United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
United States of America brought this denaturalization
action, seeking to revoke and set aside defendant Afaq Ahmed
Malik's citizenship and cancel his Certificate of
Naturalization. The court conducted a bench trial in October
2018. Shortly before trial, defendant filed a motion to
dismiss based on the statute of limitations (Doc. 160).
Defendant claims that the Supreme Court's decision in
Kokesh v. Securities & Exchange Commission, 137
S.Ct. 1635, 1643 (2017), indicates that the case against
defendant is barred by the five-year statute of limitations.
For the following reasons, the court disagrees, and denies
involved a disgorgement judgment in a Securities and Exchange
Commission (“SEC”) enforcement proceeding. 137
S.Ct. at 1641. The SEC claimed that Charles Kokesh had
violated the Investment Company Act of 1940, and sought
disgorgement. Id. The issue was whether the
five-year statute of limitations found in 28 U.S.C. §
2462 barred some of the disgorgement judgment. Id.
Section 2462 applies to “action[s], suit[s] or
proceeding[s] for the enforcement of any civil fine, penalty,
or forfeiture, ” so the Supreme Court discussed whether
SEC disgorgement was a punitive sanction (and therefore a
penalty) or a remedial sanction. Id. at 1642-45.
Ultimately, the Court found that SEC disgorgement constitutes
a penalty because (1) the violation for which a remedy is
sought is committed against the United States-not an
individual; (2) it is imposed for punitive purposes; (3) it
is often not compensatory; and (4) it is not remedial because
sometimes it does not seek to merely restore the status quo,
but it actually leaves the defendant worse off. Id.
question, then, is whether the principles applied in
Kokesh also apply to civil denaturalization actions
under 8 U.S.C. § 1451(a). Prior to Kokesh, the
Supreme Court spoke directly to whether there is a statute of
limitations applicable to denaturalization cases:
“Congress has not enacted a time bar applicable to
proceedings to revoke citizenship by fraud.”
Costello v. United States, 365 U.S. 265, 283 (1961).
Title 8 U.S.C. § 1451(a) does not contain a time limit
for actions, and historically courts have not applied a
statute of limitations to proceedings to revoke
naturalization. See, e.g., Kungys v. United
States, 485 U.S. 759 (1988) (considering revocation
thirty-four years after naturalization); United States v.
Gkanios, No. 12-60423-CIV, 2012 WL 5986625, at *4 n.5
(S.D. Fla. Nov. 29, 2012) (citing Costello, 365 U.S.
at 283); United States v. Wang, 404 F.Supp.2d 1155,
1157- 58 (N.D. Cal. 2005) (holding that the government may
institute a denaturalization proceeding at any time);
United States v. Rebelo, 358 F.Supp.2d 400, 411
(D.N.J. 2005) (same). Courts have specifically held that 28
U.S.C. § 2462 does not apply to denaturalization
proceedings. See, e.g., United States v. Hongyan
Li, 619 Fed.Appx. 298, 302-03 (5th Cir. 2015);
United States v. Rebelo, 394 Fed.Appx. 850, 853 (3d
Cir. 2010); United States v. Phattey, No.
17-cv-00247, 2018 WL 4365490, at *4 (D. Alaska Sept. 12,
argues that Kokesh changes the analysis in prior
cases because it clarifies what constitutes a
“penalty” under § 2462. But denaturalization
is not a penalty. Rather, it is remedial; it is intended to
revoke a benefit that never should have been bestowed.
See Trop v. Dulles, 356 U.S. 86, 98 (1958)
(“Denaturalization is not imposed to penalize the alien
for having falsified his application for
citizenship.”). Neither recent public statements by the
Attorney General and the Department of Justice, nor use of
the word “penalty” by courts changes the status
of denaturalization. Denaturalization is not sought for the
purpose of punishment. As one court persuasively said
The purpose of revoking citizenship is quite obviously to
take back something that was not deserved in the first place.
The purpose is not to punish, but rath1er to restore the
status quo. Revoking one person's citizenship might deter
others from attempting to obtain citizenship unlawfully.
However, that does not make deterrence the purpose of
revocation. The purpose of a court awarding damages for
medical malpractice is to compensate the victim, although the
court's award might deter other physicians from engaging
in the same or similar behavior.
Phattey, 2018 WL 4365490, at *4. This court agrees,
and determines that Kokesh does not change
established law in denaturalization actions that no statute
of limitations applies. Defendant's motion to dismiss is
IS THEREFORE ORDERED that defendant's motion to