179 F.3d 1111 (9th Cir. 1999), 98-35723, Gorbach v. Reno

Docket Nº:98-35723.
Citation:179 F.3d 1111
Party Name:Irina GORBACH; Jose Luis Rosas-Madrid; Agueda Escalante; Ruben Lara; Javier Sanguino; Mac Maurice Chukwud Ijeaku; Loreto Moncado Juan; Pedro Legarda-Legarda; Adolpho Erazo, Plaintiffs-Appellees, v. Janet RENO, Attorney General of the United States; Doris M. Meissner, Commissioner of Immigration and Naturalization Service; United States Immigration
Case Date:June 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

179 F.3d 1111 (9th Cir. 1999)

Irina GORBACH; Jose Luis Rosas-Madrid; Agueda Escalante;

Ruben Lara; Javier Sanguino; Mac Maurice Chukwud

Ijeaku; Loreto Moncado Juan; Pedro

Legarda-Legarda; Adolpho

Erazo, Plaintiffs-Appellees,

v.

Janet RENO, Attorney General of the United States; Doris M.

Meissner, Commissioner of Immigration and Naturalization

Service; United States Immigration and Naturalization

Service, Defendants-Appellants.

No. 98-35723.

United States Court of Appeals, Ninth Circuit

June 4, 1999

Argued and Submitted Feb. 2, 1999.

Michelle R. Slack, United States Department of Justice, Office of Immigration Litigation, Washington D.C., for the defendants-appellants.

Jonathan S. Franklin, Hogan & Hartson, Washington D.C., for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief District Judge, Presiding. D.C. No. CV-98-0278-R.

Before: ALARCON, RYMER, and KLEINFELD, Circuit Judges.

RYMER, Circuit Judge:

The question before us is whether the Attorney General, who has the exclusive power to naturalize, has the statutory authority to reopen and revoke her orders of naturalization on grounds of fraud, material misrepresentation or ineligibility for naturalization subject to de novo judicial review by an Article III court.

The Immigration Act of 1990, § 401(a), 8 U.S.C. § 1421(a), transferred the sole authority to naturalize from state courts of record and federal district courts to the Attorney General, without limiting the Attorney General's power to reopen and vacate an order of naturalization. 1 The Attorney General delegated her power to the Immigration & Naturalization Service (INS), which in turn promulgated a regulation, 8 C.F.R. § 340.1, providing for administrative reopening and revocation of naturalization orders where there is evidence that the order of naturalization was procured illegally, fraudulently or by material misrepresentation. Irina Gorbach and other named plaintiffs in behalf of a class of persons who had been naturalized by the Attorney General, but who received a Notice of Intent to Revoke Naturalization (NOIR), challenged the regulation on the grounds that it violates due process, the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the INA, 8 U.S.C. § 1101 et seq. 2 Only the issue of the Attorney General's statutory authority under the INA to promulgate Regulation 340.1 was reached by the district court and raised on this appeal. 3 The district court found that sufficiently serious questions were presented to warrant a preliminary injunction enjoining the INS from initiating or continuing administrative denaturalization proceedings under Regulation 340.1. See Gorbach v. Reno, 181 F.R.D. 642, 650 (W.D.Wash.1998).

Because Gorbach's facial challenge raises only a legal issue that requires no factual development to resolve, we consider the question de novo rather than through the lens of an interlocutory order. So viewed, we conclude that the Attorney General does not lack statutory authority to reopen and reconsider her own orders of naturalization. Accordingly, we vacate the preliminary injunction as moot.

I

A

The statutory framework, old and new, is central to this case so we describe it in detail.

Before 1990, INA § 310(a) conferred the jurisdiction to naturalize persons as United States citizens exclusively upon district courts of the United States and all courts of record in any state or territory. See 8 U.S.C. § 1421(a) (1970) (pre-1990 version). There were two routes for revocation of naturalization orders, both judicial: one, a proceeding initiated under INA § 340(a) in any of the courts specified in INA § 310(a) by affidavit of a United States Attorney showing good cause for setting aside the order admitting a person to citizenship on the ground that the order was illegally procured or was procured by concealment of a material fact or misrepresentation, see 8 U.S.C. § 1451(a) (1970); 4 the other, a proceeding pursuant to the power of the court to reopen and vacate its judgments under INA § 340(i). See 8 U.S.C. § 1451(i) (1970). 5 It is generally agreed that this avenue was added by Congress to overrule the Supreme Court's decision in Bindczyck v. Finucane, 342 U.S. 76, 72 S.Ct. 130, 96 L.Ed. 100 (1951), which held that INA § 340(a) afforded the exclusive route for revocation. See Simons v. United States, 452 F.2d 1110, 1114 (2d Cir.1971). In any event, "old" INA § 340(i) provided:

(i) Power of court to correct, reopen, alter, modify or vacate judgment or decree

Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of any naturalization court, by or in which a person has been naturalized, to correct, reopen, alter, modify, or vacate its judgment or decree naturalizing such person, during the term of such court or within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action.

In 1990, the structure was changed significantly. The Immigration Act of 1990 amended INA § 310(a) to transfer the exclusive power to naturalize from the courts to the Attorney General. See 8 U.S.C. § 1421(a) (Supp.1998). 6 United States district courts and state courts of record continue to have authority to administer oaths under INA § 310(b), and federal district courts have authority under INA § 340(a) to revoke naturalization upon affidavit of the United States Attorney, as before. See 8 U.S.C. § 1451(a) (Supp.1998). 7 However, district courts have a new power of judicial review under INA § 310(c), which provides:

A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of Title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c) (Supp.1998). The Immigration Act of 1990 also replaced INA § 340(i), which previously pertained to the "[p]ower of court to correct, reopen, alter, modify or vacate judgment or decree," with new INA § 340(h), which now reads as follows:

(h) Power to correct, reopen, alter, modify, or vacate order

Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of the Attorney General to correct, reopen, alter, modify, or vacate an order naturalizing the person.

8 U.S.C. § 1451(h) (Supp.1998).

Pursuant to INA § 103(a)(4), the Attorney General delegated her authority to the INS. 8 See 8 C.F.R. § 310.1(b). The INS, following notice and comment, promulgated the final (and current) version of the regulation challenged in this case on October 28, 1996. See Revocation of Naturalization, 61 Fed.Reg. 55550 (1996) (codified at 8 C.F.R. pt. 340). Section 340.1, the regulation directly at issue, provides for reopening of a naturalization application by an INS district director pursuant to INA § 340(h); 8 C.F.R. § 340.2 provides for revocation proceedings pursuant to INA § 340(a), the judicial revocation provision. Under Regulation 340.1, the Service may reopen a naturalization proceeding and revoke naturalization if it obtains "credible and probative evidence" which:

(1) Shows that the Service granted the application by mistake; or

(2) Was not known to the Service Officer during the original naturalization proceeding; and-

(i) Would have had a material effect on the outcome of the original naturalization; and

(ii) Would have proven that:

(A) The applicant's application was based on fraud or misrepresentation or concealment of a material fact; or

(B) The applicant was not, in fact, eligible for naturalization.

8 C.F.R. § 340.1(a). We set out the full text of § 340.1 in Appendix I, but in sum the procedures for reopening contemplate a notice of intent that describes the grounds the district director believes warrant reopening, to which the applicant may respond; 9 the applicant may request a hearing before an immigration officer authorized to review naturalization applications, and has the right to counsel; the applicant bears the burden of persuading the district director that he was eligible for naturalization at the time of the order; a record is to be kept of the reopened proceedings; a written decision consisting of findings of fact and conclusions of law as well as a final determination on the naturalization application shall be filed; and instead of reopening the naturalization decision and revoking naturalization, the district director must refer a case for judicial revocation proceedings if a factual issue is raised that will depend on witness credibility to resolve. The applicant may appeal an adverse decision to the Service's Office of Examinations, Administrative Appeals Unit, and the district director may reconsider the decision to reopen the naturalization application and affirm the original decision naturalizing the applicant. Otherwise, if the order is revoked and the application is denied, the applicant may seek judicial review in accordance with INA § 310(c). In either case the applicant retains citizenship until a decision to deny naturalization becomes final.

B

Under the new regime, naturalization was granted to more than a million applicants in circumstances that reportedly led to concern that many may not have revealed disqualifying conditions. KPMG-Peat Marwick was retained to conduct an audit, and found that over six thousand naturalization orders may have been fraudulently obtained. As a result, the INS began in mid-1997 to issue Notices of Intent to Revoke Naturalization.

Irina Gorbach was among those who received a NOIR....

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