Saul Alvarez Ruiz v. KIRSTJEN NIELSEN, Secretary of Homeland Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL ALVAREZ RUIZ,
Plaintiff-Appellant,
v.
KIRSTJEN NIELSEN, Secretary of
Homeland Security; WILLIAM P. BARR,
Attorney General; AL GALLMAN,
Defendants-Appellees.
No. 17-16521
D.C. No.
2:16-cv-01073-JCM-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 11, 2019**
San Francisco, California
Before: WALLACE, SILER,*** and McKEOWN, Circuit Judges.
Saul Alvarez Ruiz filed an action seeking approval of his naturalization
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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application. The district court dismissed the action under Fed. R. Civ. P. 12(b)(6),
holding that Ruiz failed to comply with the requirements for naturalization. We
review de novo the district court’s dismissal under Rule 12(b)(6). Bain v.
California Teachers Ass’n, 891 F.3d 1206, 1211 (9th Cir. 2018). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Courts require “strict compliance with the statutory conditions precedent to
naturalization.” Fedorenko v. United States, 449 U.S. 490, 506 (1981). “[T]he
burden is on the alien applicant to show his eligibility for citizenship in every
respect.” Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967). One of those
required conditions for eligibility is that the applicant be “lawfully admitted to the
United States for permanent residence in accordance” with the immigration laws.
8 U.S.C. § 1429. In turn, to be “lawfully admitted for permanent residence,” the
applicant must be “admissible” to the United States at the time of adjustment of
status. 8 U.S.C. § 1255(a)(2). Ruiz concedes several facts establishing that he was
inadmissible.
“Any alien who, by fraud or willfully misrepresenting a material fact . . . has
sought to procure or has procured . . . a visa, other documentation, or admission
into the United States . . . is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). A willful
misrepresentation is one that is “deliberate and voluntary.” Forbes v. INS, 48 F.3d
439, 442 (9th Cir. 1995) (citing Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th

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Cir. 1977)). Proof of an intent to deceive is not required; rather, “knowledge of the
falsity of a representation is sufficient.” Id. (citing Espinoza-Espinoza, 554 F.2d at
925). A misrepresented fact is material if it has “a natural tendency to influence
the decisions of the [INS].” Id. (quoting Kungys v. United States, 485 U.S. 759,
772 (1988)); see also Fedorenko, 449 U.S. at 509 (“At the very least, a
misrepresentation must be considered material if disclosure of the true facts would
have made the applicant ineligible for a visa.”). Ruiz admits that he entered the
country illegally in 1999 under the alias of his cousin and resided here until his
visa interview in Mexico. Ruiz admits that he made misrepresentations during his
interview with the consular officer. During the interview, Ruiz falsely claimed that
he resided in Mexico and worked there as a farmer. There is no dispute that Ruiz
knew of the falsity of his statements; he was advised, by a non-lawyer before
attending the consular interview, that “it was better to just not disclose his unlawful
presence in the United States.” Accordingly, his misrepresentations were willful.
Ruiz’s misrepresentations were also material because they establish grounds
for inadmissibility. Any alien who had been “unlawfully present in the United
States for one year or more, and who again seeks admission within 10 years of the
date of such alien’s departure or removal from the United States, is inadmissible.”
8 U.S.C. § 1182(a)(9)(B)(i)(II). Ruiz was illegally present in the United States
from 1999 until 2007. On October 26, 2007, Ruiz left the United States for

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Mexico and, in Mexico, applied for an immigration visa and sought admission to
the United States. This would be grounds for inadmissibility, which would have
certainly influenced the decision to issue Ruiz the immigration visa. Accordingly,
Ruiz was not lawfully admitted and is not eligible for naturalization.
In response, Ruiz requests “a declaration ordering that [his] 2006
misrepresentation was not material, as he would have easily qualified for a waiver
. . . of inadmissibility.” “The Attorney General has sole discretion to waive
[section 1182(a)(9)(B)(i)(II)] in the case of an immigrant who is the . . . son . . . of
a United States citizen or of an alien lawfully admitted for permanent residence, if
it is established to the satisfaction of the Attorney General that the refusal of
admission to such immigrant alien would result in extreme hardship to the citizen
or lawfully resident . . . parent of such alien.” 8 U.S.C. § 1182(a)(9)(B)(v). Ruiz’s
conclusion that he would have received a waiver is speculative, and he fails to
make a showing that discretion would have been exercised in his favor.
AFFIRMED.

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