* Honorable Wayne E. Alley, Senior District Judge, Un ited States District

Court of the Western District of Oklahoma, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 14 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GHOLAMREZA NAGAHI, Plaintiff - Appellant, vs. IMMIGRATION & NATURALIZATION SERVICE, District Director; MERYL E. ROGERS, Officer in Charge, Immigration and Naturalization Service, Defendants - Appellees. No. 98-4191

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 95-CV-1006)

Sandra P. Saltrese-Miller, Boulder, Colorado, for P laintiff - Appellant. Michelle R. Slack (and David W. Ogden, Acting Assis tant Attorney General and Richard M. Evans, Assistant Director, with her on the briefs), U.S. Department of Justice, Civil Division, Washington, D.C., for Defe ndants - Appellees.

Before KELLYand PORFILIO , Circuit Judges and ALLEY , * District Judge.- 2 -

KELLY , Circuit Judge.

This case requires us to determine whether an admin istrative agency can create a limitations period affecting the abili ty of an Article III court to review agency action, absent an express delegation of congressional authority. We hold that it cannot, reverse, and remand the cas e for further proceedings on the merits.

Background Mr. Gholamreza Nagahi, a non-citizen resident, was arrested on April 29, 1985 in Salt Lake County, Utah, based on a five cou nt indictment. Plaintiff pled guilty to a lesser crime, a class B misdemeanor. H e was sentenced to six months imprisonment, but the sentence was suspended and pl aintiff was placed on probation. After probation was completed, the Utah district court entered an order on March 10, 1987, vacating Mr. Nagahi’s pleaand dismissing the matter “in the interest of justice.” R. doc. 19, at 7. T he court subsequently entered three orders expunging all the related charges and convictions against plaintiff. Id . at 8-10 (Expungement Orders, November 23, 1987). On August 3, 1994, Mr. Nagahi applied to the Immigr ation and Naturalization Service (“INS”) to become a naturali zed citizen of the United States. The INS has authority to naturalize an ali en who has lawfully resided- 3 -

within the United States for at least five years, m eets certain physical presence requirements, and “during all the periods referred to in this subsection has been and still is a person of good moral character.” 8 U.S.C. § 1427(a)(3). In determining whether an applicant has good moral character, the INS is not limited to conduct which occurred during the requir ed five year residency period, “but may take into consideration as a basis for suc h determination the applicant’s conduct and acts at any time prior to that period.” 8 U.S.C. § 1427(e). A finding of good moral character is conclusively prohibited for any person “who has given false testimony for the purpose of obtaining” citiz enship benefits. 8 U.S.C. § 1101(f)(6). The Application for Naturalization form (N-400) whi ch Mr. Nagahi filled out asked several questions relating to character. In particular, Question 15(b) asked: “Have you ever . . . been arrested, cited, c harged, indicted, convicted, fined or imprisoned for breaking or violating any l aw or ordinance excluding traffic regulations?” Before answering this questi on, Mr. Nagahi consulted various state officials to ask them how to respond to this question, given the expungement of his criminal record. In response to this questioning, Mr. Walter Ellett, the Chief Deputy District Attorney for SaltLake County directed plaintiff1 § 77-18-10(6) was renumbered as 77-18-10(7) by 1996 amendment. That

section states: “A person who has received expungem ent of an arrest under this section may respond to any inquiry as though the arrest did not occur, unless provided otherwise by law.” § 77-18-13(3) reads: “Except as otherwise provided by law, a person receiving expungement of a conviction under this se ction may respond to any inquiry as though the conviction did not occur.” - 4 - to Utah Code Ann. §§ 77-18-10(6) and 77-18-13(3). 1 Relying upon the advice of the state officials and the state statutes, plainti ff answered Question 15(b) “No.” On November 9, 1994, Mr. Nagahi was examined by INS examiner Ralph Hunt, pursuant to the requirements of 8 U.S.C. § 14 46(a). Mr. Hunt repeatedly referred to Question 15(b) and asked about plaintif f’s criminal record. Mr. Nagahi replied in the negative the first two times this question was asked, but explained the expungement and his conversation with the state officials when asked a third time. Plaintiff was subsequently sent a “Notice of Intent to Deny” letter, to which he timely responded. On January 1 7, 1995, the INS denied Mr. Nagahi’s application based on two grounds: (a) unde r § 1427(e), plaintiff committed a crime “contrary to moral and ethical st andards of this community;” and (b) under § 1101(f)(6), plaintiff gave false te stimony both on his application and during the interview regarding his criminal rec ord. R. doc. 19, at 18-21. Mr. Nagahi sought and received a further hearing be fore the INS on his application. At an April 21, 1995 hearing, INS examiner Allen Spiers affirmed the previous denial of naturalization. Examiner Sp iers informed plaintiff that he- 5 -

had 120 days within which to appeal this final deci sion to the United States District Court. Mr. Nagahi retained counsel to hel p him with his application appeal and informed her of the 120 day deadline. C ounsel, however, decided to pursue the appeal internally with the INS rather th an taking the action to federal court. All of these attempts proved futile, and cu lminated in a September 12, 1995 letter from the INS reiterating its denial of naturalization and denying plaintiff’s request to reopen the proceedings. Cou nsel withdrew and Mr. Nagahi filed a petition for review of the INS decision with the district court on November 7, 1995. That court dismissed the petitio n as untimely and this appeal followed.

Analysis As part of the Immigration and Naturalization Act ( INA), Congress specifically granted jurisdictional authority to th e federal district courts to review the denial of an application for naturalization. INA § 310(c), codified at 8 U.S.C. § 1421(c). That section states:

A person whose application for naturalization underthis subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this T itle, may seek review of such denial before the United St ates district court for the district in which such perso n resides in accordance with chapter 7 of Title 5 [th e Administrative Procedures Act]. Such review shall be de novo, and the court shall make its own findings of- 6 - fact and conclusions of law and shall, at the reque st of the petitioner, conduct a hearing de novo on the application.
8 U.S.C. § 1421(c). This grant of authority is unu sual in its scope – rarely does a district court review an agency decision de novo an d make its own findings of fact. Title 8 of the U.S. Code does not specify a time wi thin which such review must be sought. On October 7, 1991, the INS promul gated 8 C.F.R. § 336.9(b).
See 56 Fed. Reg. 50,475, 50,499 (1991). That regulati on provides in relevant part: (b) Filing a petition . Under [the procedures of part 310

of this chapter] an applicant shall file a petition for review in the United States District Court having jurisdiction over his or her place of residence, in accordance with chapter 7 of title 5, United States Code, within a period of not more than 120 days after the Service’s final determination. . . .
8 C.F.R. § 336.9(b). The district court applied th is regulation in finding that Mr. Nagahi was time barred and further determined that equitable tolling was not proper because he knew of the deadline but simply f ailed to comply with it. On appeal, Mr. Nagahi argues that the 120 day time limit should not be enforced because the INS was without authority to p ass such a limit on judicial review. He characterizes § 336.9(b) as jurisdictional and points to Castenada v.2 The INS, while at all times asserting that § 336.9( b) is not jurisdictional,

has varied in its characterization of that time lim it. Section 336.9(b) has been variously referred to as a statute of limitations, a “laches policy,” and at oral argument, simply as a time for appellate filing. - 7 - INS , 23 F.3d 1576, 1580 n.2 (10th Cir. 1994) in which we stated that only Congress can limit the jurisdiction of the federal district courts. The INS agrees that “if the time limit is jurisdictional, it is impermissible.” Aplee. Supp. Br. at 3. However, the agency asserts that § 336.9(b) is s imply a “codified, fixed period laches policy” which should be treated like a statu te of limitations, i.e., subject to waiver and equitable tolling. Id . at 4. 2 Despite the parties’ contentions to the contrary, the ultimate characterization of § 336.9(b) as either jurisdicti onal or a statute of limitations is not determinative in this case. The INS urges us t o view its regulation with substantial deference under the doctrine announced under Chevron, U.S.A. v. Natural Resources Defense , 467 U.S. 837 (1984). However, it is axiomatic th at an agency cannot create regulations which are beyon d the scope of its delegated authority. “A precondition to deference under Chevron is a congressional delegation of administrative authority.” Adams Fruit Co. v. Barrett , 494 U.S. 638, 649 (1990). Legislative authority can be dele gated to an executive department “so long as Congress provides [the] admi nistrative agency with standards guiding its actions such that a court cou ld ascertain whether the will of- 8 -

Congress has been obeyed.” Skinner v. Mid-America Pipeline Co. , 490 U.S. 212, 218 (1989) (citation and internal quotations omitte d). Failure to specify definite standards for agency action results in a violation of the constitutional principle of separation of powers. See id

. The INS points to three sections of the INA as cong ressionally delegated authority for the promulgation of § 336.9(b). The first is 8 U.S.C. § 1421(a) which states: “The sole authority to naturalize per sons as citizens of the United States is conferred upon the Attorney General.” Th is provision says nothing about limiting judicial review of agency decisions and must be read in conjunction with the de novo review by the federal district courts provided in 8 U.S.C. § 1421(c). See generally Traynor v. Turnage , 485 U.S. 532, 542 (1988) (discussing the “‘strong presumption that Congress intends judicial review of administrative action’” (citation omitted)). Second, 8 U.S.C. § 1103(a)(3) grants to the Attorney General the power to “establish such regulations . . . and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.” The obvious scope of this grant is limited to acts which allow the Attorney General to carry out her authority. A limitation upon judicial review of the Attorney General’s acts simply does not fit within this delegation. The INS’ third proffered source of authority, 8 U.S .C. § 1443(a), is- 9 -

similar. The Attorney General shall make such rules and

regulations as may be necessary to carry into effec t the provisions of this part and is authorized to prescr ibe the scope and nature of the examination of applicants f or naturalization as to their admissibility to citizen ship.
While this delegation is a broad grant of authority , it does not extend to creating limits upon judicial review. Two factors support this conclusion. First, the INS admitted during oral argument that it was unaware o f any regulation similar to § 336.9(b). Our review of the Code of Federal Regulations confirms that § 336.9(b) is the only administrative regulation whic h attempts to limit the time for judicial review, absent an express statutory provis ion. Such an administratively created limit subjecting a petitioner to procedural default is not favored in light of § 1451(c)’s broad grant of de novo review. “[A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate [limits on judicial review] unless that power is conveyed by Congress in express terms.” Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204, 208 (1988) (stating this principle for retroac tive rules which are also not favored in the law). Second, we are persuaded that the Supreme Court’s opinion in Adams Fruit Co., Inc. v. Barrett , 494 U.S. 638 (1990) requires our resolution in th is case. Adams Fruit involved a challenge to administrative regulations promulgated- 10 -

under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. § 1801 et seq . Section 504 of the AWPA provided a private rightof action to migrant farm workers who were injured bec ause of failure to comply with the AWPA’s motor vehicle safety provisions. B y statute, Congress provided the Secretary of the Department of Labor with regul atory authority to “prescribe the standards required for the purposes of implemen ting this section.” 29 U.S.C. § 1841(d). Based upon this grant, the Secretary pr omulgated a regulation which limited the federal right of action to cases in whi ch state workers’ compensation laws did not apply to cover migrant workers. Adams Fruit , 494 U.S. at 649 (citing 29 C.F.R. § 500.122(b) (1989)). The Supreme Court found that this regulation was no t due any deference because it fell outside of the delegated authority granted by Congress.

Congress clearly envisioned, indeed expressly mandated, a role for the Department of Labor in administering the statute by requiring the Secretary to promulgate standards implementing the AWPA’s motor vehicle provisions. § 1841(d). This delegation, however, does not empower the Secretary to regulate the scope of the judicial power vested by the statute

. Although agency determinations within the scope of delegated authority are entitled to deference, it i s fundamental “that an agency may not bootstrap itsel f into an area in which it has no jurisdiction.”

Id . at 650 (emphasis added and citation omitted). That is exactly the situation in the present case. Nowhere in its delegation3 The reliance of the INS on District Lodge 64 v. NLRB , 949 F.2d 441 (D.C.

Cir. 1991) is inapposite in this case. In DistrictLodge , the D.C. Circuit upheld a decision of the NLRB to create a six month fixed pe riod of limitations on the reinstatement of dismissed charges. However, this six month period only affected the ability of a person to pursue administrative , rather than judicial, remedies. See id . at 444-45; see also United Mine Workers v. Kleppe , 561 F.2d 1258, 1260- 62 (7th Cir. 1977) (upholding agency’s prescribed “ time period for the filing of claims solely for use in its own administrative pro ceedings.”). - 11 - to the INS did Congress grant the power “to regulat e the scope of the judicial power vested by the statute.” Yet this is exactly the effect of § 336.9(b). Whether it is called jurisdictional, a statute of l imitations, a laches period, or a time in which to appeal, its fundamental purpose is to limit the ability of the federal district courts to review denials of natura lization. As such, it is beyond the authority delegated to the INS and will not be applied. 3 In the absence of a specific statutory limitations period, a civil action against the United States under the APA is subject to the six year limitations period found in 28 U.S.C. § 2401(a). See Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army , 111 F.3d 1485, 1494-95 (10th Cir. 1997); see also Sierra Club v. Penfold , 857 F.2d 1307, 1315 (9th Cir. 1988); Smith v. Marsh , 787 F.2d 510, 512 (10th Cir. 1986). Mr. Nagahi’s petition was filed in the district court less than half a year after the INS’ final denial of his application for naturalization. Therefore, it was timely and the district court erred in finding it time barred under 8 C.F.R. § 336.9(b).- 12 -

REVERSED and REMANDED for further proceedings consi stent with this opinion.