Gorbach, et al. v. Reno, et al: 9th Circuit Upholds Challenge to INS Administrative Denaturalization Procedure

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

GORBACH, ET AL. V. RENO, ET AL: 9TH CIRCUIT UPHOLDS CHALLENGE TO INS ADMINISTRATIVE DENATURALIZATION PROCEDURE
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The U.S. Court of Appeals for the Ninth Circuit has issued a unanimous en banc decision upholding a nationwide injunction on regulations of the Immigration and Naturalization Service that purport to authorize the agency to reopen naturalization cases and revoke citizenship. The ruling was made in a lawsuit brought by ten naturalized citizens on behalf of a nationwide class (see "Lawsuit Challenges INS Administrative Denaturalization Procedures," Immigrants' Rights Update, Mar. 24, 1998, p. 6).

In 1990 Congress transferred final authority for naturalization from the federal courts to the INS. But in doing so, Congress did not amend section 340(a) of the Immigration and Nationality Act, which provides a procedure for federal courts to denaturalize individuals who obtained citizenship through fraud or misrepresentation.

In 1996 the INS issued regulations that allow the agency to issue a Notice of Intent to Revoke naturalization within two years of a grant of naturalization. The regulations require citizens who are served with this notice to submit a response within 60 days or else be subject to automatically losing their citizenship. The regulations also put the burden of proof on the citizen to show why he or she should not be denaturalized. Representing the first time in U.S. history that naturalized citizens could have their citizenship revoked in an administrative, as opposed to a judicial, proceeding, the regulations practically obviated the judicial denaturalization provisions of INA section 340(a). Denaturalization under this provision requires a formal proceeding in federal court in which the government bears a heavy burden of proof.

Following the 1996 elections, unsubstantiated allegations were made that the INS had improperly naturalized a large number of immigrants for political reasons. In response, the INS conducted a review of all naturalization applications granted from August 1995 to September 1996; the review was supervised and validated by the independent accounting firm of KMPG Peat Marwick. As a result of the review, the INS announced that it had identified 6,323 cases in which the agency was considering initiating administrative denaturalization proceedings. Only 369 of these cases concerned persons with criminal convictions that could have barred them from being naturalized. The other cases—94 percent of the total—mostly concerned individuals whose records revealed that they had at some time in the past either been arrested or convicted for a minor offense.

In the summer of 1997, the INS began serving notices on naturalized citizens pursuant to the regulations. As of June 18, 1998, the INS had reviewed 3,968 of the cases and had issued notices of intent to revoke naturalization in 2,507 of them.

The plaintiffs in the lawsuit are all citizens who were served with notices of intent to revoke. They contended that the INS regulations for administrative denaturalization proceedings violate due process and the Administrative Procedures Act. They also argued that the procedures violate the INA because they exceed the authority of the statute. In July 1998 the district court issued a nationwide preliminary injunction, finding that the plaintiffs' claim as to the regulations' exceeding statutory authority raised a substantial question and that the plaintiffs would be irreparably harmed were the court not to issue an injunction. Because the court found that the plaintiffs had raised a substantial question with their statutory claim, it found no need to address their other claims.

The INS appealed and in June 1999 a three-judge panel reversed the district court, with one judge strongly dissenting (see "9th Circuit Overturns Injunction of INS Administrative Denaturalization Proceedings," Immigrants' Rights Update, June 30, 1999, p. 9). Subsequently, the Ninth Circuit granted en banc review and vacated the panel decision. The case was argued and submitted to an en banc panel of 11 judges on Mar. 23, 2000, and this decision followed.

While the appeal technically concerned only the propriety of a preliminary injunction, only questions of law were at issue. Thus, in the interest of judicial economy, the court addressed the legal issues on the merits. The principal issue before the court was whether the power to denaturalize is inherent in the power to grant naturalization. The INS did not contend that the statute governing naturalization expressly authorizes administrative denaturalization, but rather argued that the power to reopen and denaturalize is inherent in the power to naturalize.

Examining the statute, the court found that not only does none of its provisions grant the INS the power to denaturalize but it also expressly withholds this power in INA section 342. That section authorizes the attorney general to cancel improperly issued certificates of citizenship but prohibits the attorney general from affecting the citizenship status of the person whose certificate is cancelled.

The court rejected the INS's argument that the savings clause of INA section 340(h) implies that Congress intended to give the agency the power to revoke citizenship. "Because the power to denaturalize is so important, and because it differs as a practical matter from the power to naturalize, we conclude that this silent and subtle implication is too weak to support this argument." Moreover, the court noted, "the formula the government urges, that what one can do, one can undo, is sometimes true, sometimes not. A person can give a gift, but cannot take it back. A minister, priest, or rabbi can marry people, but cannot grant divorces and annulments for civil purposes. A jury can acquit, but cannot revoke its acquittal and convict."

The court also noted that historically both Congress and the Supreme Court have been sensitive to the risk that the power to denaturalize may be improperly politicized. This is one of the reasons that the Court has narrowly interpreted the denaturalization statute to avoid delegation of power beyond the federal courts in the absence of a clear and unambiguous expression by Congress that such delegation is authorized. Noting the historical importance given to citizenship, the court stated that "an executive department cannot simply decide, without express statutory authorization, to create an internal executive procedure to deprive people of [the] rights [of citizenship] without even going to court."

The majority opinion found no obligation to defer to the agency's interpretation of the statute because no statutory authorization was at issue. Rather, the case focused solely on deciding whether the purely legal claim that the power to grant naturalization includes the power to revoke it. In a concurring opinion in which four other judges joined, Judge Thomas found that under traditional principles of deference to agency interpretation, the statute is unambiguous in nowhere authorizing administrative denaturalization such that no further analysis is necessary.

Counsel for the plaintiffs include the law firm of Hogan and Hartson, Washington, D.C.; the law firm of Perkins Coie, Seattle, WA; attorney Robert Gibbs, Seattle, WA; attorney Daniel Levy, Los Angeles, CA, and NILC. Also of counsel are the Immigrant Legal Resource Center and One-Stop Immigration and Education Center, Inc.

Gorbach, et al. v. Reno, et al., __ F.3d __, 2000 U.S. App. LEXIS 17372 (9th Cir. Jul. 20, 2000).