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

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 7, 2014

Petition Denied in part and

Transferred in part to District Court August 18, 2014

District Court order November 24, 2015

Order for Supplemental Briefing January 22, 2016

San Francisco, California

Filed August 2, 2016

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

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*

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

Following transfer, in part, of the case to the District

Court for the Central District of California to make findings

of fact and conclusions of law concerning a claim to United

States citizenship, the panel denied Mark Brown’s petition for

review of the Board of Immigration Appeals’ dismissal of his

appeal of a removal order.

The panel also held that the district court did not err in

finding that Brown failed to establish that the former

Immigration and Naturalization Service violated his

procedural due process right to apply for citizenship in

rejecting his applications for naturalization. The panel held

that the district court did not clearly err in finding that neither

INS employees nor policymakers acted with deliberate

indifference toward Brown’s attempts to naturalize.

COUNSEL

Khaldoun Shobaki, and Michael Behrens (argued), Hueston

Hennigan LLP, Los Angeles, California, for Petitioner.

Yamileth G. Davila (argued) and Nancy K. Canter, Trial

Attorneys; Katherine E. Clark, Senior Litigation Counsel;

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

**

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

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

CLIFTON, Circuit Judge:

Mark Brown, a native and citizen of India, petitions for

review of the decision by the Board of Immigration Appeals

to dismiss his appeal from an order of removal. Brown argues

that the former Immigration and Naturalization Service

violated his constitutional rights by preventing him from

deriving citizenship through his parents and obstructing his

attempt to apply for citizenship on his own account. We

previously transferred Brown’s case to the District Court for

the Central District of California to make findings of fact and

conclusions of law concerning his claim that he is entitled to

U.S. citizenship. Brown v. Holder, 763 F.3d 1141 (9th Cir.

2014). The district court concluded that Brown had not

established that his constitutional right to apply for

citizenship was violated. Having considered the district

court’s order and the supplemental briefing filed thereafter by

the parties, we deny the petition.

4 BROWN V. HOLDER

I. Background1

Brown was born in Madras, India, on July 4, 1968, and

entered the United States lawfully as an immigrant along with

his family on March 25, 1977. In April 1983, his father,

Trevor Brown, and mother, Marjorie Brown, submitted

petitions for naturalization. As part of those applications,

each of Brown’s parents filed separate N-400 forms. Marjorie

also filed a separate N-604 form for derivative citizenship on

Brown’s behalf. Under then-applicable law, Brown was

eligible for derivative citizenship if both of his parents

naturalized before July 4, 1986, his eighteenth birthday.

8 U.S.C. § 1432(a)(1) (1982).

Trevor attended a citizenship interview with the INS on

May 16, 1985, during which the agency approved his

naturalization application. Trevor had listed Brown as one of

his children on his N-400 and indicated that he wanted a

certificate of citizenship for Brown. At the time of the

interview, the INS examiner in charge of Trevor’s application

informed the family that Marjorie’s application had been lost

and that she would have to reapply. Trevor was naturalized

six months later, on November 15, 1985.

The INS eventually located Marjorie’s lost N-400 form.

A handwritten note, dated June 11, 1985, was attached to the

form, but exactly who found the application and how it was

discovered remain unknown. What is known is that the INS

1

We only recount here the facts relevant to the district court’s

determination that the INS did not violate Brown’s constitutional rights.

The factual and procedural background of Brown’s case is explained in

more detail in our previous opinion in this matter. Brown, 763 F.3d at

1144–46.

BROWN V. HOLDER 5

informed Marjorie on January 13, 1986 that her naturalization

interview would take place on February 7, 1986. On the day

of the interview, Marjorie completed a new N-400 and once

again listed Brown as one of her children. However, though

Marjorie indicated she wanted a “certificate of citizenship for

those of my children who are in the U.S. and are under age 18

years that are named below,” Marjorie did not write any

names in the space provided. Following the interview, the

examiner informed Marjorie that her application had been

approved. Trevor met Marjorie at the door of her interview

and asked about the status of Brown’s derivative citizenship

application. The examiner informed him that Brown had

become a citizen through his parents. But Marjorie’s

naturalization ceremony did not take place until August 26,

1986, nearly two months after Brown’s eighteenth birthday.

As a result, Brown did not receive derivative citizenship.

Although Brown was no longer eligible for derivative

citizenship after he turned eighteen, he remained eligible, at

least initially, to apply for citizenship in his own right. On or

around May 21, 1991, Brown and his father went to the INS

office, and Brown filed his own N-400. Brown’s application

was then reviewed by an INS examiner. According to

Trevor’s recollection, the examiner stopped reviewing

Brown’s application as soon as he noticed Brown’s answer to

question six on the form, in which Brown had noted that both

of his parents were U.S. citizens. At that point, according to

Trevor, the examiner incorrectly informed Brown that there

was no need for him to complete the N-400 because he was

already a citizen.

Brown was convicted of a series of misdemeanors

between 1987 and 1997. These crimes ultimately made him

ineligible to obtain U.S. citizenship. At some undetermined

6 BROWN V. HOLDER

time, the INS placed Brown in removal proceedings. After his

applications for asylum and withholding of removal were

rejected by the Immigration Judge, he was ordered removed

to India, where he currently resides.

Brown filed a timely petition for review before this court.

Brown, 763 F.3d at 1146. We dismissed in part Brown’s

challenge to his order of removal because he had not

exhausted his asylum and withholding of removal claims with

the agency, thus depriving us of jurisdiction over those

claims. Id. We also denied his claim that the government was

estopped from denying his U.S. citizenship as well as his

claim that he was statutorily entitled to U.S. citizenship. Id.

at 1151–53. However, we held that Brown’s constitutional

claim that the INS violated his right to procedural due process

in rejecting his applications for naturalization had potential

merit, although the factual record was insufficiently clear to

make a final determination. Id. at 1149–50. Accordingly, we

held Brown’s petition in abeyance and transferred his

constitutional claim to the district court to make the necessary

findings to establish whether or not Brown’s constitutional

rights had been violated. Id. at 1150.

After an initial hearing and discovery, the district court

determined that an evidentiary hearing was unnecessary

because the parties agreed on the essential facts. The court

concluded that Brown had failed to show that INS employees

or policymakers acted with a sufficiently culpable mental

state to violate Brown’s constitutional rights. We

subsequently obtained supplemental briefing from the parties

on the issue of whether Brown’s petition should be denied in

light of the district court’s opinion.

BROWN V. HOLDER 7

II. Discussion

In transferring this case to the district court, we held that

Brown could succeed on his constitutional claim if he could

demonstrate that the INS “arbitrarily and intentionally

obstructed his application” or if it was “deliberately

indifferent to whether his application was processed.” Id. A

finding of deliberate indifference requires “(1) ‘a showing of

an objectively substantial risk of harm’; and (2) ‘a showing

that the officials were subjectively aware of facts from which

an inference could be drawn that a substantial risk of serious

harm existed’ and (a) ‘the official actually drew that

inference’ or (b) ‘that a reasonable official would have been

compelled to draw that inference.’” Henry A. v. Willden,

678 F.3d 991, 1001 (9th Cir. 2012) (quoting Tamas v. Dep’t

of Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010)).

After reviewing the evidence submitted by the parties, the

district court found that Brown had not established that the

conduct of the INS amounted to either arbitrary and

intentional obstruction or deliberate indifference under those

standards.

Brown contends that the district court erred in its

determination that the conduct of the INS, while potentially

negligent or even grossly negligent, did not rise to the level

of deliberate indifference.2 Because a finding of deliberate

indifference involves a factual inquiry, we review the district

court’s findings for clear error. Mondaca-Vega v. Lynch,

808 F.3d 413, 426–28 (9th Cir. 2015) (en banc) (applying a

clear error standard of review to district court’s factual

2

Brown has not argued that the district court erred in finding that he had

failed to establish that the agency had arbitrarily and intentionally

obstructed his application.

8 BROWN V. HOLDER

finding that petitioner was not a U.S. national). Accordingly,

the court must defer to the district court’s findings unless it is

“left with the definite and firm conviction that a mistake has

been committed.” Id. at 426.

As part of its findings, the district court concluded that

(1) the INS employees in charge of Marjorie and Brown’s

naturalization applications did not act with deliberate

indifference toward Brown’s application; and (2) the INS

policies in place at the time of Brown’s naturalization

application were not deliberately indifferent toward

individuals in his circumstances. Brown argues that both of

these findings by the district court were clearly erroneous. We

disagree.

A. The conduct of INS employees

Brown argues that the INS employees managing his

parents’ applications exhibited deliberate indifference toward

the risk that he would age out before receiving derivative

citizenship on three separate occasions.

Brown first alleges that the INS officials handling

Trevor’s application acted in a deliberately indifferent

manner by failing to immediately schedule Marjorie for a

new interview once they became aware that the agency had

lost her application. This argument fails because it is not clear

that those officials either knew or should have known about

the risk that their inaction posed to Brown’s chances at

citizenship. Trevor’s INS interview took place on May 16,

1985, more than a year before Brown’s eighteenth birthday.

Although in retrospect we now know that Marjorie’s

application was not found and processed in time for Brown to

receive derivative citizenship, Brown has not established that

BROWN V. HOLDER 9

it would have been reasonable for officials to assume that this

was a necessary or even likely outcome of the decision not to

schedule Marjorie a new naturalization interview as soon as

possible.

Second, Brown contends that the INS employee or

employees who eventually located Marjorie’s application in

July 1985 acted with deliberate indifference when they too

failed to immediately schedule a new interview with

Marjorie, instead waiting until February 1986. According to

Brown, this delay was in violation of INS policies that

required applications to be processed in the order in which

they were received. Even assuming that this interpretation of

INS policy is correct, “the mere failure of an agency to follow

its regulations is not a violation of due process.” Brown,

763 F.3d at 1148. With no evidence before it of exactly who

found Brown’s application and what they knew about the

circumstances surrounding Marjorie’s application, the district

court did not clearly err in concluding that Brown could not

establish that any individual INS employee acted with

deliberate indifference.

The third alleged act of deliberate indifference involved

the decision by INS employees not to expedite Marjorie’s

naturalization ceremony following the approval of her

application in 1986. At the time of Brown’s application, at

least some INS policymakers, including the INS district

director for naturalization, had the authority to expedite

naturalization ceremonies. However, although the individuals

directly in charge of Marjorie’s application were plausibly

aware of the risk posed to Brown by failing to expedite her

naturalization ceremony, Brown has not shown either that

those individuals possessed the authority to expedite

ceremonies or that anyone who did have such authority had

10 BROWN V. HOLDER

been made aware of his situation. Accordingly, the failure to

expedite Brown’s ceremony did not amount to deliberate

indifference.

B. INS policies

In the context of claims under 42 U.S.C. § 1983, it has

long been established that plaintiffs can demonstrate a

constitutional violation by showing that the policies of a

municipality or government agency violated their rights. See

Gibson v. Cty. of Washoe, 290 F.3d 1175, 1185 (9th Cir.

2002). “A ‘policy’ is ‘a deliberate choice to follow a course

of action . . . made from among various alternatives by the

official or officials responsible for establishing final policy

with respect to the subject matter in question.’” Fairley v.

Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam)

(quoting Oviatt ex rel Waugh v. Pearce, 954 F.2d 1470, 1477

(9th Cir. 1992)). A plaintiff can prevail by pointing to both

policies of “action” and of “inaction.” Id. Brown argues that

at the time of the naturalization applications of his parents

and of Brown himself, the INS had policies in place that

exhibited deliberate indifference toward his opportunity to

naturalize.

Brown first alleges that the INS had a deliberate policy

of refusing to expedite the naturalization applications of

individuals who had children at risk of aging out. However,

he has put forward no evidence that any INS policymaker was

ever made aware that such a risk existed, either because there

had been previous instances of aging out or because they

were notified by Brown’s family or by someone in a similar

situation. In previous instances in which we have held that a

policy of inaction amounted to a constitutional violation, we

have required evidence that policymakers were aware or

BROWN V. HOLDER 11

should have been aware of the serious risks posed by their

failure to act. See, e.g. Gibson, 290 F.3d at 1191–92

(evidence established that county officials were aware of the

risks of failing to immediately treat prisoners exhibiting

manic symptoms); Fairley, 281 F.3d at 918 (chief of police

knew that it was “not uncommon” for individuals to be

arrested on the wrong warrant but failed to institute

procedures to alleviate the problem). The district court did

not err in rejecting this argument.

Brown also argues that the INS failed to properly train its

employees to handle naturalization applications by

individuals with U.S.-citizen parents. According to Brown,

the agency failed to instruct its employees to compare the

applicant’s birth date to the date of his or her parents’

naturalization to determine whether an applicant had already

received derivative citizenship. The evidence presented to the

district court belies this accusation. An INS officer employed

at the time of Brown’s application testified that the INS had

policies in place to train examiners to ask applicants

questions about their or their parents’ citizenship status upon

discovering that one or both of an applicant’s parents were

U.S. citizens. Although the examiner in charge of Brown’s

1991 naturalization application may have acted contrary to

those policies by incorrectly informing Brown that he had

received derivative citizenship, there is no evidence that INS

policymakers themselves acted with deliberate indifference

toward naturalization applicants with U.S.-citizen parents.3

3

Brown has not argued that the INS examiner who conducted his 1991

interview violated his constitutional rights.

12 BROWN V. HOLDER

III. Conclusion

Brown has not demonstrated that the district court clearly

erred in finding that neither INS employees nor INS

policymakers acted with deliberate indifference toward his

attempts at naturalization. Accordingly, we deny Brown’s

petition for review because he has not shown that the INS

violated his constitutional rights.

PETITION FOR REVIEW DENIED.