Mark Brown v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK CYRIL BROWN, No. 11-71458

Petitioner,

Agency No.

v. A035-104-809

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 7, 2014—San Francisco, California

Filed August 18, 2014

Before: Fortunato P. Benavides,* Richard C. Tallman,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Concurrence by Judge Tallman

*

The Honorable Fortunato P. Benavides, Senior Circuit Judge for the

U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

2 BROWN V. HOLDER

SUMMARY**

Immigration

The panel denied for lack of jurisdiction Mark Brown’s

challenge to the Board of Immigration Appeals’ removal

order, but transferred his claim that he is a United States

citizen to the district court for evidentiary findings.

The panel held that it had jurisdiction to review Brown’s

non-frivolous citizenship claim, even though he waived his

administrative appeals challenging his order of removal. The

panel held that Brown may be able to establish citizenship if

he can show that the Immigration and Naturalization

Service’s mishandling of naturalization applications by

Brown and his mother resulted in a violation of his due

process rights. The panel held that to establish a due process

violation Brown must either show that the INS arbitrarily and

intentionally obstructed his application or that the

government was deliberately indifferent to whether his

application was processed. The panel transferred the case to

the district court for evidentiary findings on genuine disputed

issues of material fact concerning Brown’s nationality, and

stated that if the district court finds that the INS acted

unconstitutionally, it could order the agency to grant Brown

citizenship as a remedy.

The panel also held that pledging an oath of allegiance in

or after an interview with an INS officer as part of the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. HOLDER 3

naturalization process does not satisfy the “public ceremony”

requirement of 8 U.S.C. § 1448(a).

Judge Tallman concurred in part, agreeing that Brown

presented a genuine issue regarding his nationality and that

transfer to the district court for a new hearing and decision on

the claim is the appropriate remedy. Judge Tallman would

not find, however, that Brown has a constitutionally protected

right to apply for citizenship. Judge Tallman wrote that the

Supreme Court has merely assumed, without deciding, that

the Due Process Clause of the Fifth Amendment may be

implicated when procedures limit an alien’s ability to apply

for citizenship.

COUNSEL

Craig Varnen, Khaldoun Shobaki, and Michael Behrens

(argued), Irell & Manella LLP, Los Angeles, California, 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.

4 BROWN V. HOLDER

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

BROWN V. HOLDER 5

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.

1

The record includes material submitted by Brown during the

immigration proceedings in support of his factual allegations including

documents and affidavits from his mother and father. For current

purposes, we accept the evidence as establishing disputed issues of fact,

and the description that follows relies on that evidence, but we do not

suggest that the evidence submitted by Brown is conclusive. The district

court should receive evidence and make findings on disputed issues.

6 BROWN V. HOLDER

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 N-

400 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

BROWN V. HOLDER 7

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.

2

The government argues that this letter is not part of the administrative

record and therefore it should not be considered. See 8 U.S.C.

§ 1252(b)(4)(A). However, the court of appeals may go beyond the

administrative record when it transfers a matter to the district court

because there is a genuine issue of fact. Id. § 1252(b)(5)(B); see Batista

v. Ashcroft, 270 F.3d 8, 13–14 (1st Cir. 2001). We therefore grant

Brown’s motion for judicial notice of the N-604 denial.

8 BROWN V. HOLDER

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 committed two 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

BROWN V. HOLDER 9

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.

10 BROWN V. HOLDER

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

not pose a jurisdictional bar to this claim. “The statutory

administrative exhaustion requirement of § 1252(d)(1) does

not apply” to “a person with a non-frivolous claim to U.S.

citizenship.” Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th

Cir. 2004). Even if a petitioner, as here, has waived his

administrative appeals, we may still examine his nonfrivolous

claim to citizenship. Resolving a disputed claim of

citizenship is necessary to any deportation proceeding,

because the government is not permitted to deport citizens,

and a claim of citizenship is thus a denial of an essential

jurisdictional fact. Id.

The statutory requirements for the naturalization of aliens

are set out in the INA. Under the INA, Brown could only be

naturalized if both his parents were sworn in as citizens

before his eighteenth birthday, or if he later applied for

citizenship and was sworn in as a citizen. 8 U.S.C. §§ 1432,

1448. A court may only grant citizenship to an alien who has

not fulfilled the requirements of the INA if that alien can

show that the denial of his claim for citizenship has violated

his constitutional rights. See Wauchope v. U.S. Dep’t of

State, 985 F.2d 1407, 1416–19 (9th Cir. 1993) (citing INS v.

Pangilinan, 486 U.S. 875, 883–85 (1988)).

Brown argues that the INS acted unconstitutionally in

preventing him from becoming a citizen and that this court

should grant citizenship as a remedy. He also asserts that the

government should be estopped from denying his citizenship.

BROWN V. HOLDER 11

In the alternative, Brown claims that he has, in fact, fulfilled

the statutory requirements of the INA.

We discuss Brown’s constitutional claim first. Because

we conclude that there are genuine issues of material fact

concerning Brown’s nationality, we transfer this case to the

United States District Court for the Central District of

California.3 8 U.S.C. § 1252(b)(5)(B); Hughes v. Ashcroft,

255 F.3d 752, 755 n.1 (9th Cir. 2001). We reject Brown’s

claim for estoppel and his statutory claim.

1. The constitutional claim

Brown asserts that the INS violated the right to procedural

due process in rejecting his petitions for naturalization. A

necessary predicate for a due process claim is a

constitutionally protected interest. Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 569 (1972). Brown had such a

protected interest in being able to apply for citizenship, both

3

8 U.S.C. § 1252(b)(5)(B) provides that the action shall be transferred

to the district court for the district “in which the petitioner resides.”

Because Brown has been deported, “there is no district court that could

hear this case under the literal interpretation of the statute.” Leal Santos

v. Gonzales, 495 F. Supp. 2d 180, 182 (D. Mass. 2007). We follow the

Third Circuit in rejecting such an interpretation, which would foreclose all

citizenship claims involving disputed issues of fact by deported

petitioners. See id. at 182–83 (citing Order, Leal Santos v. Att’y Gen., No.

06-2174 (3d Cir. Jan. 30, 2007)). Although the government opposes

transfer, it has not argued that we are without the ability to transfer the

case because Brown is no longer resident in the United States. We select

the Central District of California because that is where Brown used to

reside and where Brown’s pro bono counsel for the current petition are

located. The agency has the statutory authority to parole Brown back into

the United States so he can attend the evidentiary hearing in the district.

See 8 C.F.R. § 212.5(b)(4).

12 BROWN V. HOLDER

as an adult and derivatively through his mother as a minor.4

As the government conceded at oral argument, Brown had a

right to apply for citizenship, established by federal law. See

id. at 577; see also, e.g., Russell v. Landrieu, 621 F.2d 1037,

1040 (9th Cir. 1980) (holding that a protected interest must be

“created and defined by an independent source, such as state

or federal law”).

4

The concurrence would have us leave to one side the question of

whether Brown has a “constitutionally protected interest in being able to

apply for citizenship.” This is not a novel issue, however. In Wauchope,

we explained how, under Supreme Court authority, a federal court has the

ability to grant citizenship for constitutional violations, including

violations of the Due Process Clause. We wrote: “We find it significant

that the Court [in Pangilinan, 486 U.S. at 885–86] addressed the substance

of both the due process and equal protection claims, and nowhere

indicated that it considered the courts’ limited statutory authority to be a

restriction on their ability to redress constitutional violations.” 985 F.2d

at 1418; see also Ortega v. United States, 861 F.2d 600, 603 (9th Cir.

1988) (applying Pangilinan and holding that “absent . . . a constitutional

violation,” a district court has no power to grant citizenship contrary to the

INA) (emphasis added). Because Brown was present in the United States

when the INS allegedly denied him his right to apply for citizenship, he

may sue for a violation of his rights under the Due Process Clause. See

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause

applies to all persons within the United States, including aliens . . . .”)

(internal quotation marks omitted).

Furthermore, we may only transfer this case if, as the concurrence

states, there is “a genuine issue of material fact about [Brown’s]

nationality.” 8 U.S.C. § 1252(b)(5)(B). Brown is only entitled to

citizenship if he can show that his constitutional rights were violated, so

there can be no issue of material fact unless Brown had a constitutionally

protected interest in applying for citizenship. If Brown did not have such

a constitutionally protected interest, all the facts relating to his application

would be immaterial and transferring the case to the district court would

be pointless.

BROWN V. HOLDER 13

The next question is how the government might have

violated this interest. Brown, relying on United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260 (1954), argues that

constitutional rights were violated because the INS failed to

follow its own regulations and internal operating instructions.

See id. at 268 (holding that a petitioner could challenge his

deportation through a writ of habeas corpus where the BIA

had failed to abide by the regulations supplementing the

INA). Brown asserts, among other things, that the INS

violated 8 C.F.R. § 334.11 (1983), by failing to notify

Marjorie “when and where to appear for preliminary

investigation and filing []her petition for naturalization,” and

8 C.F.R. § 341.6 (1983), by failing to “furnish[ him] the

reasons for denial [of his certificate of citizenship].” He also

claims that the INS violated Operating Instruction 103.2(q),

which provides that cases must be “processed in

chronological order by date of receipt.”

We reject the claim as Brown has framed it, because the

mere failure of an agency to follow its regulations is not a

violation of due process. “[W]hile courts have generally

invalidated adjudicatory actions by federal agencies which

violated their own regulations promulgated to give a party a

procedural safeguard, . . . the basis for such reversals is not

. . . the Due Process Clause, but rather a rule of administrative

law.” United States v. Calderon-Medina, 591 F.2d 529, 531

(9th Cir. 1979) (quoting Bates v. Sponberg, 547 F.2d 325, 330

(6th Cir. 1976)); see also United States v. Caceres, 440 U.S.

741, 751–52 (1979) (holding that violations of IRS

regulations did “not raise any constitutional questions”); Bd.

of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n.8

(1978) (holding that Accardi “enunicate[s] principles of

federal administrative law rather than of constitutional law”).

Furthermore, we have noted that “INS Operations

14 BROWN V. HOLDER

Instructions typically do not create substantive rights.”

Abboud v. INS, 140 F.3d 843, 848 (9th Cir. 1998), superseded

by statute as stated by Spencer Enters., Inc. v. United States,

345 F.3d 683, 692 n.5 (9th Cir. 2003); see also United States

v. Tatoyan, 474 F.3d 1174, 1178 (9th Cir. 2007) (holding that

“[c]ompliance with . . . internal [customs] agency regulations

is not mandated by the Constitution” (internal quotation

marks omitted)). Therefore, insofar as Brown relies only on

the supposed failure of the INS to follow its regulations and

operating procedures, his claim fails.

Brown may, however, still be able to state a constitutional

claim based on the underlying governmental conduct. In

Pangilinan, the Supreme Court considered the possibility that

the government might have acted unconstitutionally in

hindering Filipino veterans from registering as U.S. citizens.

486 U.S. at 885–86. The Court did not rely on a potential

violation of the underlying statute and regulations in

conducting its analysis. Although the Court rejected the

claim, the rejection was based on the Court’s conclusion that

there had not, in fact, been a violation of due process. As a

result, we held in Wauchope that citizenship could be granted

by a court as a remedy to rectify constitutional violations.

Wauchope, 985 F.2d at 1417–18. Similarly, in Bates, from

which our decision in Calderon quoted, the Sixth Circuit

ruled that an agency’s failure to follow its own regulations

was not per se a violation of due process, but that

constitutional rights were implicated “when the agency’s

disregard of its rules results in a procedure which in itself

impinges upon due process rights.” Bates, 547 F.2d at 329.

Therefore, Brown may still be able to establish a claim to

citizenship if he can show that the INS’s mishandling of

applications resulted in a violation of his constitutional right

to due process. Cf. Mustanich v. Mukasey, 518 F.3d 1084,

BROWN V. HOLDER 15

1088 (9th Cir. 2008) (acknowledging that a claim for estoppel

might lie if the petitioner could show that the INS acted

unconstitutionally in mishandling his naturalization petition).

The Supreme Court has not set out what degree of

government misconduct will suffice for a constitutional

violation in this context, and our court and other circuit courts

have not either. In Dent v. Holder, 627 F.3d 365, 375 (9th

Cir. 2010), we transferred a citizenship claim to the district

court to determine “a genuine issue of material fact” as to

whether the petitioner had been adopted by a U.S. citizen

when he was a minor. We did not suggest a standard for the

district court to apply, merely noting that “[f]or all we know,

the government lacks authority to sit on an application to

naturalize a fourteen year old until after he is eighteen and

has aged out, or to sit on applications for naturalization for 23

or 27 years.” Id. at 376. In Azize v. Bureau of Citizenship &

Immigration Services, 594 F.3d 86 (2d Cir. 2010), the

petitioner claimed that he should be granted citizenship on the

ground that the INS had improperly terminated his

naturalization application because he had failed to surrender

his green card. The Second Circuit transferred the case to a

district court for factfinding, but did not suggest any standard

that the court should apply to determine whether the

petitioner was entitled to relief. Id. at 91–92.

We have some guidance from cases where the Court has

ruled whether the government may be estopped from denying

a petitioner’s citizenship, however. In Montana v. Kennedy,

366 U.S. 308, 314–15 (1961), the Court held that the

government could not be estopped from denying the

citizenship of a petitioner whose mother was prevented from

returning to the United States before his birth by the incorrect

advice of an immigration officer. As the Court later put it,

16 BROWN V. HOLDER

estoppel would not lie against the government even though

“the Government’s error was clear.” INS v. Miranda,

459 U.S. 14, 18 (1982). And, in INS v. Hibi, 414 U.S. 5

(1973), the Court again held that the government could not be

estopped from denying a claim to citizenship even though it

had knowingly failed to abide by the terms of an immigration

statute permitting Filipino war veterans to naturalize. See

Pangilinan, 486 U.S. at 879–80 (explaining why the

government failed to abide by the statute). In this case, the

error was again “clear.” Miranda, 459 U.S. at 18. By

contrast, if the INS’s actions in a petitioner’s case are

motivated by animus or malicious intent, there is a

constitutional violation. See Pangilinan, 486 U.S. at 886.

We conclude that if Brown can show that the INS

arbitrarily and intentionally obstructed his application, his

right to due process has been violated. The government has

also violated Brown’s right to due process if it has—unlike,

for example, in Montana and Hibi—been deliberately

indifferent to whether his application was processed. If

Brown cannot show such a degree of culpability on the part

of the INS, he has not proven a constitutional violation, and

his citizenship claim must fail.5

We transfer this claim to the district court so that the court

may make the necessary findings of fact to establish, in the

first instance, whether Brown’s constitutional rights were

5

We have avoided using other “elusive terms” such as gross negligence

or recklessness, although we believe that Brown must show a greater level

of culpability than these terms ordinarily suggest in order to prove a

constitutional violation. Daniels v. Williams, 474 U.S. 327, 334 (1986);

see, e.g., L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir. 1996) (comparing

gross negligence, recklessness, and deliberate indifference in the

42 U.S.C. § 1983 context).

BROWN V. HOLDER 17

violated. Brown’s complaints fall into two groups. First,

Brown alleges that the government mishandled his mother’s

application so she did not naturalize by his eighteenth

birthday. Second, Brown accuses the government of

preventing him from naturalizing on his own account after he

turned eighteen by wrongly telling him that he was already a

citizen. The record as to both of these groups of complaints

is controverted. At oral argument, the government claimed

that the evidence showed that Brown’s mother’s N-400 had

never been lost and suggested that Brown was misreading the

printouts from the INS’s computer system that supposedly

stated that he had been naturalized. The district court should

determine whether the INS acted with a sufficiently culpable

mental state that it violated Brown’s right to due process.

As to the first group of complaints, connected to the

application of Brown’s mother, we reject the government’s

argument that Brown is not able to assert a claim based on the

treatment of his mother’s application. There is no doubt that

Brown was actually injured, because he would have

automatically become a citizen if his mother had been

naturalized before his eighteen birthday. His mother’s

application included a request that a certificate of citizenship

be issued for her son, so his connection to the application was

known to the INS. In Wauchope, we held that two applicants

were able to claim citizenship on the grounds that the

constitutional rights of their mothers had been violated by a

statute that prevented them from transferring citizenship to

their offspring. We noted, in that case, that the litigants had

satisfied three criteria: (1) they had suffered an injury-in-fact

giving them a concrete interest in the outcome of the issue in

dispute; (2) they had a close relation to the third parties; and

(3) the third parties were hindered in some way from

protecting his own interests. Wauchope, 985 F.2d at 1411.

18 BROWN V. HOLDER

The first two prongs of that test are not in doubt in this

case: Brown has suffered an injury as a result of the INS’s

delay in processing Marjorie’s application, and he has a close

relationship with his mother. The government disputes,

however, that there is a hindrance to Marjorie’s ability to

protect her own interests. We conclude that there is. Any

injury Marjorie personally suffered was cured when she

received her citizenship, and so she no longer has standing to

sue. See Hosein v. Gonzales, 452 F.3d 401, 404 (5th Cir.

2006) (per curiam) (ruling, on facts that are in relevant part

identical to this case, that the appellant did not have standing

to sue on behalf of her son, because “[a]fter all, she was

granted citizenship”). Nor, contrary to the government’s

argument, did Marjorie have any strong incentive to resort to

the courts and seek mandamus to force the INS to act as soon

as it became apparent to her, in May 1985, that the INS had

delayed processing her application. Mandamus is an

“extraordinary remedy” that is only granted when no other

relief is available, and Marjorie was justified in showing

some patience before resorting to the courts. Barron v. Reich,

13 F.3d 1370, 1374 (9th Cir. 1994). She did not necessarily

know at that time that by doing so, her own naturalization

would not be completed until a month beyond her son’s

eighteenth birthday. Therefore, the district court may

consider the argument that the INS acted unconstitutionally

in mishandling Marjorie’s application.

As to Brown’s second group of complaints, the district

court must consider, among other things, when Brown

became ineligible to naturalize on his own because of his

criminal record. It appears that Brown at some point lost the

ability to apply successfully for citizenship because of his

criminal activities, which are not fully documented in the

BROWN V. HOLDER 19

record before us.6 But it also appears to be the case that, for

at least some period in his adult life, Brown might have been

able to apply successfully. Indeed, his sister was too old to

obtain citizenship derivatively through her parents but was

naturalized in 1987. The earlier Brown became ineligible for

naturalization after he turned eighteen, the smaller the

window of time during which a material constitutional

violation may have been committed by the INS, because any

conduct after Brown became unable to naturalize is

irrelevant. See Duran-Pichardo v. Att’y Gen., 695 F.3d 282,

287 (3d Cir. 2012) (holding that the petitioner “has no

remedy because he has committed an aggravated felony”).

Having determined the facts, the district court will then be

able to draw a conclusion of law as to whether Brown’s

constitutional rights were violated. If the court finds that they

were violated, it may order the agency to grant citizenship as

a remedy as if the action had been brought in that court.

Wauchope, 985 F.2d at 1418.

2. The estoppel claim

Brown also seeks to estop the government from denying

his U.S. citizenship. “To estop an agency of the government

a court must find affirmative misconduct by the government

and must also find that the government’s conduct will cause

6

Individually, Brown’s April 1996 conviction for possession of

methamphetamine, and his August 1997 conviction for being under the

influence of drugs, would have made him ineligible for naturalization for

five years. See 8 U.S.C. §§ 1101(f)(3), 1182(a)(2), 1427(a). The IJ found

that his 2003 conviction for making criminal threats in violation of

California Penal Code § 422 was an aggravated felony, and this would

have permanently barred him from applying for naturalization,

notwithstanding any further convictions. See 8 C.F.R. § 316.10(b).

20 BROWN V. HOLDER

a serious injustice and that estoppel will not cause undue

harm to the public interest.” Watkins v. U.S. Army, 875 F.2d

699, 706 (9th Cir. 1989) (en banc). In this case, estopping the

government from denying Brown’s citizenship would have

the same practical effect as granting him citizenship.

Mustanich, 518 F.3d at 1088.

Brown’s argument is all but foreclosed by the Supreme

Court’s decisions in Hibi and Pangilinan. In Hibi, which

involved the same underlying facts as Pangilinan, the Court

rejected the respondent’s claim that the government had

engaged in affirmative misconduct by failing to station in the

Philippines an authorized naturalization representative for the

entire period required by Congress. 414 U.S. at 8–9. And in

Pangilinan, the Court held that “[n]either by application of

the doctrine of estoppel, nor by invocation of equitable

powers . . . does a court have the power to confer citizenship

in violation of [the INA’s] limitations.” 486 U.S. at 885.

Hibi and Pangilinan may not present an absolute bar to

estoppel. In Mustanich, this court held that a petitioner may

still be able to “assert estoppel on the theory that the denial of

his citizenship is unconstitutional.” 518 F.3d at 1088. To do

this, however, Brown will need to establish what he must

under his primary claim for citizenship—that the government

has violated his right to due process.

Therefore, Brown’s claim for estoppel is entirely

dependent on his constitutional challenge. Estoppel is, as

Brown concedes, an equitable remedy. A “court[] of equity

should not act . . . when the moving party has an adequate

remedy at law.” Morales v. Trans World Airlines, 504 U.S.

374, 381 (1992). As we have held, Brown has a remedy if his

BROWN V. HOLDER 21

constitutional rights have been violated. Therefore, we

dismiss his claim for estoppel.

3. The statutory claim

Brown also claims that there is a factual issue as to

whether he has been naturalized under the terms of the INA.

To become a citizen, a petitioner must take the oath of

allegiance in a “public ceremony.” 8 U.S.C. § 1448(a).7

Brown claims that, in 1996, he was administered the oath of

allegiance by an INS officer. He argues that this may qualify

him for citizenship, even though he concedes that this was not

a public ceremony.

At least three courts have rejected the argument that an

oath administered privately by an INS officer suffices for

naturalization, in the absence of special circumstances set out

by statute. Abiodun v. Gonzales, 461 F.3d 1210, 1215–16

(10th Cir. 2006) (signing an oath of allegiance during a

naturalization interview does not satisfy the public ceremony

requirement of 8 U.S.C. § 1448); Okafor v. Gonzales,

456 F.3d 531, 534 (5th Cir. 2006) (same); Tovar-Alvarez v.

U.S. Att’y Gen., 427 F.3d 1350, 1353 (11th Cir. 2005) (per

curiam) (same); see 8 U.S.C. § 1448(c) (permitting the

Attorney General to grant an expedited oath ceremony). This

court has not yet ruled on the issue. Iasu v. Smith, 511 F.3d

881, 890–91 (9th Cir. 2007). We adopt the reasoning of

Abiodun, Okafor, and Tovar-Alvarez in holding that pledging

an oath of allegiance in or after an interview with an INS

officer as part of the naturalization process does not satisfy

7

Before 1990, a petitioner for naturalization was required to take an oath

for naturalization “in open court.” See Pub. L. No. 101–649, 104 Stat.

4978, 5044–45 (1990).

22 BROWN V. HOLDER

the “public ceremony” requirement of § 1448(a). This

holding comports with our precedent. See Perdomo-Padilla,

333 F.3d at 966 (holding that a foreign national did not

become a national of the United States when “he completed

an application for naturalization that contained a statement of

allegiance to the United States”).

III. Conclusion

We deny Brown’s challenge to his removal order on the

grounds that we lack jurisdiction. We transfer the matter to

the District Court for the Central District of California to

make findings of fact and draw conclusions of law as to

Brown’s claim that he is entitled to U.S. citizenship. We

dismiss Brown’s claim that he is already a citizen by having

already taken an oath of citizenship before an INS officer.

Each party shall bear its own costs.

DENIED IN PART, DISMISSED IN PART,

TRANSFERRED IN PART.

TALLMAN, Circuit Judge, concurring:

I concur only in parts I, II.A, II.B.2, and II.B.3 of today’s

opinion.

Brown “claims to be a national of the United States,” and

I agree that he has presented “a genuine issue of material fact

about [his] nationality.” 8 U.S.C. § 1252(b)(5)(B). I also

agree that the appropriate remedy is to “transfer the

proceeding to the district court . . . for a new hearing on the

BROWN V. HOLDER 23

nationality claim and a decision on that claim as if an action

had been brought in the district court under section 2201 of

title 28.” Id.

But my colleagues do not stop there. They go on to

declare, without much analysis and on an incomplete record,

that Brown has a constitutionally protected interest in being

able to apply for citizenship. Maybe such an interest exists

always and for everyone; maybe it does not exist at all; or

maybe it exists only when certain factual predicates are met.

It is the latter possibility that dissuades me from reaching

such a weighty issue before a district court takes evidence and

decides the matter in the first instance.

My colleagues justify their expansive ruling by claiming

that this is not a novel issue. But it is. The Supreme Court

has merely assumed, without deciding, that the Due Process

Clause of the Fifth Amendment may be implicated when

procedures limit an alien’s ability to apply for citizenship.

INS v. Pangilinan, 486 U.S. 875, 885 (1988) (“Assuming that

these respondents can properly invoke the protections of the

United States Constitution, and granting that they are

members of a special class that Congress intended to favor

with statutory entitlements to naturalization, they were not

deprived of those entitlements without due process.”). In

Wauchope v. U.S. Dep’t of State, 985 F.2d 1407 (9th Cir.

1993), we held that a court may confer citizenship to remedy

Equal Protection violations; we said nothing about whether an

alien has a constitutionally protected interest in applying for

citizenship. In fact, my colleagues cite to no case that has

held that this constitutionally protected interest exists, so

today’s decision is novel indeed.

24 BROWN V. HOLDER

We may need to decide, once the record is complete,

whether there is a constitutionally protected right to apply for

citizenship, and whether the government can violate that right

by not following its own citizenship application procedures.

Declaring now the existence of a heretofore unrecognized

constitutionally protected right to citizenship is premature. I

think it inadvisable to advise the district court, at this stage,

how to decide questions of law or which facts to consider.

Knowing that we judge best when we judge on a robust

record, we should have given the district court the first crack

at these important issues.