McKenzie v. U.S. Citizenship & Immigration Services
761 F.3d 1149
10th Cir.
2014
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Ernеst John McKENZIE, M.D., Petitioner-Appellant, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, Respondent-Appellee.

No. 13-6020.

United States Court of Appeals, Tenth Circuit.

Aug. 1, 2014.

ing cross-examination limitation regarding witness‘s previous criminal activity in part because the defendant “was otherwise allowed to test the credibility of the witness at length“).

Fifth, and most important, the overall strength of the Government‘s case rendered any error harmless. See (“The State‘s case against Dickerson was strong, and the testimony of the confidential informant played only a part in Dickerson‘s convictions. The buys were audio and video recorded and officers maintained visual surveillance during the first controlled buy and arrested Dickerson immediately following the second, finding him in possession of the buy money and other drugs.“). In addition to the substantial surveillance evidence discussed above, the Government introduced Ms. Gutierrez‘s post-arrest confession. When Agent Wardle asked Ms. Gutierrez “about the events that gave rise to the сharge in the Indictment,” she “admitted that she had arranged for the alien that day at the Little Anita‘s to be transported to Denver.” ROA, Vol. IV at 298.

In light of the corroborating evidence provided by the Government, the extent of cross-examination permitted, and the overall strength of the Government‘s case, which included Ms. Gutierrez‘s admission of guilt, we conclude the Government met its burden to prove the error harmless beyond a reasonable doubt. See (“Given Tоles’ and Morris’ confessions, as well as the corroborating evidence of the other testifying witnesses, this court is satisfied that the limitation on the cross-examination of Harris was harmless beyond a reasonable doubt.“).

* * *

We affirm on this issue because, although the Government‘s showing of threat was inadequate, the Government‘s disclosures gave Ms. Gutierrez an opportunity for effective cross-examination, and any error was harmless beyond a reasonаble doubt.

III. CONCLUSION

In sum, we affirm Ms. Gutierrez‘s conviction because: (1) Agent Knoll‘s fact testimony did not violate the Federal Rules of Evidence or the Confrontation Clause; (2) his expert testimony on alien smuggling was helpful to the jury under Rule 702(a); and (3) the district court‘s error in permitting the Government‘s confidential informants to testify anonymously without a sufficient showing of threat did not deprive her of an opportunity for effective cross-examination and was harmless beyond a reasonable doubt.

Michelle L. Edstrom of the Law Office of Michelle L. Edstrom, Oklahoma City, OK, for Petitioner-Appellant.

Jeffrey S. Robins, Assistant Director, Office of Immigration Litigation, District Court Section, U.S. Department of Justice, Civil Division (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and David J. Kline, Director, Office of Immigration Litigation, District Court Section, with him on the brief), Washington, D.C., for Respondent-Appellee.

Before HARTZ, HOLLOWAY,* and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

For much of his life, Ernest John McKenzie‘s Canadian birth certificate listed the wrong birth date. Beсause he used that birth certificate to become a naturalized United States citizen, his United States Certificate of Naturalization also listed the wrong birth date. After he was naturalized, he got his birth certificate corrected; now his problem is getting his naturalization certificate amended so that his paperwork is all in accord. Relying on 8 C.F.R. § 334.16(b) (2011) to establish the district court‘s jurisdiction, he filed this action requesting that the district court order United States Citizenship and Immigration Services (USCIS) to issue a naturalization certificate with his correct date of birth. The request seems fair and simple enough, but we cannot help him. With limited exceptions not applicable here, Congress has withdrawn jurisdiction over naturalizations from the district courts. In addition, the district court lacked jurisdiction because Dr. McKenzie‘s invocation of § 334.16(b) is not a colorable claim. We therefore affirm the district court‘s dismissal of this action under Fed.R.Civ.P. 12(b)(1).

I. Legal Background

Before passage of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978 (the Immigration Act or the Act), the federal district courts had jurisdiction to naturalize a person as a citizen of the United States. See 8 U.S.C. § 1421(a) (1990). The district courts also had jurisdiction to revoke their orders granting citizenship and to cancel certificates of naturalization on limited grounds. See id. § 1451 (1990). A subsection of the revocation statute recognized that courts could exercise authority otherwise granted them (such as by Fed.R.Civ.P. 60) to correct or modify their judgments granting naturalization:

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 person ... within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action.

Id. § 1451(i) (1990). This judicial authority presumably would have to be derivative of the power conferred by § 1421 to issue the judgment or decree in the first place. In furtherance of the statutory scheme, 8 C.F.R. § 334.16(b) (1990) provided that the Immigration and Naturalization Service would receive notice of judicial proceedings to revise naturalization papers:

Whenever an application is made to the court to amend a petition or application for naturalization after final action thereon has been taken by the court, a copy of the application shall be served upon the district director having administrative jurisdiction over the territory ‍‌​‌‌‌​‌​​​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌​‌​​​‌‍in which the court is located, in the manner and within the time provided by the rules of court in which application is made. No objection shall be made to the amendment of a petition for naturalization after the petitionеr for naturalization has been admitted to citizenship if the motion or application is to correct a clerical error arising from oversight or omission. A representative of the Service may appear at the hearing upon such application and be heard in favor of or in opposition thereto. When the court orders the petition amended, the clerk of court shall transmit a copy of the order to the distriсt director for inclusion in the Service file.

The Immigration Act, however, amended § 1421(a) to transfer authority over naturalization from the judiciary to the Attorney General. See Immigration Act, Title IV, sec. 401(a), § 310(a), 104 Stat. at 5038. Through delegation, the Attorney General‘s authority over naturalization now is exercised by USCIS. See 8 C.F.R. §§ 2.1, 310.1(b); 6 U.S.C. § 271(b)(2). The Act declares that “[n]o court shall have jurisdiction, under [repealed § 1421(a)], to naturalize a person unless a petition for naturalization with respect to that person has bеen filed with the court before October 1, 1991.” Immigration Act, Title IV, § 408(a)(1), 104 Stat. at 5047; see also 8 C.F.R. § 310.4. The limited federal judicial power under § 1451 to revoke and cancel naturalization is retained under the Act. But § 1451(i) (now § 1451(h)) was amended to state that the section does not limit the power of the Attorney General (rather than the courts) “to correct, reopen, alter, modify, or vacate an order naturalizing the person.” Immigration Act, Title IV, § 407(d)(18)(D), 104 Stat. at 5046.

Despite the statutory change, the only amendment (prоbably just a nomenclature correction) to 8 C.F.R. § 334.16(b), the regulation addressing judicial modifications to petitions for naturalization, was to replace the references to “a petition or application for naturalization” by “a petition for naturalization.” Administrative Naturalization, 56 Fed.Reg. 50475, 50496 (Oct. 7, 1991). The regulation remained in place for another two decades (presumably because there might still be cases where persons nаturalized in federal court would seek to amend their naturalization documents) until it was repealed effective November 28, 2011, see Immigration Benefits Business Transformation, Increment I, 76 Fed. Reg. 53764, 53764, 53801 (Aug. 29, 2011), after Dr. McKenzie filed this action. As for administrative relief, 8 C.F.R. § 338.5 permits corrections for clerical errors.1

II. Factual and Procedural Background

Dr. McKenzie became aware as an adult that his original Canadian birth certificate listed the date of his baptism as the date of his birth. Initially, Canada was averse to correcting the birth certificate bеcause his baptismal records had been destroyed in a fire. When Dr. McKenzie applied for naturalization as a United States citizen, he had only his original birth certificate. Therefore, his United States Certificate of Naturalization, issued by the Commissioner of Immigration and Naturalization in February 2004, reflected the incorrect birth date. In 2008, Canada corrected his birth certificate to reflect his true date of birth.

In January 2011, relying on his corrected Canаdian birth certificate, Dr. McKenzie filed with USCIS a Form N-565 application for a replacement naturalization certificate. USCIS denied the application. Citing 8 C.F.R. § 338.5(e), which provides that a “correction will not be deemed to be justified where the naturalized person later alleges that the ... date of birth which the applicant stated to be his ... correct ... date of birth at the time of naturalization was not in fact his ... date of birth,” USCIS stated that it had “no authority to issue а replacement certificate for a date of birth that was established at the time of naturalization,” Aplt. App. at 26.

On September 30, 2011, Dr. McKenzie filed in the district court his Petition to Amend Certificate of Naturalization. He recognized that the regulations permitted USCIS to amend naturalization certificates only in cases of clerical error, but he argued that 8 C.F.R. § 334.16(b) (2011) gave broader power to courts by providing that “a federal court with jurisdiction оver the applicant‘s naturalization proceeding has the authority to order that an amendment be made to the applicant‘s Certificate of Naturalization.” Aplt. App. at 5.

USCIS moved to dismiss the petition under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction, arguing that § 334.16(b), as a regulation, could not by itself confer subject-matter jurisdiction on the district court. Alternatively, it moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. It argued that § 334.16(b) applied only to judicial naturalizations, not naturalizations like Dr. McKenzie‘s that occurred after the Immigration Act‘s changes to the naturalization process; and it said that Dr. McKenzie could not rely on the Administrative Procedure Act (APA) for review of USCIS‘s denial of relief under 8 C.F.R. § 338.5 because that regulation permits only corrections of clerical errors. (In response, Dr. McKenzie disclaimed any intent to proceed under the APA.)

Agreeing with USCIS, the district court dismissed the case. It held (1) that “§ 334.16(b) alone can not confer subject matter jurisdiction on this Court,” Aplt. App. at 59; and (2) that even if § 334.16(b) could confer subject-matter jurisdiction, it did not apply to naturalizations that occurred after naturalization authority was transferred to the Attorney General. Dr. McKenzie now appeals to this court.

III. Analysis

We review a Rule 12(b)(1) dismissal de novo. See . “Because the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” (internal quotation marks omitted).

Before the district court, Dr. McKenzie rested his claim of subject-matter jurisdiction solely on § 334.16(b) and 28 U.S.C. § 1331 (granting fedеral-question jurisdiction). On appeal, however, he argues that there are two additional bases for his claim. His opening brief not only cites § 334.16(b), but also urges us to conclude that there is “general federal question jurisdiction” because the Constitution delegates authority over naturalization to the federal government. Aplt. Opening Br. at 15-17. And in his reply brief, analogizing to (recognizing nonstatutory claims against federal officers for violating the Constitution), he further suggests that this court should create a remedy under “fed-eral common law” or “federal principles of equity.” Aplt. Reply Br. at 5. These arguments come too late. Ordinarily we do not entertain arguments that are not raised before the district court, see , or that are raised for the first time in a reply brief, see . Seeing no extraordinary reason to depart from these general rules in this appeal, we limit our analysis to whether Dr. McKenziе can proceed under § 334.16(b). To be sure, arguments that the court lacks jurisdiction can be raised at any time. But that is because a court without jurisdiction has no authority to decide an issue on the merits. In contrast, when a party presents an unpreserved argument against dismissal for lack of jurisdiction, we do not exceed our power by declining to consider the argument. See (“Our duty to consider unargued obstacles to subject matter jurisdiction does nоt affect our discretion to decline to consider waived arguments that might have supported such jurisdiction.“); (“[O]ur responsibility to ensure even sua sponte that we have subject matter jurisdiction before considering a case differs from our discretion to eschew untimely raised legal theories which may support that jurisdiction. We have no duty under the general waiver rule to consider the latter.” (citation omitted)).2

A. Statutory Withdrawal of Jurisdiction From District Cоurts

Dr. McKenzie is not a petitioner who was naturalized by the district court and seeks an amendment of the court order. His naturalization was handled start-to-finish by USCIS, long after Congress transferred naturalization authority from the judiciary. In these circumstances, the district court has no jurisdiction to order the correction of Dr. McKenzie‘s naturalization certificate. We are not persuaded by his arguments based on 28 U.S.C. § 1331 and 8 C.F.R. § 334.16(b).

Under 28 U.S.C. § 1331, “[t]he district courts shall have original jurisdiction of аll civil actions arising under the Constitution, laws, or treaties of the United States.” “A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under’ the Constitution or laws of the United States.” . We assume that a federal regulation qualifies as a law of the United States for purposes of § 1331. See (“It is beyond dispute that validly issued administrative regulations ... may be treated as ‘laws of the United States’ under § 1331(a).“). We also assume (although the next section of this оpinion will show that the assumption is false) that Dr. McKenzie has a colorable claim arising under 8 C.F.R. § 334.16(b).

Nevertheless, “[t]his general grant of federal question jurisdiction [under § 1331] is not limitless—Congress may negate district court jurisdiction by virtue of a specific reference or assignment.” (alterations and internal quotation marks omitted); see also (district court would be divested of jurisdiction under § 1331 if matter fell within provisions granting exclusive jurisdiction to the Court of International Trade); (§ 1331 is “subject ... to preclusion-of-review statutes crеated or retained by Congress“). And “[i]t is a commonplace of statutory construction that the specific governs the general.” (internal quotation marks omitted). “The general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition or permission. To eliminate the contradiction, the specific provision is construed as an еxception to the general one.” Accordingly, “a specific limitation on federal court jurisdiction ... overrides the general grant of federal jurisdiction in § 1331.” . It therefore is not appropriate for the district ‍‌​‌‌‌​‌​​​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌​‌​​​‌‍court to exercise jurisdiction under § 1331 where, as here, Congress has explicitly withheld federal-court jurisdiction over the specific subject of the litigation.

The Immigration Act provides that “[n]o court shall have jurisdiction, under [repealed § 1421(a)], to naturalize a person unless a petition for naturalization with respect to that person has been filed with the court before October 1, 1991.” Immigration Act, Title IV, § 408(a)(1), 104 Stat. at 5047. The Act transferred that naturalization authority to the Attorney General. The federal courts maintained their limited authority to revoke and cancel naturalizations under § 1451.3 But the predicate for their authority to correct or modify naturalization documents was eliminаted by the removal of jurisdiction to enter naturalization judgments (except, of course, for those persons who had filed for naturalization before October 1, 1991). Hence, § 1451(i) was amended to provide that nothing in that section should be read to limit the Attorney General‘s power, rather than the court‘s power, to correct or modify a naturalization certificate. See Immigration Act, Title IV, § 407(d)(18)(D), 104 Stat. at 5046. Courts could modify judgments authorized by now-repealed § 1421(a), but there would be no more such judgments enterеd in the future, after the existing judicial backlog was addressed. In our view, when Congress ended the jurisdiction of district courts to naturalize aliens, it necessarily ended the jurisdiction to exercise powers derivative of the power to naturalize, including the power (recognized in, but not conferred by, § 334.16(b)) to modify naturalization documents.

B. No Colorable Claim Under § 334.16(b)

Moreover, even if the Immigration Act did not foreclose the exercise of jurisdiction under § 1331 in these circumstances, Dr. McKenzie still would face a second jurisdictional hurdle: jurisdiction under § 1331 exists only where there is a “colorable” claim arising under federal law. ; . A claim can be meritless while still being colorable, see (discussing definitions of colorable), but a court may dismiss for lack of subject-matter jurisdiction “when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy,” (internal quotation marks omitted); see also (“[T]he test is whether the cause of action is so patently without merit as to justify the court‘s dismissal for want of jurisdiction.“) (ellipsis and internal quotation marks omitted). Because, as we proceed to explain, § 334.16(b) indisputably does not create a cause of action for Dr. McKenzie, this proceeding does not present a colorable claim arising under federal law.

To begin with, this court has stated that the Supreme Court “will rarely recognize an implied private cause of action arising from a mere regulation.” (citing ). “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” . “Statutory intent” to create a private remedy “is determinative.” “Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” . In short, “[l]anguage in a regulation may invoke a private right of action that Congress through statutоry text created, but it may not create a right that Congress has not.” .

Here, Dr. McKenzie has not identified any statutory text creating the right he claims. When the Immigration Act became effective, the predicate for § 334.16(b) was eliminated. As discussed earlier, Congress spelled out its intent in the Immigration Act: with the exception of petitions then pending in federal court, the executive branch would handle applications for naturalization beginning on Octobеr 1, 1991. The amendments to 8 U.S.C. §§ 1421(a) and 1451(i) left the judiciary with no statutorily assigned role to play with regard to modifying naturalization documents for those persons, like Dr. McKenzie, whose naturalization applications were filed and granted after the Immigration Act became effective.

Further, § 334.16(b) does not speak in terms that could create a cause of action. It does not provide that a naturalized person has any rights. It merely states that after an order hаs been entered in a judicial naturalization proceeding, (1) a copy of any application to amend must be served on the government, (2) the government can participate in the proceeding, ‍‌​‌‌‌​‌​​​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌​‌​​​‌‍and (3) any amendment to the original order must be sent to the government. And it applies only to applications to amend naturalization petitions “after final action thereon has been taken by the court.” No district court had tаken “final action” on Dr. McKenzie‘s naturalization application, because it had been handled entirely by USCIS.

Dr. McKenzie seeks support from cases in which district courts proceeded under § 334.16(b) even though naturalization occurred after the transfer of authority to the Attorney General. Primarily he relies on . Hussain, however, never addressed the fact that the petitioner was naturalized by executive action, not by the district court. In the context of the regulation‘s use of “petition” for naturalization, not “certificate,” USCIS “concede[d] ... that § 334.16(b) implicitly gives the Court the power to order USCIS to issue Hussain an amended certificate of naturalization.” . The court accepted the concession and did not further analyze the propriety of proceeding under § 334.16(b). See . But USCIS has offered no concession regarding § 334.16(b) in this case.

The other § 334.16(b) cases that Dr. McKenzie cites are three unpublished district court cases, ; ; and . We do not consider thesе decisions persuasive in their application of § 334.16(b). Like Hussain, Moissiu states without analysis that § 334.16(b) governs. . Binh Quang Le does engage in analysis, , but that petitioner was naturalized in 1991—surely he filed his petition before October 1, 1991. And even if he were naturalized administratively, for the reasons stated above we disagree with Binh Quang Le‘s conclusion that jurisdiction under § 334.16(b) is not foreclosed for post-Immigration Act naturalizations. Lashkariani simply relies on Binh Quang Le and Hussain, as well as . See . But the petitioner in Nguyen was naturalized in 1990, before naturalization authority was transferred. See .

C. Request for Alternative Relief

Finally, Dr. McKenzie requests that if he cannot proceed under § 334.16(b), in lieu of affirming we remand with directions for the district court to dismiss with leave to amend his complaint. At oral argument, however, counsel conceded that Dr. McKenzie never sought leave to amend in the district court, and we generally do not entertain arguments not raised before the district court, see .

IV. Conclusion

Because Dr. McKenzie has failed to establish the district court‘s subject-matter jurisdiction, the judgment of dismissal is affirmed.

HARTZ

CIRCUIT JUDGE

Gustavo RAMIREZ-CORIA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 13-9604.

United States Court of Appeals, Tenth Circuit.

Aug. 1, 2014.

Notes

1
Section 338.5(a) provides: “Whenever a Certificate of Naturalization has been delivered which does not conform to the facts shown on the application for naturalization, or a clerical error was made in preparing the certificate, an application for issuance of a corrected certificate may be filed, without fee, in accordance with the fоrm instructions.”
2
We note that Dr. McKenzie cites a case, (unpublished order), which held that the court had jurisdiction under 28 U.S.C. §§ 1346(a) and 1361. But he makes no argument why those statutes would confer jurisdiction here and we offer no opinion on the matter.
3
The Immigration Act also added new provisions specifically conferring other naturalization powers on the federal courts. See 8 U.S.C. § 1421(c) (jurisdiction to review de novo ‍‌​‌‌‌​‌​​​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌​‌​​​‌‍a denial of naturalization); id. § 1447(b) (jurisdiction to “determine the matter or remand the matter” when USCIS failed to timely decide a naturalization application).
*
The late Honorable William J. Holloway, Jr., United States Senior Circuit Judge, heard oral argument but passed away prior to final resolution of the appeal. “The practice of this court permits the remaining two panel judges if in agreement to act as a quorum in resolving the appeal.” ; see also 28 U.S.C. § 46(d) (“A majority of the number of judges authorized to constitute a court or panel thereof ... shall constitute a quorum.“). The remaining panel members have acted as a quorum with respect to this opinion and no judge of this Court has objected to publication.
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