10. "Denaturalization proceeding" refers to an action brought by the government in federal district court charging that an individual unlawfully became a naturalized citizen through the concealment of a material fact or by willful misrepresentation. See, e.g., United States v. Oddo, 314 F.2d 115, 116 (2d Cir.), cert. denied, 375 U.S. 833 (1963).
11. That statute reads, in pertinent part:
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 suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the 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).
12. Although the Supreme Court has declined to state whether the definition of "material" in denaturalization proceedings also applies in the section 1182 context, see Fedorenko v. United States, 449 U.S. 490, 509 (1981), we think that it does. In a decision of this Court prior to Kungys, when the Supreme Court's decision in Chaunt v. United States, 364 U.S. 350 (1960), provided the prevailing definition of "material" in the denaturalization context, we noted that "[a]lthough the Supreme Court [had at that time] declined to resolve the issue of whether Chaunt's materiality test for citizenship revocation applie[d] to misrepresentations at the visa stage, all of the Courts of Appeals that [had] considered the issue [had] deem[ed] the Chaunt test applicable to misrepresentations in visa application documents." Maikovskis v. INS, 773 F.2d 435, 441 (2d Cir. 1985), cert. denied, 476 U.S. 1182 (1986) (internal citation omitted). We do not think that Maikovskis's conclusion that the standard for materiality is the same for both denaturalization and removal proceedings has been undermined by the change from Chaunt to Kungys. See also Forbes v. INS, 48 F.3d 439, 442-43 (9th Cir. 1995) (specifically applying Kungys's definition of "material" in proceedings under section 1182).
13. The Ninth Circuit, in United States v. Puerta, 982 F.2d 1297, 1303-04 (9th Cir. 1992), reviewed the Kungys decision and concluded that Justice Brennan's view of materiality, described in a concurring opinion, controls. Justice Brennan, the Ninth Circuit concluded, had "apparently viewed his opinion as a narrowing construction of Justice Scalia's opinion," and because his was the fifth vote required to establish a "controlling" standard, his view therefore represented the holding of the Court. Puerta, 982 F.2d at 1304.
While we agree with much of the Ninth Circuit's analysis, we think the dispute between Justices Brennan and Scalia concerned the proper interpretation of "procure" not "material." In other words, it involved step 4, not step 3. In Kungys, Justice Brennan wrote:
I wish to emphasize, however, that in my view a presumption of ineligibility does not arise unless the Government produces evidence sufficient to raise a fair inference that a statutory disqualifying fact actually existed. . . . Evidence that simply raises the possibility that a disqualifying fact might have existed does not entitle the Government to the benefit of a presumption that the citizen was ineligible [sic]. . . .Kungys, 485 U.S. at 783-84 (Brennan, J., concurring).
The discussion of a presumption arose only in step 4 of the Court's analysis. Thus, while Brennan's opinion may be controlling with respect to interpreting the word "procure," it in no way conflicts with the lead opinion's definition of "materiality."
14. See, e.g., Kungys, 485 U.S. at 776 (Opinion of Scalia, J.) (analyzing the statute while "[b]earing in mind the unusually high burden of proof in denaturalization cases"); id. at 783-84 (Opinion of Brennan, J.) ("[C]itizenship is a most precious right and as such should never be forfeited on the basis of mere speculation or suspicion." (citation omitted)); id. at 784 (Opinion of Stevens, J.) ("American citizenship is 'a right no less precious than life or liberty.' For the native-born citizen it is a right that is truly inalienable." (citation omitted)).