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Wang v. Rodriguez

United States Court of Appeals, Ninth Circuit

July 27, 2016

Lifeng Wang, AKA Alice Wang, Petitioner-Appellant,
v.
Leon Rodriguez, Director of U.S. Citizenship and Immigration Services; Robin Barrett, Director of the San Francisco Field Office, U.S. Citizenship and Immigration Services, Respondents-Appellees.

          Argued and Submitted February 12, 2016 San Francisco, California

         Appeal from the United States District Court No. 3:12-cv-06367-LB for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding

          Frank M. Tse (argued), Law Office of Frank M. Tse, San Francisco, California, for Petitioner-Appellant.

          Sarah L. Vuong (argued), Trial Attorney; Colin A. Kisor, Deputy Director; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondents-Appellees.

          Before: A. Wallace Tashima and William A. Fletcher, Circuit Judges and Stanley Allen Bastian, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel reversed and remanded the district court's summary judgment for the government in Lifeng Wang's petition seeking de novo review of the United States Citizenship and Immigration Service's denial of naturalization based on Wang's conviction for trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a).

         The panel held that a conviction under 18 U.S.C. § 2320 does not necessarily involve fraud or deceit because a defendant can be convicted of trafficking in counterfeit goods for conduct that is merely likely to cause "mistake" or "confusion." The panel held that therefore Wang's conviction could not form the basis for a finding that she was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).

          OPINION

          W. FLETCHER, Circuit Judge.

         Lifeng Wang, a lawful permanent resident, was convicted of one count of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a). Based on that conviction, U.S. Citizenship and Immigration Services ("USCIS") denied her application for naturalization, concluding that Wang had been convicted of an offense "involv[ing] fraud or deceit" with a loss to the victim of over $10, 000, an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). On de novo review, the district court agreed and concluded that Wang was therefore ineligible to become a naturalized citizen.

         We hold that a conviction under 18 U.S.C. § 2320 does not necessarily involve fraud or deceit because a defendant can be convicted of trafficking in counterfeit goods for conduct that is merely likely to cause "mistake" or "confusion." Wang's conviction was therefore not an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). We reverse and remand to the district court for further proceedings.

         I. Background and Procedural History

         Lifeng Wang has been a lawful permanent resident of the United States since February 28, 2001. On September 26, 2005, she pled guilty in federal court to trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a). The charges arose from Wang's operation between 1999 and 2002 of two software distribution companies that purchased and sold software programs with counterfeit marks of Microsoft Corporation ("Microsoft") and other companies. Pursuant to a plea agreement, Wang was convicted and sentenced to two months imprisonment followed by three years supervised release, and was subject to eight special conditions of release. She and her co-defendants were ordered to pay restitution of $93, 611 to Microsoft. On July 9, 2007, the court found Wang to ...


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