McKenzie v. U.S. Citizenship & Immigration Servs.

• Decision Date: 01 August 2014
• Docket Number: No. 13–6020.,13–6020.
• Citation: 761 F.3d 1149
• Parties: Ernest John McKENZIE, M.D., Petitioner–Appellant, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

761 F.3d 1149

Ernest John McKENZIE, M.D., Petitioner–Appellant,

v.U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, Respondent–Appellee.

No. 13–6020.

United States Court of Appeals,Tenth Circuit.

Aug. 1, 2014.

Michelle L. Edstrom of the Law Office of Michelle L. Edstrom, Oklahoma City, OK, 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 General, Civil Division, and David J. Kline, Director, Office of Immigration Litigation, District Court Section, with him on the brief), Washington, D.C., for Respondent–Appellee.

Before HARTZ, HOLLOWAY,^* and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

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 With limited exceptions not applicable here, Congress has withdrawn jurisdiction over naturalizations from the district courts.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. See8 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. See8 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 also8 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, seeImmigration 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

Dr. McKenzie became aware as an adult that his original Canadian birth certificate listed the date of his baptism as the date of his birth. Initially, Canada was averse to correcting the birth certificate because his baptismal records had been destroyed in a fire. When Dr. McKenzie applied for naturalization as a United States citizen, he had only his original birth certificate. Therefore, his United States Certificate of Naturalization, issued by the Commissioner of Immigration and Naturalization in February 2004, reflected the incorrect birth date. In 2008, Canada corrected his birth certificate to reflect his true date of birth.

In January 2011, relying on his corrected Canadian birth certificate, Dr. McKenzie filed with USCIS a Form N–565 application for a replacement naturalization certificate. USCIS denied the application. Citing 8 C.F.R. § 338.5(e), which provides that a “correction will not be deemed to be justified where the naturalized person later alleges that the ... date of birth which the applicant stated to be his ... correct ... date of birth at the time of naturalization was not in fact his ... date of birth,” USCIS stated that it had “no authority to issue a replacement certificate for a date of birth that was established at the time of naturalization,” Aplt. App. at 26.

On September 30, 2011, Dr. McKenzie filed in the district court his Petition to Amend Certificate of Naturalization. He recognized that the regulations permitted USCIS to amend naturalization certificates only in cases of clerical error, but he argued that 8 C.F.R. § 334.16(b) (2011) gave broader power to courts by providing that “a federal court with jurisdiction over the applicant's naturalization proceeding has the authority to order that an amendment be made to the applicant's Certificate of Naturalization.” Aplt. App. at 5.

USCIS moved to dismiss the petition under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction, arguing that § 334.16(b), as a regulation, could not by itself confer subject-matter jurisdiction on the district court. Alternatively, it moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. It argued that § 334.16(b) applied only to judicial naturalizations, not naturalizations like Dr. McKenzie's that occurred after the Immigration Act's changes to the naturalization process; and it said that Dr. McKenzie could not rely on the Administrative Procedure Act (APA) for review of USCIS's denial of relief under 8 C.F.R. § 338.5 because that regulation permits only corrections of clerical errors. (In response, Dr. McKenzie disclaimed any intent to proceed under the APA.)

Agreeing with USCIS, the district court dismissed the case. It held (1) that “§ 334.16(b) alone can not confer subject matter jurisdiction on this Court,” Aplt. App. at 59; and (2) that even if § 334.16(b) could confer subject-matter jurisdiction, it did not apply to naturalizations that occurred after naturalization authority was transferred to the Attorney General. Dr. McKenzie now appeals to this court.

III. Analysis

We review a Rule 12(b)(1) dismissal de novo. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir.2008). “Because the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” Id. (internal quotation marks omitted).

Before the district court, Dr. McKenzie rested his claim of subject-matter jurisdiction solely on § 334.16(b) and 28 U.S.C. § 1331 (granting federal-question jurisdiction). On appeal, however, he argues that there are two additional bases for his claim. His opening brief not only cites § 334.16(b), but also urges us to conclude that there is ...