)(43)(M)(i). The court held that to qualify as an aggravated felony, the alien's offense had to meet both the requirements of §1101(a)(43)(M)(i), loss to the victim greater than $10,000, as well as the requirements in §1101(a)(43)(G), imprisonment for at least one year. This became known as the "hybrid offense" theory.

After argument to a panel, the Third Circuit sua sponte elected to hear the case en banc to determine if Nugent remained good law. The court then overruled Nugent and upheld the denial of Al-Sharif's citizenship. The Third Circuit reasoned that the Supreme Court's recent decision in Kawashima v. Holder, in which the Court stated that anyone who is convicted of an offense that involves fraud or deceit in which the loss to the victim exceeds $10,000 has committed an aggravated felony, makes Nugent no longer good law. Because Nugent is no longer good law, Al-Sharif was properly deemed an aggravated felon and the District Court properly entered summary judgment.

The full opinion can be found at

Panel: Circuit Judges McKee, Rendell, Ambro, Fuentes, Smith, Fisher, Jordan, Hardiman, Greenaway, Vanaskie, Scirica, and Van Antwerpen

Argument Date: 06/13/2013

Argument Location: Philadelphia

Date of Issued Opinion: 08/19/2013

Docket Number: No. 12-2767

Decided: Affirmed

Case Alert Author: Larissa Staszkiw

Counsel: Thomas E. Moseley, Attorney for Plaintiff-Appellant; Bradley B. Banias and Timothy M. Belsan, United States Department of Justice Office of Immigration Litigation Room, Michael Campion and¿Kristin L. Vassallo,¿Office of United States Attorney, Attorneys for Defendant-Appellee
Author of Opinion: Judge Hardiman

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/20/2013 03:52 PM     3rd Circuit  

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