761 F.3d 1149 (10th Cir. 2014), 13-6020, McKenzie v. United States Citizenship & Immigration Servs., Dist. Dir.
|Citation:||761 F.3d 1149|
|Opinion Judge:||HARTZ, Circuit Judge.|
|Party Name:||ERNEST JOHN MCKENZIE, M.D., Petitioner-Appellant, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, Respondent-Appellee|
|Attorney:||Michelle L. Edstrom of the Law Office of Michelle L. Edstrom, Oklahoma City, Oklahoma, for Petitioner-Appellant. Jeffrey S. Robins, Assistant Director, Office of Immigration Litigation, District Court Section, U.S. Department of Justice, Civil Division (Stuart F. Delery, Acting Assistant Attorney...|
|Judge Panel:||Before HARTZ, HOLLOWAY,[*] and HOLMES, Circuit Judges.|
|Case Date:||August 01, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 5:11-CV-01106-M).
For much of his life, Ernest John McKenzie's Canadian birth certificate listed the wrong birth date. Because he used that birth certificate to become a naturalized United States citizen, his United States Certificate of Naturalization also listed the wrong birth date. After he was naturalized, he got his birth certificate corrected; now his problem is getting his naturalization certificate amended so that his paperwork is all in accord. Relying on 8 C.F.R. § 334.16(b) (2011) to establish the district court's jurisdiction, he filed this action requesting that the district court order United States Citizenship and Immigration Services (USCIS) to issue a naturalization certificate with his correct date of birth. The request seems fair and simple enough, but we cannot help him. With limited exceptions not applicable here, Congress has withdrawn jurisdiction over naturalizations from the district courts. In addition, the district court lacked jurisdiction because Dr. McKenzie's invocation of § 334.16(b) is not a colorable claim. We therefore affirm the district court's dismissal of this action under Fed.R.Civ.P. 12(b)(1).
I. Legal Background
Before passage of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (the Immigration Act or the Act), the federal district courts had jurisdiction to naturalize a person as a citizen of the United States. See 8 U.S.C. § 1421(a) (1990). The district courts also had jurisdiction to revoke their orders granting citizenship and to cancel certificates of naturalization on limited grounds. See id. § 1451 (1990). A subsection of the revocation statute recognized that courts could exercise authority otherwise granted them (such as by Fed.R.Civ.P. 60) to correct or modify their judgments granting naturalization:
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 . . . within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action.
Id. § 1451(i) (1990). This judicial authority presumably would have to be derivative of the power conferred by § 1421 to issue the judgment or decree in the first place. In furtherance of the statutory scheme, 8 C.F.R. § 334.16(b) (1990) provided that the Immigration and Naturalization Service would receive notice of judicial proceedings to revise naturalization papers:
Whenever an application is made to the court to amend a petition or application for naturalization after final action thereon has been taken by the court, a copy of the application shall be served upon the district director having administrative jurisdiction over the territory in which the court is located, in the manner and within the time provided by the rules of court in which application is made. No objection shall be made to the amendment of a petition for naturalization after the petitioner for naturalization has been admitted to citizenship
if the motion or application is to correct a clerical error arising from oversight or omission. A representative of the Service may appear at the hearing upon such application and be heard in favor of or in opposition thereto. When the court orders the petition amended, the clerk of court shall transmit a copy of the order to the district director for inclusion in the Service file.
The Immigration Act, however, amended § 1421(a) to transfer authority over naturalization from the judiciary to the Attorney General. See Immigration Act, Title IV, sec. 401(a), § 310(a), 104 Stat. at 5038. Through delegation, the Attorney General's authority over naturalization now is exercised by USCIS. See 8 C.F.R. § § 2.1, 310.1(b); 6 U.S.C. § 271(b)(2). The Act declares that " [n]o court shall have jurisdiction, under [repealed § 1421(a)], to naturalize a person unless a petition for naturalization with respect to that person has been filed with the court before October 1, 1991." Immigration Act, Title IV, § 408(a)(1), 104 Stat. at 5047; see also 8 C.F.R. § 310.4. The limited federal judicial power under § 1451 to revoke and cancel naturalization is retained under the Act. But § 1451(i) (now § 1451(h)) was amended to state that the section does not limit the power of the Attorney General (rather than the courts) " to correct, reopen, alter, modify, or vacate an order naturalizing the person." Immigration Act, Title IV, § 407(d)(18)(D), 104 Stat. at 5046.
Despite the statutory change, the only amendment (probably just a nomenclature correction) to 8 C.F.R. § 334.16(b), the regulation addressing judicial modifications to petitions for naturalization, was to replace the references to " a petition or application for naturalization" by " a petition for naturalization." Administrative Naturalization, 56 Fed. Reg. 50475, 50496 (Oct. 7, 1991). The regulation remained in place for another two decades (presumably because there might still be cases where persons naturalized in federal court would seek to amend their naturalization documents) until it was repealed effective November 28, 2011, see Immigration Benefits Business Transformation, Increment I, 76 Fed. Reg. 53764, 53764, 53801 (Aug. 29, 2011), after Dr. McKenzie filed this action. As for administrative relief, 8 C.F.R. § 338.5 permits corrections for clerical errors.1
II. Factual and Procedural Background
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