United States v. 2005-09-06 | 99-50041 | USA VHOVESEPIAN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 99-50041
v.  D.C. No.
VIKEN HOVSEPIAN; VIKEN CR-82-0917-MRP
YACOUBIAN,
Defendants-Appellees. 
 VIKEN HOVSEPIAN,
Plaintiff-Appellee,
Nos. 99-56922 v. 00-55320
UNITED STATES OF AMERICA;  D.C. No. ALBERTO R. GONZALES,* Attorney CV-98-01001-MRP General, United States Department
of Justice,
Defendants-Appellants. 
*/**Alberto R. Gonzales is substituted for his predecessor, John Ash-
croft, as Attorney General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).
12233

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 VIKEN HOVSEPIAN; VIKEN
YACOUBIAN,
Plaintiffs-Appellees, No. 01-55247
v. D.C. No.
 UNITED STATES OF AMERICA; CV-98-01001-MRP
ALBERTO R. GONZALES,** Attorney OPINION
General, United States Department
of Justice,
Defendants-Appellants. 
Appeals from the United States District Court
for the Central District of California
Mariana R. Pfaelzer, District Judge, Presiding
Argued and Submitted En Banc
June 23, 2005—San Francisco, California
Filed September 6, 2005
Before: Mary M. Schroeder, Chief Judge, and
Dorothy W. Nelson, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
M. Margaret McKeown, Ronald M. Gould, Richard A. Paez,
Marsha S. Berzon, and Richard R. Clifton, Circuit Judges.
Opinion by Judge Graber
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COUNSEL
A. Ashley Tabbador, Assistant United States Attorney; Debra
W. Yang, United States Attorney; and Leon W. Weidman,
Chief, Civil Division, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellant and the
defendants-appellants.
Barrett S. Litt, Litt, Estuar, Harrison, Miller & Kitson, LLP;
Michael J. Lightfoot, Lightfoot, Vandevelde, Sadowsky,
Medvene & Levine; and Mathew Millen, Law Offices of
Mathew Millen, Los Angeles, California, for the defendants-
appellees and the plaintiffs-appellees.
OPINION
GRABER, Circuit Judge:
This case comes before the en banc court for the second
time. The first time, in United States v. Hovsepian, 359 F.3d
1144, 1165-69 (9th Cir. 2004) (en banc), we reversed the dis-
trict court’s decision to administer the oath of citizenship to
Appellees Viken Hovsepian and Viken Yacoubian because of
legal errors in the court’s consideration of their applications
for naturalization. On remand, the government pursued addi-
tional discovery and the court took further evidence and heard
argument, again finding that Appellees had established that
they possess good moral character, as required by 8 U.S.C.
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§ 1427(a)(3). The court ratified its August 18, 2000, adminis-
tration of the oath of allegiance and the swearing in of Appel-
lees as United States citizens. The government timely sought
review, and we affirm.
[1] The key to our present decision is the standard of
review. We review for clear error the district court’s findings
that Appellees possess good moral character, which are find-
ings of fact. See Fed. R. Civ. P. 52(a) (mandating that
“[f]indings of fact . . . shall not be set aside unless clearly
erroneous”); Yuen Jung v. Barber, 184 F.2d 491, 497 (9th Cir.
1950) (holding that findings of good moral character are find-
ings of fact). When the court rests its findings on an assess-
ment of credibility, we owe even greater deference to those
findings. Anderson v. City of Bessemer City, 470 U.S. 564,
575 (1985). That principle has unusual force here because the
starting point for the government’s concerns is Appellees’
crimes in 1982; the same district judge presided over the
criminal proceedings and over all of the protracted litigation
concerning Appellees’ efforts to become citizens of the
United States, thus observing Appellees personally for more
than two decades. We may not disturb the district court’s
findings of fact unless we have the definite and firm convic-
tion that the court has made a mistake. Id. at 573. “If the dis-
trict court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.”
Id. at 573-74.
[2] Of equal importance is the principle that we must fulfill
congressional intent. As we explained in our previous opin-
ion, under the statutes that govern the relationship between
the determination of good moral character and the crimes that
Appellees committed 23 years ago, Congress has made the
judgment that rehabilitation is possible. Hovsepian, 359 F.3d
at 1166-67.1 Under those statutes, Appellees are eligible for
1In our previous opinion, we explained that 8 U.S.C. § 1101(f)(8),
which precludes a finding of good moral character with respect to anyone
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citizenship if they demonstrate that, “during the five years
immediately preceding the date of filing” their applications
for naturalization, they have been, and still are, persons “of
good moral character, attached to the principles of the Consti-
tution of the United States, and well disposed to the good
order and happiness of the United States.” 8 U.S.C. § 1427(a).
Thus, Appellees were required to demonstrate good moral
character during the period from August 1992 (five years
before they filed their applications) through the date of the
most recent hearing in 2004, a period of about 12 years.
Conduct occurring outside the regulatory period is relevant
only insofar as it bears on Appellees’ present moral character.
See 8 U.S.C. § 1427(e) (“[T]he Attorney General shall not be
limited to the applicant’s conduct during the five years pre-
ceding the filing of the application, but may take into consid-
eration as a basis for [the] determination [of good moral
character during that period] the applicant’s conduct and acts
at any time prior to that period.”); 8 C.F.R. § 316.10(a)(2)
(allowing earlier conduct to be considered “if the conduct of
the applicant during the statutory period does not reflect that
there has been reform of character from an earlier period or
if the earlier conduct and acts appear relevant to a determina-
tion of the applicant’s present moral character” (emphasis
added)). As we cautioned in Santamaria-Ames v. INS, 104
F.3d 1127, 1132 (9th Cir. 1996), if the applicant demonstrates
exemplary conduct during the specified statutory period,
“then his application cannot be denied based solely on his
prior criminal record.”
To hold otherwise would sanction a denial of citizen-
ship where the applicant’s misconduct . . . was many
convicted of an “aggravated felony,” applies only to conduct occurring
after November 29, 1990, the effective date of the statute. Hovsepian, 359
F.3d 1166. Because Appellees were convicted in 1984 for conduct occur-
ring in 1982, § 1101(f)(8) is not a bar to their naturalization.
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years in the past, and where a former bad record has
been followed by many years of exemplary conduct
with every evidence of reformation and subsequent
good moral character. Such a conclusion would
require a holding that Congress had enacted a legis-
lative doctrine of predestination and eternal damna-
tion,
id. at 1131, whereas the statutes contemplate rehabilitation,
Yuen Jung, 184 F.2d at 495.
[3] In a 42-page order, the district court detailed its findings
about Appellees and, most especially, about the contested
issue of their good moral character during the requisite 12
years. Those findings describe two people who, in spite of the
crimes that they committed in their youth, completely
reformed as adults. See Hovsepian, 359 F.3d at 1148 (detail-
ing the accomplishments of Hovsepian and Yacoubian and the
exemplary lives that they have led since serving their prison
terms). The evidence at the 2004 hearing included declara-
tions from religious, educational, and political leaders who
attested to Appellees’ good moral character. Appellees con-
tinue their positive contributions to the Armenian community
and to the community at large; both remain employed and
married; both continue to reject the use of violence to express
a political view; both regret their actions in 1982.
Yacoubian became the principal of the Rose and Alex Pili-
bos Armenian School in 1993 and, in addition to being a posi-
tive role model for youth, he has become a leader in the larger
Armenian-American community. Yacoubian has “promoted
dialogue for conflict resolution in lieu of violence” and has
become “a respected advocate of a worldview that . . .
emphatically rejects the very same elements that, as a young
man, pushed him into a course which he now deeply regrets.”
Having undergone years of therapy, to which he principally
credits his psychological transformation, Yacoubian has
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earned a doctorate in counseling psychology at the University
of Southern California.
Hovsepian, likewise, has “become a role model amongst
youth groups and student groups, to which he frequently lec-
tures about the counter-productiveness of violence and the
usefulness of dialogue to resolve conflicts on all levels.”
Hovsepian works in the field of finance and banking, but
devotes 15 to 20 hours a week to volunteer work with interna-
tional Armenian political and cultural organizations in which
he is a respected leader and has advocated nonviolence and
democratization in Armenia. In particular, he publicly has
advocated dialogue between Armenia and Turkey.
The government’s argument to the district court on remand,
and in this appeal, is primarily that Hovsepian and Yacoubian
gave false testimony for the purpose of obtaining an immigra-
tion benefit. Under 8 U.S.C. § 1101(f)(6), such an act pre-
cludes a finding of good moral character. Kungys v. United
States, 485 U.S. 759, 779 (1988). In Kungys, the Court held
that the bar applies to any misrepresentation “made with the
subjective intent of obtaining immigration benefits,” whether
or not the misrepresentation is material to the immigration
decision. Id. at 780.2
In response to the government’s attempts to show that
2The government does not argue that Appellees are ineligible for natu-
ralization because they were affiliated with a terrorist group. See 8 U.S.C.
§ 1424(a)(4)(C) & (c) (requiring an applicant to show that, during the 10
years before the filing of the application, the applicant was not associated
with a group that “advocates or teaches . . . the unlawful damage, injury,
or destruction of property”). When we remanded the case, we directed that
the government have an opportunity to present evidence on its theory that
Appellees may have been associated with such a group. Hovsepian, 359
F.3d at 1167. On remand, however, the government expressly conceded
that neither Appellee was associated with a prohibited organization and
that association with the Armenian Revolutionary Federation does not dis-
qualify an applicant for naturalization.
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Appellees made various false statements in order to secure
United States citizenship, the district court concluded that no
intentionally false testimony was given; that, to the extent that
any statements in the naturalization applications were inaccu-
rate, the inaccuracies resulted from faulty memory, misinter-
pretation of a question, or innocent mistake; and that no false
statement, if there were any, was made for the purpose of
obtaining an immigration benefit. Whether a person has the
subjective intent to deceive in order to obtain immigration
benefits is a question of fact. Kungys, 485 U.S. at 782; cf.
Newton v. Nat’l Broad. Co., 930 F.2d 662, 670 n.12 (9th Cir.
1990) (“A state of mind issue such as actual motive is a ‘pure
question of fact’ normally subjected to review under the
‘clearly erroneous’ standard.”).
[4] We have carefully considered each of the challenged
findings and conclude that none is clearly erroneous. For
example, the district court found that Yacoubian did not tes-
tify falsely or with an intent to deceive when he described the
Armenian Youth Federation (“AYF”) as a “youth cultural and
educational organization,” rather than as a “political” organi-
zation, in the “Memberships and Organizations” section of his
application for naturalization. Yacoubian listed both the AYF
and its parent organization, the Armenian Revolutionary Fed-
eration (“ARF”), but he described only the latter as a “politi-
cal” organization. Yacoubian explained at trial that he viewed
the AYF primarily as fostering cultural activities for youth,
and the district court found that he answered the question to
the best of his understanding and without an intent to deceive.
We find no clear error in that determination.
Nor, for example, do we find clear error in the district
court’s determination that Hovsepian made an honest over-
sight when he stated that he had never been known by a name
other than “Viken Hovsepian” or “Alex Hovsepian.” In fact,
Hovsepian’s Lebanese passports from the 1970s (which were
in the government’s possession at the time of Hovsepian’s
deposition) contained the name “Vicken Archavir Sarkissian
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dit Hovsepian,” which, the district court found, meant
“Vicken Archavir Sarkissian changed to Hovsepian.” At trial,
Hovsepian explained that “Archavir” was his father’s name,
that “Sarkissian” is a name that his family used many years
ago in Lebanon, and that he has never used or been known by
any surname other than Hovsepian in the United States. Also,
Hovsepian did not mention a nickname, “Hratch,” that he
used during his 1982 crime, until the government confronted
him with the nickname in a deposition. Neither omission con-
vinces us that the district court clearly erred. The court was
entitled to view both names as tangential and their omissions
as the product of honest oversight, rather than as deliberate
misrepresentations made with the subjective intent to secure
naturalization.
As a final example, the district court found that Appellees
did not testify falsely with the subjective intent to gain an
immigration benefit when they answered “no” to this ques-
tion: “Have you at any time, anywhere, ever ordered, incited,
assisted, or otherwise participated in the persecution of any
person because of race, religion, national origin, or political
opinion?” This is a question susceptible to many interpreta-
tions, as a review of our immigration cases involving the con-
cept of persecution will demonstrate. The district court was
entitled to find that Appellees gave negative answers because
of their reasonable interpretations of the terms used in the
question, based on consultations with counsel, and not
because they sought to hide their criminal convictions.
[5] The district court, in short, was entitled to believe
Appellees with respect to those and other statements. More-
over, the district court was entitled to view Appellees as gen-
erally credible, despite the government’s assertion that
Appellees displayed an overall lack of candor and made self-
serving assertions of lack of memory. The district court’s
credibility determinations reflect the court’s “carefully con-
sidered views of more than twenty years” of experience with
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Appellees and, as we emphasized above, are determinations
to which we owe considerable deference.
The government also argues that the district court strayed
from our instructions to incorporate the entirety of Appellees’
criminal history in the calculus of good moral character.
Hovsepian, 359 F.3d at 1167-68. We disagree. At the 2004
proceedings on remand, the court took additional evidence
about the 1982 crimes. The government cross-examined each
Appellee about the details of the crimes. The court “admitted
into evidence and considered” numerous documents relating
to the 1982 crimes, including pre-sentence reports. The dis-
trict court acknowledged that the 1982 crimes were “serious,”
reminded counsel that it was especially familiar with the
background because it had presided over Appellees’ trial and
had sentenced them to prison for their acts, and “listened to
all the evidence” before rendering the 2004 decision. After
following our instructions to consider the entirety of Appel-
lees’ criminal histories, the district court found that the evi-
dence “very clearly reflects [their] fundamental moral
transformation, and amply reveals good moral character.”
[6] In conclusion, the district court’s findings that Dr.
Viken Hovsepian and Dr. Viken Yacoubian are persons of
good moral character, within the meaning of 8 U.S.C.
§§ 1101(f) and 1427(a)(3), are not clearly erroneous, and the
court committed no legal error in re-analyzing the evidence
following our remand in 2004.
AFFIRMED.
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