Gorbach

Opinion by Judge RYMER; Dissent by Judge KLEINFELD.

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, § 401(a), 8 U.S.C. § 1421 (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 delegated her power to the Immigration & Naturalization Service (INS), which in turn promulgated a regulation, 8 C.F.R. § 340.1 , providing for administrative reopening and revocation 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 naturalized by the Attorney General, but who received a Notice of Intent to Revoke Naturalization…

dissenting:

I respectfully dissent from Part IV of the opinion, which holds that the attorney general has statutory authority to denatur-alize 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 naturalize, I do not think we should infer its existence from delegation 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 citizenship status.” 2 The express statutory procedure for de-naturalization says that United States attorneys are supposed 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 certificates of citizenship but not the citizenship itself, and gives to…