Brown v. Holder, No. 11-71458 (9th Cir. 2014)
Annotate this CasePetitioner, a native and citizen of India, petitioned for review of the BIA's dismissal of his appeal from an order of removal. The court concluded that, although petitioner now claims that he only accepted the order of removal in order to expedite this court's hearing of his citizenship claim, that would not render his waiver unknowing or involuntary. The court also concluded that, if petitioner can show that the INS arbitrarily and intentionally obstructed his application, his right to due process has been violated. The government has also violated petitioner's right to due process if it has been deliberately indifferent to whether his application was processed. The court transferred this claim to the district court so that it may make the necessary findings of fact to establish whether petitioner's constitutional rights were violated. Further, the court held that pledging an oath of allegiance in or after an interview with an INS officer as part of the naturalization process does not satisfy the "public ceremony" requirement of 8 U.S.C. 1448(a). Accordingly, the court denied petitioner's challenge to his removal order on the grounds that the court lacked jurisdiction. The court transferred the matter to the district court for further proceedings. The court dismissed petitioner's claim that he is already a citizen by having already taken an oath of citizenship.
Court Description: 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 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.
The court issued a subsequent related opinion or order on August 2, 2016.
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