Nagahi v. Immigration & Naturalization Service

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 14 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GHOLAMREZA NAGAHI,

Plaintiff - Appellant,
vs. No. 98-4191

IMMIGRATION &
NATURALIZATION SERVICE,
District Director; MERYL E.
ROGERS, Officer in Charge,
Immigration and Naturalization
Service,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 95-CV-1006)

Sandra P. Saltrese-Miller, Boulder, Colorado, for Plaintiff - Appellant.

Michelle R. Slack (and David W. Ogden, Acting Assistant Attorney General and
Richard M. Evans, Assistant Director, with her on the briefs), U.S. Department of
Justice, Civil Division, Washington, D.C., for Defendants - Appellees.

Before KELLY and PORFILIO, Circuit Judges and ALLEY, * District Judge.

Honorable Wayne E. Alley, Senior District Judge, United States District
*

Court of the Western District of Oklahoma, sitting by designation.
KELLY, Circuit Judge.

This case requires us to determine whether an administrative agency

can create a limitations period affecting the ability of an Article III court to

review agency action, absent an express delegation of congressional authority.

We hold that it cannot, reverse, and remand the case for further proceedings on

the merits.

Background

Mr. Gholamreza Nagahi, a non-citizen resident, was arrested on April 29,

1985 in Salt Lake County, Utah, based on a five count indictment. Plaintiff pled

guilty to a lesser crime, a class B misdemeanor. He was sentenced to six months

imprisonment, but the sentence was suspended and plaintiff was placed on

probation. After probation was completed, the Utah district court entered an

order on March 10, 1987, vacating Mr. Nagahi’s plea and dismissing the matter

“in the interest of justice.” R. doc. 19, at 7. The court subsequently entered

three orders expunging all the related charges and convictions against plaintiff.

Id. at 8-10 (Expungement Orders, November 23, 1987).

On August 3, 1994, Mr. Nagahi applied to the Immigration and

Naturalization Service (“INS”) to become a naturalized citizen of the United

States. The INS has authority to naturalize an alien who has lawfully resided

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within the United States for at least five years, meets certain physical presence

requirements, and “during all the periods referred to in this subsection has been

and still is a person of good moral character.” 8 U.S.C. § 1427(a)(3).

In determining whether an applicant has good moral character, the INS is not

limited to conduct which occurred during the required five year residency period,

“but may take into consideration as a basis for such determination the applicant’s

conduct and acts at any time prior to that period.” 8 U.S.C. § 1427(e). A finding

of good moral character is conclusively prohibited for any person “who has given

false testimony for the purpose of obtaining” citizenship benefits. 8 U.S.C. §

1101(f)(6).

The Application for Naturalization form (N-400) which Mr. Nagahi filled

out asked several questions relating to character. In particular, Question 15(b)

asked: “Have you ever . . . been arrested, cited, charged, indicted, convicted,

fined or imprisoned for breaking or violating any law or ordinance excluding

traffic regulations?” Before answering this question, Mr. Nagahi consulted

various state officials to ask them how to respond to this question, given the

expungement of his criminal record. In response to this questioning, Mr. Walter

Ellett, the Chief Deputy District Attorney for Salt Lake County directed plaintiff

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to Utah Code Ann. §§ 77-18-10(6) and 77-18-13(3). 1
Relying upon the advice of

the state officials and the state statutes, plaintiff answered Question 15(b) “No.”

On November 9, 1994, Mr. Nagahi was examined by INS examiner Ralph

Hunt, pursuant to the requirements of 8 U.S.C. § 1446(a). Mr. Hunt repeatedly

referred to Question 15(b) and asked about plaintiff’s criminal record. Mr.

Nagahi replied in the negative the first two times this question was asked, but

explained the expungement and his conversation with the state officials when

asked a third time. Plaintiff was subsequently sent a “Notice of Intent to Deny”

letter, to which he timely responded. On January 17, 1995, the INS denied Mr.

Nagahi’s application based on two grounds: (a) under § 1427(e), plaintiff

committed a crime “contrary to moral and ethical standards of this community;”

and (b) under § 1101(f)(6), plaintiff gave false testimony both on his application

and during the interview regarding his criminal record. R. doc. 19, at 18-21.

Mr. Nagahi sought and received a further hearing before the INS on his

application. At an April 21, 1995 hearing, INS examiner Allen Spiers affirmed

the previous denial of naturalization. Examiner Spiers informed plaintiff that he

1
§ 77-18-10(6) was renumbered as 77-18-10(7) by 1996 amendment. That
section states: “A person who has received expungement of an arrest under this
section may respond to any inquiry as though the arrest did not occur, unless
provided otherwise by law.”
§ 77-18-13(3) reads: “Except as otherwise provided by law, a person
receiving expungement of a conviction under this section may respond to any
inquiry as though the conviction did not occur.”

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had 120 days within which to appeal this final decision to the United States

District Court. Mr. Nagahi retained counsel to help him with his application

appeal and informed her of the 120 day deadline. Counsel, however, decided to

pursue the appeal internally with the INS rather than taking the action to federal

court. All of these attempts proved futile, and culminated in a September 12,

1995 letter from the INS reiterating its denial of naturalization and denying

plaintiff’s request to reopen the proceedings. Counsel withdrew and Mr. Nagahi

filed a petition for review of the INS decision with the district court on

November 7, 1995. That court dismissed the petition as untimely and this appeal

followed.

Analysis

As part of the Immigration and Naturalization Act (INA), Congress

specifically granted jurisdictional authority to the federal district courts to review

the denial of an application for naturalization. INA § 310(c), codified at 8

U.S.C. § 1421(c). That section states:

A person whose application for naturalization under this
subchapter is denied, after a hearing before an
immigration officer under section 1447(a) of this Title,
may seek review of such denial before the United States
district court for the district in which such person
resides in accordance with chapter 7 of Title 5 [the
Administrative Procedures Act]. Such review shall be
de novo, and the court shall make its own findings of

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 fact and conclusions of law and shall, at the request of
the petitioner, conduct a hearing de novo on the
application.

8 U.S.C. § 1421(c). This grant of authority is unusual in its scope – rarely does a

district court review an agency decision de novo and make its own findings of

fact.

Title 8 of the U.S. Code does not specify a time within which such review

must be sought. On October 7, 1991, the INS promulgated 8 C.F.R. § 336.9(b).

See 56 Fed. Reg. 50,475, 50,499 (1991). That regulation provides in relevant

part:

(b) Filing a petition . Under [the procedures of part 310
of this chapter] an applicant shall file a petition for
review in the United States District Court having
jurisdiction over his or her place of residence, in
accordance with chapter 7 of title 5, United States Code,
within a period of not more than 120 days after the
Service’s final determination. . . .

8 C.F.R. § 336.9(b). The district court applied this regulation in finding that Mr.

Nagahi was time barred and further determined that equitable tolling was not

proper because he knew of the deadline but simply failed to comply with it.

On appeal, Mr. Nagahi argues that the 120 day time limit should not be

enforced because the INS was without authority to pass such a limit on judicial

review. He characterizes § 336.9(b) as jurisdictional and points to Castenada v.

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INS , 23 F.3d 1576, 1580 n.2 (10th Cir. 1994) in which we stated that only

Congress can limit the jurisdiction of the federal district courts. The INS agrees

that “if the time limit is jurisdictional, it is impermissible.” Aplee. Supp. Br. at

3. However, the agency asserts that § 336.9(b) is simply a “codified, fixed period

laches policy” which should be treated like a statute of limitations, i.e., subject to

waiver and equitable tolling. Id. at 4. 2

Despite the parties’ contentions to the contrary, the ultimate

characterization of § 336.9(b) as either jurisdictional or a statute of limitations is

not determinative in this case. The INS urges us to view its regulation with

substantial deference under the doctrine announced under Chevron, U.S.A. v.

Natural Resources Defense , 467 U.S. 837 (1984). However, it is axiomatic that

an agency cannot create regulations which are beyond the scope of its delegated

authority. “A precondition to deference under Chevron is a congressional

delegation of administrative authority.” Adams Fruit Co. v. Barrett , 494 U.S.

638, 649 (1990). Legislative authority can be delegated to an executive

department “so long as Congress provides [the] administrative agency with

standards guiding its actions such that a court could ascertain whether the will of

The INS, while at all times asserting that § 336.9(b) is not jurisdictional,
2

has varied in its characterization of that time limit. Section 336.9(b) has been
variously referred to as a statute of limitations, a “laches policy,” and at oral
argument, simply as a time for appellate filing.

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Congress has been obeyed.” Skinner v. Mid-America Pipeline Co. , 490 U.S. 212,

218 (1989) (citation and internal quotations omitted). Failure to specify definite

standards for agency action results in a violation of the constitutional principle of

separation of powers. See id.

The INS points to three sections of the INA as congressionally delegated

authority for the promulgation of § 336.9(b). The first is 8 U.S.C. § 1421(a)

which states: “The sole authority to naturalize persons as citizens of the United

States is conferred upon the Attorney General.” This provision says nothing

about limiting judicial review of agency decisions and must be read in

conjunction with the de novo review by the federal district courts provided in 8

U.S.C. § 1421(c). See generally Traynor v. Turnage , 485 U.S. 532, 542 (1988)

(discussing the “‘strong presumption that Congress intends judicial review of

administrative action’” (citation omitted)).

Second, 8 U.S.C. § 1103(a)(3) grants to the Attorney General the power to

“establish such regulations . . . and perform such other acts as he deems

necessary for carrying out his authority under the provisions of this chapter.”

The obvious scope of this grant is limited to acts which allow the Attorney

General to carry out her authority. A limitation upon judicial review of the

Attorney General’s acts simply does not fit within this delegation.

The INS’ third proffered source of authority, 8 U.S.C. § 1443(a), is

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similar.

The Attorney General shall make such rules and
regulations as may be necessary to carry into effect the
provisions of this part and is authorized to prescribe the
scope and nature of the examination of applicants for
naturalization as to their admissibility to citizenship.

While this delegation is a broad grant of authority, it does not extend to creating

limits upon judicial review. Two factors support this conclusion. First, the INS

admitted during oral argument that it was unaware of any regulation similar to §

336.9(b). Our review of the Code of Federal Regulations confirms that §

336.9(b) is the only administrative regulation which attempts to limit the time for

judicial review, absent an express statutory provision. Such an administratively

created limit subjecting a petitioner to procedural default is not favored in light

of § 1451(c)’s broad grant of de novo review. “[A] statutory grant of legislative

rulemaking authority will not, as a general matter, be understood to encompass

the power to promulgate [limits on judicial review] unless that power is conveyed

by Congress in express terms.” Bowen v. Georgetown Univ. Hosp. , 488 U.S.

204, 208 (1988) (stating this principle for retroactive rules which are also not

favored in the law).

Second, we are persuaded that the Supreme Court’s opinion in Adams Fruit

Co., Inc. v. Barrett , 494 U.S. 638 (1990) requires our resolution in this case.

Adams Fruit involved a challenge to administrative regulations promulgated

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under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29

U.S.C. § 1801 et seq . Section 504 of the AWPA provided a private right of

action to migrant farm workers who were injured because of failure to comply

with the AWPA’s motor vehicle safety provisions. By statute, Congress provided

the Secretary of the Department of Labor with regulatory authority to “prescribe

the standards required for the purposes of implementing this section.” 29 U.S.C.

§ 1841(d). Based upon this grant, the Secretary promulgated a regulation which

limited the federal right of action to cases in which state workers’ compensation

laws did not apply to cover migrant workers. Adams Fruit , 494 U.S. at 649

(citing 29 C.F.R. § 500.122(b) (1989)).

The Supreme Court found that this regulation was not due any deference

because it fell outside of the delegated authority granted by Congress.

Congress clearly envisioned, indeed expressly
mandated, a role for the Department of Labor in
administering the statute by requiring the Secretary to
promulgate standards implementing the AWPA’s motor
vehicle provisions. § 1841(d). This delegation,
however, does not empower the Secretary to regulate the
scope of the judicial power vested by the statute .
Although agency determinations within the scope of
delegated authority are entitled to deference, it is
fundamental “that an agency may not bootstrap itself
into an area in which it has no jurisdiction.”

Id. at 650 (emphasis added and citation omitted).

That is exactly the situation in the present case. Nowhere in its delegation

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to the INS did Congress grant the power “to regulate the scope of the judicial

power vested by the statute.” Yet this is exactly the effect of § 336.9(b).

Whether it is called jurisdictional, a statute of limitations, a laches period, or a

time in which to appeal, its fundamental purpose is to limit the ability of the

federal district courts to review denials of naturalization. As such, it is beyond

the authority delegated to the INS and will not be applied. 3

In the absence of a specific statutory limitations period, a civil action

against the United States under the APA is subject to the six year limitations

period found in 28 U.S.C. § 2401(a). See Chemical Weapons Working Group,

Inc. v. U.S. Dep’t of the Army , 111 F.3d 1485, 1494-95 (10th Cir. 1997); see

also Sierra Club v. Penfold , 857 F.2d 1307, 1315 (9th Cir. 1988); Smith v.

Marsh , 787 F.2d 510, 512 (10th Cir. 1986). Mr. Nagahi’s petition was filed in

the district court less than half a year after the INS’ final denial of his application

for naturalization. Therefore, it was timely and the district court erred in finding

it time barred under 8 C.F.R. § 336.9(b).

3
The reliance of the INS on District Lodge 64 v. NLRB, 949 F.2d 441 (D.C.
Cir. 1991) is inapposite in this case. In District Lodge, the D.C. Circuit upheld a
decision of the NLRB to create a six month fixed period of limitations on the
reinstatement of dismissed charges. However, this six month period only affected
the ability of a person to pursue administrative, rather than judicial, remedies.
See id. at 444-45; see also United Mine Workers v. Kleppe, 561 F.2d 1258, 1260-
62 (7th Cir. 1977) (upholding agency’s prescribed “time period for the filing of
claims solely for use in its own administrative proceedings.”).

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 REVERSED and REMANDED for further proceedings consistent with this

opinion.

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