Argued and Submitted April 7, 2014, San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035-104-809.
The panel denied for lack of jurisdiction Mark Brown's challenge to the Board of Immigration Appeals' removal order, but transferred his claim that he is a United States citizen to the district court for evidentiary findings.
The panel held that it had jurisdiction to review Brown's non-frivolous citizenship claim, even though he waived his administrative appeals challenging his order of removal. The panel held that Brown may be able to establish citizenship if he can show that the Immigration and Naturalization Service's mishandling of naturalization applications by Brown and his mother resulted in a violation of his due process rights. The panel held that to establish a due process violation Brown must either show that the INS arbitrarily and intentionally obstructed his application or that the government was deliberately indifferent to whether his application was processed. The panel transferred the case to the district court for evidentiary findings on genuine disputed issues of material fact concerning Brown's nationality, and stated that if the district court finds that the INS acted unconstitutionally, it could order the agency to grant Brown citizenship as a remedy.
The panel also held that pledging an oath of allegiance in or after an interview with an INS officer as part of the naturalization process does not satisfy the " public ceremony" requirement of 8 U.S.C. § 1448(a).
Judge Tallman concurred in part, agreeing that Brown presented a genuine issue regarding his nationality and that transfer to the district court for a new hearing and decision on the claim is the appropriate remedy. Judge Tallman would not find, however, that Brown has a constitutionally protected right to apply for citizenship. Judge Tallman wrote that the Supreme Court has merely assumed, without deciding, that the Due Process Clause of the Fifth Amendment may be implicated when procedures limit an alien's ability to apply for citizenship.
Craig Varnen, Khaldoun Shobaki, and Michael Behrens (argued), Irell & Manella LLP, Los Angeles, California, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General, William C. Peachey, Ada E. Bosque, and Yamileth G. Davila (argued), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Fortunato P. Benavides,[*] Richard C. Tallman, and Richard R. Clifton, Circuit Judges.
CLIFTON, Circuit Judge.
Mark Brown, a native and citizen of India, petitions for review of the decision
of the Board of Immigration Appeals (" BIA" ) dismissing his appeal from an order of removal. In the administrative proceedings, Brown argued that he was or should be deemed a United States citizen, because the former Immigration and Naturalization Service (" INS" ) had wrongly prevented him from deriving citizenship through his parents and then from applying for citizenship on his own account. He also claimed that the government should be estopped from denying his citizenship and that he had, in fact, fulfilled the statutory requirements for citizenship set down in the Immigration and Nationality Act (" INA" ). The Immigration Judge (" IJ" ) found that Brown had not sustained his burden of showing that he was a citizen and ruled that he had no power to grant Brown citizenship or estop the government from denying his citizenship. Brown now renews his claim to citizenship.
Because the record reflects disputed issues of fact relating to the government's alleged mishandling of naturalization applications by Brown and his mother, we transfer this matter to the District Court for the Central District of California for evidentiary findings. If the district court finds that the INS acted unconstitutionally, it may order the agency to grant Brown citizenship as a remedy.
Brown was born in Madras, India, on July 4, 1968. He entered the United States lawfully as an immigrant on March 25, 1977, with his father, Trevor, mother, Marjorie, and older sister, Karen. Trevor and Marjorie submitted applications to petition for naturalization on April 13, 1983, by filing separate N-400 forms. Marjorie also listed Brown as a dependent on her N-400, so that he could apply to be naturalized under her application, and submitted on Brown's behalf a separate application for a certificate of citizenship on a form N-604. If both Brown's parents were naturalized by July 4, 1986, the date he turned eighteen, then Brown would become a citizen. 8 U.S.C. § 1432(a)(1) (1982).
Trevor was naturalized on November 15, 1985. For reasons that are disputed, however, Marjorie was not. Brown and his parents claim that the INS told her in May 1985, at Trevor's interview, that it had lost her application. According to them, she was required to reapply on a second N-400 form and to pay the associated fees. The government disputes this, suggesting that the INS may have failed to process her application at the same time as her husband's because of a lack of resources and further that she never filed and paid the fees for a second application.
Marjorie was interviewed on February 7, 1986, the same day she allegedly filled out her second application. She ultimately took the oath of allegiance and was naturalized in August 1986, a month after Brown's eighteenth birthday, by which time he was no longer eligible to derive citizenship.
According to Brown, he continued his attempts to naturalize. Trevor asserts in his affidavit that Brown was told in 1990, when he went to the INS office in Los Angeles to apply for naturalization or a certificate of citizenship, that he did not
need to pursue naturalization on his own because his parents were already U.S. citizens. Brown states that he called on the same INS office in 1991 and was told that he was already a citizen.
Nevertheless, in February 1996, Brown submitted a N-400 form to apply for naturalization. He asserts that he was told by an INS agent that his application had been approved and that he was administered the oath of allegiance by an INS agent. An INS computer inquiry about that application in July 1996 shows the words " CASE CLOSED" and " NATURALIZED" and, in handwriting, " Natz close out." Brown maintains that the printout shows that, according to INS records, he was a citizen; the government contended at oral argument that he is misinterpreting the printout.
In December 2001, Brown applied for a certificate of citizenship on a form N-600. The INS rejected this application because he was over eighteen. Nevertheless, an INS computer inquiry generated in December 2001 (stating " Form number: N400" on the top) shows the words " CASE CLOSED" and " NATURALIZED." Again, the ...