text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gregory GARCIA, a/k/a Gregory Garcia Perez, Defendant-Appellant.
    No. 16-4224
    United States Court of Appeals, Fourth Circuit.
    Argued: March 30, 2017
    Decided: May 2, 2017

      ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Chris Greene, GREENE & ASSOCIATES, INC., Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
    Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
   DUNCAN, Circuit Judge:

Defendant-Appellant Gregory Garcia appeals his conviction on two counts of unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a). On appeal, Garcia argues that the district court erred by (1) denying his post-trial motions for judgment of acquittal and a new trial, and (2) taking judicial notice of a portion of the U.S. Citizenship and Immigration Services’ (“USCIS”) website. For the reasons that follow, we affirm.

I.

The jury convicted Garcia for giving false and misleading statements about his criminal history during the naturalization process, on or about November 9, 2006 (Count 1) and August 14, 2007 (Count 2). Garcia’s appeal turns on the sequence of the following relevant events, which we recount in detail below: (1) on May 31, 2006, Garcia first met with a USCIS officer; (2) on August 23, 2006 and September 15, 2006, Garcia was indicted on and arrested for federal fraud charges; (3) on November 9, 2006, Garcia appeared for a follow-up meeting with a second USCIS officer; and (4) on August 14, 2007, Garcia took his naturalization oath.

A.

Garcia immigrated to the United States in 1993 and became a lawful permanent resident. In early 2005, he filed an application to become a naturalized citizen. The naturalization process required Garcia to submit a standardized application form (“Form N-400”), appear in person for questioning, and pass tests designed to elicit his knowledge of U.S. history and government, as well as written and spoken English.

On May 31, 2006, Garcia appeared for an in-person meeting with USCIS Officer Jason Rucienski. During the meeting, Officer Rucienski tested Garcia on his civics and English knowledge, and reviewed Garcia’s criminal history. Garcia passed the civics examination, but failed the language test. Officer Rucienski provided Garcia with an “interview results” form, explaining that Garcia had failed the language test and would have a second chance to take it. J.A. 685. He also informed Garcia that he needed to bring a certified record concerning an incident in his criminal history to the next meeting.

On August 23, 2006, a federal grand jury indicted Garcia on charges related to a conspiracy involving credit-card and identity fraud. Authorities arrested Garcia on September 15, 2006, and he made his initial appearance in federal court that day. He later pleaded guilty to two of the charges. Slightly more than a month after Garcia’s arrest, USCIS sent Garcia a notice scheduling him to appear on November 9, 2006, for a “Re-Examination for Reading, Writing, or Speaking English,” and “Naturalization Re-Interview.” J.A. 689.

On November 9, 2006, Garcia appeared for a meeting with USCIS Officer Kevin Winn. Officer Winn retested Garcia on his English skills, and Garcia passed. Officer Winn also reviewed with Garcia his Form N-400. Questions 16 and 17 asked whether Garcia had ever been “arrested, cited, or detained by any law enforcement officer” or “charged with committing any crime.” J.A. 678. Garcia listed two criminal incidents in New Jersey from the late 1990s, but he did not disclose the federal charges for which he had been indicted and arrested several months earlier. Question 23 asked whether Garcia had ever given false or misleading information to any U.S. official while applying for any immigration benefit, and Garcia checked the box designated as no. Garcia then signed Form N-400, certifying under penalty of perjury that the contents of the form were true and correct. Officer Winn recommended Garcia’s application for approval.

USCIS approved Garcia’s application in July 2007 and scheduled him to appear for a naturalization oath ceremony on August 14, 2007. The ceremony notice included Form N-445, asking whether Garcia had been, inter alia, cited, arrested, indicted, of convicted of any crime “AFTER the date you were first interviewed.” J.A. 696. Although Garcia checked yes, he told US-CIS Officer Edna Falls at the oath ceremony that his only intervening offense was a speeding violation, which Officer Falls noted on the form. Garcia never disclosed his August 2006 indictment or September 2006 arrest on federal charges. Garcia signed Form N-445 on August 14, 2007, certifying that it was true and correct. He became a naturalized citizen that day.

B.

On February 19, 2015, federal prosecutors charged Garcia with two counts of violating § 1425(a), based on his knowing failure to disclose his federal charges. Garcia pleaded not guilty and proceeded to trial.

1.

At the close of evidence, Garcia moved for judgment of acquittal. As to count one, he argued that there was insufficient evidence he was asked about his criminal history during his interview with Officer Winn on November 9, 2006. As to count two, he argued that his May 2006 meeting with Officer Rucienski did not qualify as a naturalization “interview,” but only an examination on the civics and language portions of the process. Because, on this theory, he was not “interviewed” until November 9, 2006 with Officer Winn, his Form N-445 accurately stated that he had not been arrested or charged with any crimes after the date he was “first interviewed.”

The district court denied the motion based on the evidence presented at trial. Supporting count one, Officer Winn testified that Garcia never disclosed his pending federal charges during the November interview, though he could not tell from the completed form whether he or the prior officer had asked particular questions. The government also introduced the Form N-400 that Garcia signed on November 9, 2006, which showed that he both falsely failed to acknowledge his recent federal charges, and certified that his answers were true and correct.

As relevant to count two, the government elicited testimony supporting the view that Garcia was first interviewed on May 31, 2006. For example, the government’s case agent testified that in May 2006, Officer Rucienski was the first US-CIS officer to interview Garcia, and Officer Winn testified that he was the second US-CIS officer to interview Garcia. USCIS Officer Beth Barbee testified that if an applicant fails the civics or language test during his “initial interview,” he is scheduled to return for “a second interview.” J.A. 173-74. She confirmed that the language and civics testing is part of the “naturalization interview.” J.A. 194-95. Finally, Officer Falls testified that she reviewed Garcia’s answer to the question on Form N-445 asking whether there had been any new criminal incidents after his first interview and that Garcia reported only a speeding citation.

2.

Before closing statements, the district court inquired about what constitutes an “N-400 interview,” and reported that his law clerk found information on the USCIS website generally describing the naturalization process. J.A. 476-78. The relevant portion of the website stated: “During your naturalization interview, a USCIS Officer will ask you questions about your application and background. You will also take an English and civics test unless you qualify for an exemption or waiver.” J.A. 738.2. Garcia objected to the district court’s consideration of the website excerpt, but the district court concluded it could take judicial notice of the information. Garcia subsequently asked the district court to take judicial notice of the USCIS Policy Manual, which the district court agreed to do. The district court took judicial notice of a portion of the manual that provided that the naturalization process includes all factors relating to eligibility, including in-person interviews and language and civics testing. The court read all of the judicially noticed facts to the jury.

The jury convicted Garcia on both counts of the indictment, and the district court denied his post-trial motions. Garcia timely appealed.

II.

Under 18 U.S.C. § 1425(a), it is unlawful to knowingly procure or attempt to procure naturalization or citizenship in a manner contrary to law. The government can prove a violation by showing that the defendant “knowingly misstated his criminal record on his application or in his interview.” United States v. Pasillas-Gaytan, 192 F.3d 864, 868 (9th Cir. 1999).

On appeal, Garcia argues that the district court erred by (1) denying his motions for judgment of acquittal and a new trial, and (2) taking judicial notice of the website excerpt. We discuss each argument in turn.

A.

Garcia’s arguments are the same for both his motion for judgment of acquittal and for a new trial: his convictions cannot stand because he did not knowingly make a false statement in November 2006 or August 2007. We review the district court’s denial of a motion for judgment of acquittal de novo. United States v. White, 810 F.3d 212, 228 (4th Cir. 2016). Viewing the evidence in the light most favorable to the government, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We review the district court’s denial of a motion for a new trial for abuse of discretion, but assess any legal determinations de novo. United States v. Parker, 790 F.3d 550, 558 (4th Cir. 2015). Under the standard for a new trial, the district court should only overturn a jury verdict in the “rare circumstance” when the verdict is against the great weight of the evidence. United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006). We have little hesitation concluding that the record contains sufficient evidence of Garcia’s knowing misstatements.

1.

As to count one, Garcia contends that there was no evidence Officer Winn actually asked him questions about his criminal history on November 9, 2006, and so the jury’s conclusion that he knowingly misstated his criminal history on that date was unsupported by the record. We disagree.

By signing his Form N-400 on November 9, Garcia attested that he knew the contents of the form and that they were “true and correct.” J.A. 680. They were not. The form omits any reference to Garcia’s August indictment or September arrest and affirms that Garcia had never given false or misleading information to any U.S. official while trying to gain an immigration benefit. Garcia’s criminal intent can be inferred from the fact that he listed two prior criminal incidents from years earlier, but not the pending charges that began several months before the interview. Moreover, Officer Rucienski directed Garcia to bring documentation concerning his prior criminal history with him to the November 9, 2006 meeting, indicating that Garcia knew he needed to keep his criminal history updated. For these reasons, even without evidence that Officer Winn specifically asked Garcia questions about his criminal history, the jury had sufficient evidence to reasonably conclude that Garcia knowingly misstated his criminal record when he signed the inaccurate Form N-400 on November 9, 2006.

2.

The basis for count two is Garcia’s attestation on Form N-445 that the only time he had been arrested or cited since the date he was “first interviewed” was for speeding. J.A. 697. Garcia contends that his first interview was the interview with Officer Winn on November 9, 2006, because the meeting with Officer Rucienski on May 31, 2006 did not count as an “interview,” but only an examination of his English and civics knowledge. Under this view, his August 2006 indictment and September 2006 arrest occurred before the date he was “first interviewed,” making the statement on his Form N-445 accurate. This argument is unavailing. The government presented sufficient evidence for the jury to conclude that Officer Rucienski interviewed Garcia on May 31, 2006, and Garcia’s counsel acknowledged as much at oral argument.

The evidence showed that: (1) Officer Rucienski provided Garcia with a form titled “interview results” after their meeting, J.A. 685; (2) Garcia was instructed to appear for a “Naturalization Re-interview” with Officer Winn, J.A. 689 (emphasis added); and (3) Officer Winn testified that he was the second person to interview Garcia, see J.A. 388-89. Furthermore, Officer Bar-bee’s testimony that the language and civics tests were part of the naturalization interview supports the conclusion that Officer Rucienski interviewed Garcia even if he did nothing more than conduct those tests. But even on a narrow view of what constitutes an “interview,” the evidence indicated that Officer Rucienski did more than just conduct testing. Officer Rucien-ski instructed Garcia to bring additional documents concerning his criminal history to the follow-up meeting, which implies that Officer Rucienski interviewed Garcia concerning his criminal history in May 2006. Therefore, Garcia’s Form N-445, which failed to disclose his indictment and arrest that occurred after this interview, was not accurate.

The jury also had before it sufficient evidence to conclude that Garcia acted knowingly. The documents Garcia received from USCIS indicated that Officer Rucien-ski had interviewed Garcia in May 2006, and Garcia knew that he had not previously disclosed his federal charges. His failure to do so at the oath ceremony on Form N-445, despite disclosing a speeding ticket, supports the inference that Garcia acted with the requisite intent.

In sum, substantial evidence supported Garcia’s convictions on counts one and two. Therefore, the district court properly denied Garcia’s motions for judgment of acquittal and a new trial.

B.

Finally, Garcia contends that the district court erred when it took judicial notice of a portion of the USCIS website because the website supported the government’s view of an “interview.” We review a district court’s evidentiary rulings for abuse of discretion. United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Erroneous evidentiary rulings are harmless so long as we are assured that they did not substantially sway the judgment. Id. We find no merit in Garcia’s argument.

Under Federal Rule of Evidence 201(b), the district court may judicially notice a fact that is not subject to reasonable dispute when it is either (1) generally known within the district court’s jurisdiction, or (2) can be readily determined from an indisputably accurate source. This court and numerous others routinely take judicial notice of information contained on state and federal government websites. See, e.g., Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004); Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1297 n.4 (10th Cir. 2017); Swindol v. Aurora Flight Sci. Corp., 805 F.3d 516, 519 (5th Cir. 2015).

Here, the USCIS website is a source whose accuracy cannot reasonably be questioned. The portion of the website as to which the district court took judicial notice simply described in general terms the process for naturalization. Garcia’s contention that the district court’s notice of the excerpt effectively credited the government’s interpretation of an “interview” is unavailing. The district court took judicial notice of the facts contained on the website, not any interpretation of what constitutes a naturalization interview. The excerpt does not purport to define an “interview,” and it is at least susceptible to multiple readings. Garcia has not identified anything he believes to be inaccurate about the excerpt, relying instead on his concern that the jury may have inferred something detrimental to his case from its structure. But a document does not become inappropriate for judicial notice just because a jury could draw inferences that might impact one party’s theory of the case. The district court acted well within its discretion when it took judicial notice of the facts contained on the government website.

III.

Because we discern no error, the judgment of the district court is

AFFIRMED.

      . Garcia’s argument that he lacked criminal intent because he did not understand written English is without merit. Garcia passed the written English exam, and Officer Winn testified that Garcia had no trouble communicating in English during the interview.

      . The government contends that even if the November interview with Officer Winn were the first “interview,” Garcia still lied because he failed to disclose that he pleaded guilty to the fraud charges after that interview. Because we conclude that there was sufficient evidence that Garcia was interviewed in May, we need not reach this alternative theory.

      . Garcia argues that the government’s case agent testified on cross-examination that she could not identify a false statement on his Form N-445. But the agent made this statement iri the course of questioning from Garcia’s counsel that assumed Garcia was not interviewed until November 9, 2006. See J.A. 320-23. As discussed above, the government presented sufficient evidence to demonstrate that Garcia was in fact interviewed in May 2006. And on re-direct, the case agent testified that the November interview was Garcia’s second interview. See J.A. 364-67.

      . Even assuming the district court did err in admitting the portion of the website, it was harmless. The government presented sufficient evidence as to the nature of an interview that we are assured the judgment was not substantially swayed by any potential error. Johnson, 617 F.3d at 292.


source: Caselaw Access Project

author: BARBARA MILANO KEENAN, Circuit Judge:

license: Public Domain

text:
    Jeisson Humberto URIBE, a/k/a Pablo Uribe, a/k/a Jeisson Uribe, a/k/a Jeisson Umberto Uribe, a/k/a Jeisson H. Uribe, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 16-1427
    United States Court of Appeals, Fourth Circuit.
    Argued: March 23, 2017
    Decided: May 3, 2017

      ARGUED: Luis Carlos Diaz, LAW OFFICES OF LUIS C. DIAZ, LLC, Silver Spring, Maryland, for Petitioner. Jessica Dawgert, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Anthony Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
   BARBARA MILANO KEENAN, Circuit Judge:

Jeisson Humberto Uribe, a native and citizen of Colombia, petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA). The BIA affirmed an immigration judge’s (IJ) holding that Uribe was removable under 8 U.S.C. § 1227(a)(2)(A)(ii), based on two convictions for crimes involving moral turpitude. In reaching this conclusion, the IJ and the BIA rejected Uribe’s contention that his conviction for the felony offense of third degree burglary, in violation of Maryland Criminal Law Section 6-204 (Maryland third degree burglary), did not qualify as a crime involving moral turpitude.

Upon our review, we conclude that Maryland third degree burglary qualifies as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). Accordingly, we deny Uribe’s petition for review.

I.

Uribe was admitted to the United States as a lawful permanent resident in December 2000. In 2011, he was convicted of theft valued at less than $100, a misdemeanor offense under Maryland Criminal Law Section 7-104 (the Maryland theft offense), and was sentenced to serve a term of 90 days’ imprisonment. In 2018, Uribe was convicted of Maryland third degree burglary, and received a sentence of two years’ imprisonment.

Based on these two convictions, the Department of Homeland Security served Uribe with a Notice to Appear, charging him with removability under two provisions in the Immigration and Nationality Act (INA) relating to his commission of crimes after having been admitted into the United States. These INA provisions are: (1) 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F); and (2) 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude.

Uribe denied removability on both these grounds. After a hearing, the IJ issued an order dismissing the charge that Uribe had committed an aggravated felony within the meaning of Section 1227(a)(2)(A)(iii). However, the IJ upheld the charge of re-movability under Section 1227(a)(2)(A)(ii), concluding that both the Maryland theft offense and Maryland third degree burglary were crimes involving moral turpitude.

According to the IJ, Maryland third degree burglary necessarily involves conduct that inherently is vile and contrary to accepted moral norms because a dwelling, whether occupied or not when the burglary occurs, is distinct in character compared to other structures. The IJ reasoned that a dwelling is entitled to greater “protection and sanctity” than other buildings, and that, therefore, it is “a greater wrong to break and enter a dwelling in order to commit a crime than it is to break and enter any building in general to commit a crime.” Accordingly, the IJ sustained the charge of removability under Section 1227(a)(2)(a)(ii), and ordered that Uribe be removed from the United States to Colombia.

On appeal before the BIA, Uribe challenged only the IJ’s conclusion that Maryland third degree burglary qualifies as a crime involving moral turpitude. In an opinion issued by a single member, the BIA rejected Uribe’s arguments, and affirmed the IJ’s determination that Uribe was removable under Section 1227(a)(2)(A)(ii). The BIA agreed with the IJ’s reasoning, stating that breaking and entering any dwelling (1) infringes upon a resident’s reasonable expectation of privacy and security, and (2) generates a risk of violent confrontation with a resident, or with a third party such as a neighbor who may approach the dwelling while the crime is being committed. Accordingly, the BIA agreed with the IJ that Maryland third degree burglary inherently involves moral turpitude, and dismissed Uribe’s appeal.

II.

On appeal to this Court, Uribe contends that Maryland third degree burglary is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), because the offense: (1) does not require that the dwelling be occupied, inhabited, or within a lease period at the time of the burglary; (2) encompasses breaking into a dwelling by constructive means; (3) includes breaking into a motor vehicle or boat used as a “dwelling”; and (4) does not require that the crime the defendant intended to commit upon breaking and entering be one involving moral turpitude. Thus, Uribe maintains that Maryland third degree burglary does not necessarily involve conduct that inherently violates moral norms. We disagree with Uribe’s position.

Under Section 1227(a)(2)(A)(ii), an “alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, ... is de-portable.” The term “moral turpitude” refers to behavior “that shocks the public conscience as being inherently base, vile, or depraved.” Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (citing Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144 (B.I.A. 2007); Matter of Danesh, 19 I. & N. Dec. 669, 670 (B.I.A. 1988)). Accordingly, a crime involving moral turpitude encompasses “conduct that not only violates a statute but also independently violates a moral norm.” Id.

Because the BIA adopted the IJ’s opinion and supplemented the analysis with its own reasoning, we consider both rulings. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). The issue whether Maryland third degree burglary qualifies as a crime involving moral turpitude is a legal question that we review de novo. See Sotnikau v. Lynch, 846 F.3d 731, 735 (4th Cir. 2017) (citing Mohamed, 769 F.3d at 888). In answering this question, we consider only the statutory elements of the offense, not the underlying facts of Uribe’s conviction. Id. (citing Mohamed, 769 F.3d at 888). If the elements of Maryland third degree burglary encompass only conduct that involves moral turpitude, then that offense qualifies categorically as a crime involving moral turpitude under Section 1227(a)(2) (A) (ii). Id. In conducting our analysis, we apply the interpretations of Maryland law rendered by Maryland’s state appellate courts. See id. at 736.

Maryland’s third degree burglary statute prohibits “breaking] and entering] the dwelling of another with the intent to commit a crime.” Md. Code, Crim. Law § 6-204(a). The Court of Appeals of Maryland has explained that a breaking can be either actual or constructive. Hobby v. State, 436 Md. 526, 83 A.3d 794, 811 (2014). An actual breaking occurs when an individual “unloos[ens], remov[es] or displac[es] any covering or fastening of the premises.” Id. (internal quotation marks and citation omitted). In contrast, a constructive breaking occurs when an individual gains entry “by artifice, fraud, conspiracy or threat.” Id. (internal quotation marks and citation omitted).

According to the Court of Appeals of Maryland, a “dwelling” is a structure that a person regularly uses as a place in which to sleep. McKenzie v. State, 407 Md. 120, 962 A.2d 998, 1002, 1006 (2008); see Hobby, 83 A.3d at 811-12. Relying on this authority from Maryland’s highest court, we have recognized that boats and other motor vehicles can constitute “dwellings” within the meaning of Maryland’s burglary statutes. See United States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014). And, under Maryland law, a structure retains its character as a dwelling even if it temporarily is left vacant, provided that the structure has not been abandoned completely by the occupants and remains “suitable for occupancy” throughout the vacancy. See Hobby, 83 A.3d at 812; McKenzie, 962 A.2d at 1002, 1007.

For example, in McKenzie v. State, 407 Md. 120; 962 A.2d 998 (2008), the Court of Appeals of Maryland held that a vacant apartment qualified as a dwelling, when the most recent tenant had vacated the apartment two weeks earlier, the new tenant was scheduled to move in one day after the burglary occurred, and the apartment remained suitable for a new tenant during the period of vacancy. Id. at 999, 1005-07. The court explained that the apartment remained a dwelling throughout this sequence of events, because the apartment’s owner intended that it be occupied on a continuous basis, and there was a “likelihood that people w[ould] be returning to inhabit the rental unit at any given time.” See id. at 1006-07 (internal quotation marks and citation omitted). Similarly, the court held in Hobby v. State, 436 Md. 526, 83 A.3d 794 (2014), that a home that was vacant for eight months remained a dwelling, because its prior occupant moved out of the home with the intent to sell it as a dwelling, maintained the home in a condition suitable for occupancy during the period of vacancy, and legally could have returned to the home at any time during the period of vacancy. See id. at 812.

In light of this authority, we conclude that under Maryland’s third degree burglary statute, breaking and entering a dwelling of another, with the intent to commit a crime, “implicate[s] ... moral value[s] beyond the duty to obey the law” and inherently is “base, vile, or depraved.” See Mohamed, 769 F.3d at 887, 889. The act of breaking and entering a dwelling, with thé intent to commit any crime, necessarily involves conduct that violates an individual’s reasonable expectation that her personal living and sleeping space will remain private and secure. See Hobby, 83 A.3d at 812; McKenzie, 962 A.2d at 1006-07. And we are persuaded that an individual's expectation that her dwelling will remain private, secure, and free from intruders intending to commit a crime is violated regardless whether the dwelling is occupied at the time of the burglary.

Uribe maintains, nevertheless, that because the Court of Appeals of Maryland held in Hobby that Maryland third degree burglary encompasses the act of breaking and entering a house offered for sale that has been unoccupied for eight months, the commission of that offense under such circumstances eánnot meet the definition of a crime involving moral turpitude. See 83 A.3d at 812. We disagree. As that court explained, in order for a house to constitute a dwelling under Maryland law in these circumstances, the house must not have been abandoned and must have remained suitable for habitation. See id.; McKenzie, 962 A.2d at 1002, 1007. Under such facts, a current or a prospective resident could occupy the house at any moment. Thus, the act of breaking and entering a vacant house under these circumstances inherently would violate the current or prospective owner’s expectation of security, and would infringe upon the current owner’s right of habitation. Accordingly, the crime of breaking and entering with the intent to commit a crime, even in this factual context, remains contrary to well-recognized moral norms and is “base, vile, or depraved.” See Mohamed, 769 F.3d at 887-89.

Additionally, we reject Uribe’s assertion that a breaking is morally turpitudinous only if it involves the use, or the risk of use, of physical force, and that a constructive breaking is less reprehensible than an actual breaking. A constructive breaking is as equally reprehensible as an actual breaking because, a constructive breaking includes acts of subterfuge and may also involve threats directed at another person. See Hobby, 83 A.3d at 811 (defining constructive breaking as breaking “by artifice, fraud, conspiracy, or threat”).

Finally, we find no merit in Uribe’s argument that the act of breaking and entering a boat or motor vehicle would not qualify as a crime involving moral turpitude under Maryland’s third degree burglary statute. A burglar who breaks and enters a boat or a vehicle that is meant to be occupied, and is intended to be a place of personal security and privacy, has committed a crime that is contrary to well-recognized moral norms. See Hobby, 83 A.3d at 812; McKenzie, 962 A.2d at 1002, 1006. Therefore, the principles that render breaking and entering a traditional house contrary to moral norms apply equally to breaking and entering a boat or motor vehicle that meets the definition of a “dwelling” under Maryland law.

We therefore conclude that a conviction under Maryland’s third degree burglary statute necessarily involves conduct that “shocks the public conscience as inherently base, vile, or depraved” and is contrary to recognized moral norms. See Mohamed, 769 F.3d at 887-88. Accordingly, we hold that Maryland third degree burglary qualifies as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).

III.

For these reasons, we deny Uribe’s petition for review.

PETITION FOR REVIEW DENIED

      . As explained below, before the BIA, Uribe did not challenge the IJ’s conclusion regarding his Maryland theft offense conviction, nor does he challenge that conclusion before this Court.

      . In reaching her conclusion, the IJ found inapplicable two prior BIA decisions addressing burglary statutes of other states: (1) third degree burglary under New York law, which prohibited breaking and entering a building, or a room, or any part of a (Continued) building, and (2) second degree burglary of an occupied dwelling under Florida law. See Matter of Louissaint, 24 I. & N. Dec. 754 (B.I.A. 2009) (Florida statute); Matter of M., 2 I. & N. Dec. 721 (B.I.A. 1946) (New York statute).

      . We afford Chevron deference to the BIA's reasonable interpretation of the term “crime involving moral turpitude,” used in the INA. See Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014); Prudencio v. Holder, 669 F.3d 472, 480 (4th Cir. 2012); Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir. 2005) (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Yousefi v. INS, 260 F.3d 318, 325-26 (4th Cir. 2001). Uribe does not challenge the reasonableness of these established BIA definitions.

      . The terms "break” and "dwelling,” as used in the statute, retain their "judicially determined meaning[s,]” because the Maryland legislature has not altered those terms after the appellate courts of Maryland have defined them. Md. Code, Crim. Law § 6-201(b), (e).

      . Insofar as Uribe relies on Matter of M. for the proposition that a state burglary conviction qualifies as a crime involving moral turpitude only if the offense that the defendant intended to commit upon breaking and entering involves moral turpitude, the BIA recently rejected that approach in Louissaint. See 24 I. & N. Dec. at 759 (holding "that a residential burglary [does not] derivef ] its morally turpi-tudinous nature solely from the culpability inherent in the crime that accompanies or precedes the act of breaking and entering a building”). And, for the reasons stated above, we agree with the BIA’s reasoning in Louis-saint interpreting a Florida burglary statute.


author: NIEMEYER, Circuit Judge:

text:
    Gary WOODSON; Rebecca Woodson, Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant. United States of America; Property Casualty Insurers Association of America, Amici Supporting Appellant, Douglas J. Pepe, Amicus Supporting Appellees. Gary Woodson; Rebecca Woodson, Plaintiffs-Appellees, v. Allstate Insurance Company, Defendant-Appellant. United States of America; Property Casualty Insurers Association of America, Amici Supporting Appellant, Douglas J. Pepe, Amicus Supporting Appellees.
    No. 16-1935, No. 16-2018
    United States Court of Appeals, Fourth Circuit.
    Argued: March 24, 2017
    Decided: May 3, 2017

      ARGUED: Gerald Joseph Nielsen, NIELSEN, CARTER & TREAS, LLC, Metairie, Louisiana, for Appellant. Ernest Bradley Evans, WARD AND SMITH, P.A., Greenville, North Carolina, for Ap-pellees. Nicolas Y. Riley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America. ON BRIEF: Keith M. Detweiler, John D. Carter, NIELSEN, CARTER & TREAS, LLC, Metairie, Louisiana; Eric P. Stevens, POYNER SPRUILL, LLP, Raleigh, North Carolina, for Appellant. Michael J. Parrish, WARD AND SMITH, P.A., Greenville, North Carolina, for Appellees. Benjamin C. Mizer,. Principal Deputy Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Adrian Sevier, Chief Counsel, Razeyeh Jafarzadeh, Office of Chief Counsel, FEDERAL EMERGENCY MANAGEMENT AGENCY, Washington, D.C.; John Stuart Bruce, Acting United States Attorney, Raleigh, North Carolina, for Amicus United States of America. Wystan M. Ackerman, ROBINSON & COLE LLP, Hartford, Connecticut, for Amicus Property Casualty Insurers Association of America. Douglas J. Pepe, Amicus Pro Se.
    Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
   NIEMEYER, Circuit Judge:

Hurricane Irene, characterized as a Category 1 hurricane when it hit the North Carolina coast on August 27, 2011, passed near the waterfront house of .Gary and Rebecca Woodson on the Albemarle Sound in Jarvisburg, North Carolina, flooding their property and, for several hours, subjecting the foundation of their house to wave action, allegedly causing substantial damage to the house. Shortly after the storm, the Woodsons made a claim under the flood insurance policy issued to them by Allstate Insurance Company under the National Flood Insurance Program.

Following inspections of the property by engineers hired by both parties and exchanges relating to the appropriate documentation for a proof of loss, Allstate denied the major portion of the Woodsons’ claim by letter dated February 28, 2012, and the Federal Emergency Management Agency (“FEMA”) affirmed the decision. The Woodsons commenced this action against Allstate in state court on February 27, 2013, alleging (1) that, in denying the major portion of their claim, Allstate breached its- contract of insurance, and (2) that Allstate did not act in good faith in handling the Woodsons’ claim, in violation of the North Carolina Unfair and Deceptive Trade Practices Act.

On April 1, 2013, Allstate removed the case to federal court and, in its answer filed thereafter, asserted that the Wood-sons’ suit was barred by the applicable statute of limitations. Allstate raised the limitations defense again in the pretrial order entered in the case, in the proposed findings of fact and conclusions of law presented by the parties to the court one week before trial, and in the examination of witnesses at trial. The district court, however, did not address the limitations issue in its findings of fact and conclusions of law and entered judgment for the Woodsons in the amount of $233,398 on their breach of contract claim and trebled those for a total of $700,194 on their bad-faith-handling claim under the North Carolina Unfair and Deceptive Trade Practices Act. The court also awarded the Woodsons $63,962.50 in attorneys fees on' the bad-faith-handling claim.

On appeal, Allstate raises, as its first issue, its statute of limitations defense. It also raises.the issue of whether the Wood-sons’ bad-faith-handling claim was preempted by the National Flood Insurance Act of 1968.

Because federal law exclusively governs claims made on policies issued under the National Flood Insurance Program and to disputes arising out of the handling of those claims, thus preempting .state law, and imposes a one-year statute of limitations for all such claims, we reverse the district court’s judgment.

I

A

Responding to the fact that flood disasters were creating personal hardships and economic distress that was “increasing [the] burden on the Nation’s resources” and that the exposure to flood losses was “growing,” Congress enacted the National Flood Insurance Act of 1968 (“NFIA”). 42 U.S.C. § 4001(a). The NFIA creates the National Flood Insurance Program under the administration of FEMA to “mak[e] flood insurance coverage available on reasonable terms and conditions.” Id.; see also id. § 4011. Under the Program, flood insurance is sold to qualified applicants either directly by FEMA or by private insurance companies known as “write-your-own” (sometimes, “WYO”) companies. 44 C.F.R. § 62.23. These companies enter into a standardized ágreement with FEMA that authorizes the private company to issue flood insurance in its own name and assigns the company responsibility for the “the adjustment, settlement, payment and defense of all claims arising from policies of flood insurance it issues under the Program.” Id. § 62.23(d). The ultimate responsibility for paying all claims and related expenses, however, rests with FEMA. See 42 U.S.C. § 4017(a). The NFIA imposes a $250,000 cap in coverage for residential properties. Id. § 4013(b)(2).

The terms and conditions of a National Flood Insurance Policy are specified by regulation. The “Standard Form Insurance Policy” begins with advice to the insured that FEMA is providing insurance “under the terms of the National Flood Insurance Act of 1968 and its Amendments, and Title 44 of the Code of Federal Regulations.” 44 C.F.R. pt. 61 app. A(1), art. I. The Policy then sets forth the scope of coverage, the exclusions, the deductions, and the general conditions applicable to coverage, adjustment, and payment. The Policy also provides:

This policy and all disputes arising from the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. § 4001, et seq.), and Federal common law.

Id. art. IX. Consistent with the statute and regulation, the Policy also provides the conditions and limitations for filing suit for claims under the Policy and on disputes arising out of the handling of any claim under the Policy:

You may not sue us to recover money under this policy unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within one year after the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the covered property was located at the time of loss. This requirement applies to any claim that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.

Id. art. VII(R); see also 42 U.S.C. § 4072; 44 C.F.R. § 62.22.

In short, National Flood Insurance Policies, claims under those Policies, and disputes relating to the handling of claims under those Policies are highly regulated and subject exclusively to federal law.

B

Gary and Rebecca Woodson purchased their National Flood Insurance Policy through Allstate, a write-your-own insurance company, to insure their waterfront home in Jarvisburg. As mandated by statute, the Policy provided the Woodsons with $250,000 in coverage for their house and $12,200 for personal property, and included a $1,000 deductible.

Shortly after Hurricane Irene struck the Woodsons’ house on August 27, 2011, the Woodsons called Allstate, which promptly inspected their property. Following the initial visit, Allstate retained the engineering firm of Rimkus Consulting Group, Inc., to inspect the Woodsons’ property and give Allstate a report as to the extent and cause of the damage. The Rimkus report concluded that, other than a substantial loss of soil washed away from around the supporting portions of the house, there was “no damage or permanent movement of the structure.” The report recommended reimbursement for the replacement of the washed out soil at a cost under $1,200.

The Woodsons retained their own engineering firm, House Engineering, P.C., which submitted a report describing substantial damage caused by the hurricane, including movement of the house’s pilings that caused the house no longer to be level. The Woodsons sent the report to Allstate in support of their proof of loss, claiming $228,822.08 in damages. Based on a subsequent report by House Engineering, the Woodsons increased that claim to $272,473, which included $33,075 for bulkhead repairs, an item concededly not covered by the National Flood Insurance Policy-

After evaluating the House Engineering report, Allstate sent the Woodsons a letter dated February 28, 2012, denying their claim for foundation damage. Allstate attached to its denial letter a revised version of the Rimkus report, which addressed the conclusions reached in the House Engineering report and disagreed with them. In its letter, Allstate advised the Wood-sons that they could appeal the denial of coverage to FEMA.

The Woodsons did in fact appeal the denial of coverage to FEMA, and after review, FEMA advised the Woodsons that there was “no reason” to “overturn Allstate’s denial of your claim of foundation damages.” In particular, FEMA found that the findings of the Rimkus report were more compelling than those of the House Engineering report.

On February 27, 2013, the Woodsons filed a complaint in North Carolina state court against Allstate for breach of the insurance contract and for violation of the North Carolina Unfair and Deceptive Trade Practices Act. Allstate removed the case to federal court on April 1, 2013.

After a bench trial, the district court found as fact that the damage to the Woodsons’ property was caused by “flooding, wave action, and erosion.” In reaching its finding, the court credited the testimony of Frederick A. House, president of House Engineering, and another engineer, George R. Barbour, and did not credit the Rimkus report. The court further found as fact that damages of $233,398 were appropriate for the breach-of-contract claim. The court then determined, as a matter of law, that the damages were covered by the terms of the Standard Flood Insurance Policy issued by Allstate under the National Flood Insurance Program. On the Woodsons’ second count, that Allstate had violated the North Carolina Unfair and Deceptive Trade Practices Act, the court found as fact that Allstate denied the Woodsons’ claim in bad faith, in violation of N.C. Gen. Stat. § 75-1.1 et seq. The court characterized Allstate’s behavior as “the worst kind of misconduct” and found that Allstate had used the Rimkus report to “thwart” the Woodsons’ claim. Accordingly, the court trebled the damage figure found in connection with the breach-of-contract claim for a total award on the bad-faith-handling claim in the amount of $700,194. The court also granted the Woodson’s post-trial motion for attorneys fees under state law in the amount of $63,962.50.

Allstate filed appeals from the district court’s judgment on the merits dated May 4, 2016, and from the court’s award of attorneys fees dated August 23, 2016, and we consolidated the two appeals by order dated September 7, 2016.

II

Allstate contends first that the Woodsons’ breach-of-contract claim is barred by the one-year statute of limitations stated in 42 U.S.C. § 4072 and 44 C.F.R. § 62.22, as well as in the Standard Form Insurance Policy itself, as set forth at 44 C.F.R. pt. 61, app. (1), art. VII(R).

The contextual facts for Allstate’s limitations defense are not disputed. On August 27, 2011, the eye of Hurricane Irene passed near the Woodsons’ waterfront house, flooding the property and subjecting its foundation to storm surge and wave action for hours. The next day, the Wood-sons called Allstate, which promptly thereafter inspected the property. After inspections made by Allstate and by its retained engineers, Allstate sent the Woodsons the letter dated February 28, 2012, stating, “We must regretfully deny coverage for the damage to your foundation you are claiming.” Allstate accepted coverage for a very small portion of the damage involving replacement of soil around the foundation.

The parties do not dispute that this letter constituted a denial of coverage letter.

Just under one year later, on February 27, 2013, the Woodsons filed a complaint against Allstate in North Carolina state court, alleging breach of its insurance policy and the bad faith handling of their claims. Allstate removed the case to federal court on April 1, 2013, with the effect that the complaint was not filed in federal court until more than one year after Allstate Insurance denied coverage.

On the basis of these facts, Allstate contends that because the Woodsons’ complaint was not filed in a U.S. District Court within one year of the denial of coverage, as required by NFIA and its regulations, their breach-of-contract claim was therefore time barred. We agree.

The requirement of filing a lawsuit in U.S. District Court within one year of the insurer’s denial of coverage is made explicit not only in the NFIA, but also in the regulations promulgated pursuant to it and in the Standard Form Insurance Policy issued by Allstate to the Woodsons. Section 4072 of Title 42 provides that a claimant may, “within one year after the date of mailing of notice of disallowance or partial disallowance,” institute an action on its claim “in the United States district court for the district in which the insured property or the major part thereof shall have been situated, and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action.” The regulations parrot that requirement, providing that the claimant may, “within one year after the date of mailing by.... the participating Write-Your-Own Company ... of the notice of disallowance or partial disallowance[,] ... institute an action on such claim against the insurer only in the U.S. District Court for the district in which the insured property or the major portion thereof shall have been situated.” 44 C.F.R. § 62.22 (emphasis added). Finally, the language of the Standard Flood Insurance Policy issued by Allstate to the Woodsons requires the same result in readable language:

If you do sue [us], you must start the suit within one year after the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the covered property was located at the time of loss. This requirement applies to any claim that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.

44 C.F.R. pt. 61, app. (1), art. VII(R).

The aggregate of these provisions thus establishes (1) that the limitations period of one year begins to run from the date all- or part of the claim is denied; (2) that the action may be filed only in a U.S. District Court; (3) that the U.S. District Court must be where the property is located; and (4) that these requirements and restrictions apply not only to “any claim ... under the policy,” but also to “any dispute ... arising out of the handling of any claim under the policy.” Because the Woodsons failed to file their complaint in U.S. District Court within one year of Allstate’s denial-of-coverage letter dated February 28, 2012, their claims — one for breach of the policy and one for the bad faith handling of their claim under the policy — are barred by the statute of limitations.

To avoid the limitations bar, the Woodsons argue that the federal statute of limitations of the NFIA should be tolled by their filing of a complaint in state court, which did occur within one year of the denial-of-coverage letter. This argument, however, is foreclosed by our decision in Shofer v. Hack Co., 970 F.2d 1316 (4th Cir. 1992). In Shofer, the plaintiff timely filed an ERISA claim in Maryland state court, which dismissed the claim because jurisdiction for the claim lay exclusively in federal court. The plaintiff then filed his claim in federal court, but after the limitations period had run. In response to the defendant’s motion for summary judgment based on limitations, the plaintiff asserted that his timely filed state action “should equitably toll the running of the statute of limitations under federal tolling principles.” Id. at 1318. We rejected that argument, holding that “[t]he commencement of an action in a clearly inappropriate forum, a court that clearly lacks jurisdiction, will not toll the statute of limitations.” Id. at 1319. Likewise, in this case, the Wood-sons’ argument that then* filing in North Carolina state court, one that because of the NFIA clearly lacked jurisdiction, should equitably toll the federal one-year statute of limitations must be rejected. The Woodsons’ filing in state court was no more meaningful than the similar state court filing in Shofer. And because the state court lacked jurisdiction, the fact that the action was subsequently removed to federal court, rather than dismissed has no impact on the running of the statute of limitations. See Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 946 (4th Cir. 2002).

The Woodsons also argue that Allstate Insurance waived its statute of limitations defense by not adequately presenting it to the district court. They state, “Allstate failed to sufficiently raise the [limitations] defense before the District Court, and the District Court had no opportunity to consider or rule on it.” Neither the facts of record nor the law, however, supports this argument.

To be sure, as a general matter, the defense of limitations must be raised by an affirmative defense presented in the answer or an amendment to the answer or it will be “forfeited.” See Fed. R. Civ. P. 8(c)(1); Wood v. Milyard, 566 U.S. 463, 132 S.Ct. 1826, 1832, 182 L.Ed.2d 733 (2012). Such a forfeiture is not absolute, and, in “exceptional circumstances,” the defense may be considered on appeal. Wood, 132 S.Ct. at 1833-34. On the other hand, the defense may be “waived” by conscious and deliberate conduct indicating the wish not to present the defense or by the conscious and deliberate failure to present the defense, in which case the court’s consideration of the defense would be “an abuse of discretion.” Id. at 1834-35. Such a waiver may be indicated when the party fails to present the defense “in a manner sufficient to alert the district court” to it. CoreTel Virginia, LLC v. Verizon Virginia, LLC, 808 F.3d 978, 988 (4th Cir. 2015) (internal quotation marks and citation omitted).

In this case, the facts support neither a forfeiture nor a waiver. As the Woodsons concede, Allstate did raise its statute of limitations defense in its answer. The Woodsons nonetheless contend that after raising the defense in its answer, Allstate waived it by never again or not sufficiently presenting it to the court. Unfortunately for the Woodsons, the record does not support that factual claim.

First, in the amended pretrial order submitted to the district court by the parties and entered by the court to control the trial, the Woodsons set forth their contention that “Plaintiffs thereafter initiated this action within the applicable limitations period.” In the same pretrial order, Allstate presented the court with the factual issue of “whether Plaintiffs’ claim is time barred.” The same order set forth the legal issues that the court had to resolve at trial, including the issue of “whether Plaintiffs’ claims are time barred.”

At trial, the Woodsons argued that Allstate’s January 23, 2012 letter, which rejected as inadequate the Woodsons’ proof of loss, was not a denial of coverage so as to start the running of the limitations period and that only Allstate’s February 28 letter was a denial of coverage. That letter, they suggested, protected their filing date in state court on February 27, 2013 (one day before the expiration date of the limitations ' period). Allstate maintained that the January 23 letter was indeed a denial of coverage as was the February 28 letter. Relevant to this dispute, both parties introduced the January 23 and February 28 letters as exhibits. Allstate pursued the issue further during its own examination of Gary Woodson:

Q. Please turn the page to Defendant’s Exhibit [2] which is also Plaintiffs’ Exhibit Number [6].
A. Okay.
Q. In this February 28, 2012, letter from Allstate, they are denying the claim again, are they not?
A. I believe this would be the first time.
Q. So when I asked you in your deposition whether or not you considered the January 23 rejection of proof of loss to be a denial, do you remember what your answer was?
A. No sir.

When Allstate’s counsel showed Woodson his deposition testimony, Woodson stated that any suggestion he gave that the January 23 letter was a denial letter resulted from “a misunderstanding” of the questions he was answering. Thereafter, the Woodsons continued to press their argument that the February 28 letter was the first denial of coverage. Moreover, Allstate’s _ witness thereafter also testified that the February 28 letter was a denial of coverage. The status of the January 23 letter is not material here; what is material is that both parties were addressing the limitations question at trial before the district court.

The presence of the limitations issue at trial was confirmed by the Woodsons’ argument to the district court during closing argument. They argued to the court:

There are cases that specifically discuss the distinction between a Proof of Loss rejection and a denial of the claim. The reason that that is relevant has to do with the statute of limitations, Your Honor. Here we don’t have the problem because there was no denial prior to the running of the statute of limitations. So given the fact that that January 23 letter was not a denial of the claim, and the denial of the claim has to be clear and unequivocal under state law, under the applicable law, and clearly that doesn’t apply here. As a result, there was no denial, there is no statute of limitations issue.

(Emphasis added).

This evidence and these arguments at trial relating to the limitations defense did not come as a surprise. To the contrary, •both parties told the district court one week before trial that limitations remained an issue. In its proposed findings of fact, Allstate requested a finding that “on January 23, 2012, Allstate issued a denial letter to the Plaintiffs notifying them that their claim was denied due to failure to produce supporting documentation as required under the terms and conditions of their [policy].” They also proposed a finding that “as a result, on February 28, 2012, Allstate issued [its] denial letter to the Plaintiffs to notify them that their claim for damages to the foundation were denied and determined not to be covered by the Plaintiffs’ [policy].” Finally they proposed that the court find that “Plaintiffs jfiled their lawsuit more than one year from the date of the original denial of their claim, therefore this suit is time barred.” In its proposed conclusions of law, Allstate again asked the district court to conclude that “Plaintiffs filed their lawsuit more than one year from the date of the original denial of their claim, [and] therefore this suit is time barred.” Finally, in its memorandum of law, also submitted to the court one week before trial, Allstate argued:

Article VII(R) of the Plaintiffs’ [policy] states that “If you do sue, you must start the suit within 1 year after the date of the written denial of all or part of the claim.... This requirement applies to any claim'that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.” Plaintiffs filed their lawsuit more than one year from the date of the original denial of all or part of their claim, therefore this suit is time barred.

Later, in the same memorandum, they again asserted that the Plaintiffs filed their lawsuit more than one year from the date of the original denial of their claim, “therefore this suit is time barred.” (Emphasis added throughout). That memorandum of law filed on behalf of Allstate was the only memorandum of law considered by the court before it ruled from the bench at the close of trial. Thereafter, the court issued its written opinion.

When the court filed its findings of fact and conclusions of law, however, it did not even recognize the existence of the February 28 letter, much less address it as part of the limitations defense. Indeed, it did not address the statute of limitations defense at all. While the parties were, up to that point, clearly engaged on the issue of whether Allstate’s January 23 letter or its February 28 letter effectively denied coverage for purposes of the statute of limitations, the court did not address that dispute or the consequences of resolving it.

While Allstate would have been wise to present its limitations defense through a separate motion filed earlier in the proceedings, the Woodsons cannot fairly contend that Allstate deliberately abandoned the defense so as to have waived it. In defending this case, Allstate focused more on defending the charges against it relating to its bad faith handling of the claim than on concluding the case more efficiently by pressing for early resolution of its defense that the Woodsons’ claims should be dismissed under the applicable statute of limitations. Nonetheless, on the record here, Allstate cannot be charged with deliberately waiving the defense. The district court was presented with the limitations issue and the relevant evidence, and the Woodsons were undoubtedly aware that the issue was before the court, as they addressed it explicitly during closing argument. We thus conclude that the defense was sufficiently preserved for review on appeal.

Ill

Allstate contends that the Wood-sons’ claim against it for bad faith handling of their claim, under the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1 et seq., was preempted by federal law.and therefore barred. We agree.

The insurance policy that the Woodsons purchased was fully regulated by federal law such that state law could not govern claims under the policy or disputes involving the bad faith handling of those claims. The Standard Form Insurance Policy, set forth as Appendix A to Part 61 of Title 44 of the Code of Federal Regulations, to which the Woodsons agreed, made clear that FEMA was providing insurance to the insured “under the terms of the National Flood Insurance Act of 1968 and its Amendments, and Title 44 of the Code of Federal Regulations.” The Policy also mandated the exclusive application of federal law in connection with all claims made under the Policy and all disputes related to the handling of a claim under the Policy:

This Policy and all disputes arising from the handling of any claim under the Policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. § 4001, et seq.), and federal common law.

44 C.F.R. pt. 61, app. A(1), art. IX (emphasis added). It is not surprising, therefore, that every other circuit to have considered this issue has concluded that state-law claims against write-your-own insurance providers are preempted by federal law. See e.g., Remund v. State Farm Fire & Cas. Co., 483 Fed.Appx. 403, 408-11 (10th Cir. 2012); Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1344 (11th Cir. 2007); Wright v. Allstate Ins. Co., 415 F.3d 384, 389-90 (5th Cir. 2005); C.E.R. 1988, Inc. v. Aetna Casualty and Surety Co., 386 F.3d 263, 268-72 (3d Cir. 2004); Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir. 2004); Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 948-50 (6th Cir. 2002).

The Woodsons argue nonetheless that federal regulations allow for write-your-own company liability for the bad faith handling of claims. Recited fully, their argument on this point is as follows:

First, under FEMA regulations, WYO companies are given great independence, and are in fact required, to use their own resources and standards to handle SFIP [Standard Form Insurance Policy] claims, as they would handle their non-SFIP claims. 44 C.F.R. § 62.23(g) states that “A WYO Company shall act as a fiscal agent of the Federal Government, but not as its general agent. WYO Companies are solely responsible for their obligations to their insured under any [NFIP] flood insurance policies ...” (emphasis added). See also 44 C.F.R. § 62.23(d) (WYO insurer “shall arrange for the adjustment, settlement, payment and defense of all claims” arising from SFIP, based on SFIP’s terms and conditions); 44 C.F.R. § 62.23(e) (WYO company “shall use its own customary standards, staff and independent contractor resources, as it would in the ordinary and necessary conduct of its own business affairs,” subject to FEMA regulations); 44 C.F.R. § 62.23(i)(1) (‘WYO Companies will adjust claims in accordance with general Company standards, guided by NFIP Claims manuals”).
Second, federal law contemplates that, because of the autonomy afforded WYO companies to handle SFIP claims, the WYO insurers are liable for their own misconduct under state law. 42 U.S.C. § 4081(c) provides that FEMA “may not hold harmless or indemnify an agent or broker for his or her error or omission.” Likewise, 44 C.F.R. Pt. 62, App. A, Art. 111(D)(3)(a) provides that the FEMA Office of the General Counsel (“OGC”) “shall review” litigation arising under the NFIP: “If the FEMA OGC finds that the litigation is grounded in actions by the Company that are significantly outside the scope of this Arrangement, and/or involves issues of agent negligence, then the FEMA OGC shall make a recommendation to the Federal Insurance Administrator regarding whether all or part of the litigation is significantly outside the scope of the Arrangement.” If the Administrator agrees, the WYO insurer is notified “that any award or judgment for damages and any costs to defend such litigation will not be recognized under Article III as a reimbursable loss cost, expense or expense reimbursement.” Art. 111(D)(3)(b). These provisions contemplate that state-based claims may be brought against WYO insurers for their tortious misconduct.

Regardless of whether the Woodsons are correct about the possibility of bad-faith-handling liability for WYO insurers by virtue of these federal regulations — an issue that we do not address — any such claims would be governed exclusively by federal law, and the applicable federal law requires that any claim on the policy or arising out of a WYO insurer’s handling of the claim under the policy must be filed within one year of the denial of the claim. 44 C.F.R. pt. 61, app. A(1), art. VII(R).

In short, we hold that the Woodsons’ state law claim under the North Carolina Unfair and Deceptive Trade Practices Act for bad faith handling of their claim under the policy is preempted by federal law and that any similar claims they posit under Title 44, Part 62, of the Code of Federal Regulations, if available, are nonetheless barred by the one-year statute of limitations contained in federal law. And because the district court’s award of attorneys fees to the Woodsons is premised on the same state law that we hold is preempted, the award too must be set aside.

Accordingly, the judgments of the district court are

REVERSED.