Mazen Shweika v. Dep't of Homeland Security

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0194p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MAZEN SHWEIKA,
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Plaintiff-Appellant,
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No. 12-1645
v.
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DEPARTMENT OF HOMELAND SECURITY and
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DISTRICT DIRECTOR, UNITED STATES
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CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:09-cv-11781—Thomas L. Ludington, District Judge.
Argued: March 7, 2013
Decided and Filed: July 25, 2013
Before: MOORE, SUTTON, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit,
Michigan, for Appellant. Christopher W. Dempsey, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Michael R. Dezsi, LAW
OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit, Michigan, for Appellant.
Christopher W. Dempsey, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. For the past nine years, Mazen
Shweika (“Shweika”) has prosecuted a single application for naturalization before both
the United States Citizenship and Immigration Services (“USCIS”) and the U.S. District
1
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 2
Court for the Eastern District of Michigan. This ongoing process now raises a narrow
question: Does the administrative-hearing requirement in 8 U.S.C. § 1421(c) establish
a jurisdictional limitation on judicial review of the denial of an application for
naturalization? We answer the question in the negative and conclude that the district
court erred in determining that it lacked subject-matter jurisdiction. Accordingly, we
VACATE the district court’s judgment and REMAND for proceedings consistent with
this opinion.
I. BACKGROUND AND PROCEDURE
Shweika filed his application for naturalization in April 2004. Three years
passed without USCIS completing its review of his application. In response, Shweika
obtained a writ of mandamus from the U.S. District Court for the Eastern District of
Michigan, which compelled USCIS to finish its review by May 30, 2008. Shweika v.
Cannon, No. 1:07-cv-10870 (E.D. Mich.), R. 23 (02/29/2008 Order at 5) (Page ID #170).
On May 29, 2008, USCIS denied Shweika’s application because he failed to provide
certified copies of documents related to a prior arrest, and thus could not meet his burden
to establish his good moral character.1 R. 1-3 (§ 1446 Decision at 5) (Page ID #12).
Shweika sought an administrative hearing to appeal the denial of his application for
naturalization. See 8 U.S.C. § 1447(a).
Although regulations require that USCIS schedule an administrative hearing
within 180 days of a timely request, 8 C.F.R. § 336.2(b), ten months passed without a
hearing. In May 2009, Shweika returned to the district court in what is the instant
litigation. Shweika v. DHS, No. 1:09-cv-11781 (E.D. Mich.). Again, he sought a writ
of mandamus to compel USCIS to decide his naturalization application; alternatively,
he sought a hearing de novo before the district court. R. 1 (Compl.) (Page ID #1–6). In
January 2010, the government moved either to remand the case to USCIS or to dismiss
1
After being acquitted, Shweika successfully moved for the State of Virginia to expunge his
record; accordingly, Shweika argued that no official record existed from which a certified copy could be
created. Shweika provided USCIS with a personal copy of his arrest records and acquittal, R. 21-2 (Arrest
Records) (Page ID #164–66), and a personal copy of a letter affirming the expungement. R. 21-3
(Expungement Acknowledgment) (Page ID #168).
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 3
for lack of subject-matter jurisdiction because Shweika had not exhausted his
administrative remedies. R. 13 (Defs.’ Mot. to Dismiss or Remand) (Page ID #55–62).
In a February 9, 2010, order, the district court found that mandamus relief was
unnecessary because Shweika’s administrative hearing was scheduled to occur on
February 11, 2010. R. 16 (02/09/10 Order at 3) (Page ID #119). However, the district
court did not dismiss the case, noting that “[f]ollowing next week’s hearing, Plaintiff’s
naturalization application will be ready for review by this Court.” Id. at 4 (Page ID
#120). Instead, the district court stayed proceedings and allowed the administrative
process to continue.
Shweika’s February 11 hearing did not go as planned. The presiding
immigration officer announced that he would conduct a de novo review of Shweika’s
application, contrary to Shweika’s expectations. Appellees’ App. at 67–69 (Admin. Hr’g
Tr.). The officer asked about a prior conviction from 1992, and then turned to
allegations by Shweika’s ex-wife suggesting that Shweika committed domestic violence.
Id. at 75–80, 100–02. Shweika’s attorney asked the officer to stop the hearing on the
grounds that the inquiry exceeded the scope of Shweika’s appeal; the officer refused and
asserted that he had authority to pursue the line of questioning. Id. at 103–07. The
officer resumed his questioning, at which point Shweika, on the advice of counsel, left
the hearing. Id. at 109.
Rather than require Shweika to return for a hearing that would satisfy the
agency’s desired review, USCIS instead denied Shweika’s application for naturalization
on the basis of the record before it. R. 20-2 (§ 1447 Decision at 6) (Page ID #156). In
discussing the hearing, USCIS noted that “‘immigration officials may draw a negative
inference from a naturalization applicant’s silence.’” Id. at 5 (Page ID #155) (quoting
United States v. Posada Carriles, 541 F.3d 344, 357 (5th Cir. 2008)). The decision then
stated that Shweika failed to prosecute his application, cf. 8 C.F.R. § 335.7 (deeming the
failure to provide testimony a failure to prosecute), but separately stated that he “fail[ed]
to establish [his] fulfillment of the requirements for naturalization, including those of
good moral character.” R. 20-2 (§ 1447 Decision at 6) (Page ID #156). Accordingly,
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 4
USCIS denied Shweika’s naturalization application, but informed him that “[t]his
decision is made without prejudice to your right to seek review in accordance with
section 310 [8 U.S.C. § 1421] of the Immigration and Nationality Act.” Id.Shweika resumed his case in the district court. Under 8 U.S.C. § 1421(c), a
district court has broad authority to review the denial of an application for naturalization:
the district court conducts a de novo review of the denial; “the court shall make its own
findings of fact and conclusions of law”; and, if the petitioner requests, the court “shall
. . . conduct a hearing de novo on the application.” 8 U.S.C. § 1421(c). The district
court held its own evidentiary hearing, during which it permitted USCIS to ask Shweika
about any information not obtained at the administrative hearing. Thereafter, the district
court found by clear and convincing evidence that Shweika had established his good
moral character. R. 48 (02/15/12 Order at 2) (Page ID #418).
In the same order, the district court ordered additional briefing on the question
of whether it had subject-matter jurisdiction to grant Shweika’s application for
naturalization. At issue was the proper interpretation of language in § 1421(c) stating
that a district court’s de novo review may be sought by “[a] person whose application
for naturalization under this subchapter is denied, after a hearing before an immigration
officer under section 1447(a) of this Title.” 8 U.S.C. § 1421(c) (emphasis added). The
district court determined that, although a broad “[administrative-]exhaustion requirement
is not expressly provided for in the statute . . . it has been inferred from the review
process established by the [A]ct.” R. 53 (03/27/12 Op. & Order at 12) (Page ID #503)
(referring to the Immigration Act of 1990). The district court then interpreted “the Act
and its implementing regulations” to impose the following administrative-exhaustion
requirements: “the applicant has been examined by [USCIS], has had the application
denied, has again been examined by [USCIS] in a ‘review hearing,’ and has again had
the application denied.” Id. at 14 (Page ID #505). The district court then concluded that
the statutory administrative-exhaustion requirements impose jurisdictional limitations
on a district court.
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 5
Applying its jurisdictional analysis to the instant case, the district court found
that Shweika failed to exhaust his administrative remedies—in particular, Shweika failed
to satisfy § 1421(c)’s administrative-hearing requirement. Shweika attended and
participated in an administrative hearing on February 11, 2010. Nevertheless, the district
court read into § 1421(c)’s administrative-hearing requirement an all-or-nothing
completion requirement. According to the district court, “[t]he reasonable implication
of the phrase ‘after a hearing’ is that the applicant is required to complete the hearing.”
Id. at 15 (Page ID #506). The district court then found—notwithstanding its observation
that USCIS itself equivocated over whether it denied Shweika’s application on the merits
or for failing to prosecute his application, see id. at 17 & n.1 (Page ID #508)—that
Shweika failed to complete his administrative hearing, and thereby failed to satisfy
§ 1421(c)’s administrative-hearing requirement. On this basis, the district court
dismissed Shweika’s complaint with prejudice for lack of subject-matter jurisdiction.
Id. at 26 (Page ID #517). Shweika timely appealed.
II. SUBJECT-MATTER JURISDICTION
The crucial issue in this case concerns the district court’s conclusion that
§ 1421(c)’s administrative-hearing requirement imposes a jurisdictional limitation on
judicial review. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)
(“[E]very federal appellate court has a special obligation to satisfy itself not only of its
own jurisdiction, but also that of the lower courts in a cause under review.” (internal
quotation marks omitted)). “We review de novo a district-court decision to dismiss a
complaint for lack of subject-matter jurisdiction.” Hamdi v. Napolitano, 620 F.3d 615,
619 (6th Cir. 2010). Here, we conclude that the district court erred in holding that it
lacked subject-matter jurisdiction.
The Supreme Court has recently sought “to bring some discipline to the use of”
the term “jurisdictional.” Henderson v. Shinseki, — U.S. —, 131 S. Ct. 1197, 1202
(2011). “[A] rule should not be referred to as jurisdictional unless it governs a court’s
adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Id. Noting
that “the distinction between jurisdictional conditions and claim-processing rules can be
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 6
confusing in practice,” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010), the
Supreme Court has provided the following “readily administrable bright line” for
identifying whether a statutory term is jurisdictional:
If the Legislature clearly states that a threshold limitation on a statute’s
scope shall count as jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the issue. But when
Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional in
character.
Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16 (2006) (citations and footnote omitted);
accord Sebelius v. Auburn Reg’l Med. Ctr., — U.S. —, 133 S. Ct. 817, 824 (2013). In
applying this bright-line test, our “jurisdictional analysis must focus on the legal
character of the requirement, which we discern[] by looking to the condition’s text,
context, and relevant historical treatment.” Reed Elsevier, 559 U.S. at 166 (citation
omitted) (internal quotation marks omitted).
It is well settled that § 1421(c) provides federal district courts with jurisdiction
to review administrative denials of applications for naturalization. Zayed v. United
States, 368 F.3d 902, 905 (6th Cir. 2004) (“Under 8 U.S.C. § 1421(c), federal district
courts are given jurisdiction to review administrative denials of naturalization
applications.”). However, we have not previously addressed whether Congress clearly
stated that § 1421(c)’s administrative-hearing requirement imposes a jurisdictional
limitation on a district court’s ability to review the denial of a naturalization
application.2 Section 1421(c) states as follows:
A person whose application for naturalization under this subchapter is
denied, after a hearing before an immigration officer under
section 1447(a) of this title, may seek review of such denial before the
2
The Ninth Circuit has concluded, in light of recent Supreme Court precedent, that § 1421(c)’s
administrative-hearing requirement is “prudential, not jurisdictional.” Eche v. Holder, 694 F.3d 1026,
1028 (9th Cir. 2012), cert. denied, 81 U.S.L.W. 3475 (2013). By contrast, unpublished opinions by the
Fifth and Eleventh Circuits have treated § 1421(c)’s administrative-hearing requirement as jurisdictional,
although neither opinion acknowledged the Supreme Court’s recent bright-line test for assessing whether
a statutory requirement is jurisdictional. See Hong Huang v. Sec’y U.S. Dep’t of Homeland Sec., 468 F.
App’x 932, 935 (11th Cir. 2012), cert. denied, — U.S. —, 133 S. Ct. 1460 (2013); Idahosa v. Bureau of
Immigration & Customs Enforcement, 111 F. App’x 293, 294 (5th Cir. 2004).
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 7
United States district court for the district in which such person resides
in accordance with chapter 7 of title 5. Such review shall be de novo,
and the court shall make its own findings of fact and conclusions of law
and shall, at the request of the petitioner, conduct a hearing de novo on
the application.
With respect to the text of the statute, § 1421(c) “‘does not speak in jurisdictional
terms.’” See Auburn Reg’l, 133 S. Ct. at 824 (quoting Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 394 (1982)) (interpreting the expression “may obtain a hearing”).
By way of comparison, other statutes concerning a district court’s role in naturalization
proceedings do employ jurisdictional language. For example, 8 U.S.C. § 1447(b) states
that a “[district] court has jurisdiction” when USCIS does not make a determination
regarding an application for naturalization within 120 days of conducting its initial
examination. Likewise, a separate subsection of § 1421—§ 1421(b)(1), which is entitled
“Jurisdiction”—states that district courts “shall have authority to administer” oaths of
allegiance to successful applicants for naturalization. Cf. Auburn Reg’l, 133 S. Ct. at
825 (“A requirement we would otherwise classify as nonjurisdictional . . . does not
become jurisdictional simply because it is placed in a section of a statute that also
contains jurisdictional provisions.”). We have previously held that Congress’s omission
of “similarly clear language that would have tied a district court’s authority over a claim
to a plaintiff’s exhaustion of administrative remedies” indicates that Congress did not
intend the requirements to be jurisdictional ones. Hoogerheide v. IRS, 637 F.3d 634, 638
(6th Cir. 2011). Thus, the fact that Congress mentioned an administrative-hearing
requirement without using jurisdictional language, particularly when related statutory
subsections do employ jurisdictional language, suggests that Congress has not made a
clear statement indicating that § 1421(c)’s administrative-hearing requirement
constitutes a jurisdictional limitation.
Although the absence of jurisdictional language provides evidence that Congress
did not clearly state that § 1421(c)’s administrative-hearing requirement imposes a
jurisdictional limitation, the Supreme Court has cautioned that Congress may
nevertheless make a clear statement even if it does not use “magic words.” Auburn
Reg’l, 133 S. Ct. at 824. Accordingly, we must further “consider ‘context, including [the
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 8
Supreme] Court’s interpretations of similar provisions in many years past,’ as probative
of whether Congress intended a particular provision to rank as jurisdictional.” Id.(quoting Reed Elsevier, 559 U.S. at 168). “Absent specific guidance from the Supreme
Court, we look to the function of” § 1421(c)’s administrative-hearing requirement to
determine whether Congress intended it to impose a jurisdictional limitation. See
Abraitis v. United States, 709 F.3d 641, 644 (6th Cir. 2013).
Section 1421(c) permits a person to seek district-court review of the denial of his
application for naturalization if the application is denied “after a hearing before an
immigration officer.” 8 U.S.C. § 1421(c). At issue is § 1421(c)’s administrative-hearing
requirement. The administrative-hearing requirement is best characterized as a “claim-
processing rule,” which the Supreme Court defines as “rules that seek to promote the
orderly progress of litigation by requiring that the parties take certain procedural steps
at certain specified times.” Henderson, 131 S. Ct. at 1203. Courts have identified
several species of claim-processing rules. See, e.g., Auburn Reg’l, 133 S. Ct. at 824–25
(filing deadlines); Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, 558 U.S. 67, 73, 81–82 (2009) (exhaustion requirements);
Abraitis, 709 F.3d at 644 (exhaustion requirements and filing deadlines); Brentwood at
Hobart v. NLRB, 675 F.3d 999, 1003 (6th Cir. 2012) (geographic limitations). Of these,
§ 1421(c)’s administrative-hearing requirement is best described as an administrative-
exhaustion requirement, because the statutory text indicates that an applicant for
naturalization who wishes to seek judicial review of the denial of the application may
do so only after an administrative hearing before USCIS.
The Supreme Court has treated claim-processing rules as nonjurisdictional in all
but the most exceptional of instances. See, e.g., Auburn Reg’l, 133 S. Ct. at 824–25
(concluding that a 180-day time limit for filing a request for hearing before an
administrative body was not jurisdictional); Henderson, 131 S. Ct. at 1205 (holding that
a 120–day filing deadline for seeking review by the U.S. Court of Appeals for Veterans
Claims was “a claim-processing rule” that lacked “jurisdictional attributes”); see also
Reed Elsevier, 559 U.S. at 166 (“A statutory condition that requires a party to take some
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 9
action before filling a lawsuit is not automatically ‘a jurisdictional prerequisite to suit.’”
(emphasis in original) (quoting Zipes, 455 U.S. at 393)). But see Bowles v. Russell, 551
U.S. 205, 209–10 & n.2 (2007) (declining to reverse a century-old practice of treating
the deadline under 28 U.S.C. § 2107(a) for filing a notice of appeal in a civil action as
jurisdictional). In fact, based on our review of Supreme Court decisions, we previously
noted that “[e]ach time [the Court] has construed a statutory requirement that a plaintiff
proceed in another forum or seek redress in other ways before coming to federal court,
it has construed the requirement as nonjurisdictional.” Hoogerheide, 637 F.3d at 637.
Likewise, we have frequently concluded that similar administrative-exhaustion
requirements are nonjurisdictional claim-processing rules. See, e.g., Abraitis, 709 F.3d
at 644–45; Hoogerheide, 637 F.3d at 636–37; Spengler v. Worthington Cylinders, 615
F.3d 481, 489 (6th Cir. 2010); Allen v. Highlands Hosp. Corp., 545 F.3d 387, 400 (6th
Cir. 2008).
Our recent opinion interpreting 26 U.S.C. § 7429 is particularly instructive. See
Abraitis, 709 F.3d at 644. This is because §§ 1421(c) and 7429(b) have similar
structures—both subsections are titled “Judicial review,” and both subsections use
permissive, plaintiff-oriented language to establish a federal court’s jurisdiction.
Compare § 1421(c) (“A person . . . may seek review of such denial before the United
States district court.”) (emphasis added), with § 7429(b) (“[T]he taxpayer may bring a
civil action against the United States.”) (emphasis added). Moreover, like § 1421(c),
§ 7429 contains administrative preconditions to judicial review. § 7429(a)–(b). In
Abraitis, we determined that Ҥ 7429 presents an exhaustion requirement and two filing
deadlines as conditions for the relief [a taxpayer] seeks.” Abraitis, 709 F.3d at 644. We
thereafter concluded that “[t]hese rules, which ‘promote the orderly progress of litigation
by requiring that the parties take certain procedural steps at certain specified times . . .
are quintessential claim-processing rules’ that the Supreme Court treats as
nonjurisdictional.” Id. (quoting Henderson, 131 S. Ct. at 1203). Although § 1421(c)
does not include a filing deadline, similar to § 7429 it conditions judicial review on an
applicant’s having first had his claim reviewed administratively—in this instance, by
USCIS through an administrative hearing. In the absence of any congressional
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 10
indication that § 1421(c)’s administrative-hearing requirement is an exceptional case
meriting deviation from the conclusion ordinarily reached for other claim-processing
rules, we conclude that Congress has not made a clear statement regarding jurisdiction.
Accordingly, § 1421(c)’s administrative-hearing requirement does not impose a
jurisdictional limitation on judicial review.
We recognize that a regulation provides that “[a] USCIS determination denying
an application for naturalization under [§ 1446] shall not be subject to judicial review
until the applicant has exhausted those administrative remedies available to the applicant
under [§ 1447].”3 8 C.F.R. § 336.9(d) (emphasis added). Ordinarily, when the intent
of Congress is not clear and “the statute is silent or ambiguous with respect to the
specific issue,” we apply Chevron deference to an agency’s interpretation of a statute.4
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984). The question here is whether the general principle of Chevron deference applies
when an agency construes a statutory provision providing for judicial review.5 Although
we have not previously considered the issue, several other circuits have concluded that
“Chevron does not apply to statutes that . . . confer jurisdiction on the federal courts.”
Murphy Exploration & Prod. Co. v. U.S. Dep’t of Interior, 252 F.3d 473, 478–80 (D.C.
Cir. 2001), modified on denial of petition for reh’g, 270 F.3d 957 (D.C. Cir. 2001), cited
3
Courts of appeals uniformly agree, across a variety of contexts, that the expression “shall not
be subject to judicial review” imposes a jurisdictional limitation when included in a statutory provision.
See, e.g., J.S. v. T’Kach, 714 F.3d 99, 103–04 (2d Cir. 2013) (witness-relocation statute); Morris v. Office
of Compliance, 608 F.3d 1344, 1347 (Fed. Cir. 2010) (Congressional Accountability Act); Sierra Club v.
Otter Tail Power Co., 615 F.3d 1008, 1020 (8th Cir. 2010) (Clean Air Act); Al-Siddiqi v. Achim, 531 F.3d
490, 494 (7th Cir. 2008) (statute authorizing detention of aliens); Jordan Hosp., Inc. v. Shalala, 276 F.3d
72, 77 (1st Cir.) (Medicare Act), cert. denied, 537 U.S. 812 (2002); Nat’l Coal. to Save Our Mall v.
Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001) (statute approving construction of a World War II
memorial), cert. denied, 537 U.S. 813 (2002).
4
Both the Secretary of Homeland Security and the Attorney General have authority to “establish
such regulations” as each deems necessary for carrying out matters related to immigration and
naturalization. 8 U.S.C. § 1103(a)(3), (g)(2). Section 1421(a) vests “sole authority to naturalize persons
as citizens of the United States” in the Attorney General, except as limited by the remaining sections of
§ 1421.
5
The Supreme Court has concluded that Chevron deference applies to an agency’s interpretation
of its own jurisdiction. City of Arlington v. FCC, — U.S. —, 133 S. Ct. 1863 (2013). Yet in doing so, the
Court made clear that agency jurisdiction and federal-court jurisdiction are distinct concepts; whereas in
the agency context “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a
mirage,” by contrast “[i]n the judicial context there is a meaningful line” between “the jurisdictional and
nonjurisdictional.” Id. at 1868.
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 11
with approval in NetCoalition v. SEC, 715 F.3d 342, 348 (D.C. Cir. 2013); accord
Lindstrom v. United States, 510 F.3d 1191, 1195 n.3 (10th Cir. 2007) (“Determining
federal court jurisdiction is exclusively the province of the courts regardless of what an
agency may say.” (internal quotations omitted)); Lopez-Elias v. Reno, 209 F.3d 788, 791
(5th Cir. 2000) (“[T]he determination of our jurisdiction is exclusively for the court to
decide.”), cert. denied, 531 U.S. 1069 (2001); see also Bechtel v. Competitive Techs.,
Inc., 448 F.3d 469, 478 (2d Cir. 2006) (Leval, J., concurring in the judgment)
(“[B]ecause the statutory interpretation at issue concerns the scope of federal court
jurisdiction, it is not a proper subject of deference under Chevron.”); Verizon Md., Inc.
v. Global NAPS, Inc., 377 F.3d 355, 383 (4th Cir. 2004) (Niemeyer, J., concurring in part
and dissenting in part) (“Chevron deference is not required when the ultimate question
is about federal jurisdiction.”). Indeed, the Tenth Circuit has declined to apply Chevron
deference to 8 C.F.R. § 336.9, holding that § 336.9(b)—which, like § 336.9(d), imposes
constraints on judicial review under 8 U.S.C. § 1421(c)—“is beyond the authority
delegated to the INS and will not be applied” or given deference. Nagahi v. INS, 219
F.3d 1166, 1171 (10th Cir. 2000).
We are persuaded by the reasoning employed by our sister circuits in concluding
that Chevron deference does not apply to an agency’s interpretation of a federal court’s
jurisdiction. First, the conditions that license Chevron’s application are not present in
this case. “A principal reason why courts pay agencies no deference on jurisdiction-
conferring statutes is that such statutes do not grant powers to agencies.” Murphy, 252
F.3d at 478. Section 1421(c) does not delegate authority to the Executive Branch; rather,
it confers power directly on federal courts. See Nagahi, 219 F.3d at 1169–70 (holding
that Congress’s broad delegations of authority to the Attorney General in §§ 1103(a)(3),
1421(a), and 1443(a) do “not extend to creating limits upon judicial review”). Second,
a key rationale motivating Chevron deference is missing from this case. Courts defer to
an administrative agency’s interpretation of a statute in part because the agency has
expertise that the court does not. Chevron, 467 U.S. at 865. Yet federal courts are
experts when it comes to determining the scope of federal-court subject-matter
jurisdiction. Murphy, 252 F.3d at 479. Third, countervailing jurisdictional norms
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 12
counsel against deference. The Supreme Court has repeatedly affirmed “the strong
presumption that Congress intends judicial review of administrative action.” Bowen v.
Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986); see Kucana v. Holder, 558
U.S. 233, 251 (2010) (“We have consistently applied that interpretive guide to
legislation regarding immigration, and particularly to questions concerning the
preservation of federal-court jurisdiction.”); INS v. St. Cyr, 533 U.S. 289, 298 & n.9
(2001) (collecting cases). In this case, deference to 8 C.F.R. § 336.9(d) would have the
effect of limiting judicial review in contravention of that strong presumption; such
deference is especially problematic where, as explained above, Congress has not offered
any indication that it intended to overcome this strong presumption. Additionally, the
Supreme Court has repeatedly affirmed that federal courts have an independent
obligation to determine their own subject-matter jurisdiction. Henderson, 131 S. Ct. at
1202; Arbaugh, 546 U.S. at 514; Steel Co., 523 U.S. at 95. Requiring that a court defer
to an agency’s interpretation of the court’s own subject-matter jurisdiction would
interfere with this independent obligation. See Verizon Md., 377 F.3d at 383; Murphy,
252 F.3d at 479–80. Thus, we conclude that deference is not owed to 8 C.F.R.
§ 336.9(d) to the extent that the regulation interprets 8 U.S.C. § 1421(c)’s
administrative-hearing requirement to impose a jurisdictional limitation on judicial
review.6
6
Were we to conclude that Chevron deference applies to a regulation interpreting the scope of
federal courts’ jurisdiction, we still would not defer to 8 C.F.R. § 336.9(d)’s interpretation of 8 U.S.C.
§ 1421(c) as imposing a jurisdictional limitation on judicial review. We previously rejected the attempt
of the Board of Immigration Appeals (“BIA”) to restrict its own jurisdiction in light of Arbaugh and its
progeny. Pruidze v. Holder, 632 F.3d 234, 238 (6th Cir. 2011). There we held that the Attorney General’s
interpretation of a regulation—an interpretation that restricted the BIA’s jurisdiction to hear an alien’s
motion to reopen removal proceedings if the alien was abroad—“cannot clear the first step of Chevron
because the [Supreme] Court has drawn a line between mandatory rules and claim-processing rules on the
one side and jurisdictional ones on the other.” Id. at 240; see Chevron, 467 U.S. at 842–43 (holding that
a court must first determine whether “the intent of Congress is clear,” or instead “the statute is silent or
ambiguous with respect to the specific issue”). We noted that Congress granted the BIA power to entertain
motions to reopen and did not limit the BIA’s exercise of that jurisdiction in the manner suggested by the
Attorney General. Given the presumption implicit in Arbaugh’s bright-line test that Congress will act
deliberately when it restricts jurisdiction, we reasoned that “Congress left no gap to fill” when it was silent
with respect to the agency’s authority to limit its own jurisdiction. Pruidze, 632 F.3d at 240.
The same logic leads us to conclude that 8 C.F.R. § 336.9(d) would not survive the first step of
Chevron. Congress granted district courts the power to review the denial of an application for
naturalization. 8 U.S.C. § 1421(c). In the same subsection, Congress included a claim-processing,
administrative-hearing requirement. As established above, a claim-processing rule is ordinarily
nonjurisdictional. Accordingly, absent a clear statement by Congress that the claim-processing rule in
8 U.S.C. § 1421(c) is “the exceptional one” that should be deemed jurisdictional, see Auburn Reg’l, 133
S. Ct. at 825, Congress intends for the default rule—one treating claim-processing rules as
No. 12-1645 Shweika v. Dep’t of Homeland Sec. et al Page 13
In summary, we conclude that Congress has not clearly stated that 8 U.S.C.
§ 1421(c)’s administrative-hearing requirement is jurisdictional. Although 8 C.F.R.
§ 336.9(d) interprets 8 U.S.C. § 1421(c) to contain a jurisdictional limitation, we do not
defer to this interpretation because it implicates the scope of a federal court’s subject-
matter jurisdiction, nor do we find 8 C.F.R. § 336.9(d)’s interpretation persuasive in light
of recent Supreme Court precedent. Thus, in the absence of a clear statement from
Congress that it intended 8 U.S.C. § 1421(c)’s administrative-hearing requirement to be
jurisdictional, we must conclude that the requirement is nonjurisdictional.
Because the district court’s incorrect jurisdictional analysis governed its decision,
we remand for further proceedings. Notwithstanding our conclusion that 8 U.S.C.
§ 1421(c)’s administrative-hearing requirement is nonjurisdictional, it does not follow
that Shweika was thereby free to disregard the requirement, if in fact he did so. Upon
remand, we leave to the district court to reconsider whether § 1421(c)’s administrative-
hearing requirement implies a completion requirement; whether Shweika satisfied
§ 1421(c)’s administrative-hearing requirement; and, if he did not, what
nonjurisdictional consequences attach to the failure to satisfy § 1421(c)’s administrative-
hearing requirement.7
III. CONCLUSION
For the foregoing reasons, we VACATE the judgment of the district court, and
REMAND for further proceedings consistent with this opinion.
nonjurisdictional—to apply. Congress’s failure to state that a claim-processing rule is not an exception
to the rule “is not the kind of silence that aids an agency” in claiming that Congress was silent with respect
to whether the administrative-hearing requirement is jurisdictional for purposes of overcoming the first step
of Chevron. See Pruidze, 632 F.3d at 240.
7
For example, the district court may consider whether statements in USCIS’s order affirming the
denial of Shweika’s application for naturalization amount to a concession by USCIS that Shweika
exhausted his administrative remedies.