Date: 02-09-2018

Case Style:

Case Number: 16-15858

Judge: John D. Bates

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Eastern District of California (Fresno Count)

Plaintiff's Attorney: Bruce Leichty

Defendant's Attorney: Timothy M. Belsan (argued), Senior Litigation Counsel;
Jeffrey S. Robins, Assistant Director; William C. Peachey,
Director; Audrey B. Hemesath, Assistant United States
Attorney; Phillip A. Talbert, United States Attorney; District
Court Section, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellees.

Description: Seanlim and Seak Leang Yith appeal from the district
court’s dismissal of their complaint requesting adjudication
of their naturalization applications pursuant to 8 U.S.C.
§ 1447(b). Relying on 8 U.S.C. § 1429, the district court
concluded that the Yiths were precluded from obtaining any
relief because they were concurrently in removal proceedings.
See 8 U.S.C. § 1429 (providing that “no application for
naturalization shall be considered by the Attorney General if
there is pending against the applicant a removal proceeding
pursuant to a warrant of arrest issued under the provisions of
this chapter or any other Act”). The court therefore dismissed
their complaint for failure to state a claim. We reverse,
because the limitation imposed by § 1429 applies only to the
executive branch’s adjudication of naturalization
applications, and only when removal proceedings are pending
pursuant to an arrest warrant, neither of which is applicable
here.
I
We begin by providing the relevant legal framework. In
2002, Congress transferred the functions of the Immigration
and Naturalization Service to the Department of Homeland
Security (DHS), and transferred the function of adjudicating
naturalization petitions to the United States Citizenship and
Immigration Services (USCIS), a component of DHS.
6 U.S.C. §§ 202(3), 251(2), 271(b)(2). As a result, although
8 U.S.C. § 1421(a) states that “[t]he sole authority to
naturalize persons as citizens of the United States is conferred
upon the Attorney General,” courts interpret this reference, as
YITH V. NIELSEN 5
well as references to the Attorney General in 8 U.S.C.
§§ 1421, 1429, 1445, and 1447, as referring to the authority
of the USCIS. See Hernandez de Anderson v. Gonzales,
497 F.3d 927, 933 (9th Cir. 2007) (noting transfer of
authority).
A person seeking naturalization must file an application
with the USCIS. A USCIS employee is designated to
“conduct examinations upon applications for naturalization,”
including taking testimony, administering oaths, and
requiring the attendance and testimony of witnesses.
8 U.S.C. § 1446(b). After such an examination, the USCIS
employee must “make a determination as to whether the
application should be granted or denied, with reasons
therefor.” Id. § 1446(d). If the application for naturalization
is denied following the USCIS employee’s examination under
§ 1446, “the applicant may request a hearing before an
immigration officer.” Id. § 1447(a).
Once applicants have exhausted administrative remedies,
they may appeal to a district court. The statutes provide for
an appeal in two distinct circumstances. See United States v.
Hovsepian, 359 F.3d 1144, 1162–63 (9th Cir. 2004). First, if
a USCIS employee fails to make a determination “as to
whether the application should be granted or denied” pursuant
to § 1446(d) “before the end of the 120-day period after the
date on which the examination is conducted,” then the
applicant “may apply to the United States district court for
the district in which the applicant resides for a hearing on the
6 YITH V. NIELSEN
matter,” 8 U.S.C. § 1447(b).1 The district court “has
jurisdiction over the matter and may either determine the
matter or remand the matter, with appropriate instructions, to
the [USCIS] to determine the matter.” Id. Second, if the
applicant had a hearing before an immigration officer
pursuant to § 1447(a), and the immigration officer denied the
application, the applicant “may seek review of such denial”
before a district court. Id. § 1421(c).2 “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.” Id.
1 8 U.S.C. § 1447(b) states, in full:
If there is a failure to make a determination under
section 1446 of this title before the end of the 120-day
period after the date on which the examination is
conducted under such section, the applicant may apply
to the United States district court for the district in
which the applicant resides for a hearing on the matter.
Such court has jurisdiction over the matter and may
either determine the matter or remand the matter, with
appropriate instructions, to the Service to determine the
matter.
2 In full, 8 U.S.C. § 1421(c) reads:
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 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.
YITH V. NIELSEN 7
Certain applicants are not eligible for naturalization.
First, neither the USCIS nor the district court may naturalize
a person “against whom there is outstanding a final finding of
deportability pursuant to a warrant of arrest issued under the
provisions of this chapter or any other Act.” Id. § 1429.3
Second, the USCIS may not consider an application for
3 In full, 8 U.S.C. § 1429 reads:
Except as otherwise provided in this subchapter, no
person shall be naturalized unless he has been lawfully
admitted to the United States for permanent residence
in accordance with all applicable provisions of this
chapter. The burden of proof shall be upon such person
to show that he entered the United States lawfully, and
the time, place, and manner of such entry into the
United States, but in presenting such proof he shall be
entitled to the production of his immigrant visa, if any,
or of other entry document, if any, and of any other
documents and records, not considered by the Attorney
General to be confidential, pertaining to such entry, in
the custody of the Service. Notwithstanding the
provisions of section 405(b), and except as provided in
sections 1439 and 1440 of this title no person shall be
naturalized against whom there is outstanding a final
finding of deportability pursuant to a warrant of arrest
issued under the provisions of this chapter or any other
Act; and no application for naturalization shall be
considered by the Attorney General if there is pending
against the applicant a removal proceeding pursuant to
a warrant of arrest issued under the provisions of this
chapter or any other Act: Provided, That the findings of
the Attorney General in terminating removal
proceedings or in canceling the removal of an alien
pursuant to the provisions of this chapter, shall not be
deemed binding in any way upon the Attorney General
with respect to the question of whether such person has
established his eligibility for naturalization as required
by this subchapter.
8 YITH V. NIELSEN
naturalization “if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued
under the provisions of this chapter or any other Act.” Id.
II
We now turn to the facts of this case. Seanlim and Seak
Leang Yith are siblings and citizens of Cambodia who were
admitted as lawful permanent residents in March 2006, based
on approved immigrant visa petitions filed by their
stepmother, Sarin Meas, a U.S. citizen. Seanlim Yith filed an
application for naturalization with USCIS in February 2011,
and Seak Yith filed an application in December 2012. Both
siblings were scheduled to appear for naturalization
examinations in June 2013, but the USCIS cancelled the
interviews and did not reschedule them. In 2014, the Yiths
repeatedly contacted the USCIS regarding the status of their
application; they were told that the adjudication was
“delayed” or that their cases were “pending,” but that the
USCIS could not determine when the review process for their
applications would be completed.
The Yiths subsequently filed a complaint in district court,
seeking to compel the USCIS to adjudicate their applications.
While the government’s motion to dismiss was pending, the
USCIS scheduled the examination for the Yiths’
naturalization applications. The parties stipulated to hold the
court proceedings in abeyance pending the USCIS
examination.
The examinations took place as scheduled on March 10,
2015. For the first time, the USCIS told the Yiths that their
stepmother, whose petition had been the basis for legal
permanent resident status, had testified that her marriage to
YITH V. NIELSEN 9
their father was fraudulent, and therefore they had been
ineligible for a visa when they entered the United States.
After the examination, the USCIS issued notices of intent to
deny the Yiths’ applications. The notices stated that the Yiths
were not eligible for naturalization because they had not been
lawfully admitted for permanent residence. The deadline for
issuing a final decision on the Yiths’ application was July 8,
2015, the 120th day after the examination. Instead, on July
7, 2015, the USCIS issued notices to appear, thus
commencing removal proceedings.
Returning to district court, the Yiths moved to amend
their original complaint and the government filed a new
motion to dismiss. According to the government, 8 U.S.C.
§ 1429 precluded a court from considering a naturalization
application when the applicant had been placed in removal
proceedings. Therefore, the government argued, either the
district court lacked subject matter jurisdiction over the
complaint or the Yiths failed to state a claim upon which
relief could be granted.
The district court dismissed the Yiths’ complaint without
prejudice on the ground that it failed to state a claim. Relying
on § 1429 and the Second Circuit’s decision in Ajlani v.
Chertoff, 545 F.3d 229 (2d Cir. 2008), the court held that it
could not adjudicate the Yiths’ naturalization applications or
order the USCIS to adjudicate them while removal
proceedings remained pending. The court stated that the
Yiths could refile their complaint if removal proceedings
concluded in the Yiths’ favor.
The Yiths timely appealed. We review the dismissal of
a complaint for failure to state a claim de novo. Morrison v.
Peterson, 809 F.3d 1059, 1064 (9th Cir. 2015). Because the
10 YITH V. NIELSEN
USCIS did not issue final decisions on the Yiths’
naturalization applications within 120 days after their
examinations, the district court had jurisdiction to adjudicate
their naturalization applications under 8 U.S.C. § 1447(b)
and correctly rejected the government’s argument that the
commencement of removal proceedings stripped the district
court of subject matter jurisdiction. Cf. De Lara Bellajaro v.
Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004) (holding that
commencement of removal proceedings does not affect a
district court’s jurisdiction to review an immigration officer’s
denial of a naturalization application under § 1421(c)).4 We
have jurisdiction under 28 U.S.C. § 1291.
III
On appeal, the Yiths argue that the district court erred in
dismissing their complaint for failure to state a claim. They
contend that § 1429 does not apply for two reasons: (1) it
prevents only the executive branch, not the federal courts,
from adjudicating naturalization applications; and (2) it
applies only if “a removal proceeding pursuant to a warrant
of arrest issued under the provisions of this chapter or any
other Act” is pending against the applicant. We examine
these arguments in turn.
A
We begin by considering the language in § 1429 that “no
application for naturalization shall be considered by the
Attorney General.” (emphasis added). According to the
Yiths, because this language applies only to the Attorney
General, it does not preclude a district court from considering
4 The government does not renew this argument on appeal.
YITH V. NIELSEN 11
a naturalization application that is properly before the court
pursuant to § 1447(b).
We agree. As a general rule, we do not look beyond the
unambiguous language of a statute. “[W]hen a statute
designates certain persons . . . all omissions should be
understood as exclusions[.]” Webb v. Smart Document Sols.,
LLC, 499 F.3d 1078, 1084 (9th Cir. 2007) (quoting Silvers v.
Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005)
(en banc)). Here, the statute refers only to the Attorney
General and provides no indication that the language applies
to the courts. Therefore, on its face, § 1429 restricts only the
Attorney General and does not limit the district court’s power
to naturalize an applicant while removal proceedings are
pending.
This reading of the pertinent language in § 1429 is
supported by the context. Section 1429 addresses two
situations: (1) when “there is outstanding a final finding of
deportability” and (2) when “there is pending against the
applicant a removal proceeding.” 8 U.S.C. § 1429. For the
former, § 1429 provides that “no person shall be naturalized.”
Id. But for the latter, it states only that “no application for
naturalization shall be considered by the Attorney General.”
Id. In other words, § 1429 precludes both the executive
branch and the courts from naturalizing applicants “against
whom there is outstanding a final finding of deportability”
but prohibits only the Attorney General from naturalizing
applicants against whom a removal proceeding is pending.
Id. Interpreting the narrower limitation that “no application
for naturalization shall be considered by the Attorney
General” to mean the same as “no person shall be
naturalized” would read out the reference to the Attorney
General and treat distinct clauses as identical. See United
12 YITH V. NIELSEN
States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our
duty to give effect, if possible, to every clause and word of a
statute[.]”).
Our reading of the statute is also supported by considering
it in its historical context. “Before 1990, district courts had
authority to naturalize, while authority to deport . . . aliens
was vested in the Attorney General. This differentiation of
function gave rise to a ‘race between the alien to gain
citizenship and the Attorney General to deport[.]’” Bellajaro,
378 F.3d at 1045 (quoting Shomberg v. United States,
348 U.S. 540, 544 (1955)). In 1952, to end this race,
Congress enacted § 1429, which provided that “no petition
for naturalization shall be finally heard by a naturalization
court if there is pending against the petitioner a deportation
proceeding.” Immigration and Nationality Act, Pub. L. No.
414, § 318, 66 Stat. 163, 244 (1952) (codified at 8 U.S.C.
§ 1429 (1952)) (emphasis added); see also Bellajaro,
378 F.3d at 1045.
Then, in 1990, Congress amended the law to vest
naturalization authority in the Attorney General. Immigration
Act of 1990, Pub. L. No. 101-649, § 401(a), 104 Stat. 4978,
5038 (1990) (codified at 8 U.S.C. § 1421(a)(1994)) (“The
sole authority to naturalize persons as citizens of the United
States is conferred upon the Attorney General.”); see
Bellajaro, 378 F.3d at 1045. At that time, Congress amended
§ 1429, replacing “a naturalization court” with “the Attorney
General.” Immigration Act of 1990 § 407(d)(3) (codified at
8 U.S.C. § 1429); see also Bellajaro, 378 F.3d at 1045.
Congress also provided for judicial review of a denied
naturalization application in § 1421(c), Immigration Act of
1990 § 401(c), and judicial review of a delayed application in
YITH V. NIELSEN 13
§ 1447(b), id. § 407(d)(14); see also Bellajaro, 378 F.3d at
1045.
Therefore, the history of § 1429 shows that Congress
initially barred courts from considering naturalization
applications during removal proceedings, but subsequently
removed any reference to courts. Nothing in the 1990
amendments suggests that Congress intended to preserve the
1952 act’s bar on a district court naturalizing applicants while
removal proceedings are pending, and Congress’s decision to
remove the provision suggests it wanted to end such a bar.
Our decision in Bellajaro is not to the contrary. Bellajaro
concerned the district court’s authority under § 1421(c),
which provides that “[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 United States
district court.” 378 F.3d at 1045 (quoting 8 U.S.C.
§ 1421(c)). In Bellajaro, the INS denied an application for
naturalization under § 1429 because removal proceedings
were pending against the applicant and § 1429 prevented the
agency from considering his application while removal
proceedings were pending. Id. at 1044. The applicant sued
in district court, seeking a de novo hearing on the merits of
his application. Id. Because § 1421(c) allows an applicant
whose application for naturalization has been denied to “seek
review of such denial before the United States district court,”
id. at 1045 (quoting 8 U.S.C. § 1421(c)), we concluded that
a district court had jurisdiction to determine whether the
agency had erred in denying the application, id. at 1043.
Because the agency in Bellajaro had correctly applied § 1429
and denied the application because removal proceedings were
14 YITH V. NIELSEN
pending, we affirmed the district court’s decision to uphold
the agency’s denial. Id. at 1046–47.
Unlike § 1421(c), which applies when an agency denies
an application, § 1447(b) applies when the government fails
to make a determination within a 120-day period and gives
the district court jurisdiction over the entire “matter.”
8 U.S.C. § 1447(b) (stating that “the applicant may apply to
the United States district court . . . for a hearing on the
matter” and “[s]uch court has jurisdiction over the matter and
may either determine the matter or remand the matter, with
appropriate instructions, to the [USCIS] to determine the
matter”). Here, the USCIS did not deny the Yiths’
naturalization applications, and so the district court’s review
is not limited to the reason for the agency’s denial, but
extends to the entire matter (i.e., the application for
naturalization) that was pending before the agency.
In arguing against this conclusion, the government
primarily relies on the Second Circuit’s decision in Ajlani,
which held that § 1429 does not permit an alien to state a
claim for relief under § 1447(b) while removal proceedings
are pending against him. 545 F.3d at 241. In Ajlani, the
USCIS granted an alien’s application for naturalization, then,
when it discovered the alien’s prior convictions, revoked the
application and initiated removal proceedings. Id. at 231–32.
The applicant filed a complaint requesting the district court
grant his application or remand to the agency with
instructions. Id. at 233. The district court dismissed the
action, holding that, “in light of the pending removal
proceedings,” the applicant could not state a claim for relief.
Id. The Second Circuit affirmed, holding that the pendency
of removal proceedings precludes an applicant “from stating
a claim for relief under 8 U.S.C. § 1447(b).” Id. at 241.
YITH V. NIELSEN 15
Although Ajlani identified several reasons for its decision,
none of them are persuasive in light of the statutory language.
First, Ajlani reasoned that because § 1429 limits a district
court’s ability to grant relief under § 1421(c), by analogy,
§ 1429 also limits a district court’s ability to grant relief
under § 1447(b). Id. at 239–40 (first citing Saba-Bakare v.
Chertoff, 507 F.3d 337, 340 (5th Cir. 2007); then citing
Bellajaro, 378 F.3d at 1045–46; and then citing Zayed v.
United States, 368 F.3d 902, 905–06 (6th Cir. 2004)). But
this analysis ignores the different language in § 1421(c),
which authorizes a district court to review only the agency’s
denial, while § 1447(b) authorizes a district court to
determine the “matter” of the naturalization application.
Therefore, Ajlani’s reliance on Bellajaro and other decisions
analyzing § 1421(c) is misplaced.
Next, Ajlani concluded that because § 1447(b) applies
only if “there is a failure to make a determination” on the
naturalization application, and such a condition precedent
cannot occur when removal proceedings are pending, then
§ 1447(b) does not authorize a district court to determine an
alien’s naturalization application in those circumstances. Id.
at 240. Ajlani reasoned that the word “failure” means “the
omission of an expected action, occurrence, or performance,”
id. (quoting Black’s Law Dictionary 631 (8th ed. 2004)), and
“an action cannot be ‘expected’ when it is proscribed by
law,” id. Because § 1429 precludes the USCIS from making
a naturalization determination when removal proceedings are
pending, Ajlani concluded that the USCIS cannot be deemed
to have failed to make such a determination under § 1447(b).
Id.
We reject this strained reading of the statute. When the
USCIS has undertaken an examination of a person who has
16 YITH V. NIELSEN
submitted a naturalization application, and then does not
make a determination on the application within 120 days, it
has failed to make a determination regardless whether it
decides to commence removal proceedings and thereby
prevent itself from making the determination. Under a
common-sense usage of the word “failure,” a person fails to
accomplish a requirement even when the failure was caused
by the person’s self-sabotage or other intentional efforts to
make it impossible to accomplish the goal.
Indeed, the error in Ajlani’s interpretation of failure is
epitomized by the facts of this case. Congress enacted
§ 1447(b) to prevent undue delay in making naturalization
determinations. See Hovsepian, 359 F.3d at 1163 (“A central
purpose of [§ 1447(b)] was to reduce the waiting time for
naturalization applicants.”); Bustamante v. Napolitano,
582 F.3d 403, 410 (2d Cir. 2009) (“The statutory scheme
aims to provide USCIS with an incentive to decide
applications in a timely fashion or risk losing jurisdiction to
decide those applications in the first instance.”). The facts in
this case indicate that the USCIS, after first delaying the
Yiths’ examinations, intentionally attempted to avoid the
deadline set by § 1447(b) for determining a naturalization
application. The USCIS had the ability to make a timely
determination within 120 days, and even informed the Yiths
that it intended to deny their applications. Nevertheless, the
USCIS issued the notice to appear on the 119th day in order
to avoid the statutory deadline, and does not argue that the
notices operated as functional denials. Ajlani’s strained
interpretation of § 1447(b), which would authorize the USCIS
to avoid making a determination within the 120-day deadline,
would defeat Congress’s intent. Therefore, we adopt the
straightforward reading of the statute that the USCIS fails to
YITH V. NIELSEN 17
make a determination under § 1447(b) when it fails to deny
the applications before the statutory deadline.
Finally, Ajlani justified its interpretation of § 1447(b)
based on a mistaken construction of the overall statutory
framework and interpretation of Congress’s goals. 545 F.3d
at 240–41. The Second Circuit reasoned that “district court
authority to grant naturalization relief while removal
proceedings are pending cannot be greater than that of the
Attorney General.” Id. at 240. Therefore, it explained, “[a]s
much as the statutory framework permits district courts under
§ 1447(b) to evaluate naturalization petitions where the
USCIS improperly neglects to do so, it would seem to work
against the framework set forth in §§ 1447 and 1429 for the
district court to undertake such an evaluation where Congress
has expressly prohibited the Attorney General from doing
so.” Id. We disagree, because Ajlani substituted its own
views of Congressional purpose for the actual language of the
statute. “[I]t is never our job to rewrite a constitutionally
valid statutory text.” Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1725 (2017). “Indeed it is quite
mistaken to assume” as Ajlani does, “that ‘whatever’ might
appear to ‘further[ ] the statute’s primary objective must be
the law.’” Id. (alteration in original) (quoting Rodriguez v.
United States, 480 U.S. 522, 526 (1987)). Contrary to
Ajlani’s reasoning, the legislative history raises the opposite
inference: When Congress amended § 1429, it chose to
replace “naturalization court” with “Attorney General,”
Immigration Act of 1990, § 407(d)(3); see also Bellajaro, 378
F.3d at 1045, and did not add “district court” to the statute,
strongly suggesting Congressional intent to limit § 1429 to
decisions by the executive branch.
18 YITH V. NIELSEN
Because the statutory language compels us to conclude
that § 1429 applies only to the Attorney General, not the
district court, the district court erred in concluding that the
reference to the Attorney General in § 1429 prevented it from
granting relief under § 1447(b).
B
We next consider the language in § 1429 that the
government may not consider an applicant’s naturalization
application “if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued
under the provisions of this chapter or any other Act.”
8 U.S.C. § 1429 (emphasis added). The Yiths argue that
§ 1429 does not apply to them by its terms because their
removal proceeding was not pursuant to a warrant of arrest.
The government argues that we must defer to the DHS’s
regulatory interpretation of “warrant,” which states: “For the
purposes of [8 U.S.C. § 1429], a notice to appear issued under
8 CFR part 239 (including a charging document issued to
commence proceedings under sections 236 or 242 of the Act
prior to April 1, 1997) shall be regarded as a warrant of
arrest.” 8 C.F.R. § 318.1. Because the DHS issued notices to
appear to the Yiths, the government contends, “a removal
proceeding pursuant to a warrant of arrest” was pending
against them, for purposes of § 1429. The government relies
on a Seventh Circuit decision which upheld this interpretation
of “warrant,” on the ground that an agency “can define its
own vocabulary,” and “[s]ince ‘arrest’ does not imply
custody even in police parlance (full custodial arrests are a
subset of all arrests), there’s no logical problem with an
agency calling its official process a ‘notice to appear’ and a
‘warrant of arrest’ at the same time, without needing to issue
YITH V. NIELSEN 19
two separate documents.” Klene v. Napolitano, 697 F.3d 666,
670 (7th Cir. 2012).
We review an agency’s construction of the statute it
administers under the formula set forth in Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44
(1984). “Chevron established a familiar two-step procedure
for evaluating whether an agency’s interpretation of a statute
is lawful.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 986 (2005). “At the first step,
we ask whether the statute’s plain terms ‘directly addres[s]
the precise question at issue.’” Id. (alteration in original)
(quoting Chevron, 467 U.S. at 843). “If a court, employing
traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.” Chevron,
467 U.S. at 843 n.9. “[T]he court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress.” Id. at 842–43.
Under these tools of statutory interpretation, “unless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.” Perrin v. United
States, 444 U.S. 37, 42 (1979). “When determining the plain
meaning of language, we may consult dictionary definitions.”
Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d
1080, 1088 (9th Cir. 2007). “It is also ‘a fundamental canon
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.’”
The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1060 (9th Cir. 2003) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). “If,
under these canons, or other traditional means of determining
Congress’s intentions,” we can determine that Congress
20 YITH V. NIELSEN
clearly defined “warrant of arrest,” then we may not defer to
DHS’s contrary interpretation. See id.; see also Medtronic,
Inc. v. Lohr, 518 U.S. 470, 512 (1996) (“Where the language
of the statute is clear, resort to the agency’s interpretation is
improper.”). Only “if a statute is silent or ambiguous with
respect to the issue at hand” do courts move to the second
step of the Chevron framework, and ask whether “the
agency’s answer is based on a permissible construction of the
statute.” The Wilderness Soc’y, 353 F.3d at 1059 (quoting
Chevron, 467 U.S. at 843).
Here, the “plain terms” of § 1429 “directly addres[s] the
precise question at issue.” Brand X Internet Servs., 545 U.S.
at 986 (alteration in original) (quoting Chevron, 467 U.S. at
843). Section 1429 provides that the government’s
consideration of an application is precluded only if a
“removal proceeding” is pending “pursuant to” (1) “a warrant
of arrest” that (2) has been “issued under the provisions of
this chapter or any other Act.”
The meaning of “warrant of arrest” in § 1429 is
unambiguous. According to the dictionary, a “warrant”
means “[a] writ directing or authorizing someone to do an act,
esp. one directing a law enforcer to make an arrest, a search,
or a seizure.” See Black’s Law Dictionary (10th ed. 2014).
The term “arrest” means “[a] seizure or forcible restraint” or
“[t]he taking or keeping of a person in custody by legal
authority, esp. in response to a criminal charge; specif., the
apprehension of someone for the purpose of securing the
administration of the law, esp. of bringing that person before
a court.” Id. And the term “warrant of arrest” means “[a]
warrant issued by a disinterested magistrate after a showing
of probable cause, directing a law-enforcement officer to
arrest and take a person into custody.” Id. In other words,
YITH V. NIELSEN 21
the plain meaning of the term “warrant of arrest” is an order
authorizing law enforcement to seize and detain a person as
necessary for the administration of law.
Further, § 1429 states that the “warrant of arrest” must be
one issued under the provisions of Chapter 12 of the
Immigration and Nationality Act (where § 1429 is located),
or any other federal act. Chapter 12 provides for the issuance
of warrants of arrest in 8 U.S.C. § 1226(a), which states that
“[o]n a warrant issued by the Attorney General, an alien may
be arrested and detained pending a decision on whether the
alien is to be removed from the United States.”5 After
arresting the alien, the Attorney General “may continue to
detain the arrested alien” or “may release the alien” if certain
criteria are met. Id. In short, a “warrant of arrest” for
purposes of § 1429 is a writ issued under § 1226 authorizing
law enforcement personnel to arrest and detain an alien
pending the results of removal proceedings.
Given this interpretation of “warrant of arrest,” we
conclude it is a distinct document from a “notice to appear.”
See Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir.
2008) (indicating that the two documents are distinct, and the
Attorney General “may issue a warrant of arrest concurrently
with the notice to appear”).6 “Notice to appear” is defined in
5 The government does not argue that § 1429 may refer to a warrant
of arrest issued under any other provision in Chapter 12 or any other
federal act.
6 DHS has likewise interpreted a “warrant of arrest” as distinct from
a “notice to appear” in regulations other than § 318.1. See 8 C.F.R.
§ 236.2(a) (“[T]he notice to appear, and the warrant of arrest, if issued,
shall be served in the manner prescribed . . . .”) (emphasis added); id.
§ 236.1(b) (“At the time of issuance of the notice to appear, or at any time
22 YITH V. NIELSEN
8 U.S.C. § 1229(a) as a “written notice” that is “given in
person to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel
of record, if any)” providing specified information, including
the time and place at which removal proceedings will be held.
In short, a notice to appear is akin to a summons that provides
an alien with specified information regarding removal
proceedings; it does not direct law enforcement to arrest and
detain the alien. Further, unlike warrants of arrest, notices to
appear are required in all removal proceedings. See id.;
8 C.F.R. § 1239.1(a) (“Every removal proceeding conducted
under section 240 of the Act (8 U.S.C. 1229a) to determine
the deportability or inadmissibility of an alien is commenced
by the filing of a notice to appear with the immigration
court.”). If Congress intended to preclude the government’s
consideration of a naturalization petition whenever the
applicant was in removal proceedings, then it would have had
no need to state that § 1429 is applicable only when a
removal proceeding is “pursuant to a warrant of arrest.”
DHS’s interpretation would make “pursuant to a warrant of
arrest” unnecessary, which “is contrary to our general
‘reluctan[ce] to treat statutory terms as surplusage.’” Bd. of
Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys.,
Inc., 563 U.S. 776, 788 (2011) (alteration in original)
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).
thereafter and up to the time removal proceedings are completed, the
respondent may be arrested and taken into custody under the authority of
Form I-200, Warrant of Arrest.”) (emphasis added); id.§ 238.1(g) (same).
Indeed, DHS’s Form I-200, entitled “Warrant of Arrest, United States
Department of Homeland Security,” is distinct from Form I-862, entitled
“Notice to Appear, United States Department of Homeland Security.”
Form I-200 even identifies “the pendency of ongoing removal
proceedings” as sufficient probable cause to arrest an alien, further
showing that the forms are not equivalent.
YITH V. NIELSEN 23
The government argues that the phrase “warrant of arrest”
is ambiguous because “there is no universal definition of the
term ‘arrest.’” In making this argument, the government
relies on our previous decision in United States v. Leal-Felix,
665 F.3d 1037 (9th Cir. 2011) (en banc). We reject this
argument. Leal-Felix required us to interpret § 4A1.2 of the
U.S. Sentencing Guidelines, which provides that “[p]rior
sentences always are counted separately if the sentences were
imposed for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense prior
to committing the second offense),” but “[i]f there is no
intervening arrest, prior sentences are counted separately”
with certain exceptions. United States Sentencing Guidelines
Manual § 4A1.2(a)(2) (U.S. Sentencing Comm’n 2016). The
defendant in Leal-Felix argued that his presentence report
erred by counting his two citations for driving with a
suspended license as two separate offenses even though there
was no “intervening arrest” because he had been cited, not
arrested. Leal-Felix, 665 F.3d at 1040–41. We agreed,
explaining that “[a]rrest is commonly used as it is defined:
‘the taking or detainment (of a person) in custody by
authority of law; legal restraint of the person; custody;
imprisonment.’” Id. at 1041 (quoting Webster’s Third New
International Dictionary 121 (1993)). We noted that “this
common understanding creates a clear and usable definition,”
but “is not necessarily controlling in statutory construction”
because the “[i]nterpretation of a word or phrase [in a statute]
depends upon reading the whole statutory text, considering
the purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.” Id. at
1041–42 (second alteration in original) (citations omitted).
Using the tools of statutory construction, we interpreted
“arrest” as requiring “that the individual be formally arrested;
the mere issuance of a citation, even if considered an arrest
24 YITH V. NIELSEN
under state law, is insufficient.” Id. at 1038–39. We noted
that “[a] formal arrest may be indicated by informing the
suspect that he is under arrest, transporting the suspect to the
police station, and/or booking the suspect into jail.” Id. at
1041 (footnotes omitted).
Leal-Felix’s analysis of “arrest” for purposes of the
Sentencing Guidelines is consistent with our interpretation
here. As in Leal-Felix, we have concluded that the common
meaning of the word “arrest” does not include merely issuing
a citation, but requires a “formal arrest” that involves taking
a suspect into custody. See id. Moreover, as noted in Leal-
Felix, statutory interpretation always “depends upon reading
the whole statutory text, considering the purpose and context
of the statute.” Id. at 1042 (quoting Dolan v. U.S. Postal
Serv., 546 U.S. 481, 486 (2006)). Here, when read in context,
a “warrant of arrest” cannot mean a “notice to appear.” See
supra at 19–22.
Because we determine that Congress clearly defined
“warrant of arrest” as a writ that issues to arrest and detain an
alien, and is not the same as a notice to appear, we disagree
with the Seventh Circuit’s decision in Klene. Klene did not
use the tools of statutory interpretation to determine whether
“warrant of arrest” has an unambiguous meaning in the
context of § 1429. 697 F.3d at 670. Nor did it consider
whether a warrant of arrest “issued under the provisions of
this chapter or any other Act” included arresting and
detaining an alien. Id. Rather Klene merely stated, without
citation or reasoning, that the word arrest “does not imply
custody even in police parlance (full custodial arrests are a
subset of all arrests).” Id. Because our analysis compels a
different conclusion, we reject Klene’s acceptance of DHS’s
interpretation in § 318.1.
YITH V. NIELSEN 25
Although the Yiths received a notice to appear, they were
not subject to “a warrant of arrest issued under the
provisions” of Chapter 12 of the INA. Accordingly, their
removal proceedings were not pursuant to such a warrant of
arrest, and this portion of § 1429 was inapplicable to their
case.
IV
The district court erred in dismissing the Yiths’ complaint
for failure to state a claim under the authority of § 1429. By
its terms, § 1429 precludes only the executive branch from
considering an applicant’s naturalization application, and
only when there is pending against the applicant a removal
proceeding pursuant to a warrant of arrest. Because the
district court is not the executive branch and there was no
pending removal proceeding pursuant to a warrant of arrest,
§ 1429 was not applicable. We reverse the district court and
remand for further proceedings consistent with this opinion.7

* * *

7 In light of this decision, we need not address the Yiths’ arguments
that the district court abused its discretion by denying them leave to
amend their complaint and violated their procedural due process rights by
not holding oral argument.
26 YITH V. NIELSEN
BATES, Senior District Judge, concurring in part and
concurring in the judgment:
I agree that 8 U.S.C. § 1429 does not apply to the Yiths
because their removal proceedings were not pursuant to a
warrant of arrest. Because this is a sufficient ground to
decide the case—and, indeed, is a conclusion that § 1429 has
no application here—I would reverse on this basis alone and
do not think it necessary to decide whether § 1429—if it did
apply—would preclude the district court from considering a
naturalization application under 8 U.S.C. § 1447(b). PDK
Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the
judgment) (“[I]f it is not necessary to decide more, it is
necessary not to decide more . . . .”).

Outcome: REVERSED and REMANDED

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