Gorbach v. Reno

THOMAS, Circuit Judge,

with whom Judges BROWNING, T.G. NELSON, HAWKINS, and TASHIMA join, concurring:

I agree that the preliminary injunction should be affirmed. I write separately because I believe that when we review an administrative agency’s construction of the statute it administers, the proper analytical framework is dictated by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), as recently explained in Food and Drug Administration v. Brown & Williamson Tobacco Corp., — U.S. -, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Applying that examination to the issues in this case, I conclude that Congress has unambiguously expressed its statutory intent. Therefore, there is no need to determine whether the agency’s construction is reasonable.

Under Chevron, we must consider first “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. “If Congress has done so, the inquiry is at an end; the court ‘must give effect to the unambiguously expressed intent of Congress.’ ” Brown & Williamson, — U.S. at -, 120 S.Ct. at 1300 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778).

In making that assessment, we look not only at the precise statutory section in question, but analyze the provision in the context of the governing statute as a whole, presuming congressional intent to create a “symmetrical and coherent regulatory scheme.” Id. at 1301 (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). Finally, “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” Id. If, after conducting such an analysis, we conclude that Congress has not addressed the issue, we “must respect the agency’s construction of the statute so long as it is permissible.” Id. at 1300 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). The guidance of Brown & Williamson is especially important in this appeal, because understanding the history of denaturalization procedure is vital to placing the present statute in appropriate context.

Until the early 1900s, there was no statutory method of denaturalization. In response to reports of widespread abuse in the naturalization process, President Theodore Roosevelt appointed a commission to investigate the system and make recommendations. See Bindczyck v. Finucane, 342 U.S. 76, 79-80, 72 S.Ct. 130, 96 L.Ed. 100 (1951). Congress responded to the commission’s report with the Act of June 29, 1906, 34 Stat. 596 (“1906 Act”). See id. Among the reforms included in the 1906 *1100Act was the provision for courts to cancel certificates of naturalization that were fraudulently or illegally procured. See 1906 Act, § 15, 34 Stat. 601. The 1906 Act instituted the judicial denaturalization procedure that remains substantially intact to this day: the appropriate United States Attorney files a civil complaint “upon affidavit showing good cause therefor.” See 8 U.S.C. § 1451(b). The usual rules of civil discovery apply and the case is tried before the court sitting in equity. See 7 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 96.11[4][b] (1998).

After passage of the 1906 Act, courts apparently entered civil denaturalization judgments with some frequency on a variety of grounds using a relatively low threshold of proof. See id. at § 96.09. However, in 1943, the Supreme Court altered that analysis by holding that citizenship “once conferred should not be taken away without the clearest sort of justification and proof.” Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). Accordingly, the Court imposed a “clear, unequivocal, and convincing” burden of proof on the government in statutory denaturalization cases. Id. at 125, 63 S.Ct. 1333 (quoting United States v. Maxwell Land-Grant Co., 121 U.S. 325, 381, 7 S.Ct. 1015, 30 L.Ed. 949 (1887)).

Denaturalization through this statutory civil process continued into the early 1950’s when the government attempted denatu-ralization through motions to set aside naturalization orders issued by courts. In Bindczyck, the Supreme Court considered these non-statutory methods of denatural-ization. After a thorough review of the legislative history and structure of the statute, the Court concluded that the statutory civil denaturalization proceeding was “the exclusive procedure for canceling citizenship on the score of fraudulent or illegal procurement based on evidence outside the record.” 342 U.S. at 79, 72 S.Ct. 130. Once naturalization was granted, the Court held, it was “proof against attacks for fraud or illegal procurement based on evidence outside the record, except through the proceedings prescribed in § 15.” Id. at 84, 72 S.Ct. 130. Thus, the Court held that the non-statutory methods of denatu-ralization were prohibited by the statute; indeed, the Court concluded that the legislative history “reveals a specific purpose to deprive the naturalizing court as such of power to revoke.” Id. at 83, 72 S.Ct. 130.

After Bindczyck was decided, Congress amended the section in the Immigration and Nationality Act of 1952, 66 Stat. 163, to protect the power of the courts to modify their own judgments by adding a saving clause, INA § 340(j):

Nothing 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.

66 Stat. 163, 262.

This subsection was interpreted by the Supreme Court as abrogating “the specific holding” in Bindczyck that the statutory denaturalization procedure of § 340(a) (the reeodifieation of § 15) “overrode local rules concerning limitations upon the power of state courts to reopen their judgments.” United States v. Zucca, 351 U.S. 91, 95 n. 8, 76 S.Ct. 671, 100 L.Ed. 964 (1956). However, as to whether'§ 340(a) proceedings were “the exclusive method for denaturalization,” the Court noted, “[t]he underlying philosophy of Bindczyck remains intact.” Id.

Thus, between 1952 and 1990, there were two methods for revocation of naturalization orders: (a) the plenary § 340(a) proceeding; and (b) a motion brought pursuant to the power of courts to reopen and vacate judgments, subject to any generally applicable statutory or procedural limits *1101on that power. The latter mechanism was the one preserved by the 1952 addition of the § 340(j) saving clause.

This statutory scheme, and construction, remained intact until the passage of the Immigration Act of 1990 (“1990 Act”). The 1990 Act retained § 340(a), but repealed the saving clause at § 340(j)(redes-ignated § 340(i) in 1988). No new denatu-ralization power or procedure was created. Thus, denaturalization procedure reverted to its pre-1952 state. See United States v. Philbrick, 120 U.S. 52, 57-58, 7 S.Ct. 413, 30 L.Ed. 559 (1887). Under pre-1952 law, of course, as construed in Bindczyck and Zueca, the exclusive method of denatural-ization was a § 340(a) proceeding.

The only new wrinkle, obviously, in the 1990 Act was the insertion of a different saving clause which provided that “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).

As Judge Kleinfeld has demonstrated, the new saving clause must be narrowly construed and interpreted in light of the regulatory scheme established by federal law. See United States v. Locke, — U.S. -, --, 120 S.Ct. 1135, 1146-47, 146 L.Ed.2d 69 (2000). The 1990 Act does not expressly create any new denaturalization power or procedure, and its structure militates against implying one. The new saving clause was included in a section of the bill labeled “Conforming Amendments” under a subsection “Substituting Appropriate Administrative Authority for Naturalization Court.” Congressional designation of an amendment as a “conforming amendment” evidences legislative intent that the amendment should be read as non-substantive. See Springdale Memorial Hosp. Ass’n, Inc. v. Bowen, 818 F.2d 1377, 1386 n. 9 (8th Cir.1987) (citing CBS, Inc. v. FCC, 453 U.S. 367, 381-82, 101 S.Ct. 2813, 69 L.Ed.2d 706 (1981)). Certainly, creating expansive new authority could hardly be characterized as a “conforming” amendment. Cf. United States v. Miguel, 49 F.3d 505, 510 (9th Cir.1995); United States v. Koyomejian, 970 F.2d 536, 541 (9th Cir.1992).

Implying a new denaturalization power from the saving clause would be also inconsistent with the history and structure of immigration law. Under Bindczyck’s construction, unaltered by the 1990 Act, a § 340 proceeding is the “self-contained, exclusive” method of denaturalization. Because exclusive jurisdiction over a § 340 proceeding is vested in the courts, that power could not have been transferred to the Attorney General by the new saving clause.1

Finally, the statute separately defines the Attorney General’s remedy in the event of illegal or fraudulent procurement to cancellation of the naturalization certificate. See 8 U.S.C. § 1453. However, that section specifically provides that the cancellation affects “only the document and not the citizenship status of the person in whose name the document was issued.” Id. In sum, the Attorney General’s construction of § 340(h) as conferring new denaturalization power “placed more weight on the saving clauses than those provisions can bear.” Locke, — U.S. at -, 120 S.Ct. at 1146.

So what is the effect of the new saving clause? The original saving clause was inserted to protect what Congress perceived as the pre-existing power of courts over their own judgments. Thus, to the extent the new saving clause has any meaning, it must be to preserve the pre*1102existing general authority of an agency to modify its own issued order.

As the panel majority properly noted, “[ejvery tribunal, judicial or administrative, has some power to correct its own errors or otherwise appropriately to modify its judgment, decree, or error.” Gorbach v. Reno, 179 F.3d 1111, 1120-21 (9th Cir.1999) (quoting Alberta Gas Chemicals, Ltd. v. Celanese Corp., 650 F.2d 9, 13 (2d Cir.1981)) (alteration in original). In the administrative context, this right is generally limited to “a short period after the making of the decision and before an appeal has been taken or other rights vested.” Aubre v. United States, 40 Fed. Cl. 371, 376 (Fed.Cl.1998) (quoting Dayley v. United States, 169 Ct.Cl. 305, 308 (1965)). Thus, an agency retains a general authority to modify its decisions for a brief period beginning prior to issuance of the decision, see PLMRS Narrowband Corp. v. F.C.C., 182 F.3d 995, 1001-02 (D.C.Cir.1999), and ending when the time for judicial review expires, see Pan American Petroleum Corp. v. Federal Power Comm’n., 322 F.2d 999, 1004 (D.C.Cir.1963).

Prior to the time citizenship is conferred,2 the Attorney General has some limited power to modify or vacate her naturalization decision. See 8 U.S.C. § 1451(h). The INS has the power to correct clerical errors on its own initiative; however, substantive amendments affecting the merits are not authorized. See 8 C.F.R. § 334.5. The INS may reopen an approved application before the oath of allegiance is administered if the INS has received potentially disqualifying information about the applicant. See 8 C.F.R. § 335.5. In such an event, the applicant is given notice and an opportunity to address the concerns. See id. It is these pre-naturalization powers to “correct, reopen, alter, modify, or vacate an order naturalizing the person” and post-naturalization power to correct clerical errors that are “saved” by § 340(h). This construction of the saving clause is consistent with both general administrative law principles and the regulatory scheme created by the 1990 Act.

Post-citizenship denaturalization is an entirely different matter. Administrative power to reconsider must be exercised within the authority granted by the governing statute.3 See Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 786 (3d Cir.1987). Agencies may not “expand their powers of reconsideration without a solid foundation in the language of the statute.” Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 334, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961). Under the naturalization laws, once citizenship has been granted, it is “proof against attacks for fraud or illegal procurement based on evidence outside the record, except through [a § 340(a) proceeding].” Bindczyck, 342 U.S. at 84, 72 S.Ct. 130. Thus, once the Attorney General has granted citizenship, she has no residual right under the statute to revoke it. Rather, post-naturalization citizenship revoca*1103tion remedies are limited under the statute to the “exclusive, self-contained” § 340(a) proceeding. The Attorney General simply does not have the authority under the statute to fashion a new post-naturalization revocation remedy out of whole cloth.

The text, structure, and history of the 1990 Act and its predecessors clearly demonstrate that a § 340(a) proceeding is the exclusive post-naturalization means of revoking citizenship. Because Congress has directly spoken on this issue, our inquiry under Broim & Williamson is concluded; we need not further examine whether the agency’s statutory construction is permissible.

For these reasons, I concur in the affir-mance of the preliminary injunction.

. In addition, under Schneiderman the “clear, unequivocal, and convincing” burden of proof is on the government in a § 340 proceeding. It would be consistent with the Supreme Court’s construction of the statute at hand to interprel the 1990 Act's saving clause as creating a new denaturalization process requiring only "credible and probative” evidence to be tendered. See 8 C.F.R. § 340.1.

. The 1990 Act transferred the power of naturalization from the courts to the Attorney General. See 8 U.S.C. § 1421(a). Under the current procedure, the alien files an application for naturalization with the INS. See 8 U.S.C. § 1445. The INS then conducts an investigation, examines the applicant and decides whether to grant or deny the naturalization application. See 8 U.S.C. § 1446. Before being admitted to citizenship, the applicant must take an oath of allegiance, see 8 U.S.C. § 1448, either before the Attorney General or a court of competent jurisdiction, depending on the circumstances, see 8 U.S.C. § 1421(b). Citizenship is conferred as of the date the oath is taken. See 8 C.F.R. § 338.1(a). After admission to citizenship, a person is entitled to receive from the Attorney General a certificate of naturalization. See 8 U.S.C. § 1449. As previously noted, the Attorney General has the power to cancel the certificate if it has been illegally or fraudulently procured, but such cancellation does not affect citizenship status. See 8 U.S.C. § 1453.

. The panel majority provided a number of examples of agencies who have provided for administrative reopening of decisions under their statutory authority. See Gorbach, 179 F.3d at 1124.