NEWS FROM THE COURTS Gorbach v. Reno, Ninth Circuit
In this case, the court ruled that the INS does not have the power to denaturalize a person, and that only district courts can issue orders revoking a grant of citizenship.
In 1990, Congress made a significant change in the naturalization process. Before then, only a court could grant citizenship. Afterwards, the sole authority to grant citizenship was given to the Attorney General. However, the authority to revoke a person’s naturalization remained with US District Courts alone. One section of the revocation statute, however, provides that nothing shall limit the Attorney General’s power to reopen or vacate an order of naturalization.
In 1996, the INS issued regulations dealing with the revocation of naturalization. These regulations state that the INS may revoke a grant of naturalization in some circumstances and need not seek revocation through the district courts. After these regulations went into effect a number of people whose naturalization the INS was attempting to revoke through the regulatory administrative procedure sued, claiming that there was no basis in law for the authority granted in the regulation.
A district court granted an injunction prohibiting the INS from administratively denaturalizing a person. The INS appealed to the Ninth Circuit, which, last fall, upheld the regulation. The plaintiffs then asked a full panel of the court to rehear the case. They did, resulting in this opinion.
For an administrative agency such as the INS to enact a regulation, there must be statutory authority for it. The only thing Congress explicitly authorized the Attorney General to do with regard to naturalization is to grant it. There is no express authority for the Attorney General to denaturalize citizens. There is a statutory scheme providing rules for denaturalization in the district courts.
The INS argued that the following provision gave it the power to denaturalize: “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.” This type of provision, called a savings clause, is designed to preserve parts of a statute when other parts of it are being amended. They do not create any separate law. Moreover, since the power to naturalize was granted to the INS, there is no longer an order, as there was when naturalization was conducted by the courts. There is only a certificate of citizenship, which the Attorney General may revoke. However, the statute specifically provides that the revocation of a certificate of citizenship does not affect the person’s citizenship status. In essence, the court found that this savings clause preserved no authority, because there is no order.
The INS also argued that the power to naturalize necessarily includes the power to denaturalize. The court found, however, that there is no statutory authority for such a proposition. Courts have the power to vacate their judgments, but only because it has been granted by Congress. If it is necessary for a court’s power to vacate a judgment to be confirmed by Congress, it is highly unlikely that the INS has such power in the absence of confirmation by Congress.
As the court explained, administrative agencies are best suited for dealing with large numbers of similar things, such as naturalizations. However, in part because of the mindset of administrative agencies caused by dealing in large volumes, they are, as the court said “dubious instruments for performing relatively rare acts catastrophic to the interests of the individuals on whom they are performed. While it might be appropriate to give the Attorney General the authority to denaturalize if there was a high rate of error in granting naturalizations, there is not such a high rate of error. The INS is seeking to revoke the naturalization of 369 of the 1,049,867 people it naturalized between August 1995 and September 1996. Given the few number of cases in which naturalization is improperly granted, and the incredibly severe consequences of denaturalizing a person, it is not reasonable to assume this power would be granted to an administrative agency.
There are also other reasons for doubting that Congress intended to give the Attorney General the power to denaturalize. There has been a historic concern that the naturalization process can be improperly politicized – indeed, one of the complaints against the King of England found in the Declaration of Independence is that he was using the power of citizenship to prevent the population of the colonies. The Supreme Court has always read denaturalization statutes narrowly, limiting the power to denaturalize to the federal courts. In 1951 the Supreme Court ruled that a state court’s power to naturalize did not include the power to denaturalize, rejecting the argument now being made by the INS that the power to naturalize includes the power to denaturalize. While Congress later changed the outcome of this case by granting state court the express power to revoke naturalizations they granted, the principle remains the same – that denaturalization must be conducted in strict accordance with the rules proscribed by Congress.
Therefore, the court found that the regulation providing for administrative denaturalization was without statutory authority, and affirmed the injunction preventing the INS from using the regulation to conduct denaturalizations.
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Agbuya v. INS, Ninth Circuit
In this case, the court found that the petitioner had been persecuted on the basis of an imputed political opinion and was entitled to asylum.
Agbuya, a citizen of the Philippines, had worked in the personnel department of a mining company. She was responsible for notifying employees that they were being disciplined or terminated. Between 1985 and 1991, the company underwent significant reorganizations that resulted in the termination of many workers. The union that represented the miners began to call for her to be fired. Agbuya learned that the union had been infiltrated by members of the New People’s Army (NPA), a communist guerilla group that was responsible for numerous kidnappings and murders. Fear of threats from the NPA caused her to resign her position in 1991.
A few months after her resignation, three men kidnaped Agbuya. She was held for one week, until her family paid a ransom. The men who were holding her identified themselves as members of the NPA who were angry at her treatment of the mineworkers. During the time she was held she was kept blindfolded and physically abused. Following the instructions of her kidnappers, she never reported the incident to the police. In 1992 she fled to the US and sought asylum.
An Immigration Judge denied her application for asylum, finding that she had not established a well-founded fear of persecution. The Board of Immigration Appeals affirmed, finding that any persecution she had suffered was not because of her political opinion. Instead, according to the Board, the mistreatment she suffered was because of her role in the personnel department. Agbuya appealed to the Ninth Circuit.
The Ninth Circuit disagreed with the Board, finding that Agbuya had been persecuted on the basis of a political opinion that was imputed to her by the NPA. The court found that while it was her employment that brought her to the attention of the NPA, given the political situation in the Philippines, her actions on behalf of her employer took on significance beyond their impact on the miners. The court found the fact that she was kidnapped after she quit her job to be very important, indicating that she was being targeted for more than just her job. In the view of the NPA, as someone responsible for firing workers at one company, Agbuya was an enemy of all workers in the Philippines, and therefore an enemy of the NPA.
It is not necessary that Agbuya actually hold a political opinion opposed to the NPA if the NPA imputed such an opinion to her, which, according to the Ninth Circuit, was the case. It was her perceived opposition to communism that caused her to be persecuted. Having found that Agbuya established past persecution, she is entitled to a presumption of a well-founded fear of future persecution. The INS failed to rebut this presumption. According to the State Department Country Condition Report on the Philippines, the NPA continues to kidnap and murder political opponents, and the government has been unable to control their activities. Therefore, she was granted asylum.
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Singh v. INS, Ninth Circuit
In this case, the court found that an Immigration Judge had wrongly concluded that the petitioner was not credible, and ruled that he should be granted asylum.
Singh sought asylum in the US, claiming that he was persecuted by the Hindu majority in India. His application was rejected by an Immigration Judge and affirmed by the Board of Immigration Appeals.
On appeal the INS argued that the IJ had not made a credibility determination, but had denied asylum because Singh failed to present sufficient evidence in support of his claim. The Ninth Circuit disagreed, finding that the IJ had clearly made a credibility determination, saying that Singh’s testimony was not “plausible,” and “simply doesn’t have the ring of truth.” At no point did the IJ address the sufficiency of the evidence Singh presented.
When reviewing the denial of an asylum application, a court must uphold the decision of the IJ and BIA if it is supported by substantial evidence. In this case, the court found that none of the reasons given for the adverse credibility determination was plausible. First, the court found that the IJ relied too heavily on the actual words used, and did not take into consideration the fact that Singh was speaking through a translator. None of the minor discrepancies based on a few words was deemed substantial enough to support an adverse credibility determination.
The Ninth Circuit found that Singh had established past persecution, entitling him to a presumption of a well-founded fear of future persecution were he returned to India. The INS attempted to rebut this finding with the State Department Country Condition Report on India, however, the court found it insufficient. Therefore, the court ruled that Singh be granted asylum and withholding of deportation.
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Nagahi v. INS, Tenth Circuit
In this case, the court ruled that INS rules that attempt to limit federal court jurisdiction are without effect.
In 1985, Nagahi had a run in with the law. He was sentenced to six months probation. After he successfully completed probation, his record was expunged. In 1994, he applied for citizenship. One of the questions on the citizenship application asks about a person’s criminal background. Nagahi consulted several people about how to answer this question, given that his record had been expunged. Relying on the advice of state officials and Utah law, he answered no.
He was interviewed, and was repeatedly questioned about his response. The INS denied the application for naturalization based on two grounds, first because of his criminal activities, and second for his failure to tell the INS about it. Nagahi appealed this decision within the INS, and the denial was upheld. He was told he had 120 days in which to appeal the denial to federal court. At this point he retained an attorney. He told the attorney of the 120 day deadline, but rather than take the matter to court, the attorney pursued it within the INS. The INS stuck to its decision to deny, and issued a letter reiterating its decision to deny the application, and denying the motion to reopen.
At this point counsel withdrew, and Nagahi filed a petition for review in federal court. The court dismissed the petition as untimely filed. Nagahi then appealed to the Tenth Circuit.
Under the Immigration and Nationality Act, district courts have jurisdiction to review denials of naturalization. The statute does not provide a time limit within which such appeals must be taken, but INS regulations do – appeals must be filed within 120 days. On appeal Nagahi argued that the INS did not have the authority to limit the jurisdiction of a federal court. The INS argued that the 120 day period is not jurisdictional, and that its decision on the time limit should be given deference.
While the INS is authorized to make regulations necessary to affect its authority to conduct naturalizations, the court found that this authority did not include the power to limit judicial review. Regardless of what the INS calls the 120 day limit, its effect is to limit federal court review. Such a rule is beyond the power of the INS, and is not entitled to any deference. Therefore, the case was remanded to the district court for a hearing on the merits.
The text of the opinion is available online at http://laws.findlaw.com/10th/984191.html
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