Brown v. Holder

• Decision Date: 18 August 2014
• Docket Number: No. 11–71458.,11–71458.
• Citation: 763 F.3d 1141
• Parties: Mark Cyril BROWN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1141

Mark Cyril BROWN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–71458.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 7, 2014.

Filed Aug. 18, 2014.

Craig Varnen, Khaldoun Shobaki, and Michael Behrens (argued), Irell & Manella LLP, Los Angeles, CA, 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.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035–104–809.

Before: FORTUNATO P. BENAVIDES,^*RICHARD C. TALLMAN, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

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.

I. Background

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.¹ 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 N400 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 government argues that Brown is misinterpreting these entries.

In January 2002, the INS sent to Brown's lawyer a decision letter relating to Brown's application for a certificate of citizenship filed on a form N–604 in April 1983.² The letter said that his application had been denied because he turned eighteen before both his parents were naturalized.

At some undetermined time, the INS placed Brown in removal proceedings, apparently based on some criminal misconduct by Brown. In November 2002, Brown obtained a waiver of inadmissibility under former INA § 212(c), 8 U.S.C. § 1182(c) (1994). The crime that prompted the removal proceedings is not identified in the order granting the waiver, but the administrative record in this case shows that Brown pled guilty to misdemeanor possession of methamphetamine in violation of California Health and Safety Code § 11377(a) in April 1996.

Brown's criminal record lengthened after that. He pled guilty in August 1997 to being under the influence of a controlled substance in violation of Health and Safety Code § 11550(a). In August 2003, Brown was convicted of criminal threats in violation of California Penal Code § 422 and was ultimately sentenced to 16 months in prison. In October 2004, Brown was convicted of vandalism in violation of Penal Code § 594(b)(1) and was sentenced to 2 years and 8 months in prison. In September 2008, Brown was convicted of felony possession of methamphetamine in violation of Health and Safety Code § 11377(a) and was sentenced to another 2 years 8 months in prison.

In March 2010, the Department of Homeland Security (“DHS”) issued Brown a Notice To Appear, stating that he was removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he was an alien convicted of possession of a controlled substance. In April 2010, the DHS charged that Brown was also deportable because he had committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), by making the criminal threats, and because he had committedtwo crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), by making criminal threats and committing vandalism.

Brown filed an application for asylum and withholding of removal in July 2010. In the hearing before the IJ, Brown argued that he was not removable because he was a citizen and that the government should be estopped from denying his citizenship. The IJ ruled that Brown had the burden of rebutting the presumption that he was an alien, because he was born outside the United States, and that he had not done so. The IJ also ruled that he did not have power to rule on the estoppel claim and that such a claim should be addressed to a federal district court.

The IJ sustained the government's charge that Brown was removable because of his drug-related conviction and his aggravated felony. The IJ found that Brown was not eligible for asylum because he had committed an aggravated felony. Brown then withdrew his application for asylum and “related relief” and accepted an order of removal to India. He waived appeal. The IJ entered an order of deportation in February 2011. Brown, proceeding pro se, and despite his statement to the IJ waiving appeal, filed a notice of appeal but did not file a brief to the BIA. In April 2011, the BIA dismissed the appeal because Brown had not argued that his waiver of appeal was not knowing and intelligent. Brown filed a timely petition for review.

II. Discussion

We deal first with our jurisdiction to review Brown's petition and then move to the merits of his citizenship claim.

A. The order of removal

A petitioner may not challenge an order of removal unless he has exhausted his challenge before the BIA. 8 U.S.C. § 1252(d)(1). If the petitioner has not exhausted his challenge at the agency level, we are without jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004).

Brown argues to us that his waiver of appeal before the IJ was not knowing and intelligent. See United States v. Pallares–Galan, 359 F.3d 1088, 1097–98 (9th Cir.2004). On appeal to the BIA, however, Brown did not claim that the waiver was not knowing and voluntary, and therefore we may not review this claim. Barron, 358 F.3d at 677. We should conclude that his waiver was knowing and voluntary in any event. The IJ fully informed Brown of the consequences of accepting an order of removal, Brown's attorney warned him against waiving his right to appeal, and the IJ confirmed the waiver with both Brown and his attorney. Although Brown now claims that he only accepted the order of removal in order to expedite this court's hearing of his citizenship claim, see Perdomo–Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir.2003), that would not render his waiver unknowing or involuntary.

B. Brown's citizenship claim

Brown's main claim is that he is or should be deemed to be a U.S. citizen. As noted previously, Brown did not raise this issue before the BIA. Lack of exhaustion, however, does...