Blanca Estella Orellana v. ALEJANDRO MAYORKAS, Secretary of Homeland Security

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLANCA ESTELLA ORELLANA,
Plaintiff-Appellant,
v.
ALEJANDRO MAYORKAS, Secretary
of Homeland Security; TRACY
RENAUD, Acting Director, U.S.
Citizenship and Immigration
Services; ROBERT LOONEY, San
Francisco/San Jose District Director,
U.S. Citizenship and Immigration
Services,
Defendants-Appellees.
No. 20-16092
D.C. No.
4:19-cv-05759-
DMR
OPINION
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Argued and Submitted March 8, 2021
San Francisco, California
Filed July 28, 2021

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ORELLANA V. MAYORKAS 2
Before: M. Margaret McKeown and Sandra S. Ikuta,
Circuit Judges, and Joan N. Ericksen,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Immigration
The panel affirmed the district court’s dismissal of
Blanca Orellana’s complaint challenging the United States
Citizenship and Immigration Services’ denial of her
application for naturalization because the complaint did not
plausibly plead that Orellana had not been convicted of
an offense that involves fraud or deceit in which “the loss
to the victim or victims exceeds $10,000,” 8 U.S.C.
§ 1101(a)(43)(M)(i), and therefore had the requisite good
moral character. The panel held that: (1) under the
“circumstance-specific” approach, the district court is not
limited to reviewing the record in the criminal case in
determining the loss to the victim; and (2) Orellana’s
complaint could not survive a motion to dismiss because it
did not plausibly allege that the loss to the victim did not
exceed $10,000.
* The Honorable Joan N. Ericksen, United States District Judge for
the District of Minnesota, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORELLANA V. MAYORKAS 3
After an injury in 2002, Orellana’s employer, Ocadian,
provided her with disability payments and payments for
medical treatment. When later charged with insurance fraud,
Orellana pleaded guilty to violating California Penal Code
§ 550(b)(3) by concealing a material fact relevant to her
eligibility for insurance benefits or payments, “to wit: outside
employment, sources of income.” In 2018, USCIS denied
Orellana’s naturalization application on the ground that her
conviction was an offense under § 1101(a)(43)(M)(i), an
“aggravated felony” precluding a finding of the good moral
character required for naturalization. Orellana challenged
this decision in district court, arguing that, under the
applicable “circumstance-specific” approach set out in
Nijhawan v. Holder, 557 U.S. 29 (2009), the district court
could consider a printout of checks Ocadian had sent to
Orellana, even though the printout had not been part of the
criminal record. The district court rejected that argument and
dismissed the complaint.
The panel held that, under the circumstance-specific
approach, the district court is not limited to reviewing the
record in the applicant’s criminal case. The panel observed
that Nijhawan did not expressly address whether a court
could consider evidence beyond sentencing-related materials
to determine loss. However, the panel concluded that the
logic of Nijhawan made clear that the Supreme Court’s rules
limiting the evidence that can be considered in cases
involving the categorical approach (where a court is limited
to reviewing the language of the statute of conviction) and the
modified categorical approach (where a court is limited to
reviewing a narrow category of documents to determine
which part of a divisible statute is at issue) do not apply in
this circumstance-specific context. Instead, the court must
determine whether the actual conduct underlying the state

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ORELLANA V. MAYORKAS 4
crime of conviction matches the conduct described in the
generic federal offense. The panel observed that courts
making this sort of inherently factual finding are generally
free to consider any relevant, admissible evidence and
explained that it saw no basis for precluding a court from
doing so here. The panel observed that this court had
previously suggested as much, and that the Board of
Immigration Appeals had interpreted Nijhawan the same way.
However, the panel concluded that Orellana’s complaint
did not plausibly allege that the loss to Ocadian did not
exceed $10,000. Observing that the loss must be tethered to
the offense of conviction, the panel explained that Count 3 of
the criminal complaint, Orellana’s offense of conviction,
charged her with concealing the fact she had engaged in
outside employment. Orellana, however, contended the only
loss incurred by Ocadian that was tethered to Count 3, as
opposed to counts that were dismissed in her criminal case,
was at most the $5,010.98 in payments reflected in the
printout of checks.
In light of its holding that a district court is not per se
precluded from considering documents beyond criminal
records, and the principle that a district court may consider
materials outside the pleadings where, as here, they have been
incorporated by reference into the complaint, the panel
concluded that it could consider the printout. However, the
panel concluded that the complaint itself undermined
Orellana’s theory because the complaint alleged that, in
addition to the payments of $5,010.98, Ocadian also incurred
$5,146 in legal and investigation costs. The panel concluded
these costs, which together exceeded $10,000, were tethered
to Count 3 because Ocadian incurred these costs due to
Orellana’s concealment of her employment. The panel also

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ORELLANA V. MAYORKAS 5
concluded that, even assuming some part of the $30,000
Orellana owed Ocadian in restitution was attributable to
criminal counts that were dismissed, the complaint did not
raise a plausible inference that the loss attributable to Count
3 was less than or equal to $10,000.
COUNSEL
Kevin M. Crabtree (argued), Fuerza Immigration Lawyers
LLP, Oakland, California, for Plaintiff-Appellant.
T. Monique Peoples (argued), Senior Litigation Counsel;
Elianis N. Perez, Assistant Director; William C. Peachey,
Director, District Court Section; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
The United States Citizenship and Immigration Services
(USCIS) denied an application for naturalization because the
applicant had been convicted of “an offense that . . . involves
fraud or deceit in which the loss to the victim or victims
exceeds $10,000,” 8 U.S.C. § 1101(a)(43)(M)(i), and
therefore lacked the “good moral character” required under
8 U.S.C. § 1427(a). This appeal requires us to consider
whether a district court reviewing documents in the
applicant’s challenge to such a denial can consider documents
outside of the record in the applicant’s prior criminal case.
We conclude that under the “circumstance-specific” approach

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ORELLANA V. MAYORKAS 6
to the monetary threshold in § 1101(a)(43)(M)(i), the district
court is not limited to reviewing the record in the applicant’s
criminal case in determining the “loss to the victim.” See
Nijhawan v. Holder, 557 U.S. 29, 40 (2009). Nevertheless,
we conclude that the complaint here cannot survive a motion
to dismiss, because it does not plausibly allege that “the loss
to the victim” of the applicant’s criminal offense did not
“exceed[] $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).
I
According to her complaint, Blanca Orellana is a citizen
of El Salvador. She has resided in the United States since
1990 and has been a lawful permanent resident since
February 2003.
In February 2002, while working for Ocadian Care
Center, Orellana injured her neck, right hand, left hand, right
foot, and back. Orellana received emergency room treatment
in February 2002, and was subsequently treated by several
different physicians. Orellana filed a disability claim with
Ocadian, claiming that the injuries she sustained from this
incident left her unable to work. Ocadian accepted the claim,
and Orellana began receiving temporary disability payments
from Ocadian in February 2002. Ocadian also paid for
Orellana’s ongoing medical treatment, which included
therapy for her upper extremities, treatment for her right foot
and ankle, and assistive devices (splints for both wrists and an
elbow sleeve). As of December 2, 2002, Ocadian had paid
$37,957.64. In connection with these injuries, Orellana also
filed an application with the Workers’ Compensation Appeal
Board (WCAB).

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ORELLANA V. MAYORKAS 7
Ocadian’s private investigator subsequently discovered
that Orellana’s claimed disabilities were contradicted by her
activities. Surveillance during the period from April 2002 to
August 2002 showed that Orellana was continuing to work
while receiving disability and workers’ compensation
payments, and that she showed no signs of limited
movements. In December 2002, Ocadian’s insurance
company filed a mandatory report of suspected fraud with the
local district attorney. In 2003, the district attorney filed a
criminal complaint against Orellana. Counts 1 and 2 (which
were subsequently dismissed) charged Orellana with making
a false statement in support of an insurance claim, Cal. Penal
Code § 550(b)(2), and a false statement in support of a claim
for workers’ compensation, Cal. Ins. Code § 1871.4(a)(1),
respectively. Count 3 charged her with the crime of
concealing a material fact “on or about February 20, 2002 and
through August 14, 2002,” namely, that Orellana “did conceal
and knowingly fail to disclose the occurrence of an event and
series of events that affected [her] initial and continued right
or entitlement to insurance benefits or payments, and the
amount of any benefits or payments to which [she] was
entitled, to wit: outside employment, sources of income.”1
1 Count 3 states, in full:
Count: 003, for a further and separate cause of
complaint, being a different offense from but connected
in its commission with the charge set forth in Count
002, complainant further complains and says: on or
about February 20, 2002 and through August 14, 2002,
the crime of concealment of material fact affecting
insurance benefit, in violation of section 550(b)(3) of
the penal code, a misdemeanor was committed by
Blanca Estela Orellana, in that said defendant(s) did
conceal and knowingly fail to disclose the occurrence
of an event and series of events that affected

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ORELLANA V. MAYORKAS 8
This nondisclosure violated section 550(b)(3) of the
California Penal Code, which makes it “unlawful to do, or to
knowingly assist or conspire with any person to . . . [c]onceal,
or knowingly fail to disclose the occurrence of, an event that
affects any person’s initial or continued right or entitlement
to any insurance benefit or payment, or the amount of any
benefit or payment to which the person is entitled.”
In May 2003, Orellana pleaded guilty to Count 3, and
Counts 1 and 2 were dismissed subject to a Harvey waiver.2
She was ordered “to make restitution for damages as to
Count(s) 3 in an amount and manner to be determined by the
probation officer and ordered by the court,” as well as “to
make restitution on counts, cases, and uncharged matters
dismissed with Harvey waiver.”
In connection with the restitution proceedings, Ocadian
provided a letter stating that as of August 4, 2003, Ocadian
had paid $56,000 for Orellana’s claim and had “paid
defendant’s initial and continued right or entitlement to
insurance benefits or payments, and the amount of any
benefits or payments to which defendant(s) was
entitled, to wit: outside employment, sources of
income.
2 A Harvey waiver allows a court to consider the facts underlying a
dismissed count for purposes of calculating the amount of restitution. See
Cal. Penal Code § 1192.3(b) (“If restitution is imposed which is
attributable to a count dismissed pursuant to a plea bargain, as described
in this section, the court shall obtain a waiver pursuant to People v.
Harvey (1979) 25 Cal. 3d 754 from the defendant as to the dismissed
count.”). In Harvey, the California Supreme Court held that a sentencing
court could not consider any of the facts underlying a dismissed count for
purposes of enhancing a defendant’s sentence “in the absence of any
contrary agreement.” 25 Cal. 3d at 758.

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ORELLANA V. MAYORKAS 9
$5,146.00 in legal and investigation fees and $11,609 in
temporary disability fees.” Orellana was ultimately ordered
to pay Ocadian $30,000 in restitution.
In December 2004, the WCAB approved a separate
agreement settling Orellana’s workers’ compensation claim
against Ocadian. Under the agreement, the parties agreed that
Orellana’s claim against Ocadian would be settled for
$42,700. The $30,000 restitution payment to Ocadian would
be deducted from this amount.
Years later, Orellana applied for naturalization. In
January 2018, the USCIS denied her application based on its
determination that Orellana’s state conviction for insurance
fraud was an offense that “involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000,” 8 U.S.C.
§ 1101(a)(43)(M)(i), which is an “aggravated felony”
precluding naturalization, 8 C.F.R. § 316.10(b)(1)(ii).
In September 2019, Orellana filed suit in the district
court, seeking to compel the USCIS to adjudicate her then-
pending administrative appeal of the denial of her
naturalization application. After the USCIS reaffirmed its
decision to deny her application for naturalization, Orellana
amended her complaint to challenge the USCIS’s
determination. In the operative complaint, Orellana
referenced documents that had not been part of the record in
her criminal case. In particular, the complaint relied on a
printout that it claimed listed the checks Ocadian sent to
Orellana for the period between February 4, 2002 and
February 2, 2003. According to the complaint, the printout
showed that for the period between February 20, 2002 and
August 14, 2002, Ocadian paid Orellana $5,010.98.

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ORELLANA V. MAYORKAS 10
Orellana argued that under Nijhawan, the district court
could consider any admissible evidence to calculate the loss
caused to the victim by the specific conduct underlying the
count of conviction. Therefore, she argued that the court
should consider the printout setting forth the check payments,
even though it had not been part of the criminal record.
The district court dismissed the complaint without
prejudice on the ground that Orellana failed to plead facts
sufficient to show that she had not been convicted of an
offense involving “fraud or deceit in which the loss to the
victim or victims exceeds $10,000,” 8 U.S.C.
§ 1101(a)(43)(M)(i), and therefore failed to make a plausible
claim that she was eligible for naturalization. In reaching this
conclusion, the court rejected Orellana’s argument that, under
Nijhawan, it could consider the printout purportedly setting
forth Ocadian’s check payments. The district court reasoned
that Nijhawan permitted courts to consider sentencing-related
material, but did not allow a court to consider any other
admissible evidence, which (in the court’s view) would allow
a party to relitigate the underlying conviction.
After Orellana informed the court that she did not intend
to file an amended complaint, the court entered final
judgment, and Orellana brought this appeal.
II
We have jurisdiction to review the district court’s
judgment under 28 U.S.C. § 1291. See Alocozy v. U.S.
Citizenship & Immigr. Servs., 704 F.3d 795, 796 (9th Cir.
2012). We review de novo the grant of a motion to dismiss.
Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir.
2018).

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ORELLANA V. MAYORKAS 11
A
On appeal, Orellana’s central argument is that the district
court erred in declining to consider the printout, which
provided evidence of the payments she received from
Ocadian between February 20, 2002 and August 14, 2002.
Because Orellana’s eligibility for naturalization turns on a
showing that her prior conviction is not “an offense that . . .
involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000,” 8 U.S.C. § 1101(a)(43)(M)(i),
Orellana claims that her additional evidence is crucial to
show that the loss to Ocadian did not exceed the statutory
amount. Therefore, we first turn to the question whether the
district court erred in concluding that even under the
“circumstance-specific” approach outlined in Nijhawan, it
could review only documents in Orellana’s state criminal case
records.
We consider this issue in the context of the Supreme
Court’s evidentiary rules for determining whether a person’s
prior state conviction qualifies as a generic federal offense
described in the relevant federal statute. Section
1101(a)(43)(M)(i) lists such a generic fraud offense. Over the
past three decades, the Supreme Court has developed and
refined a methodology called the “categorical approach” for
making this determination. See Taylor v. United States,
495 U.S. 575, 588–90 (1990) (considering generic federal
offenses for purposes of the Armed Career Criminal Act);
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186–87 (2007)
(considering generic federal offenses for purposes of
immigration law). In addition to the categorical approach, the
Supreme Court has delineated two other approaches—the
modified categorical approach and the circumstance-specific
approach—to determine whether a person’s state conviction

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ORELLANA V. MAYORKAS 12
qualifies as a generic offense specified in a federal statute.
See Nijhawan, 557 U.S. at 40–41. Each of these approaches
has its own evidentiary rules.
First, under the categorical approach, a court must
determine only whether the defendant was convicted under a
criminal statute that categorically matches the generic federal
offense, without considering the particular facts underlying
the defendant’s conviction. Taylor, 495 U.S. at 600. When
engaging in this analysis, a court considers only the statutory
language of the criminal statute of conviction and the generic
federal offense, and may not consider any evidence relating
to the defendant’s conduct. Id. at 600–01; see also Descamps
v. United States, 570 U.S. 254, 261 (2013).
Second, if the criminal statute of conviction is divisible,
meaning it “sets out one or more elements of the offense in
the alternative,” a court must address a single factual
question: “which of the [alternative] statutory offenses
(generic or non-generic) formed the basis of the defendant’s
conviction.” Descamps, 570 U.S. at 257, 265. To make this
determination, a court may review only a narrow category of
documents, such as “the indictment or information and jury
instructions or, if a guilty plea is at issue, by examining the
plea agreement, plea colloquy or some comparable judicial
record of the factual basis for the plea.” Nijhawan, 557 U.S.
at 35 (cleaned up). The court may not look at other evidence
to determine what crime the person actually committed,
because that would amount to a collateral trial. Shepard v.
United States, 544 U.S. 13, 23 (2005).
Nijhawan established a third approach, which it referred
to as a “circumstance-specific” approach. 557 U.S. at 34. In
considering § 1101(a)(43)(M), it concluded that Congress did

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ORELLANA V. MAYORKAS 13
not intend for the “loss to the victim” element to be applied
categorically. Id. at 40. Instead, Nijhawan concluded that the
words “loss to the . . . victims exceeds $10,000” referred to
“the specific way in which an offender committed the crime
on a specific occasion” rather than “to a generic crime.” Id.
at 34. The Court based this conclusion on the text and
context of § 1101(a)(43)(M). It also considered that applying
a categorical approach to the monetary threshold in
§ 1101(a)(43)(M)(i) would leave the “loss to the victim”
element “with little, if any, meaningful application” because
at the time Congress added the $10,000 threshold, there was
“no widely applicable federal fraud statute that contain[ed] a
relevant monetary loss threshold,” and “only 8 States [had]
statutes in respect to which subparagraph (M)(i)’s $10,000
threshold, as categorically interpreted, would have full
effect.” Id. at 39–40. In light of this conclusion, Nijhawan
held that a court was not limited by the evidentiary
restrictions applied under the categorical or modified
categorical approach. Id. at 40–41. Nijhawan explained that
there is “nothing in prior law that so limits the . . . court” as
to what it may consider as evidence. Id. at 41. Moreover,
such a limitation would be “impractical insofar as it requires
obtaining from a jury a special verdict on a fact that . . . is not
an element of the offense.” Id. at 42.
The Court rejected the alien’s argument that “fairness
requires the evidentiary limitations” of the modified
categorical approach. Id. at 41. The Court noted that aliens
were already protected by procedural safeguards, including
the Third Circuit’s rule that “loss to the victim” for purposes
of § 1101(a)(43)(M)(i) must “be tied to the specific counts
covered by the conviction” and “cannot be based on acquitted
or dismissed counts or general conduct.” Id. at 42 (citing
Alaka v. Attorney General of United States, 456 F.3d 88, 107

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ORELLANA V. MAYORKAS 14
(3rd Cir. 2006)). In addition, a “petitioner and those in
similar circumstances have at least one and possibly two
opportunities to contest the amount of loss, the first at the
earlier sentencing and the second at the deportation hearing
itself.” Id. Therefore, the Court held there was “nothing
unfair” about an immigration judge relying on “earlier
sentencing-related material,” including the defendant’s
stipulation “produced for sentencing purposes,” to establish
the amount of loss. Id.
Although Nijhawan did not expressly address the question
whether a court could consider evidence beyond sentencing-
related materials introduced in immigration or judicial
proceedings to determine the “loss to the victim,” the logic of
Nijhawan makes clear that the Supreme Court’s rules limiting
the evidence that can be considered in categorical cases do
not apply in this circumstance-specific context. Because the
“loss to the victim” inquiry in § 1101(a)(43)(M)(i) requires an
examination of the offender’s actual conduct, a court is not
limited to reviewing the language of the statute of conviction,
as would be the case under the categorical approach. For the
same reason, the court is not limited to reviewing a specified
set of documents to determine which part of a divisible
statute was at issue, as would be the case under the modified
categorical approach. Instead, the court must determine
whether the offender’s actual conduct underlying the state
crime of conviction matches the conduct described in the
generic federal offense. Courts making this sort of inherently
factual finding (the “specific way in which an offender
committed the crime” of conviction, id. at 34) are generally
free to consider any admissible evidence relevant to making
such a determination. We see no basis for precluding a court
from doing so here.

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ORELLANA V. MAYORKAS 15
We have previously suggested as much. See Kawashima
v. Holder, 615 F.3d 1043, 1056 (9th Cir. 2010) (holding in a
similar context that “the BIA is not limited to only those
documents which a court applying the modified categorical
approach may review” in order to determine the loss amount
under § 1101(a)(43)(M)(i)), aff’d, 565 U.S. 478 (2012). And
the BIA has interpreted Nijhawan the same way, holding that
it may consider any evidence that is admissible in removal
proceedings to determine the loss amount under the
circumstance-specific approach. See, e.g., Matter of Garza-
Olivares, 26 I. & N. Dec. 736, 742 & n.4 (BIA 2016); Matter
of Introcaso, 26 I. & N. Dec. 304, 308–09 (BIA 2014)
(“[C]ourts may look at the documents in the record of
conviction and, if they are inconclusive, to other reliable
documents or evidence.”).
The government argues that because Nijhawan relied
solely on sentencing-related materials, a court may not
consider documents beyond the record of the underlying
criminal case. We disagree. Here, “nothing in prior law”
limits the evidence that may be considered by the district
court in its review of the denial of an application for
naturalization, including its determination of the amount of
the victim’s loss under “the specific circumstances
surrounding an offender’s commission of a fraud and deceit
crime on a specific occasion.” Nijhawan, 557 U.S. at 40–41.
Although the materials at issue in Nijhawan included only
sentencing-related materials, the Supreme Court did not limit
its holding to that category of materials, or otherwise suggest
that the nature of the materials was significant. Accordingly,
a district court may consider any materials, subject only to the

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ORELLANA V. MAYORKAS 16
applicable evidentiary rules, to determine whether the offense
of conviction caused more than $10,000 in loss to the victim.3
B
Having determined that the district court was not
precluded from considering evidence beyond the records
underlying Orellana’s state criminal case, we now turn to the
question whether the district court erred in dismissing
Orellana’s complaint for failure to state a claim. We may
affirm the dismissal upon any basis fairly supported by the
record. See Burgert v. Lokelani Bernice Pauahi Bishop Tr.,
200 F.3d 661, 663 (9th Cir. 2000).
The relevant framework for establishing eligibility for
naturalization is set forth in 8 U.S.C. § 1427(a) and the
implementing regulations, 8 C.F.R. part 316. Under these
provisions, a person may apply to the Attorney General
(through the USCIS) for naturalization. See 8 U.S.C.
§ 1421(a); 8 C.F.R. § 316.4. “The applicant shall bear the
burden of establishing by a preponderance of the evidence
that he or she meets all of the requirements for
naturalization.” 8 C.F.R. § 316.2(b); see also Berenyi v. Dist.
Dir., Immigr. & Naturalization Serv., 385 U.S. 630, 637
(1967). One eligibility requirement is that the applicant “has
been and still is a person of good moral character” during the
relevant time periods referred to in the statute. 8 U.S.C.
3 Orellana’s argument that the Federal Rules of Evidence do not apply
to a district court’s review of the denial of a naturalization application,
lacks merit. The rules “apply to proceedings in United States courts.”
Fed. R. Evid. 101, 1101. A judicial review of a denial of a naturalization
application is one such proceeding. See 8 U.S.C. § 1421(c). Orellana
points to no contrary authority and we have not found one.

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ORELLANA V. MAYORKAS 17
§ 1427(a); 8 C.F.R. § 316.10. An applicant for naturalization
“shall be found to lack good moral character, if the applicant
has been . . . [c]onvicted of an aggravated felony as defined
in [8 U.S.C. § 1101(a)(43)].” 8 C.F.R. § 316.10(b)(1)(ii).
The statutory definition of an “aggravated felony” includes
“an offense that . . . involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i). In reviewing an application for
naturalization, the USCIS conducts an investigation of the
applicant, and may take testimony, subpoena witnesses, and
require “the production of relevant books, papers, and
documents.” Id. § 1446(b). If the application for
naturalization is denied, the applicant may request a hearing
before an immigration officer, where additional evidence may
be produced. Id. § 1447(a).
If the application is again denied, the applicant “may seek
review of such denial” before a district court. Id. § 1421(c).
“Such review shall be de novo, and the court shall make its
own findings of fact and conclusions of law and shall, at the
request of the petitioner, conduct a hearing de novo on the
application.” Id. An applicant for naturalization may present
testimony and documents to the district court to establish
eligibility. See Gonzalez v. Sec’y of Dep’t of Homeland Sec.,
678 F.3d 254, 262 (3d Cir. 2012) (applying the Federal Rules
of Evidence in reviewing the USCIS’s denial of a
naturalization application).
To survive a motion to dismiss a complaint in district
court, a person challenging the denial of an application for
naturalization must file a complaint that alleges “enough facts
to state a claim to relief that is plausible on its face.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Said
otherwise, the allegations in the complaint must “plausibly

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ORELLANA V. MAYORKAS 18
give rise to an entitlement to relief.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). If an applicant is held to lack good
moral character because of a conviction under 8 U.S.C.
§ 1101(a)(43), the applicant’s complaint must set forth
plausible allegations that, if true, would carry the burden of
proving that the state conviction was not disqualifying. “The
plausibility standard . . . asks for more than a sheer possibility
that” plaintiffs are entitled to relief. Id. at 678. “Where a
complaint pleads facts that are merely consistent with
[plaintiffs’ theories], it stops short of the line between
possibility and plausibility of entitlement to relief.” Id.
(cleaned up).
Where, as here, a plaintiff’s prior state conviction is at
issue, a district court is not per se precluded from considering
documents beyond the criminal case records relating to that
conviction. See supra Section II.A. Nevertheless, the district
court generally may not consider material outside the
pleadings at the motion to dismiss stage, Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001), unless the
documents have been incorporated into the complaint by
reference, or are matters of which a court may take judicial
notice, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007). “Although mere mention of the existence of
a document is insufficient to incorporate the contents of a
document, the document is incorporated when its contents are
described and the document is integral to the complaint.”
Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir.
2018) (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031,
1038 (9th Cir. 2010)) (internal quotation marks omitted).

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ORELLANA V. MAYORKAS 19
III
We now apply these principles to Orellana’s case. To
survive a motion to dismiss, Orellana’s complaint and the
documents incorporated by reference must allege facts that,
taken in the light most favorable to Orellana, show that her
conviction under section 550(b)(3) of the California Penal
Code did not result in loss to the victims that exceeded
$10,000. For purposes of 8 U.S.C. § 1101(a)(43)(M)(i), the
loss to the victim must be “tethered to [the] offense of
conviction” and “cannot be based on acquitted or dismissed
counts.” Nijhawan, 557 U.S. at 42 (citation omitted). Count
3, the offense of conviction, charged Orellana with the crime
of concealing, “on or about February 20, 2002 and through
August 14, 2002,” the fact that she engaged in “outside
employment,” which affected her “initial and continued right
or entitlement to insurance benefits or payments.”
According to Orellana, her complaint plausibly alleges
that “the actual loss amount caused by her conduct was at
most $5,010.98, based on the sum total of the checks paid to
her by Ocadian during the time period she was alleged to
have failed to report outside income in the criminal
complaint.” This argument is based on the financial details
printout described in the complaint. We may consider the
printout because the document is incorporated by reference in
the complaint, despite the fact that it is not part of the records
in Orellana’s criminal case. See supra Section II.A. The
printout lists payments made to Orellana on a biweekly basis
from February 4, 2002 to February 2, 2003. The complaint
reprints a subset of the entries in the printout for the payments
made during the period from February 20, 2002 through
August 14, 2002 (the time period referenced in Count 3), and
states that the “total of the above payments made during this

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ORELLANA V. MAYORKAS 20
time period was $5,010.98 . . . not includ[ing] checks that
appear to have been later adjusted with a negative amount and
are marked ‘ESCROWFUN.’” While it is not clear how the
complaint added up the checks paid to Orellana during the
relevant time period to arrive at the $5,010.98 figure, we take
this allegation in the light most favorable to Orellana, see
Nguyen v. Endologix, Inc., 962 F.3d 405, 408 (9th Cir. 2020).
Orellana claims that this amount represents the only loss
incurred by Ocadian that is tethered to Count 3.
We disagree, because the complaint itself undermines
Orellana’s theory of the case and renders it implausible. See
Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d
990, 999 & n.8 (9th Cir. 2014) (holding that where
allegations in the complaint were internally inconsistent, the
allegations supported “at best—a ‘possible’ basis to believe
[plaintiffs’ theory], not a ‘plausible’ one”). The complaint
alleges that in addition to Ocadian’s payments of $5,010.98
to Orellana, Ocadian incurred $5,146 in legal and
investigation costs leading to the discovery of Orellana’s
fraud. Specifically, the complaint alleged that the
investigator surveilled Orellana, which resulted in a report to
the local district attorney that Orellana was employed during
the period she claimed she was not working. Because
Ocadian incurred these costs due to Orellana’s concealment
of the fact that she was engaged in outside employment
during the period from February 20, 2002 through August 14,
2002, these costs are tethered to Count 3. Accordingly, the
complaint indicates that the losses to Ocadian, including its

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ORELLANA V. MAYORKAS 21
legal and investigation costs and its direct payments to
Orellana, exceed $10,000.4
Furthermore, as set out in the complaint, Ocadian was
owed $30,000 from Orellana for restitution. Orellana argues
that this $30,000 loss is not necessarily related to Count 3, the
count of conviction, because the Harvey waiver in her
criminal case supports the inference that the $30,000 in
restitution was attributable to the dismissed counts. But even
assuming that some part of the $30,000 is attributable to
losses caused by Counts 1 and 2, the complaint does not raise
a plausible inference that the loss attributable to Count 3 was
less than or equal to $10,000. Orellana has not “explained
what losses resulted from the dismissed counts or how those
losses were calculated into the $30,000 restitution
agreement.”
Taking all the allegations in the complaint together, the
complaint fails to plausibly allege that the loss to Ocadian did
not exceed $10,000. Iqbal, 556 U.S. at 678. At best, the
complaint raises a “sheer possibility” that the losses did not
exceed this amount, but when a complaint’s allegations are
merely consistent with the plaintiff’s theory of relief, the
complaint cannot survive a motion to dismiss. Id.
***
Accordingly, we hold that Orellana failed to state a
plausible claim that the total loss to the victim of her violation
of section 550(b)(3) of California Penal Code did not exceed
4 In light of this conclusion, we need not consider whether other
specific costs, including the payment for Orellana’s medical treatment, are
“tethered to [the] offense of conviction.” See Nijhawan, 557 U.S. at 42.

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ORELLANA V. MAYORKAS 22
$10,000. Therefore, she has failed to plausibly allege that she
was not convicted of an “aggravated felony” under
§ 1101(a)(43)(M)(i), and the USCIS did not err in ruling that
she failed to meet the good moral character requirement for
naturalization.
AFFIRMED.

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