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U.S. Court of Appeals for the Ninth Circuit
Case Name:GORBACH V RENO
Case Number: Date Filed:
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
JANET RENO, Attorney General of
the United States; DORIS M.
MEISSNER, Commissioner of
Immigration and Naturalization
Service; UNITED STATES
IMMIGRATION AND NATURALIZATION
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
Opinion Filed June 4, 1999
Rehearing En Banc Granted and
Opinion Withdrawn October 19, 1999
Argued and Submitted
March 23, 2000--San Francisco, California
Filed July 20, 2000
Before: Procter Hug, Jr., Chief Judge, James R. Browning,
Mary M. Schroeder, Diarmuid F. O'Scannlain,
Thomas G. Nelson, Andrew J. Kleinfeld,
Michael Daly Hawkins, A. Wallace Tashima,
Sidney R. Thomas, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Kleinfeld, J., delivered the opinion of the Court, which is
joined in full by Chief Judge Hug, Judge Browning, Judge
Schroeder, Judge O'Scannlain, Judge Graber, and Judge
Opinion by Judge Kleinfeld;
Concurrence by Judge Thomas
Patricia Maher (argued) and Michelle R. Slack (briefed),
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington D.C., for the defendants-
Jonathan S. Franklin, Hogan & Hartson L.L.P., Washington
D.C., for the plaintiffs-appellees.
KLEINFELD, Circuit Judge:
We must decide whether the power to confer citizenship
through the process of naturalization necessarily includes the
power to revoke that citizenship. We conclude that it does not.
Traditionally new citizens have been naturalized in court.
The governing statute used to confer exclusive jurisdiction to
naturalize persons as citizens on district courts, territorial
courts, and state courts of record.1 This was changed in 1990.
Now "[t]he sole authority to naturalize persons as citizens of
the United States is conferred upon the Attorney General."2
Courts may administer the oath of citizenship.3 The oath is an
essential element in the process of becoming a naturalized cit-
izen, conducted in a public ceremony.4 Some district courts
arrange a memorable occasion, with welcomes from civic
groups, and distribution by an INS agent of certificates of nat-
uralization, but the power to naturalize plainly was shifted by
the 1990 amendment from the courts to the INS.
Before the amendment, district judges used to sign an order
that said, "It is hereby ordered that each of the beneficiaries
so listed . . . is admitted to become a citizen of the United
States of America." Now, if the oath is administered in court,
a clerk of the court signs a certification that each applicant
listed "appeared in open court at an oath administration cere-
mony . . . and having taken the oath of allegiance .. . was
issued the Certificate of Naturalization . . . . " The certificate
of naturalization is issued by the Commissioner of Immigra-
tion and Naturalization. It says that, "the Attorney General
having found that" the person is entitled to citizenship and has
met the requirements and taken the oath of allegiance, "such
person is admitted as a citizen of the United States of America."5
1 8 U.S.C. S 1421(a) (1970), amended by 8 U.S.C. S 1421(a) (1990).
2 8 U.S.C. S 1421(a) (1990).
3 8 U.S.C. S 1421(b).
4 8 U.S.C. S 1448(a).
5 Immigration and Naturalization Service, Certificate of Naturalization,
N-550 rev. 6-91.
The statute entitled "Revocation of Naturalization" says
that United States attorneys shall institute actions to revoke
naturalization, in appropriate circumstances, in United States
District Courts.6 The district court revocation procedure
applies to any naturalization and certificate granted "under the
provisions of this subchapter"7 -- which is to say, it applies
to naturalizations and certificates granted by the Attorney
General-- as well as to any naturalizations and certificates
granted by any court or the commissioner under prior law.8
The "Revocation of Naturalization" section includes a subsec-
tion saying that nothing in the section limits the power of the
Attorney General to reopen or vacate an order naturalizing a
person.9 This last subsection is the one on which the Attorney
General rests her claim to authority in this case, and is set
forth in full in text below. A subsequent section is entitled
"Cancellation of certificates issued by Attorney General, the
Commissioner or a Deputy Commissioner; action not to affect
citizenship status."10 It says that the Attorney General can
"cancel" a certificate of citizenship on various grounds, but
the cancellation "shall affect only the document and not the
citizenship status of the person in whose name the certificate
In 1996, well after the 1990 amendment shifted the power
to naturalize new citizens from the courts to the Attorney
General, the Attorney General issued regulations for revoca-
tion of naturalization.12 They purport to be based on her gen-
eral authority to administer the immigration laws. The
"authority" notation on the regulations cites the provisions on
6 8 U.S.C. S 1451(a).
7 8 U.S.C. S 1451(g).
9 8 U.S.C. S 1451(h).
10 8 U.S.C. S 1453.
12 8 C.F.R. S 340.1.
her general administrative duties13 and her duties regarding
administration of naturalization provision.14 The latter pro-
vides for examining applicants, instructing on citizenship,
administering oaths and publishing forms, filing records, and
furnishing quarters for photographic studios so that applicants
can get the necessary photographs taken. It speaks to certifi-
cates of naturalization or of citizenship by saying that the
Attorney General's certificates shall have the same effect in
all courts as certificates issued by courts with jurisdiction.15
The new regulations say that, "[o]n its own motion, the Ser-
vice may reopen a naturalization proceeding and revoke natu-
ralization" in various circumstances.16 The circumstances
overlap the circumstances for which the Attorney General
must bring actions in district court to revoke naturalizations.
The Attorney General gives district directors two years from
the order conferring citizenship to give notice of intent to
This case arises out of the new regulations. Ten naturalized
citizens, who had been served with notices of intent to revoke
naturalization, under the new regulations, sued for a prelimi-
nary injunction to prevent the Attorney General from proceed-
ing under the new regulations. The district court enjoined the
INS from initiating or continuing administrative denaturaliza-
tion proceedings under the new regulations pending final res-
13 8 U.S.C. S 1103.
14 8 U.S.C. S 1443.
15 8 U.S.C. S 1443(e).
16 8 C.F.R. S 340.1.
17 8 C.F.R. S 340.1(b). The regulations further provide that "the appli-
cant bears the burden" of proving eligibility for naturalization. 8 C.F.R.
S 340.1(b)(6). The Department of Justice has sent us a letter pursuant to
Fed. R. App. P. 28(j), saying that, a week after oral argument in our
rehearing en banc, it issued an interim rule (with request for comments)
shifting the burden of proof from the applicant to the INS, and raising it
to "clear, convincing, and unequivocal" evidence. 65 Fed. Reg. 17127-1,
2000 WL 331208 (F.R.).
olution of the case. The district judge also granted a "nation-
wide class certification," making the Attorney General's
injunction effective for the entire country.
The INS brought an interlocutory appeal18 and initially pre-
vailed.19 But we decided to rehear the case en banc.20 This
decision is substituted for the decision of the three-judge
A district court's decision to grant a preliminary injunction
is generally reviewed for an abuse of discretion. 21 However,
"if a district court's ruling rests solely on a premise as to the
applicable rule of law, and the facts are established or of no
controlling relevance," the court may undertake "plenary
review of [the] issues" rather than "limit its review in a case
of this kind to abuse of discretion."22 We do so in this case,
and hold that the regulation providing for administrative revo-
cation of citizenship23 is void because of the absence of statu-
tory authority for it.
The INS has a tough argument to make. It is basically that,
even though Congress expressly provided for denaturaliza-
tions only in actions by United States attorneys in courts, nev-
ertheless the saving clause in the statute implied that, by
shifting the power of naturalization to the Attorney General,
Congress also shifted to her jurisdiction, partially concurrent
18 28 U.S.C. S 1292.
19 Gorbach v. Reno, 179 F.3d 1111 (9th Cir. 1999).
20 Gorbach v. Reno, 192 F.3d 1329 (9th Cir. 1999).
21 Bay Area Addiction Research and Treatment, Inc. v. City of Antioch,
179 F.3d 725, 732 (9th Cir. 1999).
22 Thornburgh v. America College of Obstetricians and Gynecologists,
476 U.S. 747, 755-57 (1986), overruled in part on other grounds, Planned
Parenthood v. Casey, 505 U.S. 833 (1992).
23 8 C.F.R. S 340.1.
with district court jurisdiction, the power to denaturalize.
Because the power to denaturalize is so important, and
because it differs as a practical matter from the power to natu-
ralize, we conclude that this silent and subtle implication is
too weak to support this argument.
 The Attorney General argues that the naturalized citi-
zens who have been issued notices of intent to revoke their
naturalization lack standing to challenge her authority to issue
the regulations, because the notice by itself does not affect
their citizenship, and that there is no ripe case or controversy,
because the plaintiffs had not completed the administrative
proceedings when they filed their lawsuit. This case is not in
the subjunctive. The new regulations have actually been
invoked against the plaintiffs. They are not merely persons
who might be affected if the procedures were invoked against
them.24 We conclude that, because these are individuals
against whom proceedings are pending under the new regula-
tions, and who would have to defend themselves effectively
or lose their citizenship in the administrative proceedings
were it not for the injunction that they have obtained, they
have standing to challenge the authority of the Attorney Gen-
eral to promulgate the new regulations. The burden of being
forced through a governmental administrative challenge to
something as important as one's citizenship is sufficiently
particularized and concrete to confer standing to challenge the
24 Circumstances changed as to some plaintiffs after suit was filed. The
INS sua sponte issued an order confirming the naturalization of Irina Gor-
bach, the lead plaintiff. As to two plaintiffs, the INS withdrew its notices
of intent to revoke naturalization, but did not confirm their naturalizations.
So far as the record reflects, the other plaintiffs are still persons against
whom the revocation procedure in the new regulations remains pending.
See Sosna v. Iowa, 419 U.S. 393, 402 (1975) (holding that a class action
does not become moot merely because it has become moot as to a named
Attorney General's authority to impose the administrative pro-
 For like reasons, there is an actual controversy regard-
ing procedural injury that is ripe for adjudication. The govern-
ment argues that the controversy is not ripe for adjudication
until these individuals complete their defenses of their citizen-
ship in administrative proceedings. We reject that argument
because it is the authority of the INS to put the plaintiffs
through those administrative proceedings, rather than the sub-
stantive accuracy of the INS challenges to their citizenship,
that is at issue.26 No factual evidence that might be developed
in the administrative proceedings could contribute to resolu-
tion of the legal dispute, which distinguishes Toilet Goods
Association v. Gardner.27
 The government also urges that the district court did not
properly apply the ordinary requirements of balancing hard-
ships and requiring bond for a preliminary injunction. The
government urges that the injunction imposes the hardship
that it cannot do what is enjoined, revoke naturalization
administratively, without filing actions in court, a proposition
that is obvious and true. But the district judge was within her
discretion in concluding that that hardship was outweighed by
the hardship to all the new citizens who might otherwise be
subjected to burdensome and threatening administrative pro-
25 See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57-58 (1993); Yes-
ler Terrace Community Council v. Cisneros, 37 F.3d 442, 445-46 (9th Cir.
26 See Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477
U.S. 619, 626 n.1 (1986); Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 579-82 (1985); Southern Cal. Edison Co. v. FERC, 770
F.2d 779 (9th Cir. 1985).
27 387 U.S. 158 (1967); cf. Time Warner Entertainment Co. v. FCC, 93
F.3d 957, 974 (D.C. Cir. 1996).
ceedings not authorized by law. Where it is important to com-
mence proceedings to revoke naturalization promptly, as
where evidence may disappear, the injunction does not
impose delay, because the government is free to proceed in
district court under the explicit and unchallenged provisions
of the statute. The government argues that the district judge
abused her discretion by not requiring a bond, but the purpose
of such a bond is to cover any costs or damages suffered by
the government, arising from a wrongful injunction, and the
government did not show that there would be any. 28
Because "[a]n agency may not confer power upon itself,"29
the Attorney General needs some statutory authority to have
the power to take away an individual's American citizenship.
Thus we begin (and ultimately end) by seeking in the relevant
statutes some express or implied delegation of authority to the
Attorney General to revoke the citizenship of a naturalized
 The Attorney General makes a cursory reference to
Chevron v. Natural Resources Defense Council30 for the prop-
osition that her action in promulgating the regulation at issue
is "entitled to considerable deference," but does not develop
the argument beyond that. As we explain below, Congress has
not "explicitly left a gap for the agency to fill," or made an
"implicit" delegation to an agency, which would require
Chevron deference.31 Nor is the statute "silent" with respect
to "the specific issue" of denaturalization, which would, other
28 Fed. R. Civ. P. 65(c).
29 International Ass'n of Indep. Tanker Owners (Intertanko) v. Locke,
148 F.3d 1053, 1068 (9th Cir. 1998) (quoting Louisiana Pub. Serv.
Comm'n. v. FCC, 476 U.S. 355, 374-75 (1986)), rev'd on other grounds
sub nom. United States v. Locke, 120 S. Ct. 1135 (2000).
30 Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
31 Id. at 843-44.
things being equal, require Chevron deference.32 Arguably, as
we explain below, a saving clause in the statute might create
an ambiguity that would require courts to yield to the agen-
cy's interpretation if it were a "permissible construction,"33
but the construction urged is not a permissible one in light of
the language of the statute and the well established construc-
tion of the statutory scheme. An agency ordinarily entitled to
Chevron deference "may not exercise its authority `in a man-
ner that is inconsistent with the administrative structure that
Congress enacted into law.' "34 A particular statutory provi-
sion must be read in context with a view to its place in the
statutory scheme, not in isolation,35 and read in context, the
statute is unambiguous in not conferring upon the Attorney
General the power to denaturalize citizens administratively.
Part of the context in which the statute must be construed is
that in the long history of naturalization and denaturalization
procedures, the Attorney General has not had the power to
denaturalize citizens administratively, and the Supreme Court
has rejected arguments that authority to denaturalize ought to
be inferred from silence or "inherent" authority. Chevron def-
erence "is premised on the theory that a statute's ambiguity
constitutes an implicit delegation from Congress to the agency
to fill in the statutory gap."36 That theory does not apply in the
context of this statute taken historically and as a whole,
because the context leaves no room to infer an implicit dele-
gation, so there is no room for Chevron deference.
 The delegation that Congress expressly made to the
Attorney General was of "authority to naturalize " citizens.37
There is no express delegation in the statutes to the Attorney
32 Id. at 843.
34 Food and Drug Administration v. Brown & Williamson Tobacco
Corp., _______ U.S. _______, 120 S.Ct. 1291 (2000).
35 Id. at 1300-01.
36 Id. at 1314.
37 8 U.S.C. S 1421(a).
General to denaturalize citizens. There is an express delega-
tion to cancel "certificates of citizenship," but the statute on
cancellation cuts against the government's argument of an
implied delegation, because Congress expressly provided that
such cancellations "shall affect only the document and not the
There is an express statutory procedure for denaturaliza-
tion. The statute says that United States attorneys are sup-
posed to bring proceedings "in any district court."39 Thus the
express scheme plainly and unambiguously gives the Attor-
ney General the power to naturalize citizens and to cancel cer-
tificates of citizenship but not the citizenship itself, and
plainly and unambiguously gives to district courts the power
to denaturalize citizens.
 The only statutory language from which the Attorney
General infers a power to denaturalize is a saving clause:
"Nothing contained in this section shall be regarded as limit-
ing, denying, or restricting the power of the Attorney General
to correct, reopen, alter, modify, or vacate an order naturaliz-
ing the person."40 This is a saving clause. A saving clause
does not create anything; it merely preserves from repeal what
is already there.
As in United States v. Locke,41 treating the saving clause as
a transfer of power "placed more weight on the saving clauses
than those provisions can bear."42 This saving clause protects
such powers as the Attorney General has from a construction
"limiting, denying, or restricting" that power. But this clause
does not expressly grant any power. Absence of implied
38 8 U.S.C. S 1453.
39 8 U.S.C. S 1451(a).
40 8 U.S.C. S 1451(h).
41 120 S. Ct. 1135 (2000); see also Intertanko, 148 F.3d at 1068.
42 Locke, 120 S. Ct. at 1146.
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.
In analogous circumstances, the Supreme Court said:
We think it quite unlikely that Congress would use
a means so indirect as the saving clauses in Title I
of OPA to upset the settled division of authority by
allowing states to impose additional unique substan-
tive regulation on the at-sea conduct of vessels. We
decline to give broad effect to saving clauses where
doing so would upset the careful regulatory scheme
established by federal law.43
Likewise here, there is an established and carefully con-
structed scheme: the Attorney General naturalizes, the district
courts denaturalize, and the Attorney General can cancel cer-
tificates but the cancellations affect only the certificates and
not citizenship itself. And likewise here, implying authority
for the Attorney General to take away people's citizenship
administratively would gravely upset this carefully con-
structed legislative arrangement.
 It is not even clear that the Attorney General issues an
"order," other than and distinct from the certificate of natural-
ization. The statute says that canceling a certificate does not
revoke citizenship, and the saving clause preserves whatever
power the Attorney General has to revoke "an order" but not
the certificate. All the newly naturalized citizen gets is a cer-
tificate. There is no longer an order filed in the district court,
as there used to be before the 1990 amendment. The certifi-
cate does not say that it is an order, or that an order has been
signed or filed anywhere, just that the individual has met the
requirements and, "having taken the oath,""is admitted as a
43 Id. at 1147.
citizen."44 The statute says that a naturalized citizen is entitled
to a certificate that includes a "statement that the Attorney
General, having found [the various requirements to have been
fulfilled], thereupon ordered that the applicant be admitted as
a citizen."45 The order could not be issued before the oath of
allegiance, nothing so far as the record or regulations show
appears to be issued after the oath except for the certificate,
and the certificate does not purport to be an order or to certify
that there is an order other than the certificate itself. If there
is no order separate from the certificate, then the saving
clause, which refers to the power to "vacate an order," has
nothing to save.
 The heart of the Attorney General's argument is that the
power to denaturalize is "inherent" in the power to naturalize.
There is no reason why that should be so. There is no general
principle that what one can do, one can undo. It sounds good,
just as 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," 46 -- sound good.
But as Sportin' Life said, "It ain't necessarily so."47 Congress
has confirmed the traditional inherent power of United States
District Courts to vacate their own judgments.48 But there is
no statutory confirmation of any inherent power the Immigra-
tion and Naturalization Service may have to vacate its judg-
ments, except for its narrow authority to cancel certificates
without affecting citizenship.49 If the power of courts to vacate
their own judgments needs confirmation by an express rule
approved by Congress, it is too much to infer an analogous
44 Immigration and Naturalization Service, Certificate of Naturalization,
N-550 rev. 6-91.
45 8 U.S.C. S 1449.
46 The Beatles, All You Need is Love, on Magical Mystery Tour (EMD/
47 George Gershwin, Porgy and Bess (1934).
48 Fed. R. Civ. P. 60.
49 8 U.S.C. S 1453.
power in the Attorney General, for so weighty a matter as
revocation of American citizenship, from silence. The for-
mula the government urges, that what one can do, one can
undo, is sometimes true, sometimes not. A person can give a
gift, but cannot take it back. A minister, priest, or rabbi can
marry people, but cannot grant divorces and annulments for
civil purposes. A jury can acquit, but cannot revoke its acquit-
tal 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 naturalization
resides 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 tasks
(from the agency's viewpoint, not the new citizen's), such as
naturalization, that do not take away important liberties from
individuals. But administrative agencies, accustomed to treat-
ing a case as " `one unit in a mass of related cases,' "50 are
dubious instruments for performing relatively rare acts cata-
strophic to the interests of the individuals on whom they are
If the Attorney General errs at a high rate in the high vol-
ume business of naturalization, Congress might sensibly dele-
gate naturalization power to her, because the courts could not
handle the volume and the errors would be bearable, but con-
clude that the courts ought to handle denaturalization, because
50 Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992) (quoting
Walter Gellhorn, Official Notice in Administrative Adjudication, 20 Tex.
L. Rev. 131, 136 (1941)).
there are fewer denaturalizations and they affect individual
liberty too severely to tolerate a high error rate. The Attorney
General's own auditors reported that the INS made at least
one processing error in nine out of ten of the naturalization
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."51 Although many or
most errors might not lead to an erroneous result, the audit
reported that 3.7 percent of the naturalizations were erroneous
in result.52 The Justice Department is now seeking to revoke
the naturalizations that 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 denatural-
These numbers vitiate any argument that Congress must
have intended to give the Attorney General the power to
denaturalize, as a matter of practicality, when it gave her the
power to naturalize. The federal judiciary could not have pro-
cessed 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 to an administrative agency, and lodge
the power to denaturalize in district courts, based on the num-
ber of cases and the relative risks to individual liberty in the
two kinds of cases, as it is to think that it intended to delegate
both powers to the administrative agency.
Historically, Congress and the Supreme Court have been
51 Department of Justice, INS and KPMG Peat Marwick Complete
Review of August 1995, -- September 1996 Naturalizations at 3 (Feb. 9,
1998) (press release) (introducing KPMG final audit of naturalization of
1.049,867 individuals from August 1995 through September 1996).
52 Id. at 4.
53 Id. at 1-2.
sensitive to the risk that the naturalization power might be
improperly politicized. Indeed, the Declaration of Indepen-
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 . . . ." 54 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 Bind-
czyck v. Finucane55 that "elections could be influenced by
irregular denaturalizations as well as by fraudulent naturaliza-
tions."56 The Court gave the example, from a century ago, of
how a "judge who had naturalized seven aliens on the suppo-
sition that they were members of his own political party
promptly vacated his order when this supposition was correct-
ed."57 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 analogous to 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 naturalization
when procured by fraud. This question is precisely 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
54 The Declaration of Independence para. 9 (U.S. 1776).
55 342 U.S. 76 (1951).
56 Id. at 82.
57 Id. at 82-83.
to institute denaturalization proceedings58 in certain desig-
nated courts was "a carefully safeguarded method for denatural-
ization"59 and that the government's statutory right to appear
at any naturalization and the power of district courts to revoke
naturalizations "provided a complete and exclusive frame-
work for safeguarding citizenship against unqualified appli-
Bindczyck forcefully rejects the argument (analogous to the
one the Attorney General now makes) that (1) a grant of citi-
zenship is a judgment; (2) an issuing court may revoke its
own judgments 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 glittering form" that "disregards the capricious and hap-
hazard results that would flow from applying such an empty
syllogism to the actualities of judicial administration."61
Congress changed the law construed in Bindczyck by
expressly conferring on state courts the power to revoke natu-
ralizations that they had granted. A Second Circuit case said
Bindczyck was "overruled" by the statutory change,62 but
obviously Congress cannot "overrule" Supreme Court deci-
sions. What Congress did was to change the statute that Bind-
czyck had construed by expressly conferring the previously
omitted authority. The Supreme Court, in United States v.
Zucca,63 expressly repudiated the notion that Bindczyck was
overruled or rendered irrelevant by the statutory amendment,
by declaring that "[t]he underlying philosophy of Bindczyck
58 8 U.S.C. S 738 (the predecessor to 8 U.S.C. S 1451(a)).
59 Bindczyck, 342 U.S. at 81.
60 Id. at 84.
61 Id. at 85.
62 Simons v. United States, 452 F.2d 1110, 1114 (2d Cir. 1971).
63 351 U.S. 91 (1956).
remains intact" despite the "abrogation[ion]" of the specific
holding about state courts by the statutory change. 64
 That philosophy emphasizes the importance of citizen-
ship 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 the United States attorneys could not also file
in the usual way (without an affidavit).65 The "underlying phi-
losophy of Bindczyck" that Zucca says "remains intact" is
"safeguarding citizenship from abrogation except by a clearly
defined procedure,"66 --"clearly defined," that is, by statute.
Zucca applied the Bindczyck holding that the statutory denatu-
ralization procedure was "a self-contained, exclusive proce-
dure" that "covers the whole ground."67 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. Minker68 the Court said that denatural-
ization "may result in loss of both property and life; or of all
that makes life worth living."69 Minker adopts the rule that
"where there is doubt it must be resolved in the citizen's favor."70
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. Even straining logic charitably in the Attorney General's
favor, the best we can say of the Attorney General's proposed
64 Id. at 95 n.8.
65 The predecessor to 8 U.S.C.S 1451(a).
66 Zucca, 351 U.S. at 95.
67 Id. at 99 (quoting Bindczyck, 342 U.S. at 83-84).
68 350 U.S. 179 (1956).
69 Id. at 187 (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922))
(internal quotation marks omitted).
70 Minker, 350 U.S. at 188.
inference of a delegation of power from a saving clause in the
case at bar is that it is leaves some doubt, so the doubt "must
be resolved in the citizen's favor" under Minker. Any ques-
tion 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 non-
judicial, because of `[t]he difference in security of judicial
over administrative action . . . .' "71
All these principles of construction -- that the statutory
denaturalization procedure exhausts the field, that the power
to naturalize 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.72 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.73 This
change in the saving clause is insufficient to accomplish a del-
egation, in the face of the holdings in Bindczyck, Zucca, and
The Attorney General's argument, that Congress would not
have written a saving clause if there were nothing to save,
would have more force were it not for the gloss provided by
the controlling Supreme Court decisions. But this weak infer-
ence of a delegation cannot be drawn in the face of the
Supreme Court cases holding that the express statutory proce-
dure is exclusive and fully occupies the field. Nor can it nec-
71 Id. (quoting Ng Fung Ho , 259 U.S. at 285) (alteration and omission
72 8 U.S.C. SS 1421(a), 1451(a).
73 8 U.S.C. S 1451(h).
essarily be said that the alternative is to construe the saving
clause as having no meaning. Possibly the agency has author-
ity 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 such as misspelled and
Were we to infer a negative pregnant, we might do so more
readily from the limitation on the Attorney General's power
regarding cancellation 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."74 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 citizen-
ship of an individual who has been naturalized. The most that
Congress gave the Attorney General regarding the power to
denaturalize is silence, and "[n]ow and then silence is not preg-
 Citizenship in the United States of America is among
our most valuable rights. For many of us, it is all that protects
our life, liberty, and property from arbitrary deprivation. The
world is full of miserable governments that protect none of
these rights. Many of us would be dead or never conceived in
wretched places in other countries, had we or our ancestors
not obtained American citizenship. The opportunities that we
want to pass on to our children depend on their secure rights
to stay in this country and enjoy its guarantees of life, liberty,
and property, and the domestic peace and prosperity that flow
74 8 U.S.C. S 1453.
75 El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 487 (1999).
from those guarantees. An executive department cannot sim-
ply decide, without express statutory authorization, to create
an internal executive procedure to deprive people of those
rights without even going to court. For the Attorney General
to gain the terrible power to take citizenship away without
going to court, she needs Congress to say so. The district
court correctly held that the new regulations for administra-
tive denaturalization were promulgated without authority
from Congress. Congress has provided one way to revoke the
citizenship of a naturalized American citizen: that is for a
United States Attorney to file a petition in a United States
District Court. There is no statutory warrant for a second way,
whereby the Immigration and Naturalization Service would
revoke a person's citizenship administratively.
The order granting the preliminary injunction is
THOMAS, Circuit Judge, with whom Judges BROWNING,
T. G. NELSON, HAWKINS, and TASHIMA join, concur-
I agree that the preliminary injunction should be affirmed.
I write separately because I believe that when we review an
administrative agency's construction of the statute it adminis-
ters, the proper analytical framework is dictated by Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-45 (1984), as recently explained in Food and
Drug Administration v. Brown & Williamson Tobacco Corp.,
_______ U.S. _______, 120 S. Ct. 1291 (2000). Applying that examina-
tion to the issues in this case, I conclude that Congress has
unambiguously expressed its statutory intent. Therefore, there
is no need to determine whether the agency's construction is
Under Chevron, we must consider first "whether Congress
has directly spoken to the precise question at issue." Chevron,
467 U.S. at 842. "If Congress has done so, the inquiry is at
an end; the court `must give effect to the unambiguously
expressed intent of Congress.' " Brown & Williamson, 120
S. Ct. at 1300 (quoting Chevron, 467 U.S. at 843).
In making that assessment, we look not only at the precise
statutory section in question, but analyze the provision in the
context of the governing statute as a whole, presuming con-
gressional intent to create a "symmetrical and coherent regu-
latory scheme." Id. at 1301 (quoting Gustafson v. Alloyd Co.,
513 U.S. 561, 569 (1995)). Finally, "we must be guided to a
degree by common sense as to the manner in which Congress
is likely to delegate a policy decision of such economic and
political magnitude to an administrative agency. " Id. If, after
conducting such an analysis, we conclude that Congress has
not addressed the issue, we "must respect the agency's con-
struction of the statute so long as it is permissible." Id. at 1300
(citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)).
The guidance of Brown & Williamson is especially important
in this appeal, because understanding the history of denatural-
ization procedure is vital to placing the present statute in
Until the early 1900s, there was no statutory method of
denaturalization. In response to reports of widespread abuse
in the naturalization process, President Theodore Roosevelt
appointed a commission to investigate the system and make
recommendations. See Bindczyck v. Finucane, 342 U.S. 76,
79-80 (1951). Congress responded to the commission's report
with the Act of June 29, 1906, 34 Stat. 596 ("1906 Act"). See
id. Among the reforms included in the 1906 Act was the pro-
vision for courts to cancel certificates of naturalization that
were fraudulently or illegally procured. See 1906 Act, S 15,
34 Stat. 601. The 1906 Act instituted the judicial denaturaliza-
tion procedure that remains substantially intact to this day: the
appropriate United States Attorney files a civil complaint
"upon affidavit showing good cause therefor." See 8 U.S.C.
S 1451(b). The usual rules of civil discovery apply and the
case is tried before the court sitting in equity. See 7 C. Gor-
don, S. Mailman, & S. Yale-Loehr, Immigration Law and
Procedure S 96.11[b] (1998).
After passage of the 1906 Act, courts apparently entered
civil denaturalization judgments with some frequency on a
variety of grounds using a relatively low threshold of proof.
See id. at S 96.09. However, in 1943, the Supreme Court
altered that analysis by holding that citizenship "once con-
ferred should not be taken away without the clearest sort of
justification and proof." Schneiderman v. United States, 320
U.S. 118, 122 (1943). Accordingly, the Court imposed a
"clear, unequivocal, and convincing" burden of proof on the
government in statutory denaturalization cases. Id. at 125
(quoting United States v. Maxwell Land-Grant Co. , 121 U.S.
325, 381 (1887)).
Denaturalization through this statutory civil process contin-
ued into the early 1950's when the government attempted
denaturalization through motions to set aside naturalization
orders issued by courts. In Bindczyck, the Supreme Court con-
sidered these non-statutory methods of denaturalization. After
a thorough review of the legislative history and structure of
the statute, the Court concluded that the statutory civil denatu-
ralization proceeding was "the exclusive procedure for can-
celing citizenship on the score of fraudulent or illegal
procurement based on evidence outside the record. " 342 U.S.
at 79. Once naturalization was granted, the Court held, it was
"proof against attacks for fraud or illegal procurement based
on evidence outside the record, except through the proceed-
ings prescribed in S 15." Id. at 84. Thus, the Court held that
the non-statutory methods of denaturalization were prohibited
by the statute; indeed, the Court concluded that the legislative
history "reveals a specific purpose to deprive the naturalizing
court as such of power to revoke." Id. at 83.
After Bindczyck was decided, Congress amended the sec-
tion in the Immigration and Nationality Act of 1952, 66 Stat.
163, to protect the power of the courts to modify their own
judgments by adding a saving clause, INA S 340(j):
Nothing in this section shall be regarded as limiting,
denying or restricting the power of any naturaliza-
tion court, by or in which a person has been natural-
ized, to correct, reopen, alter, modify, or vacate its
judgment or decree naturalizing such person, during
the term of such court or within the time prescribed
by the rules of procedure or statutes governing the
jurisdiction of the court to take such action.
66 Stat. 163, 262.
This subsection was interpreted by the Supreme Court as
abrogating "the specific holding" in Bindczyck that the statu-
tory denaturalization procedure of S 340(a) (the recodification
of S 15) "overrode local rules concerning limitations upon the
power of state courts to reopen their judgments. " United
States v. Zucca, 351 U.S. 91, 95 n.8 (1956). However, as to
whether S 340(a) proceedings were "the exclusive method for
denaturalization," the Court noted, "[t]he underlying philoso-
phy of Bindczyck remains intact." Id.
Thus, between 1952 and 1990, there were two methods for
revocation of naturalization orders: (a) the plenaryS 340(a)
proceeding; and (b) a motion brought pursuant to the power
of courts to reopen and vacate judgments, subject to any gen-
erally applicable statutory or procedural limits on that power.
The latter mechanism was the one preserved by the 1952
addition of the S 340(j) saving clause.
This statutory scheme, and construction, remained intact
until the passage of the Immigration Act of 1990 ("1990
Act"). The 1990 Act retained S 340(a), but repealed the sav-
ing clause at S 340(j)(redesignated S 340(i) in 1988). No new
denaturalization power or procedure was created. Thus, denat-
uralization procedure reverted to its pre-1952 state. See
United States v. Philbrick, 120 U.S. 52, 57-58 (1887). Under
pre-1952 law, of course, as construed in Bindczyck and Zucca,
the exclusive method of denaturalization was a S 340(a) pro-
The only new wrinkle, obviously, in the 1990 Act was the
insertion of a different saving clause which provided that
"[n]othing contained in this section shall be regarded as limit-
ing, denying, or restricting the power of the Attorney General
to correct, reopen, alter, modify, or vacate an order naturaliz-
ing the person." 8 U.S.C. S 1451(h).
As Judge Kleinfeld has demonstrated, the new saving
clause must be narrowly construed and interpreted in light of
the regulatory scheme established by federal law. See United
States v. Locke, 120 S. Ct. 1135, 1146-47 (2000). The 1990
Act does not expressly create any new denaturalization power
or procedure, and its structure militates against implying one.
The new saving clause was included in a section of the bill
labeled "Conforming Amendments" under a subsection "Sub-
stituting Appropriate Administrative Authority for Naturaliza-
tion Court." Congressional designation of an amendment as a
"conforming amendment" evidences legislative intent that the
amendment should be read as non-substantive. See Springdale
Memorial Hosp. Ass'n, Inc. v. Bowen, 818 F.2d 1377, 1386
n.9 (8th Cir. 1987) (citing CBS, Inc. v. FCC, 453 U.S. 367,
381-82 (1981)). Certainly, creating expansive new authority
could hardly be characterized as a "conforming " amendment.
Cf. United States v. Miguel, 49 F.3d 505, 510 (9th Cir. 1995);
United States v. Koyomejian, 970 F.2d 536, 541 (9th Cir.
Implying a new denaturalization power from the saving
clause would be also inconsistent with the history and struc-
ture of immigration law. Under Bindczyck's construction,
unaltered by the 1990 Act, a S 340 proceeding is the "self-
contained, exclusive" method of denaturalization. Because
exclusive jurisdiction over a S 340 proceeding is vested in the
courts, that power could not have been transferred to the
Attorney General by the new saving clause.1
Finally, the statute separately defines the Attorney Gener-
al's remedy in the event of illegal or fraudulent procurement
to cancellation of the naturalization certificate. See 8 U.S.C.
S 1453. However, that section specifically provides that the
cancellation affects "only the document and not the citizen-
ship status of the person in whose name the document was
issued." Id. In sum, the Attorney General's construction of
S 340(h) as conferring new denaturalization power "placed
more weight on the saving clauses than those provisions can
bear." Locke, 120 S. Ct. at 1146.
So what is the effect of the new saving clause? The original
saving clause was inserted to protect what Congress perceived
as the pre-existing power of courts over their own judgments.
Thus, to the extent the new saving clause has any meaning,
it must be to preserve the pre-existing general authority of an
agency to modify its own issued order.
As the panel majority properly noted, "[e]very tribunal,
judicial or administrative, has some power to correct its own
errors or otherwise appropriately to modify its judgment,
decree, or error." Gorbach v. Reno, 179 F.3d 1111, 1120-21
(9th Cir. 1999) (quoting Alberta Gas Chemicals, Ltd. v. Cela-
nese Corp., 650 F.2d 9, 13 (2d Cir. 1981)) (alteration in origi-
nal). In the administrative context, this right is generally
limited to "a short period after the making of the decision and
before an appeal has been taken or other rights vested." Aubre
v. United States, 40 Fed. Cl. 371, 376 (Fed. Cl. 1998) (quoting
1 In addition, under Schneiderman the "clear, unequivocal, and convinc-
ing" burden of proof is on the government in aS 340 proceeding. It would
be consistent with the Supreme Court's construction of the statute at hand
to interpret the 1990 Act's saving clause as creating a new denaturaliza-
tion process requiring only "credible and probative" evidence to be ten-
dered. See 8 C.F.R. S 340.1.
Dayley v. United States, 169 Ct. Cl. 305, 308 (1965)). Thus,
an agency retains a general authority to modify its decisions
for a brief period beginning prior to issuance of the decision,
see PLMRS Narrowband Corp. v. F.C.C., 182 F.3d 995,
1001-02 (D.C. Cir. 1999), and ending when the time for judi-
cial review expires, see Pan American Petroleum Corp. v.
Federal Power Comm'n., 322 F.2d 999, 1004 (D.C. Cir.
Prior to the time citizenship is conferred,2 the Attorney
General has some limited power to modify or vacate her natu-
ralization decision. See 8 U.S.C. S 1451(h). The INS has the
power to correct clerical errors on its own initiative; however,
substantive amendments affecting the merits are not autho-
rized. See 8 C.F.R. S 334.5. The INS may reopen an approved
application before the oath of allegiance is administered if the
INS has received potentially disqualifying information about
the applicant. See 8 C.F.R. S 335.5. In such an event, the
applicant is given notice and an opportunity to address the
concerns. See id. It is these pre-naturalization powers to "cor-
rect, reopen, alter, modify, or vacate an order naturalizing the
person" and post-naturalization power to correct clerical
errors that are "saved" by S 340(h). This construction of the
saving clause is consistent with both general administrative
2 The 1990 Act transferred the power of naturalization from the courts
to the Attorney General. See 8 U.S.C. S 1421(a). Under the current proce-
dure, the alien files an application for naturalization with the INS. See 8
U.S.C. S 1445. The INS then conducts an investigation, examines the
applicant and decides whether to grant or deny the naturalization applica-
tion. See 8 U.S.C. S 1446. Before being admitted to citizenship, the appli-
cant must take an oath of allegiance, see 8 U.S.C. S 1448, either before the
Attorney General or a court of competent jurisdiction, depending on the
circumstances, see 8 U.S.C. S 1421(b). Citizenship is conferred as of the
date the oath is taken. See 8 C.F.R. S 338.1(a). After admission to citizen-
ship, a person is entitled to receive from the Attorney General a certificate
of naturalization. See 8 U.S.C. S 1449. As previously noted, the Attorney
General has the power to cancel the certificate if it has been illegally or
fraudulently procured, but such cancellation does not affect citizenship
status. See 8 U.S.C. S 1453.
law principles and the regulatory scheme created by the 1990
Post-citizenship denaturalization is an entirely different
matter. Administrative power to reconsider must be exercised
within the authority granted by the governing statute.3 See
Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 786
(3d Cir. 1987). Agencies may not "expand their powers of
reconsideration without a solid foundation in the language of
the statute." Civil Aeronautics Board v. Delta Air Lines, Inc.,
367 U.S. 316, 334 (1961). Under the naturalization laws, once
citizenship has been granted, it is "proof against attacks for
fraud or illegal procurement based on evidence outside the
record, except through [a S 340(a) proceeding]." Bindczyck,
342 U.S. at 84. Thus, once the Attorney General has granted
citizenship, she has no residual right under the statute to
revoke it. Rather, post-naturalization citizenship revocation
remedies are limited under the statute to the "exclusive, self-
contained" S 340(a) proceeding. The Attorney General simply
does not have the authority under the statute to fashion a new
post-naturalization revocation remedy out of whole cloth.
The text, structure, and history of the 1990 Act and its pre-
decessors clearly demonstrate that a S 340(a) proceeding is
the exclusive post-naturalization means of revoking citizen-
ship. Because Congress has directly spoken on this issue, our
inquiry under Brown & Williamson is concluded; we need not
further examine whether the agency's statutory construction
For these reasons, I concur in the affirmance of the prelimi-
3 The panel majority provided a number of examples of agencies who
have provided for administrative reopening of decisions under their statu-
tory authority. See Gorbach, 179 F.3d at 1124.
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