FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRINA GORBACH; JOSE LUIS
ROSAS-MADRID; AGUEDA
ESCALANTE; RUBEN LARA; JAVIER
SANGUINO; MAC MAURICE CHUKWUD
IJEAKU; LORETO MONCADO JUAN;
PEDRO LEGARDA-LEGARDA;
ADOLPHO ERAZO,
No. 98-35723
Plaintiffs-Appellees,
D.C. No.
v.
CV-98-0278-R
JANET RENO, Attorney General of
OPINION
the United States; DORIS M.
MEISSNER, Commissioner of
Immigration and Naturalization
Service; UNITED STATES
IMMIGRATION AND NATURALIZATION
SERVICE,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, Chief District Judge, Presiding
Argued and Submitted
February 2, 1999--Seattle, Washington
Filed June 4, 1999
Before: Arthur L. Alarcon, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge Kleinfeld
5515
SUMMARY
_________________________________________________________________
5516
5517
_________________________________________________________________
COUNSEL
Michelle R. Slack, United States Department of Justice,
Office of Immigration Litigation, Washington D.C., for the
defendants-appellants.
Jonathan S. Franklin, Hogan & Hartson, Washington D.C., for
the plaintiffs-appellees.
_________________________________________________________________
OPINION
RYMER, Circuit Judge:
The question before us is whether the Attorney General,
who has the exclusive power to naturalize, has the statutory
authority to reopen and revoke her orders of naturalization on
grounds of fraud, material misrepresentation or ineligibility
for naturalization subject to de novo judicial review by an
Article III court.
The Immigration Act of 1990, S 401(a), 8 U.S.C. S1421(a),
transferred the sole authority to naturalize from state courts of
record and federal district courts to the Attorney General,
without limiting the Attorney General's power to reopen and
vacate an order of naturalization.1 The Attorney General dele-
_________________________________________________________________
1 The Immigration Act of 1990, Pub. L. No. 101-649, tit. IV, SS 401-08,
104 Stat. 4978, 5038-48 (codified at various sections of 8 U.S.C.), effected
substantial amendments to the Immigration and Nationality Act of 1952
(INA, or "the Act").
5518
gated her power to the Immigration & Naturalization Service
(INS), which in turn promulgated a regulation, 8 C.F.R.
S 340.1, providing for administrative reopening and revoca-
tion of naturalization orders where there is evidence that the
order of naturalization was procured illegally, fraudulently or
by material misrepresentation. Irina Gorbach and other named
plaintiffs in behalf of a class of persons who had been natural-
ized by the Attorney General, but who received a Notice of
Intent to Revoke Naturalization (NOIR), challenged the regu-
lation on the grounds that it violates due process, the Admin-
istrative Procedure Act (APA), 5 U.S.C. S 551 et seq., and the
INA, 8 U.S.C. S 1101 et seq.2 Only the issue of the Attorney
General's statutory authority under the INA to promulgate
Regulation 340.1 was reached by the district court and raised
on this appeal.3 The district court found that sufficiently seri-
ous questions were presented to warrant a preliminary injunc-
tion enjoining the INS from initiating or continuing
administrative denaturalization proceedings under Regulation
340.1. See Gorbach v. Reno, 181 F.R.D. 642, 650 (W.D.
Wash. 1998).
Because Gorbach's facial challenge raises only a legal issue
that requires no factual development to resolve, we consider
the question de novo rather than through the lens of an inter-
locutory order. So viewed, we conclude that the Attorney
General does not lack statutory authority to reopen and recon-
_________________________________________________________________
2 The named plaintiffs are Irina Gorbach, Jose Luis Rosas-Madrid,
Agueda Escalante, Ruben Lara, Javier Sanguino, Mac Maurice Chukwud
Ijeaku, Loreto Moncado Juan, Pedro Legarda-Legarda, and Adopho Erazo
(collectively "Gorbach"). The proceedings against Gorbach, Erazo and
Lara were dismissed at the administrative level. The class was certified
after the preliminary injunction was issued. The defendants are Janet
Reno, Attorney General of the United States; Doris M. Meissner, Com-
missioner of the INS; and the INS. We will generally refer to the argu-
ments they collectively present as being made by Reno or the INS.
3 For this reason we express no opinion on whether the regulation com-
ports with due process or the APA.
5519
sider her own orders of naturalization. Accordingly, we vacate
the preliminary injunction as moot.
I
A
The statutory framework, old and new, is central to this
case so we describe it in detail.
Before 1990, INA S 310(a) conferred the jurisdiction to
naturalize persons as United States citizens exclusively upon
district courts of the United States and all courts of record in
any state or territory. See 8 U.S.C. S 1421(a) (1970) (pre-1990
version). There were two routes for revocation of naturaliza-
tion orders, both judicial: one, a proceeding initiated under
INA S 340(a) in any of the courts specified in INA S 310(a)
by affidavit of a United States Attorney showing good cause
for setting aside the order admitting a person to citizenship on
the ground that the order was illegally procured or was pro-
cured by concealment of a material fact or misrepresentation,
see 8 U.S.C. S 1451(a) (1970);4 the other, a proceeding pursu-
ant to the power of the court to reopen and vacate its judg-
_________________________________________________________________
4 INA S 340(a); 8 U.S.C.S 1451(a) (1970) provided in pertinent part:
(a) It shall be the duty of the United States attorneys for the
respective districts, upon affidavit showing good cause therefor,
to institute proceedings in any court specified in subsection (a) of
section 1421 of this title in the judicial district in which the natu-
ralized citizen may reside at the time of bringing suit, for the pur-
pose of revoking and setting aside the order admitting such
person to citizenship and canceling the certificate of naturaliza-
tion on the ground that such order and certificate of naturalization
were illegally procured or were produced by concealment of a
material fact or by willful misrepresentation, and such revocation
and setting aside of the order admitting such person to citizenship
and such canceling of certificate of naturalization shall be effec-
tive as of the original date of the order and certificate, respec-
tively: . . .
5520
ments under INA S 340(i). See 8 U.S.C.S 1451(i) (1970).5 It
is generally agreed that this avenue was added by Congress to
overrule the Supreme Court's decision in Bindczyck v.
Finucane, 342 U.S. 76 (1951), which held that INA S 340(a)
afforded the exclusive route for revocation. See Simons v.
United States, 452 F.2d 1110, 1114 (2d Cir. 1971). In any
event, "old" INA S 340(i) provided:
(i) Power of court to correct, reopen, alter, mod-
ify or vacate judgment or decree
Nothing contained in this section shall be regarded
as limiting, denying, or restricting the power of any
naturalization court, by or in which a person has
been naturalized, to correct, reopen, alter, modify, or
vacate its judgment or decree naturalizing such per-
son, during the term of such court or within the time
prescribed by the rules of procedure or statutes gov-
erning the jurisdiction of the court to take such
action.
In 1990, the structure was changed significantly. The Immi-
gration Act of 1990 amended INA S 310(a) to transfer the
exclusive power to naturalize from the courts to the Attorney
General. See 8 U.S.C. S 1421(a) (Supp. 1998).6 United States
district courts and state courts of record continue to have
authority to administer oaths under INA S 310(b), and federal
district courts have authority under INA S 340(a) to revoke
naturalization upon affidavit of the United States Attorney, as
before. See 8 U.S.C. S 1451(a) (Supp. 1998).7 However, dis-
_________________________________________________________________
5 Subsection (i) started life as subsection (j), but was redesignated (i) as
a result of a 1988 amendment to the INA. We refer to it as (i) to avoid
confusion, as that was its designation immediately before the 1990 Immi-
gration Act amendments which are at issue in this appeal.
6 Amended INA S 310(a); 8 U.S.C. S 1421(a) provides:
The sole authority to naturalize persons as citizens of the
United States is conferred upon the Attorney General.
7 Amended INA S 340(a); 8 U.S.C. S 1451(a) is substantively unchanged
and now provides:
5521
trict courts have a new power of judicial review under INA
S 310(c), which provides:
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 chap-
ter 7 of Title 5. Such review shall be de novo, and
the court shall make its own findings of fact and con-
clusions of law and shall, at the request of the peti-
tioner, conduct a hearing de novo on the application.
8 U.S.C. S 1421(c) (Supp. 1998). The Immigration Act of
1990 also replaced INA S 340(i), which previously pertained
to the "[p]ower of court to correct, reopen, alter, modify or
vacate judgment or decree," with new INA S 340(h), which
now reads as follows:
(h) Power to correct, reopen, alter, modify, or
vacate order
_________________________________________________________________
(a) Concealment of material evidence; refusal to testify
It shall be the duty of the United States attorneys for the
respective districts, upon affidavit showing good cause therefor,
to institute proceedings in any district court of the United States
in the judicial district in which the naturalized citizen may reside
at the time of bringing suit, for the purpose of revoking and set-
ting aside the order admitting such person to citizenship and can-
celing the certificate of naturalization on the ground that such
order and certificate of naturalization were illegally procured or
were procured by concealment of a material fact or by willful
misrepresentation, and such revocation and setting aside of the
order admitting such person to citizenship and such canceling of
certificate of naturalization shall be effective as of the original
date of the order and certificate, respectively: ...
5522
Nothing contained in this section shall be regarded
as limiting, denying, or restricting the power of the
Attorney General to correct, reopen, alter, modify, or
vacate an order naturalizing the person.
8 U.S.C. S 1451(h) (Supp. 1998).
Pursuant to INA S 103(a)(4), the Attorney General dele-
gated her authority to the INS.8 See 8 C.F.R. S 310.1(b). The
_________________________________________________________________
8 INA S 103; 8 U.S.C. S 1103, provides in pertinent part:
(a)(1) The Attorney General shall be charged with the adminis-
tration and enforcement of this chapter and all other laws relating
to the immigration and naturalization of aliens, except insofar as
this chapter or such laws relate to the powers, functions, and
duties conferred upon the President, the Secretary of State, the
officers of the Department of State, or diplomatic or consular
officers: . . .
(a)(3) [She] shall establish such regulations; prescribe such
forms of bond, reports, entries, and other papers; issue such
instructions; and perform such other acts as [she ] deems neces-
sary for carrying out [her] authority under the provisions of this
chapter.
(a)(4) [She] may require or authorize any employee of the Ser-
vice or the Department of Justice to perform or exercise any of
the powers, privileges, or duties conferred or imposed by this
chapter or regulations issued thereunder upon any other employee
of the Service.
8 U.S.C. S 1443 concerns rules and regulations governing the examina-
tion of applicants, and provides in pertinent part:
(a) 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 exami-
nation of applicants for naturalization as to their admissibility to
citizenship. ...
8 C.F.R. S 310.1(b) provides:
Pursuant to S 2.1 of this chapter, the Commissioner of the
Immigration and Naturalization Service is authorized to perform
such acts as are necessary and proper to implement the Attorney
General's authority under the provisions of section 310 of the
Act.
5523
INS, following notice and comment, promulgated the final
(and current) version of the regulation challenged in this case
on October 28, 1996. See Revocation of Naturalization, 61
Fed. Reg. 55550 (1996) (codified at 8 C.F.R. pt. 340). Section
340.1, the regulation directly at issue, provides for reopening
of a naturalization application by an INS district director pur-
suant to INA S 340(h); 8 C.F.R. S 340.2 provides for revoca-
tion proceedings pursuant to INA S 340(a), the judicial
revocation provision. Under Regulation 340.1, the Service
may reopen a naturalization proceeding and revoke natural-
ization if it obtains "credible and probative evidence" which:
(1) Shows that the Service granted the application
by mistake; or
(2) Was not known to the Service Officer during
the original naturalization proceeding; and--
(i) Would have had a material effect on the out-
come of the original naturalization; and
(ii) Would have proven that:
(A) The applicant's application was based on
fraud or misrepresentation or concealment of a mate-
rial fact; or
(B) The applicant was not, in fact, eligible for nat-
uralization.
8 C.F.R. S 340.1(a). We set out the full text of S 340.1 in
Appendix I, but in sum the procedures for reopening contem-
plate a notice of intent that describes the grounds the district
director believes warrant reopening, to which the applicant
may respond;9 the applicant may request a hearing before an
_________________________________________________________________
9 Failure to respond is deemed an admission of the grounds for reopen-
ing and revoking naturalization. 8 C.F.R. S 340.1(b)(4)(ii).
5524
immigration officer authorized to review naturalization appli-
cations, and has the right to counsel; the applicant bears the
burden of persuading the district director that he was eligible
for naturalization at the time of the order; a record is to be
kept of the reopened proceedings; a written decision consist-
ing of findings of fact and conclusions of law as well as a
final determination on the naturalization application shall be
filed; and instead of reopening the naturalization decision and
revoking naturalization, the district director must refer a case
for judicial revocation proceedings if a factual issue is raised
that will depend on witness credibility to resolve. The appli-
cant may appeal an adverse decision to the Service's Office
of Examinations, Administrative Appeals Unit, and the dis-
trict director may reconsider the decision to reopen the natu-
ralization application and affirm the original decision
naturalizing the applicant. Otherwise, if the order is revoked
and the application is denied, the applicant may seek judicial
review in accordance with INA S 310(c). In either case the
applicant retains citizenship until a decision to deny natural-
ization becomes final.
B
Under the new regime, naturalization was granted to more
than a million applicants in circumstances that reportedly led
to concern that many may not have revealed disqualifying
conditions. KPMG-Peat Marwick was retained to conduct an
audit, and found that over six thousand naturalization orders
may have been fraudulently obtained. As a result, the INS
began in mid-1997 to issue Notices of Intent to Revoke Natu-
ralization.
Irina Gorbach was among those who received a NOIR. She
and her co-plaintiffs filed a class action against Attorney Gen-
eral Reno and the INS on March 5, 1998 for declaratory and
injunctive relief. They seek to invalidate Regulation 340.1 as
without authority in the Immigration and Nationality Act, and
as contrary to the Administrative Procedures Act and the Due
5525
Process Clause of the Fifth Amendment. Meanwhile, Gorbach
sought a preliminary injunction to restrain the INS from insti-
tuting, continuing or deciding any pending administrative
denaturalization proceedings under S 340.1. Reno moved to
dismiss the complaint on the ground that Gorbach lacked
standing and the suit was not justiciable. The district court
denied Reno's motion to dismiss and granted Gorbach's
request for preliminary injunction, enjoining the Service
"from initiating or continuing administrative denaturalization
proceedings under S 340.1 pending final resolution of this
case on the merits." Gorbach, 181 F.R.D. at 650. Reno timely
appealed.
Subsequently (and not at issue on this appeal), the district
court certified a nationwide class of naturalized individuals
who are or will be placed in administrative denaturalization
proceedings. The district court, and a motions panel of our
court, denied Reno's motion for a stay pending appeal.
II
Because Reno raises the issue of our jurisdiction, we must
address it first. She contends that there is no final agency
action since none of the named plaintiffs has yet had natural-
ization administratively revoked. Like the administratively
issued complaint in FTC v. Standard Oil Co. of California,
449 U.S. 232 (1980), she argues that the NOIRs issued in this
case serve only to initiate proceedings and to put individuals
on notice of the need to respond. They do not, in her view,
have legal or practical effect as the recipient is still considered
to be a United States citizen until all remedies are exhausted.
Further, Reno points out, the administrative process provides
significant procedural safeguards that make judicial interven-
tion at this time unnecessary.
[1] We agree with the district court that Gorbach does not
lack standing to proceed with the narrow challenge that is
actually before us to the Attorney General's statutory author-
5526
ity to provide for administrative reopening and revoking of
naturalization orders. Gorbach has received a NOIR and must
respond on pain of having the charges against her conceded
and her citizenship subject to forfeiture. She is thus required
to put her citizenship on the line in an administrative proceed-
ing that she claims the INS lacks statutory authority even to
undertake. Under the law of this circuit, it is not speculative
to find procedural injury on account of being hailed into
administrative proceedings for which there may be no author-
ity. See Yesler Terrace Community Council v. Cisneros, 37
F.3d 442, 445-46 (9th Cir. 1994) (tenants in housing project
served with notice of eviction have standing). Thus, whether
or not her citizenship is ultimately retained, Gorbach has a
concrete interest in not being forced to respond to process that
is arguably unlawful.10 See Legalization Assistance Project v.
INS, 510 U.S. 1301, 1303 (1993) (O'Connor, J., in chambers)
("A federal court . . . generally ought not entertain a request
for an injunction or declaratory judgment regarding the valid-
ity of an administrative regulation unless it is brought by
someone who has actually been concretely affected by the
regulation." (Citing Reno v. Catholic Social Serv., Inc., 509
U.S. 43, 57-58 (1993))); Stoianoff v. Montana , 695 F.2d 1214,
1223 (9th Cir. 1983) (mere existence of statute which may or
may not ever be applied is not sufficient to create case or con-
troversy, unlike situation where plaintiff demonstrates genu-
ine threat that allegedly unconstitutional law is about to be
enforced against him).
[2] Because hers is a facial challenge only, we are not cal-
led upon to consider how the procedures adopted in Regula-
tion 340.1 play out. The situation would be different if we
were. If Gorbach were challenging more than the Attorney
General's facial authority to reopen and revoke, then standing,
ripeness, and exhaustion--other prudential grounds also
_________________________________________________________________
10 Although proceedings against Gorbach herself were dismissed, this
does not affect standing of the class representatives whom we continue to
refer to as "Gorbach."
5527
raised by Reno--would of course be implicated. Cf., e.g.,
Catholic Social Serv., 509 U.S. at 58 (dispute not ripe where
challenged immigration regulations "impose no penalties for
violating any newly imposed restriction," and there was insuf-
ficient evidence demonstrating they had yet been applied to
plaintiff class); Toilet Goods Ass'n v. Gardner , 387 U.S. 158,
164 (1967) (pre-enforcement dispute not ripe for review
where regulation's impact could not "be said to be felt imme-
diately by those subject to it in conducting their day-to-day
affairs"); Abbott Labs. v. Gardner, 387 U.S. 136 (1967),
overruled on other grounds by Califano v. Sanders , 430 U.S.
99 (1977) (pre-enforcement dispute ripe where promulgation
of challenged regulations alone presented plaintiffs with
immediate dilemma of choosing between compliance with the
onerous regulations and serious penalties for violation). How-
ever, in the circumstances presented, Gorbach's claim that the
Attorney General lacks authority to reopen her naturalization
proceeding is ripe because the INS has given notice of its
intent to do precisely that. Because she must respond or be
deemed to have defaulted her status as a naturalized citizen,
Gorbach also has sufficient concrete and particularized injury
to assert the claim she presses. Accordingly, the district court
did not err in exercising jurisdiction.
III
Ordinarily, when considering a district court's grant of a
preliminary injunction we review its findings for clear error,
its legal premises de novo, and its decision to grant the relief
requested for abuse of discretion. See Miller v. California
Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc).
However, Reno's appeal presents solely the legal question of
the INS's statutory authority to reopen naturalization appli-
cations and vacate naturalization orders. The facts are of no
controlling significance on this issue.11 Under these circum-
_________________________________________________________________
11 We emphasize that this is our view only on the issue of statutory
authorization; we do not know, and express no view on, the extent to
which any other issues in this case that are not before us on appeal require
factual development or actual application of the regulation.
5528
stances, we may give the legal question plenary review even
though the appeal is from the entry of a preliminary injunc-
tion. See Thornburgh v. Am. College of Obstetricians and
Gynecologists, 476 U.S. 747, 757 (1986), overruled on other
grounds, Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833 (1992).12
We believe we should do so here. This is a matter of obvi-
ous importance both to those who are subject to NOIRS, and
to the government. Congress put a new system in place when
it gave exclusive responsibility for naturalization to the Attor-
ney General, and the public interest counsels in favor of
bringing certainty to the process as quickly as possible. Cf.
Legalization Assistance Project, 510 U.S. at 1305-06 (noting
that balance of equities tips in favor of the INS in light of dis-
trict court order requiring it to stay deportations and issue
employment authorizations, in part because of the administra-
tive burden on the INS and in part because of the attendant
delay in the deportation of aliens who are properly deport-
able). If naturalization proceedings cannot be reopened
administratively when fraud or ineligibility is suspected, the
alternative is for the INS to initiate denaturalization proceed-
ings through the United States Attorney, since naturalization
proceedings--which no longer take place in court--can no
longer be reopened in court. The passage of time can only
make the burden that dilemma poses for the INS, United
States Attorney's Offices, and the courts more severe. On the
other hand, no matter how we construe the Act, if we are
wrong in divining congressional intent, Congress can
promptly act to overrule us.
_________________________________________________________________
12 See also Maldonado v. Houstoun , 157 F.3d 179, 183 (3d Cir.), petition
for cert. filed, 67 U.S.L.W. 3394 (Dec. 3, 1998) (No. 98-915) (addressing
merits on appeal from preliminary injunction raising constitutionality of
state statute); Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d
352, 359 (4th Cir. 1998), cert. denied, _______ U.S. _______, 67 U.S.L.W. 3397
(Feb. 22, 1999) (same).
5529
Finally, we are influenced by the fact that in this circuit, a
preliminary injunction will issue if the moving party demon-
strates either a likelihood of success on the merits and the
possibility of irreparable injury, or that serious questions
going to the merits are raised and the balance of hardships tips
sharply in her favor. See Arcamuzi v. Continental Air Lines,
Inc., 819 F.2d 935, 937 (9th Cir. 1987). Here, the district
court relied on the second prong, determining that Gorbach
raised a serious question about the INS's statutory authority
to authorize and implement administrative denaturalization
proceedings. It is hard to dispute the seriousness of the ques-
tion Gorbach raises, as the procedure is novel and precedent
is scarce. Yet because the issue of statutory authorization is
purely a matter of law, it seems incongruous for us to leave
it unresolved simply because the question is serious (all that
is required for a preliminary injunction) and the district court
was within its discretion in so finding. In such a case, " `[t]he
customary discretion accorded to a District Court's ruling on
a preliminary injunction yields to our plenary scope of review
as to the applicable law.' " Thornburgh , 476 U.S. at 757
(quoting Am. College of Obstetricians and Gynecologists v.
Thornburgh, 737 F.2d 283, 290 (3d Cir. 1984)). Therefore,
since both parties agree that the issue is as ripe and the record
is as developed now as it will ever be, and that no further pro-
ceedings in the district court are necessary, we shall proceed
to decide the merits.
IV
There is no debate that the 1990 amendments explicitly
confer on the Attorney General the exclusive power to natu-
ralize. There also is no doubt that the INA explicitly recog-
nizes that S 340 does not limit, deny or restrict the power of
the Attorney General to reopen and to vacate an order of natu-
ralization. The difficulty is that the statute nowhere says, in so
many words, that the Attorney General shall have the author-
ity to reopen.
5530
Gorbach relies heavily on the fact that no statute expressly
gives the INS the authority to take away citizenship. She
argues that the Act provides only for judicial denaturalization,
and prohibits the Attorney General from affecting the citizen-
ship of any individual. See 8 U.S.C. S 1453 (1970).13 Thus, as
she sees it, there is no way that the positive power to reopen
can be inferred from the "savings clause," which is merely
negative and does not itself authorize the Attorney General to
do anything. In addition, Gorbach submits that judicial denat-
uralization pursuant to INA S 340(a) would be rendered
superfluous were administrative denaturalization also avail-
able. In any event, she contends, the INS's claimed authority
far exceeds the authority previously exercised by courts pur-
suant to their power to revisit rulings under Rule 60(b); rather,
the agency's inherent power to reopen, to the extent it exists
at all, is limited to correcting ministerial errors and does not
extend to revoking naturalization.
Reno argues, in response, that this does not matter as the
power to grant or deny naturalization inherently authorizes the
_________________________________________________________________
13 INA S 342; 8 U.S.C. S 1453 provides:
The Attorney General is authorized to cancel any certificate of
citizenship, certificate of naturalization, copy of a declaration of
intention, or other certificate, document or record heretofore
issued or made by the Commissioner or a Deputy Commissioner
or hereafter made by the Attorney General if it shall appear to the
Attorney General's satisfaction that such document or record was
illegally or fraudulently obtained from, or was created through
illegality or by fraud practiced upon, [her] or the Commissioner
or a Deputy Commissioner; but the person for or to whom such
document or record has been issued or made shall be given at
such person's last-known place of address written notice of the
intention to cancel such document or record with the reasons
therefor and shall be given at least sixty days in which to show
cause why such document or record should not be canceled. The
cancellation under this section of any document purporting to
show the citizenship status of the person to whom it was issued
shall affect only the document and not the citizenship status of
the person in whose name the document was issued.
5531
Attorney General to reopen and revoke naturalization orders
because she has the overall responsibility of administering the
Act, and the power to promulgate regulations necessary to
implementing her authority. In her view, Congress explicitly
recognized this was so by acknowledging that "[n]othing con-
tained in this section shall be regarded as limiting, denying,
or restricting the power of the Attorney General to correct,
reopen, alter, modify, or vacate an order naturalizing the
person." 8 U.S.C. S 1451(h). Nor does Reno see any basis for
measuring the Attorney General's authority by reference to
Federal Rule of Civil Procedure 60(b), or for inferring from
the fact that there are differences between Regulation 340.1
and Rule 60(b) that the regulation somehow lacks statutory
authority. Instead, Reno points out that when Congress trans-
ferred the power to naturalize to the Attorney General, it
intentionally eliminated the reference to court term and rules
in the savings clause that formerly governed the courts' sum-
mary reopening procedure. In Reno's view, this reflects con-
gressional intent to leave her with the same power to reopen
as the courts had before.
As we shall explain, we conclude that the Attorney General
has the better position.
A
Although the Attorney General's authority to promulgate a
regulation providing for reopening and revoking naturaliza-
tion orders will ultimately turn on the statutory scheme itself,
we are guided by several general principles.
First, where, as here
the empowering provision of a statute states simply
that the agency may "make . . . such rules and regu-
lations as may be necessary to carry out the provi-
sions of this Act," . . . a regulation promulgated
thereunder will be sustained so long as it is
5532
"reasonably related to the purposes of the enabling
legislation."
Balelo v. Baldridge, 724 F.2d 753, 760 (9th Cir. 1984) (en
banc) (quoting Mourning v. Family Publications Serv., Inc.,
411 U.S. 356, 369 (1973) (citations omitted)).
Second, because American citizenship is such a precious
right, summary revocation procedures are disfavored. See
Magnuson v. Baker, 911 F.2d 330, 335 n.11 (9th Cir. 1990)
(discussing INA S 340(i) under pre-1990 law). For this rea-
son, we expect notice and opportunity to be heard before nat-
uralization can be revoked, and exceptional grounds such as
fraud or misrepresentation to exist before the authority to
revoke a citizenship judgment is exercised. Id. at 335-36.
Third, we must be especially "sensitive to the citizen's
rights where the proceeding is nonjudicial because of `[t]he
difference in security of judicial over administrative action.' "
United States v. Minker, 350 U.S. 179, 188 (1956) (quoting
Ng Fung Ho v. White, 259 U.S. 276, 285 (1922)). We assume
there should be judicial adjudication of the issue of citizen-
ship and a heavy criterion of proof by the government before
decreeing denaturalization "unless by appropriate explicitness
the lawmakers make them inapplicable." Id.
Fourth, " `[e]very tribunal, judicial or administrative, has
some power to correct its own errors or otherwise appropri-
ately to modify its judgment, decree, or error.' " Alberta Gas
Chems., Ltd. v. Celanese Corp., 650 F.2d 9, 13 (2d Cir. 1981)
(quoting 2 K. Davis, Administrative Law TreatiseS 18.09 at
606 (1958)).
Finally, "[w]hen Congress acts to amend a statute, we pre-
sume it intends its amendment to have real and substantial
effect." Stone v. INS, 514 U.S. 386, 397 (1995) (citing Reiter
v. Sonotone Corp., 442 U.S. 330, 339 (1979) (court must con-
strue statute to give effect, if possible, to every provision),
5533
and Moskal v. United States, 498 U.S. 103, 109-111 (1990)
(same)).
B
Examining the amended INA in light of these principles,
we cannot agree with Gorbach that the absence of statutory
authorization for administrative reopening and revocation is
fatal, either because INA S 340(a) expressly grants denatural-
ization authority to the courts and INA S 342 bars administra-
tive denaturalization, or because the "savings " clause is
merely negative. While her arguments would have been com-
pelling before the 1990 amendments, those amendments
changed the legal landscape altogether.
[3] Whereas before 1990 naturalization was determined
judicially, after 1990 naturalization is determined administra-
tively. Before 1990, naturalization orders could be reopened
and revoked in the naturalization court either by a plenary
action under INA S 340(a)--which is still available--or by a
summary procedure under INA S 340(i). The pre-1990 sum-
mary procedure was guided by the time limits of Rule 60(b)
(within one year of entry of judgment), and the bases recog-
nized under Rule 60(b) for revisiting a final judgment (fraud,
misrepresentation or other exceptional grounds). See
Magnuson, 911 F.2d at 335 n.11; In re Petition of Campbell,
326 F.2d 101, 102 (2d Cir. 1964). However, the INA had
never in so many words conferred on the courts the power to
revoke naturalization in a summary procedure. Rather, that
power was implicit, and "saved." Indeed, the savings clause
was enacted for the purpose of making it clear that INA
S 340(a) was not the exclusive route for revocation. See
Simons, 452 F.2d at 1114. With the transfer of naturalization
authority to the Attorney General, she assumed the adjudica-
tive role previously reserved for the courts. It seems to us that
the power to revoke is implicit in the authority now conferred
on the Attorney General, because she has the explicit power
to establish regulations necessary for carrying out her author-
5534
ity, and because the power to reopen and to revoke that
attends the adjudicative decision to naturalize was expressly
preserved by INA S 340(h). See Balelo, 724 F.2d at 759 (cit-
ing Haig v. Agee, 453 U.S. 280, 291 (1981) (Secretary of
State's power to revoke passports is implicit in broad rule-
making authority conferred upon the Secretary by the Pass-
port Act)).
We are buttressed in this view because Congress did more
than just retain the "savings" provision in the 1990 amend-
ments. It also eliminated the previous limitation on reopening
a naturalization judgment to "the term of such court or within
the time prescribed by the rules of procedure" which obvi-
ously applies only to a court. Agencies do not have terms and
are not bound by the Federal Rules of Civil Procedure. Thus,
by cutting out the proviso that applies only to a court, Con-
gress tailored the provision that saves an adjudicator's
implicit power to reopen for a non-judicial agency. Further,
Congress coupled the revised savings clause with a new pro-
vision for de novo judicial review of administrative denials of
naturalization. See 8 U.S.C. S 1421(c). In this way we believe
Congress manifested its intent that the INS have power to
reopen and revoke, subject to Article III review.
[4] INA S 342 does not compel a different conclusion. Gor-
bach points out that S 342 confers on the Attorney General the
authority to revoke certificates of naturalization issued by the
INS or the Attorney General, but provides that the cancella-
tion of documents purporting to show citizenship status shall
"affect only the document and not the citizenship status of the
person in whose name the document was issued." Reno count-
ers that S 342 pertains only to document fraud, not naturaliza-
tion orders procured by fraud, and that its limitation only
applies to cancellation of documents "under this section," not
to the Attorney General's other powers. Literally read, this is
correct. A certificate reflecting status just reflects the status
already conferred; it is not the status itself. Thus, the Attorney
General may only revoke a document illegally or fraudulently
5535
obtained but not the status itself as to any naturalization
ordered before 1990, because the naturalization was conferred
by the courts. Of course, the Attorney General's ability to
determine and to deny naturalization status changed with the
1990 amendments. Even so, denials of naturalization are sub-
ject to judicial review. In particular, under Regulation 340.1,
the applicant's status as a citizen is not affected until a deci-
sion to reopen the naturalization proceedings and to deny nat-
uralization becomes final--and that does not happen without
the opportunity for de novo review in a United States district
court. See 8 U.S.C. S 1421(c); 8 C.F.R. S 340.1(f), (g)(2)-(4).
Gorbach argues in the alternative that, regardless of what-
ever inherent power the INS may have to revisit its prior
orders, that power cannot extend beyond the timely correction
of "inadvertent ministerial errors" because Congress has not
expressly established a formal revocation process. However,
we do not read the cases upon which she bases this argument
as supporting such a limitation. In American Trucking Ass'ns
v. Frisco Transp. Co., 358 U.S. 133 (1958), the Court recog-
nized the Interstate Commerce Commission's inherent author-
ity to correct judgments with clerical errors and judgments
that were issued due to inadvertence or mistake. See id. at
144-46. However, this was not a limitation as Gorbach sug-
gests but rather a description, because that is all the ICC had
undertaken to do. In any event, both American Trucking and
United States v. Seatrain Lines, Inc., 329 U.S. 424 (1947),
were concerned with proceedings that were reopened to exe-
cute new agency policy. There is no suggestion here that the
INS's regulation permits reopening because of "second
thoughts," or a change of policy, and nothing in either opinion
casts doubt on the authority of the INS to revisit a prior order
procured by fraud or concealment. Nor does CAB v. Delta Air
Lines, Inc., 367 U.S. 316 (1961), which held that the Civil
Aeronautics Board lacked authority to alter a certificate of
public convenience and necessity without notice or hearing
and contrary to express statutory procedures. None of these
defects appears on the face of the INS regulation. Int'l Paper
5536
Co. v. FERC, 737 F.2d 1159 (D.C. Cir. 1984) and Hirschey
v. FERC, 701 F.2d 215 (D.C. Cir. 1983), are similar to
American Trucking and Seatrain Lines in that each also
involved an agency's authority to reopen and vacate a final
order simply because the agency changed its mind. For the
same reason American Trucking and Seatrain Lines aren't
controlling, Hirschey and Int'l Paper are not persuasive
either. Additionally, the agency in those cases did not purport
to reopen on the basis of fraud; the disputed order there was
"validly granted." In contrast, Regulation 340.1 permits the
reopening and revoking of only those orders that are by defi-
nition not "validly granted" because they were fraudulently
procured. See Int'l Paper, 737 F.2d at 1162; Hirschey, 701
F.2d at 219.
Finally, Gorbach argues that the Minker rule applies
because neither the savings clause nor a statute granting gen-
eral enforcement powers is an "appropriately explicit" grant
of authority. We disagree. In Minker the question was
whether the INS had authority under former INA S 235(a) to
subpoena a naturalized citizen who was the subject of an
ongoing INS investigation whose purpose was to determine if
good cause existed for the institution of plenary judicial
denaturalization proceedings under former S 338 of the Act.
The statute allowed for witnesses to be subpoenaed, but was
ambiguous with respect to whether a putative defendant could
be a "witness." In that context, the Court drew from earlier
due process cases involving possible loss of citizenship to
construe the ambiguity in the citizen's favor. Minker, 350
U.S. at 187-88 (citing Schneiderman v. United States, 320
U.S. 118 (1943) (imposing high burden of proof in plenary
judicial revocation proceedings), Baumgartner v. United
States, 322 U.S. 665 (1944) (same), and Ng Fung Ho, 259
U.S. at 284 (due process requires judicial determination of
claim to citizenship). Here, in contrast with Minker, we are
not concerned with how the agency interprets and applies its
regulation. Moreover, to the extent that Minker presumes judi-
cial review in the absence of appropriately explicit direction
5537
from Congress, the 1990 amendments state with "appropriate
explicitness" that naturalization applications will be admin-
istratively adjudicated--subject to de novo judicial review of
denials.14
[5] There is nothing remarkable about recognizing an agen-
cy's power to reopen and reconsider its own decisions, espe-
cially those arguably obtained by fraud. "It is widely accepted
that an agency may, on its own initiative, reconsider its
interim or even its final decisions, regardless of whether the
applicable statute and agency regulations expressly provide
for such review." See Dun & Bradstreet Corp. Found. v.
United States Postal Serv., 946 F.2d 189, 193 (2d Cir. 1991)
(Postal Service had power sua sponte to reconsider previous
decision to grant special mailing rates to non-profit organiza-
tion despite absence of express statutory authority).15 A num-
ber of courts in a variety of contexts have held that
"[a]dministrative agencies have an inherent authority to
reconsider their own decisions, since the power to decide in
the first instance carries with it the power to reconsider." See
Trujillo v. General Elec. Co., 621 F.2d 1084, 1086 (10th Cir.
1980) (citations omitted) (EEOC District Director has implicit
power to rescind previously-issued Right to Sue notice,
_________________________________________________________________
14 Gorbach may also be suggesting that Congress could not have
intended to allow authority for the INS to reopen on the basis of "credible
and probative evidence" rather than some higher criterion of proof. How-
ever, we believe that is a question going primarily to the sufficiency of the
process afforded--an issue not now before us. For example, the INS's
instructions indicate that "evidence justifying administrative revocation
should generally be clear, unequivocal, and convincing." See Office of the
Deputy Commissioner, Implementation Guidance: INAS 340(h); 8 C.F.R.
S 340.1 (Nov. 21, 1996) at 2. We do not know if this will turn out to be
how the agency interprets the regulation, and we express no opinion on
whether even this is a sufficiently exacting burden of proof.
15 See also Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989)
(despite absence of express statutory authority, BATF necessarily retained
power to correct approval of firearms import licenses); Iowa Power &
Light Co. v. United States, 712 F.2d 1292, 1294-97 (8th Cir. 1983) (ICC
may retroactively impose higher tariff to correct previous error).
5538
despite lack of statutory basis for reconsideration and
recission).16 This is so whether or not the applicable statute
expressly provides for reconsideration. See Gun South, 877
F.2d at 862 (canvassing cases). And, as the Second Circuit
stated, "[i]t is hard to imagine a clearer case for exercising
this inherent power than when a fraud has been perpetrated on
the tribunal in its initial proceeding." See Alberta Gas, 650
F.2d at 13 (affirming dismissal of federal court action chal-
lenging International Trade Commission decision allegedly
procured by fraud before plaintiff sought reconsideration from
agency itself on footing that notwithstanding absence of
express statutory or regulatory authority permitting reconsid-
eration, "a more fundamental source of authority exists for
allowing the Commission to determine initially the issues in
this lawsuit: the inherent power of any administrative agency
to protect the integrity of its own proceedings").
[6] Indeed, agencies regularly promulgate regulations pro-
viding for administrative reopening if it later appears that the
initial decision was procured by fraud. See, e.g., 20 C.F.R.
SS 404.988(c), 416.1488(c) (1998) (Social Security regula-
tions allowing reopening "[a]t any time if . . . [the decision]
was obtained by fraud or similar fault"); 20 C.F.R. S 261.2(c)
_________________________________________________________________
16 See also Ideal Basic Indus., Inc. v. Morton, 542 F.2d 1364, 1367-68
(9th Cir. 1976) (Secretary of the Interior has inherent authority to recon-
sider earlier agency decision granting application for patents on forty-five
limestone mining claims); Bookman v. United States, 453 F.2d 1263, 1265
(Ct. Cl. 1972) (noting "general rule that every tribunal, judicial or admin-
istrative, has some power to correct its own errors or otherwise appropri-
ately to modify its judgment, decree or order," and stating that "where
there are no statutory or administrative guidelines, " a court "will sustain
the reconsidered decision of an agency, as long as the administrative
action is conducted within a short and reasonable time period") (citations
and internal quotations omitted); cf. Belville Mining Co. v. United States,
999 F.2d 989, 998 (6th Cir. 1993) (affirming agency's decision to revoke
a strip-mining determination and noting that "[e]ven if an agency lacks
express statutory authority to reconsider an earlier decision, an agency
possesses inherent authority to reconsider administrative decisions, subject
to certain limitations") (citations omitted).
5539
(1998) (Railroad Retirement Board regulation) (same); 26
C.F.R. S 301.7121-1(c) (1998) (IRS regulation regarding tax
liability "closing agreements") (same); 27 C.F.R. S 70.485(c)
(1998) (BATF "closing agreements" regulation) (same); 42
C.F.R. SS 405.841(c), 405.1885(d) (1998) (Medicare insur-
ance carrier regulations) (same).
Against this background, it is evident that administrative
reopening and revoking of the INS's prior naturalization
orders is not an unintended consequence of leaving the sav-
ings clause (revised to accommodate agency practice) in
place. If it were, Congress has had several opportunities to say
so, but hasn't. After Regulation 340.1 was published for
notice and comment, see Revocation of Naturalization, 59
Fed. Reg. 38,381 (proposed Jul. 28, 1994), Congress made
substantial additional changes to the INA without indicating
that the Attorney General should not proceed to adopt the reg-
ulation. See the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996), and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009 (1996), as amended by Act of Oct. 11, 1996,
Pub. L. No. 104-302, 110 Stat. 3656 (1996). After Regulation
340.1 was implemented, see Revocation of Naturalization, 61
Fed. Reg. 55,550 (promulgated Oct. 28, 1996), Congress
passed the Nicaraguan Adjustment and Central American
Relief Act of 1997 (NACARA), Pub. L. No. 105-100, 111
Stat. 2160 (1997)--also without affecting the Attorney Gener-
al's authority to reopen her orders of naturalization.
Even more significantly, in November 1997 Congress
appropriated $1,657,886,000 "[f]or expenses .. . necessary for
the administration and enforcement of the laws relating to
immigration, naturalization, and alien registration . . . ." See
Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998, Pub. L.
No. 105-119, 1997 U.S.C.C.A.N. (111 Stat.) 2440, 2447-48
(1997). The legislative history of the 1998 Appropriations Act
5540
indicates that Congress expressly intended $3,391,000 of
these monies to be used "for revocation of citizenship for
criminals improperly naturalized." See H.R. Conf. Rep. No.
105-405, at 105-06 (1997), reprinted in 1997 U.S.C.C.A.N.
2941, 2956-57 ("This statement of managers reflects the
agreement of the conferees on how the funds provided in the
conference report are to be spent."). As noted by the Appro-
priations Committee in its accompanying Report, see H.R.
Rep. No. 105-207 (1997), these funds were to be used for the
creation of 27 positions in the INS "to ensure that there are
adequate resources to effect these revocations in a timely
manner." See id. at 31 ("The Committee expects the INS to
not only revoke citizenship for those ineligible persons but
also to follow through with deportation proceedings on any
applicant, especially criminals, who are deportable."). Thus,
" `the inference of congressional approval is supported by
more than mere congressional inaction.' " Balelo, 724 F.2d at
761 (quoting Haig v. Agee, 453 U.S. at 301 (internal quota-
tions and citations omitted)).
[7] For these reasons, we cannot say that Regulation 340.1
is inconsistent with the objectives of the INA, or lacks statu-
tory authority.
C
Lastly, Gorbach makes the related argument that the INS's
claimed authority exceeds the authority previously exercised
by the courts. She points out that there are differences
between the INS's new administrative proceedings and court
proceedings under the prior version of INA S 340(h), and that
even courts were chary of using their Rule 60(b) authority to
revoke naturalization, often insisting on the plenary route
instead. See Petition of Campbell, 326 F.2d at 102; Petition
of De Roma, 603 F. Supp. 127, 131-132 (D.N.J. 1985);
Petition of Arevalo, 352 F. Supp. 215, 217 (D. Haw. 1972);
Petition of Devlas, 31 F.R.D. 130, 133 (S.D.N.Y. 1962);
Petition of Grgas, 133 F. Supp. 91 (S.D. Cal. 1955). But see
5541
Petition of Cardines, 366 F. Supp. 700, 706-08 (D. Guam
1973); In re Naturalization of Bartkiw, 199 F. Supp. 762, 765
(E.D. Pa. 1961); Petition of Field, 117 F. Supp. 154, 155-56
(S.D.N.Y. 1953). Further, she notes that even where courts
did allow the government to invoke former INA S 340(i),
reopening was always subject to the strict requirements of
Rule 60(b). See Petition of Cardines, 366 F. Supp. at 703;
Petition of Taulapapa, 282 F. Supp. 156 (D. Haw. 1968); see
also Petition of Tabilos, 637 F. Supp. 969, 972 (N.D. Cal.
1986). As a result, Gorbach urges that even if amended INA
S 340(h) does allow the Attorney General to exercise the same
denaturalization power previously possessed by the courts,
which she does not believe it does, the statute still does not
authorize the INS to bypass INA S 340(a) as it now seeks to
do. She also suggests that it is inconceivable that Congress
intended to permit the Attorney General to have unlimited
denaturalization authority divorced from the finality concerns
embedded in Rule 60(b).
We recognize that there are differences between Rule 60(b)
and the procedures adopted by the INS. However, they are
primarily differences of degree that do not seem to us to bear
on the question of statutory authority. For example, under
Regulation 340.1 the INS may reopen when it appears that an
order was granted by mistake or was not known to the Service
Officer during the original proceeding, whereas under Rule
60(b) the government had to show "newly discovered
evidence" that could not previously have been discovered
through due diligence. The INS now has two years instead of
one year to seek to reopen. Under Regulation S 340.1,
"credible and probative" evidence of fraud or misrepresenta-
tion of material fact justifies reopening whereas under Rule
60(b) an adverse party must adduce "clear and convincing"
evidence. See England v. Doyle, 281 F.2d 304, 309-10 (9th
Cir. 1960). These are differences reasonably accounted for by
differences between how an agency operates and how a court
functions, and by differences in caseload. In and of them-
selves, they do not appear inconsistent with the statutory
5542
scheme. Beyond this, to the extent that Gorbach anticipates
that these procedures or others will be problematic as applied,
that is something not before us on this appeal which she can
challenge in due course. See Pence v. Andrus, 586 F.2d 733,
737-38 (9th Cir. 1978).
CONCLUSION
[8] In sum, when the courts had the power to naturalize
they could revisit naturalization decisions either through a
process invoked pursuant to statute by a United States Attor-
ney, or initiated pursuant to their inherent power to reopen
and vacate their own orders (cabined as a practical matter by
Fed. R. Civ. Proc. 60(b)). This latter power was not conferred
by statute, but was expressly preserved by statute. In so
doing, Congress limited the courts' inherent power to reopen
their own orders when acting as a naturalization court by the
term of court, and the time prescribed by the rules of that
court, for jurisdiction to take such action. Once the power to
naturalize was transferred to the Attorney General, the courts
lost their residual power to reopen a naturalization order
because they may no longer enter one. The power to reopen
necessarily follows from the power to grant. Congress
acknowledged this in the 1990 INA amendments by retaining
that part of the "savings" clause which preserved the courts'
power to reopen their own orders, yet repealing that part of
the clause which tied reopening to court rules and term--a
constraint that makes sense for courts but no sense for an
agency. For this clause to mean anything at all, Congress must
have assumed that the Attorney General would necessarily
have the power to reopen and to vacate her own orders of nat-
uralization. We do not have to decide the extent of that power
as applied to hold that it exists as a matter of authority.
[9] While the Attorney General may reopen (in order to
reconsider and possibly to revoke) her orders of naturaliza-
tion, courts retain the power to revoke naturalization at the
instigation of United States Attorneys. This power is no more
5543
superfluous if the INS may reopen its own decisions than it
was when the courts could reopen theirs. In each case, the
triggers are different. Regardless, the conditions under which
the regulation permits reopening do not depart so radically on
their face from those that allowed courts to reopen as to sug-
gest that reopening is not statutorily authorized. In addition,
when applications for naturalization are denied--as they are
in effect when the INS reopens and revokes--courts have the
additional power under the 1990 amendments and the regula-
tion to review the applications de novo. Thus, at the end of the
day, whether naturalization is administratively denied in the
first instance, or granted and then denied upon reopening, a
federal court has the final say.
VACATED.
_________________________________________________________________
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent from Part IV of the opinion, which
holds that the attorney general has statutory authority to
denaturalize American citizens who attained citizenship by
naturalization. As the majority concedes, Congress did not
expressly confer that authority on the attorney general.
Because the power to denaturalize is so important, and
because it differs as a practical matter from the power to natu-
ralize, I do not think we should infer its existence from dele-
gation of the power to naturalize.
The delegation Congress expressly made to the attorney
general was of "authority to naturalize" citizens.1 Congress
expressly delegated to the attorney general only the power to
cancel "certificates of citizenship," expressly providing that
such cancellations "shall affect only the document and not the
_________________________________________________________________
1 8 U.S.C. S 1421(a).
5544
citizenship status."2 The express statutory procedure for
denaturalization says that United States attorneys are sup-
posed to bring proceedings "in any district court."3 Thus the
express scheme plainly and unambiguously gives the attorney
general the power to naturalize citizens and to cancel certifi-
cates of citizenship but not the citizenship itself, and gives to
district courts the power to denaturalize citizens.
The only express provision from which the attorney general
infers a power to denaturalize is a saving clause:"Nothing
contained in this section shall be regarded as limiting, deny-
ing, or restricting the power of the Attorney General to cor-
rect, reopen, alter, modify or vacate an order naturalizing the
person."4 A saving clause does not create anything; it merely
preserves what is already there from repeal. This saving
clause tells us not to infer a negative pregnant eliminating
some power the attorney general has from the other provi-
sions in the denaturalization statute. But absence of implied
repeal does not amount to creation of some new power. Under
the saving clause, what authority the attorney general has, she
keeps, but it does not give her more.
The heart of the attorney general's argument is that the
power to denaturalize is inherent in the power to naturalize.
I do not see why that should be so. There is no general princi-
ple that what one can do, one can undo. It sounds good, like
the Beatles' lyrics "Nothing you can know that isn't known/
Nothing you can see that isn't shown/ Nowhere you can be
that isn't where you're meant to be," but like those lyrics, "it
ain't necessarily so." Even federal courts depend on an
express and circumscribed grant of authority, approved by
Congress, for their power to vacate their own decisions.5 If the
power of courts to vacate their own judgments depends on an
_________________________________________________________________
2 8 U.S.C. S 1453.
3 8 U.S.C. S 1451(a).
4 8 U.S.C. S 1451(h).
5 Federal Rule of Civil Procedure 60.
5545
express rule approved by Congress, I do not see why an anal-
ogous power in the attorney general should be inferred from
Congressional silence. The formula that what one can do, one
can undo, is sometimes true, sometimes not. A person can
give a gift, but cannot take it back. People can without court
intervention marry, but not unmarry. A jury can acquit, and
a judge render judgment on the verdict, but they cannot undo
it and convict. Whether the attorney general can undo what
she has the power to do, naturalize citizens, depends on
whether Congress said she could.
If practicality required that the power to undo naturaliztions
reside in the same agency as the power to naturalize, then we
might infer that Congress intended to give that power to the
attorney general. The inference would rest on the implicit
principle that Congress is presumed to do what makes sense.
But there is no practical sense in supposing that because the
attorney general can naturalize, she needs to have the power
to denaturalize. The former power is typically exercised
wholesale, the latter retail. An administrative agency is useful
for performing large numbers of repetitive routine (from the
agency's viewpoint, not the new citizen's) tasks that do not
take away important liberties from individuals, such as natu-
ralizations. But administrative agencies, accustomed to treat-
ing a case as " `one unit in a mass of related cases,' "6 are
dubious instruments for performing relatively rare acts cata-
strophic to the interests of the individuals on whom they are
performed.
If the attorney general errs at a high rate in the high volume
business of naturalizations, Congress might sensibly delegate
naturalization power to her because the courts could not han-
dle the volume and the errors were bearable, but conclude that
the courts ought to handle denaturalizations, because there are
_________________________________________________________________
6 Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1026 (9th Cir. 1992), quot-
ing Walter Gellhorn, Official Notice in Administrative Adjudication, 20
Tex.L.Rev. 131, 136 (1941).
5546
fewer of them and they affect individual liberty too severely
to tolerate a high error rate. The attorney general's own audi-
tors reported that the INS made at least one processing error
in nine out of ten of the denaturalization cases sampled. "In
90.8% of the cases reviewed, INS and KPMG found that INS
had made at least one processing error, with an average of two
errors per case."7 While many or most errors might not lead
to an erroneous result, the audit reported that 3.7% of the nat-
uralizations were erroneous in result.8 The Justice Department
is now seeking to revoke the naturalizations it performed on
369 of the 1,049,867 people it naturalized from August 1995
through September 1996, and is reviewing another 5,954 for
possible denaturalization proceedings.9
These numbers vitiate any argument that Congress must
have intended to give the attorney general the power to denat-
uralize, as a matter of practicality, when it gave her the power
to naturalize. The federal judiciary could not have processed
a million extra cases, even routine ones, in twelve months, but
there is no reason to doubt that it can handle the few hundred,
or at most a few thousand, denaturalizations that result from
high volume, high error rate naturalizations. It is at least as
reasonable to think that Congress would delegate the power
to naturalize in an administrative agency, and the power to
denaturalize in district courts, based on the numbers of cases
and the relative risks to individual liberty in the two kinds of
cases, as it is to think that it intended to lodge both powers in
the administrative agency.
Historically, Congress and the Supreme Court have been
sensitive to the risk that the naturalization power might be
improperly politicized. Indeed, the Declaration of Indepen-
_________________________________________________________________
7 Department of Justice Press Release at 3, in Excerpts of Record, intro-
ducing KPMG Peat Marwick final audit of naturalizations of 1,049,867
individuals from August 1995 through September 1996.
8 Id. at 4.
9 Id. at 1-2.
5547
dence criticized the King of England for improperly politiciz-
ing naturalization: "HE has endeavored to prevent the
Population of these States; for that Purpose obstructing the
Laws for Naturalization of Foreigners . . . ." The Supreme
Court has, partly for that reason, construed the denaturaliza-
tion statutes in such a way as to avoid delegation except to
federal courts, except where an alternative delegation was
clearly and unambiguously expressed. The Court said in
Bindczyck v. Finucane10 that "elections could be influenced by
irregular denaturalizations as well as by fraudulent
naturalizations." The Court gave the example, from a century
ago, of how a "judge who had naturalized seven aliens on the
supposition that they were members of his own political party
promptly vacated his order when this supposition was
corrected."11 This risk of politicization of denaturalization was
among the reasons why the Court in Bindczyck refused to
infer the power to denaturalize from the power to naturalize.
Bindczyck is critical to resolution of this case. Under the
statute then in effect, state courts had the power to naturalize
citizens, and the question was whether they therefore had the
power to denaturalize, by vacating their own orders of natu-
ralization when procured by fraud. This question is analogous
to the issue before us: does the power to naturalize carry with
it an inherent power to denaturalize. The answer was (and is):
No. The Court in Bindczyck said that despite their power to
naturalize, the state courts did not have power to denaturalize.
The Court rejected the argument that a court's inherent power
to vacate its own judgments included a power to denaturalize.
It held that the statute giving the attorney general the duty to
institute denaturalization proceedings12 in certain designated
courts was "a carefully safeguarded method for denaturaliza-
tion"13 and that the government's statutory right to appear at
_________________________________________________________________
10 Bindczyck v. Finucane, 342 U.S. 76, 82 (1951).
11 Id. at 82-83.
12 The predeccessor to 8 U.S.C.S 1451(a).
13 Bindczyck v. Finucane, 342 U.S. 76, 81 (1951).
5548
any naturalization and the power of district courts to revoke
naturalizations "provided a complete and exclusive frame-
work for safeguarding citizenship against unqualified
applicants."14
Bindczyck forcefully rejects the argument (analogous to the
one today's majority accepts) that (1) grant of citizenship is
a judgment; (2) an issuing court may revoke its own judg-
ments for fraud; so (3) a state court that granted a judgment
of naturalization may vacate its own judgment for fraud. The
Court calls this "mechanical jurisprudence in its most glitter-
ing form" that "disregards the capricious and haphazard
results that would flow from applying such an empty syllo-
gism to the actualities of judicial administration."15
Congress abrogated the result in Bindczyck by expressly
conferring on state courts the power to revoke naturalizations
they had granted. The majority notes a Second Circuit case
that had said Bindczyck was "overruled " by the statutory
change,16 but obviously Congress cannot "overrule" Supreme
Court decisions. What Congress did was to change the statute
that Bindczyck had construed so that it no longer said or
meant what it had when Bindczyck had construed it. The
Supreme Court in United States v. Zucca17 expressly repudi-
ated the notion that Bindczyck was overruled or rendered irrel-
evant by the statutory amendment, by declaring that"[t]he
underlying philosophy of Bindczyck remains intact" despite
the specific holding about state courts that was "abrogated"
by the statutory change.18
That philosophy emphasizes the importance of citizenship
_________________________________________________________________
14 Id. at 84.
15 Id. at 85.
16 Simons v. United States, 452 F.2d 1110, 1114 (2d Cir. 1971).
17 United States v. Zucca, 351 U.S. 91 (1956).
18 Id. at 95 n. 8.
5549
and the safeguards against taking it away. In Zucca, where the
denaturalization statute had prescribed how United States
attorneys should file a case (with an affidavit), the Court held
that they could not also proceed in the usual way (without an
affidavit).19 The "underlying philosophy of Bindczyck" that
Zucca says "remains intact" is "safeguarding citizenship from
abrogation except by a clearly defined procedure,"20 "clearly
defined," that is, by statute. Zucca applied the Bindczyck hold-
ing that the statutory denaturalization procedure was "a self-
contained, exclusive procedure" that "covers the whole
ground."21 That means, for this case, that the denaturalization
procedure defined in 8 U.S.C. S 1451(a) is "exclusive" and
"covers the whole ground."
In United States v. Minker22 the Court said that denatural-
ization "may result in loss of both property and life; or of all
that makes life worth living."23 Minker adopts the rule that
"where there is doubt it must be resolved in the citizen's favor."24
This holding, as applied to the case at bar, means that if there
is doubt whether the statute confers the power on the attorney
general to denaturalize, or leaves it exclusively in the district
courts, the doubt must be resolved against the attorney gen-
eral. The best we can say of the attorney general's proposed
inference of a delegation of power from a saving clause in the
case at bar is that it leaves some doubt, so the doubt "must be
resolved in the citizen's favor" under Minker . Any question
whether that applies to administrative agencies is answered by
Minker's next sentence: "Especially must we be sensitive to
the citizen's rights where the proceeding is nonjudicial,
_________________________________________________________________
19 The predecessor to 8 U.S.C.S 1451(a).
20 Zucca, 351 U.S. at 95.
21 Id. at 99 (quoting Bindczyck, 342 U.S. at 83-84).
22 United States v. Minker, 350 U.S. 179 (1956).
23 Id. at 187 (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).
24 Minker, 350 U.S. at 188.
5550
because of `[t]he difference in security of judicial over admin-
istrative action . . . .' "25
All these principles of construction -- that the statutory
denaturalization procedure exhausts the field, that the power
to denaturalize does not imply a power to denaturalize, that
doubts are to be resolved in the naturalized citizen's favor,
and that administrative action is to be deemed less secure than
judicial -- remain the law. The 1990 statutory amendments
shifted the power to naturalize citizens from federal and state
courts to the attorney general, but left intact the district court
denaturalization proceeding.26 The amendments also changed
the saving clause, from one that saved to state and federal
courts whatever power they had to vacate their own judg-
ments with respect to naturalizations, to a new version that
saved to the attorney general whatever power she had.27 This
change in the saving clause is insufficient to accomplish a del-
egation, in the face of the holdings in Bindczyck, Zucca, and
Minker.
I concede that an alternative construction, like the majori-
ty's, is plausible from the words of the statute, if the statute
is read without the gloss provided by the controlling Supreme
Court decisions. One could reason that Congress would not
have written a saving clause if there were nothing to save. But
this inference from silence is not enough, under the Supreme
Court cases holding that the express statutory procedure is
exclusive and fully occupies the field, to imply a delegation.
Nor can it necessarily be said that the alternative is to con-
strue the saving clause as having no meaning. Possibly the
agency has authority to correct clerical errors shortly after
they are made, which authority the saving clause preserves,
and certainly it has the other powers described in the saving
clause, such as to reopen and correct naturalizations for errors
_________________________________________________________________
25 Id. (quoting Ng Fung Ho , 259 U.S. at 285).
26 8 U.S.C. SS 1421(a), 1451(a).
27 8 U.S.C. S 1451(h).
5551
such as misspelled and misdesignated names. Were we to
infer a negative pregnant, we might do so more readily from
the limitation on the attorney general's power regarding can-
cellation of a certificate of citizenship. Congress provided that
the attorney general can cancel a certificate fraudulently
obtained, but the cancellation "shall affect only the document
and not the citizenship status of the person in whose name the
document was issued."28 It is hard to see why Congress would
limit cancellations in this way, unless the statutory procedure
for denaturalization in federal district courts remains the
exclusive means of revoking the citizenship of an individual
who has been naturalized. The most Congress gave the attor-
ney general regarding the power to denaturalize is silence, and
"[n]ow and then silence is not pregnant." 29
The attorney general not only grabbed the ball on denatu-
ralizations, but ran out of bounds with it. The regulation
reverses the ordinary burden of proof. The regulation not only
says that the Immigration and Naturalization Service may
revoke a naturalization.30 It goes so far as to say that the natu-
ralized citizen "bears the burden of persuading the district
director that, notwithstanding the evidence described in the
notice, the applicant was eligible for naturalization . . . ."31 An
administrative appeal is allowed32 as well as judicial review.33
Although such review is de novo34 rather than for substantial
evidence on the record as a whole, there is no express provi-
sion shifting the burden of proof back to the administrative
agency, and of course nothing to relieve the naturalized citi-
zen of the expense of fighting denaturalization three times
_________________________________________________________________
28 8 U.S.C. S 1453.
29 El Paso Natural Gas Co. v. Neztsosie, 119 S.Ct. 1430, 1439 (1999).
30 8 C.F.R. S 340.1(a).
31 8 C.F.R. S 340.1(b)(6).
32 8 C.F.R. S 340.1(e).
33 8 C.F.R. S 340.1(f).
34 8 U.S.C. S 1421(c).
5552
instead of once, through two layers of administrative agency
proceedings before getting to court. Taking over denaturaliza-
tion proceedings, shifting the burden of proof from the gov-
ernment to the citizen, and imposing two layers of
administrative proceedings before the naturalized citizen can
get to court, is all quite a lot of power to infer from silence.
Unless Congress changes the statute or the Supreme Court
changes the rules of construction, I do not think we can sus-
tain the attorney general's claim of authority, in the face of
the express statutory procedure for denaturalizations to be
prosecuted in federal district courts, and the absence of any
express grant of authority to the attorney general.
5553
the end