Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cv-06431-Robert M. Dow, Jr., Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before KANNE, ROVNER and SYKES, Circuit Judges.
Jose Suarez committed two controlled substance offenses shortly before he applied for naturalization. Unaware of these offenses, the Immigration and Naturalization Service ("INS")*fn1 approved his application, and Suarez took the oath of allegiance, becoming a United States citizen. A few months later, he was indicted for the offenses he committed prior to filing his application. After Suarez was convicted and had served his sentence, the United States sought to revoke his naturalization pursuant to 8 U.S.C. § 1451(a). The district court granted the government's motion for sum-mary judgment and revoked his citizenship. Suarez appeals.
Suarez is a native of Mexico who became a lawful permanent resident of the United States on July 17, 1978. In December 1996, he filed an Application for Naturalization with the INS. He revealed on the Application that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s. He explained to an INS officer that all of the charges had been dismissed. What he did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. The INS approved his application on April 4, 1998, and Suarez became a citizen on May 14, 1998.
On August 27, 1998, the United States charged Suarez and three other defendants with possession with intent to distribute approximately 196 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1); and conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Both charges related to the time period between June 1996 and October 22, 1996, a few short months before Suarez applied for naturalization. A jury found Suarez guilty on both counts and the district court sentenced him to an eighty-seven month term of imprisonment. In setting the sentence, the court determined that Suarez would be held accountable for eighty-nine kilograms of marijuana seized from his co-defendants as well as an additional twelve kilograms from previous shipments. The court also*fn2 found that Suarez was a manager or supervisor of at least one other participant in the conspiracy, and enhanced his sentence on that basis. We affirmed the district court's judgment on direct appeal. United States v. Suarez, 2000 WL 197927 (7th Cir. Feb. 8, 2000).
Approximately three years after Suarez was released from prison, the United States filed a complaint to revoke his naturalization under three separate theories, pursuant to 8 U.S.C. § 1451(a). The complaint alleged that Suarez (1) illegally procured his naturalization because he committed crimes that reflected adversely on his moral character, and thus lacked the good moral character required for naturalization; (2) illegally procured his naturalization because he provided false testimony to obtain citizenship when he denied that he had committed any such crimes; and (3) obtained his naturalization by willfully misrepresenting and/or concealing that he had committed these crimes. After discovery, the government moved for summary judgment on the first ground alleged, that Suarez had illegally procured his citizenship because, as a person lacking good moral character, he was ineligible for naturalization. Suarez opposed the motion, arguing that extenuating circumstances mitigated his unlawful acts and he could still be found to possess good moral character at the time of his naturalization. The district court granted judgment in favor of the United States, finding that Suarez was barred from establishing good moral character because he had committed serious crimes in the five years prior to his application, and that none of the circumstances he raised in any way mitigated his crimes. The court noted that, under Suarez's argument, a person who was convicted before applying for naturalization would be barred from citizenship, but a person who committed the same crime and managed to evade justice until after naturalization would be eligible for citizenship. Rejecting that reasoning, the court revoked Suarez's citizenship. Suarez appeals.
Suarez contends that he cannot be found to have illegally procured his citizenship because the INS had the discretion and authority to grant his application for citizenship notwithstanding his unlawful acts. Moreover, he argues that there are genuine questions of material fact on the issue of whether extenuating circumstances mitigated his unlawful acts. Finally, he maintains that the court erred in relying on the length of his criminal sentence as evidence of the seriousness of his criminal acts. Our review of the district court's grant of summary judgment in favor of the government is de novo. Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428 (7th Cir. 2010); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009).
The United States may sue to set aside the order admitting a person to citizenship and to cancel that person's certificate of naturalization "on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation[.]" 8 U.S.C. § 1451(a). Only the first ground for revocation, illegal procurement, is at issue in this appeal. The government alleged that Suarez illegally procured his citizenship because he was statutorily ineligible for naturalization at the time he sought to become a naturalized citizen. See Fedorenko v. United States, 449 U.S. 490, 506 (1981) (failure to comply with any of the congressionally imposed pre- requisites of citizenship renders the certificate of citizen-ship illegally procured). See also United States v. Ciurinskas, 148 F.3d 729, 732 (7th Cir. 1998) (if a certificate of naturalization is illegally procured, a court lacks discretion to refuse to revoke citizenship). He was statutorily ineligible, the government asserted, because he lacked good moral character, a prerequisite to citizenship. See 8 U.S.C. § 1427(a)(3) ("No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant . . . during all the periods referred to in this subsection has been and still is a person of good moral character."). Although the statute directs the Attorney General to consider the five-year period prior to filing the application in determining good moral character, the Attorney General may also consider as a basis for the determination the applicant's conduct and acts at any time prior to that period. 8 U.S.C. § 1427(d). Suarez lacked good moral character, under the government's theory, because he had committed two serious controlled substance offenses shortly before he applied for naturalization. After he became a citizen, he was indicted, tried and convicted of possession with intent to distribute marijuana and conspiracy to possess with intent to distribute marijuana. Both charges stemmed from the shipment of nearly 200 pounds of marijuana only months before Suarez applied for citizenship.
Under section 1101(f), "[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was," among other things, "a habitual drunkard," gambler, aggravated felon, or Nazi persecutor. 8 U.S.C. § 1101(f). The list of those lacking good moral character includes persons who have been convicted of or who have admitted committing certain controlled substance offenses. 8 U.S.C. § 1101(f)(3) and (8). Suarez was not convicted until after his application was approved and he contends that this distinction places him in a category of persons that the INS may still admit as a discretionary matter. Because the INS could have exercised its discretion to admit him, he argues that he was not statutorily ...