Mark Brown v. Eric Holder, Jr.

OPINIÓN

Mark Brown, a native and citizen of India, petitions for review of the decision *1144 of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of removal. In the administrative proceedings, Brown argued that he was or should be deemed a United States citizen, because the former Immigration and Naturalization Service (“INS”) had wrongly prevented him from deriving citizenship through his parents and then from applying for citizenship on his own account. He also claimed that the government should be estopped from denying his citizenship and that he had, in fact, fulfilled the statutory requirements for citizenship set down in the Immigration and Nationality Act (“INA”). The Immigration Judge (“IJ”) found that Brown had not sustained his burden of showing that he was a citizen and ruled that he had no power to grant Brown citizenship or estop the government from denying his citizenship. Brown now renews his claim to citizenship.

Because the record reflects disputed issues of fact relating to the government’s alleged mishandling of naturalization applications by Brown and his mother, we transfer this matter to the District Court for the Central…

concurring:

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

Brown “claims to be a national of the United States,” and I agree that he has presented “a genuine issue of material fact about [his] nationality.” 8 U.S.C. § 1252 (b)(5)(B). I also agree that the appropriate remedy is to “transfer the proceeding to the district court ... for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28.” Id.

But my colleagues do not stop there. They go on to declare, without much analysis and on an incomplete record, that Brown has a constitutionally protected interest in being able to apply for citizenship. Maybe such an interest exists always and for everyone; maybe it does not exist at all; or maybe it exists only when certain factual predicates are met. It is the latter possibility that dissuades me from reaching such a weighty issue before a district court takes evidence and decides the matter in the first instance.

My colleagues justify their expansive ruling by claiming that this is not a novel issue. But it is. The Supreme Court has merely assumed, without…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK CYRIL BROWN, No. 11-71458 Petitioner, Agency No. v. A035-104-809

ERIC H. HOLDER, JR., Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 7, 2014—San Francisco, California

Filed August 18, 2014

Before: Fortunato P. Benavides,* Richard C. Tallman, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton; Concurrence by Judge Tallman

* The Honorable Fortunato P. Benavides, Senior Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. SUMMARY**

Immigration

The panel denied for lack of jurisdiction Mark Brown’s challenge to the Board of Immigration Appeals’ removal order, but transferred his claim that he is a United States citizen to the district court for evidentiary findings.

The panel held that it had jurisdiction to review Brown’s non-frivolous citizenship claim, even though he waived his administrative appeals challenging his order of removal.…