Argued before Original Panel on June 13, 2013
Submitted Sua Sponte En Banc on August 15, 2013
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 10-cv-01435) District Judge: Honorable Claire C. Cecchi
Thomas E. Moseley [ARGUED], Attorneys for Plaintiff-Appellant
Bradley B. Banias Timothy M. Belsan [ARGUED] United States Department of Justice Office of Immigration Litigation Michael Campion Kristin L. Vassallo Office of United States Attorney, Attorneys for Defendant-Appellee
Before: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SCIRICA and VAN ANTWERPEN, Circuit Judges.
HARDIMAN, Circuit Judge.
Nizar Al-Sharif applied for United States citizenship, but his application was denied because he had been convicted of conspiracy to commit wire fraud, which the United States Citizenship and Immigration Services (USCIS) determined to be an aggravated felony. Al-Sharif contested the denial in the District Court, which entered summary judgment in favor of USCIS. In this appeal, Al-Sharif argues that he is entitled to citizenship because, under our decision in Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), his conviction was not for an aggravated felony. After oral argument before a panel of this Court, we elected sua sponte to hear the case en banc in order to determine whether Nugent remains good law. For the reasons discussed below, we hold that it does not, and will affirm the judgment of the District Court.
Al-Sharif is a lawful permanent resident of the United States. In 1992, he and others arranged to connect callers in Israel to callers in countries with no direct phone service to Israel, for a fee, by routing the calls through an apartment in New Jersey. Al-Sharif rented the apartment and set up phone service there using a false name and Social Security number. Afterwards, he abandoned the apartment without leaving a forwarding address or paying the phone bill.
As a result of this scheme, Al-Sharif pleaded guilty in 1993 to conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, with a stipulation that his fraud caused a loss to the victim of between $120, 000 and $200, 000. He was sentenced to six months' home confinement and five years' probation, and was ordered to pay $128, 838 in restitution to the phone company.
In 2004, Al-Sharif applied to become a naturalized citizen of the United States. On his application, he truthfully disclosed his conviction for conspiracy to commit wire fraud.As a result, his application was denied by USCIS. In the view of USCIS, Al-Sharif's conviction was for an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M)(i), which precluded him, under 8 U.S.C. § 1101(f)(8), from demonstrating "good moral character, " as required for naturalization under 8 U.S.C. § 1427(a)(3). Al-Sharif sought review in the District Court, arguing that his conviction was not an "aggravated felony" for naturalization purposes. The District Court disagreed, and granted summary judgment to USCIS. Al-Sharif filed this timely appeal.