United States of America v. Abdulla Nagi Naser Daifullah, also known as Abdullah Nagi Naser Daifullah, also…

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1667
___________________________
United States of America
Plaintiff - Appellee
v.
Abdulla Nagi Naser Daifullah, also known as Abdullah Nagi Naser Daifullah, also
known as Saleh Ahmed Altawalh, also known as Saleh Ahmed Altwaih, also
known as Saleh Ahmed Al-Tawalh
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: January 13, 2021
Filed: September 1, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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GRASZ, Circuit Judge.
The United States government sought to revoke Abdulla Nagi Naser
Daifullah’s citizenship because he entered the country and sought asylum using a
false identity and then concealed this deception when later applying for

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naturalization under his true identity. The district court1 granted summary judgment
to the government. Daifullah appeals, arguing the district court lacked subject matter
jurisdiction over the case due to the government’s failure to comply with a statutory
requirement for the local United States Attorney to “institute” the proceedings (the
“U.S. Attorney Rule”). See 8 U.S.C. § 1451(a). Alternatively, Daifullah argues the
district court erred in granting summary judgment in light of purported factual
disputes. We affirm.
I. Background
In October 1991, the United States admitted Daifullah as a nonimmigrant
visitor from Yemen. To gain admission, Daifullah used a Yemeni passport under a
false name: “Saleh Ahmed Altawalh.” Daifullah claimed he made up his false
identity to prevent his father from learning about his traveling to the United States.
Again using the fictitious “Altawalh” identity, Daifullah applied for asylum.
Daifullah’s asylum paperwork asserted his false identity and included a tale about
being part of anti-Yemeni government activities. The application claimed: (1)
“Altawalh” worked with the Islamic Reform Opposition Party; (2) the Yemeni
government had arrested him and labelled him a subversive element; and (3) his
“whole family suddenly was put in the crossfire.” None of this was true. Daifullah
had not been active in politics, was never arrested, and his family was not in danger.
In 1996, the Immigration and Naturalization Service (“INS”)2 denied
Daifullah’s asylum application, concluding that he had not established past
persecution or a well-founded fear of future persecution. INS referred the
1 The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
2 The functions of INS have since been transferred to the Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (Nov. 25, 2002).

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application to an immigration judge (“IJ”), who issued a show cause order and notice
of hearing for deportation based on Daifullah overstaying his nonimmigrant visa. In
response, Daifullah submitted an affidavit in both English and Arabic, which again
falsely asserted under oath that he had opposed Yemeni governmental authorities
and that his “open and vociferous stance” had caused him “unbearable hardships”
and made him subject to imprisonment, torture, and execution. In July 1997,
Daifullah personally appeared before the immigration court, withdrew his asylum
application, and applied for voluntary departure. The IJ granted Daifullah’s
application for voluntary departure and Daifullah later returned to Yemen.
Nearly a decade later, in early 2006, Daifullah submitted another visa
application to the United States. While Daifullah’s application included his real
identity, it also falsely claimed that he had never visited or resided in the United
States. Daifullah ultimately obtained an F31 immigrant visa, which applies to the
married son or daughter of a U.S. citizen. Daifullah was admitted in March 2006.
Daifullah applied for naturalization in 2011. Daifullah’s application,
submitted under penalty of perjury, again included false statements. He responded
“none,” when asked to list other names used, and denied giving “false or misleading
information to any U.S. Government official while applying for any immigration
benefit or to prevent deportation, exclusion, or removal.” Daifullah also denied
lying to a “U.S. Government official to gain entry or admission into the United
States” or applying for any kind of relief from deportation, exclusion, or removal.
In December 2011, the government interviewed Daifullah under oath
regarding his naturalization application. The interview was stopped and then
completed in January 2012 with the assistance of a translator. Daifullah signed the
naturalization application, swearing and certifying that the contents of the
application were true and correct to the best of his knowledge and belief.
In April 2012, Daifullah’s naturalization was approved and he soon took the
oath of allegiance and became a naturalized citizen. The government official who

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adjudicated Daifullah’s application for citizenship testified that had she known the
truth about his immigration history under the false identity of “Altawalh,” she would
not have approved his naturalization application without further inquiry to see if he
had willfully misrepresented facts and was inadmissible to the United States under
8 U.S.C. § 1182(a)(6)(C)(i).
Over six years later, the government sought to revoke Daifullah’s
naturalization under 8 U.S.C. § 1451(a). The government alleged Daifullah: (1)
illegally procured his naturalization because he was not lawfully admitted for
permanent residence on account of the misrepresentations he made when applying
for his visa and asylum; and (2) willfully misrepresented and concealed his identity
and immigration history during naturalization proceedings.3 After reviewing the
parties’ cross-motions for summary judgment, the district court awarded summary
judgment to the government on both counts.
II. Discussion
Daifullah advances two primary arguments. Daifullah first argues the district
court lacked subject matter jurisdiction over the case because the government did
not follow the U.S. Attorney Rule by having the local U.S. Attorney “institute” the
proceedings. See 8 U.S.C. § 1451(a). Alternatively, Daifullah claims the district
court erred in granting summary judgment to the government. We address each
argument in turn.
A. Subject Matter Jurisdiction
We first consider Daifullah’s contention that the district court lacked subject
matter jurisdiction because the government failed to comply with the U.S. Attorney
Rule. The statutory text states:
3 The government also alleged Daifullah was not lawfully admitted because he
failed to depart from the United States before his voluntary departure deadline
passed, but it later abandoned this count.

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It shall be the duty of the United States attorneys for the respective
districts, upon affidavit showing good cause therefor, to institute
proceedings in any district court of the United States in the judicial
district in which the naturalized citizen may reside at the time of
bringing the suit[.]
8 U.S.C. § 1451(a).
Daifullah argues “the term ‘institute’ has been understood to mean the actual
filing in a court of the necessary documentation to commence or begin a legal action
and represents the distinct event of beginning an original proceeding in a court[.]”
See generally Post v. United States, 161 U.S. 583, 587 (1896) (“Criminal
proceedings cannot be said to be brought or instituted until a formal charge is openly
made against the accused, either by indictment presented or information filed in
court, or, at the least, by complaint before a magistrate.”) (emphasis added);
Institute, Black’s Law Dictionary (11th ed. 2019) (“To begin or start; commence.”).
And so, he maintains that § 1451(a) requires the local U.S. Attorney to file the
revocation complaint. Because the U.S. Attorney here was indisputably not included
on the pleadings, Daifullah argues that the government violated the U.S. Attorney
Rule, and this failure deprived the district court of subject matter jurisdiction.
The government counters that Daifullah waived the issue by first raising it on
appeal. Further, the government maintains it complied with the U.S. Attorney Rule
because it obtained the local U.S. Attorney’s authorization, via email, to file the
complaint. See United States v. Olivar, 648 F. App’x 675, 676 (9th Cir. 2016)
(unpublished) (holding that a letter from the U.S. Attorney authorizing the litigation
was enough to satisfy the U.S. Attorney Rule); United States v. Borgono, No. 18-
21835, 2019 WL 1755709, at *2 (S.D. Fla. Apr. 19, 2019) (explaining that requiring
the U.S. Attorney to sign the complaint to comply with the U.S. Attorney Rule would
constitute “hypertechnical reliance on form over substance”). According to the
government, this authorization was sufficient to comply with the statutory mandate.

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“Ordinarily, we will not consider an argument raised for the first time on
appeal.” United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016). However, if
failure to follow the U.S. Attorney Rule deprived the district court of subject matter
jurisdiction, then the issue cannot be waived or forfeited. See Henderson v. Shinseki,
562 U.S. 428, 434–35 (2011). Therefore, to decide whether Daifullah waived his
argument by failing to raise it to the district court, we must first decide whether the
U.S. Attorney Rule is indeed jurisdictional. It is not.
The Supreme Court has “urged that a rule should not be referred to as
jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-
matter or personal jurisdiction.” Id. at 435. The “jurisdictional brand” should not
be given to other rules, even if they are “important and mandatory.” Id. Congress
may, however, “attach the conditions that go with the jurisdiction label to a rule that”
may otherwise have the character of a claims-processing rule. Id. There are no
“magic words” required to make a rule jurisdictional. Id. at 436. To decide whether
Congress intended a rule to be jurisdictional, we are to “look to see if there is any
‘clear’ indication that Congress wanted” that result. Id.
The Supreme Court has instructed us to look to the text of the statute and the
statute’s placement within the statutory scheme to discern congressional intent. Id.
We should also look to the Supreme Court’s past treatment of similar provisions to
decipher congressional intent. Id. None of these factors suggest Congress wanted
the U.S. Attorney Rule to be jurisdictional.
First, § 1451(a)’s plain language and its placement in the statute indicate that
the U.S. Attorney Rule is not jurisdictional. Subsection (a) never mentions the word
“jurisdiction.” Nor does it otherwise suggest the failure to comply with its rule
would deprive the court of subject matter jurisdiction. While the U.S. Attorney Rule
uses mandatory language, that does not mean it is jurisdictional. See Henderson,
562 U.S. at 435 (emphasizing that even rules that are “important and mandatory . . .
should not be given the jurisdictional brand”). Further, subsection (e) discusses a
court’s subject matter jurisdiction, conferring jurisdiction to revoke citizenship on a

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district court who presides over a criminal conviction under 18 U.S.C. § 1425.
Congress’s choice to address jurisdiction in a separate subsection hints that it did not
intend noncompliance with the U.S. Attorney Rule to strip a district court of
jurisdiction. See Kucana v. Holder, 558 U.S. 233, 249 (2010) (“[W]here Congress
includes particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”) (alteration in original) (quoting
Nken v. Holder, 556 U.S. 418, 430 (2009)).
In addition, there is an absence of Supreme Court decisions treating similar
provisions as invoking subject matter jurisdiction. To urge us to conclude otherwise
and treat the U.S. Attorney Rule as jurisdictional, Daifullah points to two Supreme
Court cases that address a different requirement in § 1451(a)—that the U.S. Attorney
file an affidavit for good cause to maintain a revocation suit. See Costello v. United
States, 365 U.S. 265 (1961) (holding a dismissal for failure to file an affidavit of
good cause would be “without prejudice” under Fed. R. Civ. P. 41(b) because it was
not decided on the merits and referring to the rule as “jurisdictional”); United States
v. Zucca, 351 U.S. 91, 99–100 (1956) (holding “the District Attorney must, as a
prerequisite to the initiation of [civil revocation] proceedings, file an affidavit
showing good cause” as a “procedural prerequisite to the maintenance of
proceedings thereunder”).
We do not view these two cases as helpful to Daifullah’s argument. Although
Costello and Zucca both used the term “jurisdictional” when discussing the
mandatory affidavit rule, they predate the Supreme Court’s concerted effort to use
that term in a more disciplined fashion. See Henderson, 562 U.S. at 435 (explaining
the consequences of labeling a rule “jurisdictional” had caused the Supreme Court
more recently to attempt “to bring some discipline to the use of this term”); Union
Pac. R.R. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, 558
U.S. 67, 81 (2009) (explaining the Supreme Court had, in the past, used the word
“jurisdiction” too broadly to encompass different meanings). Moreover, both cases
contain clues the Supreme Court did not believe failure to follow the affidavit rule

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deprived a federal court of subject matter jurisdiction. In Costello, for example, the
Supreme Court recognized a distinction between violation of the mandatory affidavit
rule and “fundamental jurisdictional defects which render a judgment void and
subject to collateral attack, such as lack of jurisdiction over the person or subject
matter.” 365 U.S. at 285. And in Zucca, the Supreme Court described the affidavit
rule as a “procedural prerequisite.” 351 U.S. at 100. Citing that language, the Ninth
Circuit rejected an argument that the affidavit rule deprived a court of subject matter
jurisdiction. See Title v. United States, 263 F.2d 28, 30 (9th Cir. 1959) (explaining
it had to “assume that there was a purpose in the [Supreme Court’s language in
Zucca] referenc[ing] . . . a ‘procedural’ prerequisite rather than a ‘jurisdictional’
prerequisite”).
With Daifullah unable to marshal any of the relevant factors to show Congress
clearly intended the U.S. Attorney Rule to be jurisdictional, we hold that the
government’s purported noncompliance with the rule did not deprive the district
court of subject matter jurisdiction. Because no jurisdictional defect exists, we
decline to consider Daifullah’s fact-bound argument in the first instance. See Fleck
v. Wetch, 937 F.3d 1112, 1116 (8th Cir. 2019) (explaining that generally “we will
not consider arguments raised for the first time on appeal ‘as a basis for reversal’”
and noting we will exercise our discretion to decide such an issue only when the
answer is obvious or it is a purely legal issue and additional evidence would not
impact the outcome) (quoting von-Kerssenbrock-Praschma v. Saunders, 121 F.3d
373, 375 (8th Cir. 1997)).
B. Summary Judgment
We next consider de novo whether, as Daifullah argues, the district court erred
in granting the government summary judgment. See Hirani, 824 F.3d at 746
(standard of review). “Summary judgment is proper when no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter of law.”
Id. (quoting Fezard v. United Cerebral Palsy of Cent. Ark., 809 F.3d 1006, 1009 (8th
Cir. 2016)); Fed. R. Civ. P. 56.

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“The Government carries a heavy burden of proof in a proceeding to divest a
naturalized citizen of his citizenship because the loss of American citizenship can
have severe and unsettling consequences.” Id. (cleaned up) (quoting Fedorenko v.
United States, 449 U.S. 490, 505 (1981)). The evidence in support must be “clear,
unequivocal, and convincing,” making resolution free from doubt. Id. (quoting
same). This is akin to the beyond-a-reasonable-doubt standard used in criminal
cases. Id. Either direct or “circumstantial evidence may constitute evidence that is
clear, unequivocal, and convincing.” Id. at 747.
To revoke citizenship, the government must prove the order of naturalization
was either (1) “illegally procured” or (2) “procured by concealment of a material
fact or by willful misrepresentation.” § 1451(a). If the government proves either,
the district court must enter a judgment of denaturalization. Fedorenko, 449 U.S. at
517.
Here, the district court held the undisputed evidence showed that revocation
of Daifullah’s citizenship was warranted on both grounds—illegal procurement of
his naturalization and procurement of his naturalization by concealment or
misrepresentation of a material fact. The reason the district court concluded both
grounds were met was because it believed Daifullah willfully made
misrepresentations and concealed material facts throughout his encounters with
United States immigration authorities—both in the 1990s during his first effort to
obtain asylum under the false “Altawalh” identity (illegal procurement), and decades
later when obtaining his immigrant visa (illegal procurement) and then becoming a
citizen under his real identity (procurement by misrepresentation).4
4 The illegal procurement conclusion requires some explanation. Failure to
strictly comply with “congressionally imposed prerequisites to the acquisition of
citizenship . . . renders the certificate of citizenship ‘illegally procured.’”
Fedorenko, 449 U.S. at 506. As a prerequisite for naturalization, Daifullah must
have been lawfully admitted to the United States for permanent residence. See 8
U.S.C. §§ 1427(a), 1429 (explaining that “no person shall be naturalized unless he
has been lawfully admitted to the United States for permanent residence in
accordance with all applicable provisions of this chapter”). For permanent resident

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We see no fault in the district court’s well-reasoned order. We focus our
analysis primarily on the misrepresentations and concealment of material facts
Daifullah made when procuring his citizenship. The government must establish four
elements to revoke naturalization based on a misrepresentation or concealment: “(1)
the naturalized citizen must have misrepresented or concealed some fact; (2) the
misrepresentation or concealment must have been willful; (3) the fact must have
been material; and (4) the naturalized citizen must have procured his citizenship as
a result of the misrepresentation or concealment.” Hirani, 824 F.3d at 748.
1. Misrepresentations
As the district court observed, the undisputed evidence shows that when
applying for citizenship, Daifullah falsely represented that he had: (1) used no names
other than Daifullah in immigration proceedings; (2) not given false information to
government officials while applying for an immigration benefit; (3) not lied to a
government official so as to enter the United States; and (4) not applied for any kind
of relief from removal. Daifullah does not meaningfully dispute the fact that
misrepresentations were made in his naturalization application. We therefore hold
this element was satisfied.
status to have been “lawfully accorded,” 8 U.S.C. § 1101(a)(20), the grant of that
status must have been in substantial compliance with the immigration laws.
Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186 (8th Cir. 2005). Daifullah thus
was not “lawfully admitted” if he was not legally entitled to permanent resident
status when he received it. Id. Per the district court, Daifullah was not lawfully
admitted for permanent residence because he willfully misrepresented material facts
both in 1996 when he sought to procure asylum under his false identity and later in
2006 when he obtained his immigrant visa to come back into the country under his
real identity. See 8 U.S.C. § 1182(a)(6)(C)(i) (providing that an alien is inadmissible
and ineligible to be admitted when he, “by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit provided under
[certain immigration laws]”).

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2. Willfulness
The district court held that the government put forth sufficient evidence to
show that Daifullah willfully made these misrepresentations. Rejecting Daifullah’s
excuse that he personally did not fill out the application, the district court
emphasized the undisputed fact that he twice signed the application under penalty of
perjury, which it thought was “sufficient to establish by clear, unequivocal, and
convincing evidence that [Daifullah] made the misrepresentations.” We agree.
In Hirani, we faced similar circumstances. There, a citizen’s application for
naturalization included a false birth date and false assertions that the applicant had
never (1) used another name, (2) given false information to attain an immigration
benefit, or (3) been deported from the United States. 824 F.3d at 745–46. Like
Daifullah, Hirani claimed he relied on third parties to complete his application. Id.
at 745, 748. We rejected this argument, pointing out the applicant signed the
documents and certified the accuracy of their contents, which was “sufficient to
show, clearly, unequivocally, and convincingly, that [Hirani] made the
misrepresentations.” Id. After all, “[t]he government is not required to prove intent
to deceive, but rather must demonstrate only that an applicant willfully made a
representation that does not accord with the facts.” Id. at 749. We then held that
Hirani’s “signature under penalty of perjury affirming” the misrepresentations
showed that they were willful. Id. The same is true here.
Daifullah contends his case differs from Hirani because he does not speak or
understand English well, is illiterate, and relied on a third party to fill out his form.
He also says his situation departs from Hirani because he has moderate to severe
cognitive impairment, as demonstrated by the disability waiver he received when
applying for citizenship. According to Daifullah, these facts combine to create an
inference that he did not act willfully and therefore summary judgment on the issue
was improper. We are unpersuaded. There is no evidence that he was unable to
understand simple questions and answers about his past use of a false identity during
his previous attempt to enter and live in the country. Instead, record evidence shows

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the opposite. For example, his deposition testimony reveals he clearly understood
he had come into the country under a false identity. While Daifullah claimed that
he did not feel it necessary to volunteer his previous immigration history unless
asked, this excuse is nonsensical. The undisputed facts show that the government
directly asked him questions, which, if given truthful responses, would have revealed
Daifullah’s immigration history under his false identity. And the written answers he
gave—twice certified as accurate under oath—affirmatively misrepresented and
concealed the truth. This record does not allow us to distinguish Hirani.
3. Materiality
We next address the misrepresentation’s materiality, which is a legal question.
See Hirani, 824 F.3d at 749. “A concealment or misrepresentation is material if it
has that ‘natural tendency to influence the decisions of’” those deciding whether to
confer citizenship. Id. (quoting Kungys v. United States, 485 U.S. 759, 772 (1988)).
More specifically, the test “is whether the misrepresentation or concealment had a
natural tendency to produce the conclusion that the applicant was qualified.” Id.
(quoting Kungys, 485 U.S. at 771–72). When the truth “would predictably have
disclosed other facts relevant to [the applicant’s] qualifications” for citizenship, the
misrepresentation or concealment is material. Id. (alteration in original) (quoting
Kungys, 485 U.S. at 774).
Using this test, we hold that Daifullah’s misrepresentations were material. As
the district court observed, “[b]y not answering truthfully about his prior use of a
false identity and false information to apply for asylum, [Daifullah] foreclosed the
line of inquiry,” showing he was inadmissible under § 1182(a)(6)(C)(i), and thus
ineligible for admission because he was not lawfully admitted for permanent
residence. The government submitted sworn testimony from the immigration
official who adjudicated Daifullah’s naturalization application. The official stated
that had she known Daifullah used a false identity to enter the country and made
false claims in his asylum application, this would have at least led her to ask more
questions. She also testified that those facts indicated Daifullah was likely

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inadmissible under § 1182(a)(6)(C)(i).5 This undisputed evidence is enough to
establish the materiality of the misrepresentations.
4. Procurement By Misrepresentation
This brings us to the final element—whether Daifullah “procured his
naturalization as a result” of his misrepresentations. Hirani, 824 F.3d at 750. “An
applicant ‘procures’ naturalization on the basis of a misrepresentation if there is a
causal connection between the misrepresentation and the acquisition of citizenship.”
Id. The district court can presume that citizenship was procured by a
misrepresentation so long as the government shows “the citizen misrepresented a
material fact and it is ‘fair to infer that the citizen was actually ineligible.’” Id.
(quoting United States v. Latchin, 554 F.3d 709, 714 (7th Cir. 2009)).
The district court properly presumed Daifullah procured his citizenship via
misrepresentations because the government showed that had Daifullah truthfully
represented his past efforts to enter the United States and obtain asylum under a false
identity, he would have been inadmissible under 8 U.S.C. § 1182(a), thus ineligible
for lawful permanent residence, and therefore excluded from naturalization under §
1429. See Hirani, 824 F.3d at 752. “Because [Daifullah’s] material
misrepresentations concealed his statutory ineligibility to naturalize, [Daifullah]
procured his naturalization on the basis of those misrepresentations.” Id.
5 Daifullah asks us to reverse the denial of his motion to strike parts of the
immigration official’s affidavit. We “review the admission of evidence for
consideration at the summary judgment stage for an abuse of discretion.” Warner
Bros. Ent, Inc. v. X One X Prods., 644 F.3d 584, 592 (8th Cir. 2011). “A lay witness
may give an opinion if it is rationally based on the perception of the witness and
would help the factfinder determine a matter in issue.” Id. at 592 (quoting Hurst v.
United States, 882 F.2d 306, 312 (8th Cir. 1989)). This standard is met here as the
immigration official’s testimony shows the materiality of Daifullah’s
misrepresentations—revelation of the truth “would predictably have disclosed other
facts relevant” to the applicant’s qualifications for citizenship. Hirani, 824 F.3d at
749.

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III. Conclusion
For these reasons, we affirm the district court’s judgment.
______________________________

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