Gorbach v. Reno, Attorney General

Decision Date02 February 1999
Docket NumberNo. 98-35723,ROSAS-MADRID,LEGARDA-LEGARDA,98-35723
Citation219 F.3d 1087
Parties(9th Cir. 2000) IRINA GORBACH; JOSE LUIS; AGUEDA ESCALANTE; RUBEN LARA; JAVIER SANGUINO; MAC MAURICE CHUKWUD IJEAKU; LORETO MONCADO JUAN; PEDRO; 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. Office of the Circuit Executive
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted] Patricia Maher (argued) and Michelle R. Slack (briefed), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington D.C., for the defendants-appellants.

Jonathan S. Franklin, Hogan & Hartson L.L.P., Washington D.C., David J. Burman, Victor Cerda, Perkins Coie L.L.P., Seattle, WA, Robert H. Gibbs, Gibbs Houston Pauw, Seattle, Wa, Linton Joaquin, National Immigration Law Center, Los Angeles, CA, for the plaintiffs-appellees. Evelyn H. Cruz, Mark Silverman, Immigrant Legal Resource Center, San Francisco, CA, Meredith R. Brown, One Stop Immigration Center, Inc., Los Angeles, CA, of counsel

Appeal from the United States District Court for the Western District of Washington, Barbara J. Rothstein, Chief District Judge, Presiding; D.C. No. CV-98-00278-R

Before: Procter Hug, Jr., Chief Judge, James R. Browning, Mary M. Schroeder, Diarmuid F. O'Scannlain, Thomas G. Nelson, Andrew J. Kleinfeld, Michael Daly Hawkins, A. Wallace Tashima, Sidney R. Thomas, Susan P. Graber, and Kim McLane Wardlaw, Circuit Judges.

Kleinfeld, J., delivered the opinion of the Court, which is joined in full by Chief Judge Hug, Judge Browning, Judge Schroeder, Judge O'Scannlain, Judge Graber, and Judge Wardlaw.

KLEINFELD, Circuit Judge:

We must decide whether the power to confer citizenship through the process of naturalization necessarily includes the power to revoke that citizenship. We conclude that it does not.

Facts.

Traditionally new citizens have been naturalized in court. The governing statute used to confer exclusive jurisdiction to naturalize persons as citizens on district courts, territorial courts, and state courts of record.1 This was changed in 1990. Now "[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General."2 Courts may administer the oath of citizenship.3 The oath is an essential element in the process of becoming a naturalized citizen, conducted in a public ceremony.4 Some district courts arrange a memorable occasion, with welcomes from civic groups, and distribution by an INS agent of certificates of naturalization, but the power to naturalize plainly was shifted by the 1990 amendment from the courts to the INS.

Before the amendment, district judges used to sign an order that said, "It is hereby ordered that each of the beneficiaries so listed . . . is admitted to become a citizen of the United States of America." Now, if the oath is administered in court, a clerk of the court signs a certification that each applicant listed "appeared in open court at an oath administration ceremony . . . and having taken the oath of allegiance .. . was issued the Certificate of Naturalization . . . . " The certificate of naturalization is issued by the Commissioner of Immigration and Naturalization. It says that, "the Attorney General having found that" the person is entitled to citizenship and has met the requirements and taken the oath of allegiance, "such person is admitted as a citizen of the United States of America."5

The statute entitled "Revocation of Naturalization" says that United States attorneys shall institute actions to revoke naturalization, in appropriate circumstances, in United States District Courts.6 The district court revocation procedure applies to any naturalization and certificate granted "under the provisions of this subchapter"7 -which is to say, it applies to naturalizations and certificates granted by the Attorney General-as well as to any naturalizations and certificates granted by any court or the commissioner under prior law.8 The "Revocation of Naturalization" section includes a subsection saying that nothing in the section limits the power of the Attorney General to reopen or vacate an order naturalizing a person.9 This last subsection is the one on which the Attorney General rests her claim to authority in this case, and is set forth in full in text below. A subsequent section is entitled "Cancellation of certificates issued by Attorney General, the Commissioner or a Deputy Commissioner; action not to affect citizenship status."10 It says that the Attorney General can "cancel" a certificate of citizenship on various grounds, but the cancellation "shall affect only the document and not the citizenship status of the person in whose name the certificate was issued."11

In 1996, well after the 1990 amendment shifted the power to naturalize new citizens from the courts to the Attorney General, the Attorney General issued regulations for revocation of naturalization.12 They purport to be based on her general authority to administer the immigration laws. The "authority" notation on the regulations cites the provisions on her general administrative duties13 and her duties regarding administration of naturalization provision.14 The latter provides for examining applicants, instructing on citizenship, administering oaths and publishing forms, filing records, and furnishing quarters for photographic studios so that applicants can get the necessary photographs taken. It speaks to certificates of naturalization or of citizenship by saying that the Attorney General's certificates shall have the same effect in all courts as certificates issued by courts with jurisdiction15.

The new regulations say that, "[o]n its own motion, the Service may reopen a naturalization proceeding and revoke naturalization" in various circumstances.16 The circumstances overlap the circumstances for which the Attorney General must bring actions in district court to revoke naturalizations. The Attorney General gives district directors two years from the order conferring citizenship to give notice of intent to reopen.17

This case arises out of the new regulations. Ten naturalized citizens, who had been served with notices of intent to revoke naturalization, under the new regulations, sued for a preliminary injunction to prevent the Attorney General from proceeding under the new regulations. The district court enjoined the INS from initiating or continuing administrative denaturalization proceedings under the new regulations pending final resolution of the case. The district judge also granted a "nationwide class certification," making the Attorney General's injunction effective for the entire country.

The INS brought an interlocutory appeal18 and initially prevailed.19 But we decided to rehear the case en banc.20 This decision is substituted for the decision of the three-judge panel.

A district court's decision to grant a preliminary injunction is generally reviewed for an abuse of discretion. 21 However, "if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance," the court may undertake "plenary review of [the] issues" rather than "limit its review in a case of this kind to abuse of discretion."22 We do so in this case, and hold that the regulation providing for administrative revocation of citizenship23 is void because of the absence of statutory authority for it.

Analysis.

The INS has a tough argument to make. It is basically that, even though Congress expressly provided for denaturalizations only in actions by United States attorneys in courts, nevertheless the saving clause in the statute implied that, by shifting the power of naturalization to the Attorney General, Congress also shifted to her jurisdiction, partially concurrent with district court jurisdiction, the power to denaturalize. Because the power to denaturalize is so important, and because it differs as a practical matter from the power to naturalize, we conclude that this silent and subtle implication is too weak to support this argument.

I.

The Attorney General argues that the naturalized citizens who have been issued notices of intent to revoke their naturalization lack standing to challenge her authority to issue the regulations, because the notice by itself does not affect their citizenship, and that there is no ripe case or controversy, because the plaintiffs had not completed the administrative proceedings when they filed their lawsuit. This case is not in the subjunctive. The new regulations have actually been invoked against the plaintiffs. They are not merely persons who might be affected if the procedures were invoked against them24. We conclude that, because these are individuals against whom proceedings are pending under the new regulations, and who would have to defend themselves effectively or lose their citizenship in the administrative proceedings were it not for the injunction that they have obtained, they have standing to challenge the authority of the Attorney General to promulgate the new regulations. The burden of being forced through a governmental administrative challenge to something as important as one's citizenship is sufficiently particularized and concrete to confer standing to challenge the Attorney General's authority to impose the administrative proceeding25.

For like reasons, there is an actual controversy regarding procedural injury that is ripe for adjudication. The government argues that the controversy is not ripe for adjudication until these...

To continue reading

Request your trial
70 cases
  • U.S. v. Rebelo
    • United States
    • U.S. District Court — District of New Jersey
    • March 2, 2005
    ...of Appeals for the Ninth Circuit subsequently declared the administrative denaturalization process invalid. See Gorbach v. Reno, 219 F.3d 1087 (9th Cir.2000) (en banc). Thereafter, as the Gorbach court observed, the Government could pursue denaturalization proceedings only by bringing an ac......
  • U.S. v. Nunez-Garcia
    • United States
    • U.S. District Court — Central District of California
    • May 20, 2003
    ...cherished right, citizenship once conferred should not be taken away without the clearest justificaton and proof. Gorbach v. Reno, 219 F.3d 1087, 1100 (9th Cir.2000) (en banc). To that end, the government must prove its case for denaturalization by "clear, unequivocal, and convincing eviden......
  • Gallarde v. I.N.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 11, 2007
    ...plainly was shifted by the 1990 [Act] from the courts to the [Immigration and Naturalization Service ("INS")]." Gorbach v. Reno, 219 F.3d 1087, 1089 (9th Cir.2000). The INS, exercising its newly acquired authority, promulgated 8 C.F.R. § 315.2. Therein, it adopted existing court recognized ......
  • Watada v. Head
    • United States
    • U.S. District Court — Western District of Washington
    • November 8, 2007
    ...Petitioner's requested relief; therefore, a preliminary injunction should issue. No bond will be required. See Gorbach v. Reno, 219 F.3d 1087, 1092 (9th Cir.2000). The Court has not received briefing from either Petitioner or Respondents, nor does the record clearly indicate how this decisi......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT