                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MARK CYRIL BROWN,                                No. 11-71458
                                Petitioner,
                                                  Agency No.
                     v.                          A035-104-809

 ERIC H. HOLDER, JR., Attorney
 General,                                           OPINION
                         Respondent.


          On Petition for Review of an Order of the
              Board of Immigration Appeals

                    Argued and Submitted
          April 7, 2014—San Francisco, California

                     Filed August 18, 2014

   Before: Fortunato P. Benavides,* Richard C. Tallman,
          and Richard R. Clifton, Circuit Judges.

                  Opinion by Judge Clifton;
                Concurrence by Judge Tallman




 *
   The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2                       BROWN V. HOLDER

                           SUMMARY**


                            Immigration

    The panel denied for lack of jurisdiction Mark Brown’s
challenge to the Board of Immigration Appeals’ removal
order, but transferred his claim that he is a United States
citizen to the district court for evidentiary findings.

    The panel held that it had jurisdiction to review Brown’s
non-frivolous citizenship claim, even though he waived his
administrative appeals challenging his order of removal. The
panel held that Brown may be able to establish citizenship if
he can show that the Immigration and Naturalization
Service’s mishandling of naturalization applications by
Brown and his mother resulted in a violation of his due
process rights. The panel held that to establish a due process
violation Brown must either show that the INS arbitrarily and
intentionally obstructed his application or that the
government was deliberately indifferent to whether his
application was processed. The panel transferred the case to
the district court for evidentiary findings on genuine disputed
issues of material fact concerning Brown’s nationality, and
stated that if the district court finds that the INS acted
unconstitutionally, it could order the agency to grant Brown
citizenship as a remedy.

   The panel also held that pledging an oath of allegiance in
or after an interview with an INS officer as part of the


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     BROWN V. HOLDER                          3

naturalization process does not satisfy the “public ceremony”
requirement of 8 U.S.C. § 1448(a).

    Judge Tallman concurred in part, agreeing that Brown
presented a genuine issue regarding his nationality and that
transfer to the district court for a new hearing and decision on
the claim is the appropriate remedy. Judge Tallman would
not find, however, that Brown has a constitutionally protected
right to apply for citizenship. Judge Tallman wrote that the
Supreme Court has merely assumed, without deciding, that
the Due Process Clause of the Fifth Amendment may be
implicated when procedures limit an alien’s ability to apply
for citizenship.



                         COUNSEL

Craig Varnen, Khaldoun Shobaki, and Michael Behrens
(argued), Irell & Manella LLP, Los Angeles, California, for
Petitioner.

Stuart F. Delery, Principal Deputy Assistant Attorney
General, William C. Peachey, Ada E. Bosque, and Yamileth
G. Davila (argued), Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
4                    BROWN V. HOLDER

                          OPINION

CLIFTON, Circuit Judge:

    Mark Brown, a native and citizen of India, petitions for
review of the decision of the Board of Immigration Appeals
(“BIA”) dismissing his appeal from an order of removal. In
the administrative proceedings, Brown argued that he was or
should be deemed a United States citizen, because the former
Immigration and Naturalization Service (“INS”) had wrongly
prevented him from deriving citizenship through his parents
and then from applying for citizenship on his own account.
He also claimed that the government should be estopped from
denying his citizenship and that he had, in fact, fulfilled the
statutory requirements for citizenship set down in the
Immigration and Nationality Act (“INA”). The Immigration
Judge (“IJ”) found that Brown had not sustained his burden
of showing that he was a citizen and ruled that he had no
power to grant Brown citizenship or estop the government
from denying his citizenship. Brown now renews his claim
to citizenship.

    Because the record reflects disputed issues of fact relating
to the government’s alleged mishandling of naturalization
applications by Brown and his mother, we transfer this matter
to the District Court for the Central District of California for
evidentiary findings. If the district court finds that the INS
acted unconstitutionally, it may order the agency to grant
Brown citizenship as a remedy.

I. Background

    Brown was born in Madras, India, on July 4, 1968. He
entered the United States lawfully as an immigrant on March
                        BROWN V. HOLDER                                5

25, 1977, with his father, Trevor, mother, Marjorie, and older
sister, Karen. Trevor and Marjorie submitted applications to
petition for naturalization on April 13, 1983, by filing
separate N-400 forms. Marjorie also listed Brown as a
dependent on her N-400, so that he could apply to be
naturalized under her application, and submitted on Brown’s
behalf a separate application for a certificate of citizenship on
a form N-604. If both Brown’s parents were naturalized by
July 4, 1986, the date he turned eighteen, then Brown would
become a citizen. 8 U.S.C. § 1432(a)(1) (1982).

    Trevor was naturalized on November 15, 1985. For
reasons that are disputed, however, Marjorie was not.1
Brown and his parents claim that the INS told her in May
1985, at Trevor’s interview, that it had lost her application.
According to them, she was required to reapply on a second
N-400 form and to pay the associated fees. The government
disputes this, suggesting that the INS may have failed to
process her application at the same time as her husband’s
because of a lack of resources and further that she never filed
and paid the fees for a second application.

    Marjorie was interviewed on February 7, 1986, the same
day she allegedly filled out her second application. She
ultimately took the oath of allegiance and was naturalized in
August 1986, a month after Brown’s eighteenth birthday, by
which time he was no longer eligible to derive citizenship.

    1
      The record includes material submitted by Brown during the
immigration proceedings in support of his factual allegations including
documents and affidavits from his mother and father. For current
purposes, we accept the evidence as establishing disputed issues of fact,
and the description that follows relies on that evidence, but we do not
suggest that the evidence submitted by Brown is conclusive. The district
court should receive evidence and make findings on disputed issues.
6                     BROWN V. HOLDER

    According to Brown, he continued his attempts to
naturalize. Trevor asserts in his affidavit that Brown was told
in 1990, when he went to the INS office in Los Angeles to
apply for naturalization or a certificate of citizenship, that he
did not need to pursue naturalization on his own because his
parents were already U.S. citizens. Brown states that he
called on the same INS office in 1991 and was told that he
was already a citizen.

    Nevertheless, in February 1996, Brown submitted a N-
400 form to apply for naturalization. He asserts that he was
told by an INS agent that his application had been approved
and that he was administered the oath of allegiance by an INS
agent. An INS computer inquiry about that application in
July 1996 shows the words “CASE CLOSED” and
“NATURALIZED” and, in handwriting, “Natz close out.”
Brown maintains that the printout shows that, according to
INS records, he was a citizen; the government contended at
oral argument that he is misinterpreting the printout.

    In December 2001, Brown applied for a certificate of
citizenship on a form N-600. The INS rejected this
application because he was over eighteen. Nevertheless, an
INS computer inquiry generated in December 2001 (stating
“Form number: N400” on the top) shows the words “CASE
CLOSED” and “NATURALIZED.” Again, the government
argues that Brown is misinterpreting these entries.

   In January 2002, the INS sent to Brown’s lawyer a
decision letter relating to Brown’s application for a certificate
                         BROWN V. HOLDER                                 7

of citizenship filed on a form N-604 in April 1983.2 The
letter said that his application had been denied because he
turned eighteen before both his parents were naturalized.

   At some undetermined time, the INS placed Brown in
removal proceedings, apparently based on some criminal
misconduct by Brown. In November 2002, Brown obtained
a waiver of inadmissibility under former INA § 212(c),
8 U.S.C. § 1182(c) (1994). The crime that prompted the
removal proceedings is not identified in the order granting the
waiver, but the administrative record in this case shows that
Brown pled guilty to misdemeanor possession of
methamphetamine in violation of California Health and
Safety Code § 11377(a) in April 1996.

    Brown’s criminal record lengthened after that. He pled
guilty in August 1997 to being under the influence of a
controlled substance in violation of Health and Safety Code
§ 11550(a). In August 2003, Brown was convicted of
criminal threats in violation of California Penal Code § 422
and was ultimately sentenced to 16 months in prison. In
October 2004, Brown was convicted of vandalism in
violation of Penal Code § 594(b)(1) and was sentenced to 2
years and 8 months in prison. In September 2008, Brown
was convicted of felony possession of methamphetamine in
violation of Health and Safety Code § 11377(a) and was
sentenced to another 2 years 8 months in prison.

 2
   The government argues that this letter is not part of the administrative
record and therefore it should not be considered. See 8 U.S.C.
§ 1252(b)(4)(A). However, the court of appeals may go beyond the
administrative record when it transfers a matter to the district court
because there is a genuine issue of fact. Id. § 1252(b)(5)(B); see Batista
v. Ashcroft, 270 F.3d 8, 13–14 (1st Cir. 2001). We therefore grant
Brown’s motion for judicial notice of the N-604 denial.
8                    BROWN V. HOLDER

    In March 2010, the Department of Homeland Security
(“DHS”) issued Brown a Notice To Appear, stating that he
was removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he
was an alien convicted of possession of a controlled
substance. In April 2010, the DHS charged that Brown was
also deportable because he had committed an aggravated
felony under 8 U.S.C. § 1227(a)(2)(A)(iii), by making the
criminal threats, and because he had committed two crimes
involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii),
by making criminal threats and committing vandalism.

    Brown filed an application for asylum and withholding of
removal in July 2010. In the hearing before the IJ, Brown
argued that he was not removable because he was a citizen
and that the government should be estopped from denying his
citizenship. The IJ ruled that Brown had the burden of
rebutting the presumption that he was an alien, because he
was born outside the United States, and that he had not done
so. The IJ also ruled that he did not have power to rule on the
estoppel claim and that such a claim should be addressed to
a federal district court.

    The IJ sustained the government’s charge that Brown was
removable because of his drug-related conviction and his
aggravated felony. The IJ found that Brown was not eligible
for asylum because he had committed an aggravated felony.
Brown then withdrew his application for asylum and “related
relief” and accepted an order of removal to India. He waived
appeal. The IJ entered an order of deportation in February
2011. Brown, proceeding pro se, and despite his statement to
the IJ waiving appeal, filed a notice of appeal but did not file
a brief to the BIA. In April 2011, the BIA dismissed the
appeal because Brown had not argued that his waiver of
                     BROWN V. HOLDER                          9

appeal was not knowing and intelligent. Brown filed a timely
petition for review.

II. Discussion

    We deal first with our jurisdiction to review Brown’s
petition and then move to the merits of his citizenship claim.

   A. The order of removal

    A petitioner may not challenge an order of removal unless
he has exhausted his challenge before the BIA. 8 U.S.C.
§ 1252(d)(1). If the petitioner has not exhausted his
challenge at the agency level, we are without jurisdiction to
review it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.
2004).

    Brown argues to us that his waiver of appeal before the IJ
was not knowing and intelligent. See United States v.
Pallares-Galan, 359 F.3d 1088, 1097–98 (9th Cir. 2004). On
appeal to the BIA, however, Brown did not claim that the
waiver was not knowing and voluntary, and therefore we may
not review this claim. Barron, 358 F.3d at 677. We should
conclude that his waiver was knowing and voluntary in any
event. The IJ fully informed Brown of the consequences of
accepting an order of removal, Brown’s attorney warned him
against waiving his right to appeal, and the IJ confirmed the
waiver with both Brown and his attorney. Although Brown
now claims that he only accepted the order of removal in
order to expedite this court’s hearing of his citizenship claim,
see Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir.
2003), that would not render his waiver unknowing or
involuntary.
10                   BROWN V. HOLDER

     B. Brown’s citizenship claim

    Brown’s main claim is that he is or should be deemed to
be a U.S. citizen. As noted previously, Brown did not raise
this issue before the BIA. Lack of exhaustion, however, does
not pose a jurisdictional bar to this claim. “The statutory
administrative exhaustion requirement of § 1252(d)(1) does
not apply” to “a person with a non-frivolous claim to U.S.
citizenship.” Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th
Cir. 2004). Even if a petitioner, as here, has waived his
administrative appeals, we may still examine his nonfrivolous
claim to citizenship. Resolving a disputed claim of
citizenship is necessary to any deportation proceeding,
because the government is not permitted to deport citizens,
and a claim of citizenship is thus a denial of an essential
jurisdictional fact. Id.

    The statutory requirements for the naturalization of aliens
are set out in the INA. Under the INA, Brown could only be
naturalized if both his parents were sworn in as citizens
before his eighteenth birthday, or if he later applied for
citizenship and was sworn in as a citizen. 8 U.S.C. §§ 1432,
1448. A court may only grant citizenship to an alien who has
not fulfilled the requirements of the INA if that alien can
show that the denial of his claim for citizenship has violated
his constitutional rights. See Wauchope v. U.S. Dep’t of
State, 985 F.2d 1407, 1416–19 (9th Cir. 1993) (citing INS v.
Pangilinan, 486 U.S. 875, 883–85 (1988)).

   Brown argues that the INS acted unconstitutionally in
preventing him from becoming a citizen and that this court
should grant citizenship as a remedy. He also asserts that the
government should be estopped from denying his citizenship.
                         BROWN V. HOLDER                                11

In the alternative, Brown claims that he has, in fact, fulfilled
the statutory requirements of the INA.

    We discuss Brown’s constitutional claim first. Because
we conclude that there are genuine issues of material fact
concerning Brown’s nationality, we transfer this case to the
United States District Court for the Central District of
California.3 8 U.S.C. § 1252(b)(5)(B); Hughes v. Ashcroft,
255 F.3d 752, 755 n.1 (9th Cir. 2001). We reject Brown’s
claim for estoppel and his statutory claim.

         1. The constitutional claim

    Brown asserts that the INS violated the right to procedural
due process in rejecting his petitions for naturalization. A
necessary predicate for a due process claim is a
constitutionally protected interest. Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 569 (1972). Brown had such a
protected interest in being able to apply for citizenship, both


 3
    8 U.S.C. § 1252(b)(5)(B) provides that the action shall be transferred
to the district court for the district “in which the petitioner resides.”
Because Brown has been deported, “there is no district court that could
hear this case under the literal interpretation of the statute.” Leal Santos
v. Gonzales, 495 F. Supp. 2d 180, 182 (D. Mass. 2007). We follow the
Third Circuit in rejecting such an interpretation, which would foreclose all
citizenship claims involving disputed issues of fact by deported
petitioners. See id. at 182–83 (citing Order, Leal Santos v. Att’y Gen., No.
06-2174 (3d Cir. Jan. 30, 2007)). Although the government opposes
transfer, it has not argued that we are without the ability to transfer the
case because Brown is no longer resident in the United States. We select
the Central District of California because that is where Brown used to
reside and where Brown’s pro bono counsel for the current petition are
located. The agency has the statutory authority to parole Brown back into
the United States so he can attend the evidentiary hearing in the district.
See 8 C.F.R. § 212.5(b)(4).
12                         BROWN V. HOLDER

as an adult and derivatively through his mother as a minor.4
As the government conceded at oral argument, Brown had a
right to apply for citizenship, established by federal law. See
id. at 577; see also, e.g., Russell v. Landrieu, 621 F.2d 1037,
1040 (9th Cir. 1980) (holding that a protected interest must be
“created and defined by an independent source, such as state
or federal law”).



  4
     The concurrence would have us leave to one side the question of
whether Brown has a “constitutionally protected interest in being able to
apply for citizenship.” This is not a novel issue, however. In Wauchope,
we explained how, under Supreme Court authority, a federal court has the
ability to grant citizenship for constitutional violations, including
violations of the Due Process Clause. We wrote: “We find it significant
that the Court [in Pangilinan, 486 U.S. at 885–86] addressed the substance
of both the due process and equal protection claims, and nowhere
indicated that it considered the courts’ limited statutory authority to be a
restriction on their ability to redress constitutional violations.” 985 F.2d
at 1418; see also Ortega v. United States, 861 F.2d 600, 603 (9th Cir.
1988) (applying Pangilinan and holding that “absent . . . a constitutional
violation,” a district court has no power to grant citizenship contrary to the
INA) (emphasis added). Because Brown was present in the United States
when the INS allegedly denied him his right to apply for citizenship, he
may sue for a violation of his rights under the Due Process Clause. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause
applies to all persons within the United States, including aliens . . . .”)
(internal quotation marks omitted).

     Furthermore, we may only transfer this case if, as the concurrence
states, there is “a genuine issue of material fact about [Brown’s]
nationality.” 8 U.S.C. § 1252(b)(5)(B). Brown is only entitled to
citizenship if he can show that his constitutional rights were violated, so
there can be no issue of material fact unless Brown had a constitutionally
protected interest in applying for citizenship. If Brown did not have such
a constitutionally protected interest, all the facts relating to his application
would be immaterial and transferring the case to the district court would
be pointless.
                      BROWN V. HOLDER                         13

    The next question is how the government might have
violated this interest. Brown, relying on United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260 (1954), argues that
constitutional rights were violated because the INS failed to
follow its own regulations and internal operating instructions.
See id. at 268 (holding that a petitioner could challenge his
deportation through a writ of habeas corpus where the BIA
had failed to abide by the regulations supplementing the
INA). Brown asserts, among other things, that the INS
violated 8 C.F.R. § 334.11 (1983), by failing to notify
Marjorie “when and where to appear for preliminary
investigation and filing []her petition for naturalization,” and
8 C.F.R. § 341.6 (1983), by failing to “furnish[ him] the
reasons for denial [of his certificate of citizenship].” He also
claims that the INS violated Operating Instruction 103.2(q),
which provides that cases must be “processed in
chronological order by date of receipt.”

       We reject the claim as Brown has framed it, because the
mere failure of an agency to follow its regulations is not a
violation of due process. “[W]hile courts have generally
invalidated adjudicatory actions by federal agencies which
violated their own regulations promulgated to give a party a
procedural safeguard, . . . the basis for such reversals is not
. . . the Due Process Clause, but rather a rule of administrative
law.” United States v. Calderon-Medina, 591 F.2d 529, 531
(9th Cir. 1979) (quoting Bates v. Sponberg, 547 F.2d 325, 330
(6th Cir. 1976)); see also United States v. Caceres, 440 U.S.
741, 751–52 (1979) (holding that violations of IRS
regulations did “not raise any constitutional questions”); Bd.
of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n.8
(1978) (holding that Accardi “enunicate[s] principles of
federal administrative law rather than of constitutional law”).
Furthermore, we have noted that “INS Operations
14                   BROWN V. HOLDER

Instructions typically do not create substantive rights.”
Abboud v. INS, 140 F.3d 843, 848 (9th Cir. 1998), superseded
by statute as stated by Spencer Enters., Inc. v. United States,
345 F.3d 683, 692 n.5 (9th Cir. 2003); see also United States
v. Tatoyan, 474 F.3d 1174, 1178 (9th Cir. 2007) (holding that
“[c]ompliance with . . . internal [customs] agency regulations
is not mandated by the Constitution” (internal quotation
marks omitted)). Therefore, insofar as Brown relies only on
the supposed failure of the INS to follow its regulations and
operating procedures, his claim fails.

    Brown may, however, still be able to state a constitutional
claim based on the underlying governmental conduct. In
Pangilinan, the Supreme Court considered the possibility that
the government might have acted unconstitutionally in
hindering Filipino veterans from registering as U.S. citizens.
486 U.S. at 885–86. The Court did not rely on a potential
violation of the underlying statute and regulations in
conducting its analysis. Although the Court rejected the
claim, the rejection was based on the Court’s conclusion that
there had not, in fact, been a violation of due process. As a
result, we held in Wauchope that citizenship could be granted
by a court as a remedy to rectify constitutional violations.
Wauchope, 985 F.2d at 1417–18. Similarly, in Bates, from
which our decision in Calderon quoted, the Sixth Circuit
ruled that an agency’s failure to follow its own regulations
was not per se a violation of due process, but that
constitutional rights were implicated “when the agency’s
disregard of its rules results in a procedure which in itself
impinges upon due process rights.” Bates, 547 F.2d at 329.
Therefore, Brown may still be able to establish a claim to
citizenship if he can show that the INS’s mishandling of
applications resulted in a violation of his constitutional right
to due process. Cf. Mustanich v. Mukasey, 518 F.3d 1084,
                      BROWN V. HOLDER                         15

1088 (9th Cir. 2008) (acknowledging that a claim for estoppel
might lie if the petitioner could show that the INS acted
unconstitutionally in mishandling his naturalization petition).

    The Supreme Court has not set out what degree of
government misconduct will suffice for a constitutional
violation in this context, and our court and other circuit courts
have not either. In Dent v. Holder, 627 F.3d 365, 375 (9th
Cir. 2010), we transferred a citizenship claim to the district
court to determine “a genuine issue of material fact” as to
whether the petitioner had been adopted by a U.S. citizen
when he was a minor. We did not suggest a standard for the
district court to apply, merely noting that “[f]or all we know,
the government lacks authority to sit on an application to
naturalize a fourteen year old until after he is eighteen and
has aged out, or to sit on applications for naturalization for 23
or 27 years.” Id. at 376. In Azize v. Bureau of Citizenship &
Immigration Services, 594 F.3d 86 (2d Cir. 2010), the
petitioner claimed that he should be granted citizenship on the
ground that the INS had improperly terminated his
naturalization application because he had failed to surrender
his green card. The Second Circuit transferred the case to a
district court for factfinding, but did not suggest any standard
that the court should apply to determine whether the
petitioner was entitled to relief. Id. at 91–92.

    We have some guidance from cases where the Court has
ruled whether the government may be estopped from denying
a petitioner’s citizenship, however. In Montana v. Kennedy,
366 U.S. 308, 314–15 (1961), the Court held that the
government could not be estopped from denying the
citizenship of a petitioner whose mother was prevented from
returning to the United States before his birth by the incorrect
advice of an immigration officer. As the Court later put it,
16                      BROWN V. HOLDER

estoppel would not lie against the government even though
“the Government’s error was clear.” INS v. Miranda,
459 U.S. 14, 18 (1982). And, in INS v. Hibi, 414 U.S. 5
(1973), the Court again held that the government could not be
estopped from denying a claim to citizenship even though it
had knowingly failed to abide by the terms of an immigration
statute permitting Filipino war veterans to naturalize. See
Pangilinan, 486 U.S. at 879–80 (explaining why the
government failed to abide by the statute). In this case, the
error was again “clear.” Miranda, 459 U.S. at 18. By
contrast, if the INS’s actions in a petitioner’s case are
motivated by animus or malicious intent, there is a
constitutional violation. See Pangilinan, 486 U.S. at 886.

    We conclude that if Brown can show that the INS
arbitrarily and intentionally obstructed his application, his
right to due process has been violated. The government has
also violated Brown’s right to due process if it has—unlike,
for example, in Montana and Hibi—been deliberately
indifferent to whether his application was processed. If
Brown cannot show such a degree of culpability on the part
of the INS, he has not proven a constitutional violation, and
his citizenship claim must fail.5

     We transfer this claim to the district court so that the court
may make the necessary findings of fact to establish, in the
first instance, whether Brown’s constitutional rights were

 5
   We have avoided using other “elusive terms” such as gross negligence
or recklessness, although we believe that Brown must show a greater level
of culpability than these terms ordinarily suggest in order to prove a
constitutional violation. Daniels v. Williams, 474 U.S. 327, 334 (1986);
see, e.g., L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir. 1996) (comparing
gross negligence, recklessness, and deliberate indifference in the
42 U.S.C. § 1983 context).
                      BROWN V. HOLDER                         17

violated. Brown’s complaints fall into two groups. First,
Brown alleges that the government mishandled his mother’s
application so she did not naturalize by his eighteenth
birthday. Second, Brown accuses the government of
preventing him from naturalizing on his own account after he
turned eighteen by wrongly telling him that he was already a
citizen. The record as to both of these groups of complaints
is controverted. At oral argument, the government claimed
that the evidence showed that Brown’s mother’s N-400 had
never been lost and suggested that Brown was misreading the
printouts from the INS’s computer system that supposedly
stated that he had been naturalized. The district court should
determine whether the INS acted with a sufficiently culpable
mental state that it violated Brown’s right to due process.

    As to the first group of complaints, connected to the
application of Brown’s mother, we reject the government’s
argument that Brown is not able to assert a claim based on the
treatment of his mother’s application. There is no doubt that
Brown was actually injured, because he would have
automatically become a citizen if his mother had been
naturalized before his eighteen birthday. His mother’s
application included a request that a certificate of citizenship
be issued for her son, so his connection to the application was
known to the INS. In Wauchope, we held that two applicants
were able to claim citizenship on the grounds that the
constitutional rights of their mothers had been violated by a
statute that prevented them from transferring citizenship to
their offspring. We noted, in that case, that the litigants had
satisfied three criteria: (1) they had suffered an injury-in-fact
giving them a concrete interest in the outcome of the issue in
dispute; (2) they had a close relation to the third parties; and
(3) the third parties were hindered in some way from
protecting his own interests. Wauchope, 985 F.2d at 1411.
18                   BROWN V. HOLDER

    The first two prongs of that test are not in doubt in this
case: Brown has suffered an injury as a result of the INS’s
delay in processing Marjorie’s application, and he has a close
relationship with his mother. The government disputes,
however, that there is a hindrance to Marjorie’s ability to
protect her own interests. We conclude that there is. Any
injury Marjorie personally suffered was cured when she
received her citizenship, and so she no longer has standing to
sue. See Hosein v. Gonzales, 452 F.3d 401, 404 (5th Cir.
2006) (per curiam) (ruling, on facts that are in relevant part
identical to this case, that the appellant did not have standing
to sue on behalf of her son, because “[a]fter all, she was
granted citizenship”). Nor, contrary to the government’s
argument, did Marjorie have any strong incentive to resort to
the courts and seek mandamus to force the INS to act as soon
as it became apparent to her, in May 1985, that the INS had
delayed processing her application. Mandamus is an
“extraordinary remedy” that is only granted when no other
relief is available, and Marjorie was justified in showing
some patience before resorting to the courts. Barron v. Reich,
13 F.3d 1370, 1374 (9th Cir. 1994). She did not necessarily
know at that time that by doing so, her own naturalization
would not be completed until a month beyond her son’s
eighteenth birthday. Therefore, the district court may
consider the argument that the INS acted unconstitutionally
in mishandling Marjorie’s application.

    As to Brown’s second group of complaints, the district
court must consider, among other things, when Brown
became ineligible to naturalize on his own because of his
criminal record. It appears that Brown at some point lost the
ability to apply successfully for citizenship because of his
criminal activities, which are not fully documented in the
                        BROWN V. HOLDER                               19

record before us.6 But it also appears to be the case that, for
at least some period in his adult life, Brown might have been
able to apply successfully. Indeed, his sister was too old to
obtain citizenship derivatively through her parents but was
naturalized in 1987. The earlier Brown became ineligible for
naturalization after he turned eighteen, the smaller the
window of time during which a material constitutional
violation may have been committed by the INS, because any
conduct after Brown became unable to naturalize is
irrelevant. See Duran-Pichardo v. Att’y Gen., 695 F.3d 282,
287 (3d Cir. 2012) (holding that the petitioner “has no
remedy because he has committed an aggravated felony”).

    Having determined the facts, the district court will then be
able to draw a conclusion of law as to whether Brown’s
constitutional rights were violated. If the court finds that they
were violated, it may order the agency to grant citizenship as
a remedy as if the action had been brought in that court.
Wauchope, 985 F.2d at 1418.

         2. The estoppel claim

    Brown also seeks to estop the government from denying
his U.S. citizenship. “To estop an agency of the government
a court must find affirmative misconduct by the government
and must also find that the government’s conduct will cause

   6
      Individually, Brown’s April 1996 conviction for possession of
methamphetamine, and his August 1997 conviction for being under the
influence of drugs, would have made him ineligible for naturalization for
five years. See 8 U.S.C. §§ 1101(f)(3), 1182(a)(2), 1427(a). The IJ found
that his 2003 conviction for making criminal threats in violation of
California Penal Code § 422 was an aggravated felony, and this would
have permanently barred him from applying for naturalization,
notwithstanding any further convictions. See 8 C.F.R. § 316.10(b).
20                    BROWN V. HOLDER

a serious injustice and that estoppel will not cause undue
harm to the public interest.” Watkins v. U.S. Army, 875 F.2d
699, 706 (9th Cir. 1989) (en banc). In this case, estopping the
government from denying Brown’s citizenship would have
the same practical effect as granting him citizenship.
Mustanich, 518 F.3d at 1088.

    Brown’s argument is all but foreclosed by the Supreme
Court’s decisions in Hibi and Pangilinan. In Hibi, which
involved the same underlying facts as Pangilinan, the Court
rejected the respondent’s claim that the government had
engaged in affirmative misconduct by failing to station in the
Philippines an authorized naturalization representative for the
entire period required by Congress. 414 U.S. at 8–9. And in
Pangilinan, the Court held that “[n]either by application of
the doctrine of estoppel, nor by invocation of equitable
powers . . . does a court have the power to confer citizenship
in violation of [the INA’s] limitations.” 486 U.S. at 885.

     Hibi and Pangilinan may not present an absolute bar to
estoppel. In Mustanich, this court held that a petitioner may
still be able to “assert estoppel on the theory that the denial of
his citizenship is unconstitutional.” 518 F.3d at 1088. To do
this, however, Brown will need to establish what he must
under his primary claim for citizenship—that the government
has violated his right to due process.

   Therefore, Brown’s claim for estoppel is entirely
dependent on his constitutional challenge. Estoppel is, as
Brown concedes, an equitable remedy. A “court[] of equity
should not act . . . when the moving party has an adequate
remedy at law.” Morales v. Trans World Airlines, 504 U.S.
374, 381 (1992). As we have held, Brown has a remedy if his
                         BROWN V. HOLDER                               21

constitutional rights have been violated.               Therefore, we
dismiss his claim for estoppel.

         3. The statutory claim

    Brown also claims that there is a factual issue as to
whether he has been naturalized under the terms of the INA.
To become a citizen, a petitioner must take the oath of
allegiance in a “public ceremony.” 8 U.S.C. § 1448(a).7
Brown claims that, in 1996, he was administered the oath of
allegiance by an INS officer. He argues that this may qualify
him for citizenship, even though he concedes that this was not
a public ceremony.

    At least three courts have rejected the argument that an
oath administered privately by an INS officer suffices for
naturalization, in the absence of special circumstances set out
by statute. Abiodun v. Gonzales, 461 F.3d 1210, 1215–16
(10th Cir. 2006) (signing an oath of allegiance during a
naturalization interview does not satisfy the public ceremony
requirement of 8 U.S.C. § 1448); Okafor v. Gonzales,
456 F.3d 531, 534 (5th Cir. 2006) (same); Tovar-Alvarez v.
U.S. Att’y Gen., 427 F.3d 1350, 1353 (11th Cir. 2005) (per
curiam) (same); see 8 U.S.C. § 1448(c) (permitting the
Attorney General to grant an expedited oath ceremony). This
court has not yet ruled on the issue. Iasu v. Smith, 511 F.3d
881, 890–91 (9th Cir. 2007). We adopt the reasoning of
Abiodun, Okafor, and Tovar-Alvarez in holding that pledging
an oath of allegiance in or after an interview with an INS
officer as part of the naturalization process does not satisfy


 7
  Before 1990, a petitioner for naturalization was required to take an oath
for naturalization “in open court.” See Pub. L. No. 101–649, 104 Stat.
4978, 5044–45 (1990).
22                      BROWN V. HOLDER

the “public ceremony” requirement of § 1448(a). This
holding comports with our precedent. See Perdomo-Padilla,
333 F.3d at 966 (holding that a foreign national did not
become a national of the United States when “he completed
an application for naturalization that contained a statement of
allegiance to the United States”).

III.      Conclusion

    We deny Brown’s challenge to his removal order on the
grounds that we lack jurisdiction. We transfer the matter to
the District Court for the Central District of California to
make findings of fact and draw conclusions of law as to
Brown’s claim that he is entitled to U.S. citizenship. We
dismiss Brown’s claim that he is already a citizen by having
already taken an oath of citizenship before an INS officer.

       Each party shall bear its own costs.

  DENIED IN PART, DISMISSED IN PART,
TRANSFERRED IN PART.



TALLMAN, Circuit Judge, concurring:

   I concur only in parts I, II.A, II.B.2, and II.B.3 of today’s
opinion.

    Brown “claims to be a national of the United States,” and
I agree that he has presented “a genuine issue of material fact
about [his] nationality.” 8 U.S.C. § 1252(b)(5)(B). I also
agree that the appropriate remedy is to “transfer the
proceeding to the district court . . . for a new hearing on the
                     BROWN V. HOLDER                        23

nationality claim and a decision on that claim as if an action
had been brought in the district court under section 2201 of
title 28.” Id.

     But my colleagues do not stop there. They go on to
declare, without much analysis and on an incomplete record,
that Brown has a constitutionally protected interest in being
able to apply for citizenship. Maybe such an interest exists
always and for everyone; maybe it does not exist at all; or
maybe it exists only when certain factual predicates are met.
It is the latter possibility that dissuades me from reaching
such a weighty issue before a district court takes evidence and
decides the matter in the first instance.

    My colleagues justify their expansive ruling by claiming
that this is not a novel issue. But it is. The Supreme Court
has merely assumed, without deciding, that the Due Process
Clause of the Fifth Amendment may be implicated when
procedures limit an alien’s ability to apply for citizenship.
INS v. Pangilinan, 486 U.S. 875, 885 (1988) (“Assuming that
these respondents can properly invoke the protections of the
United States Constitution, and granting that they are
members of a special class that Congress intended to favor
with statutory entitlements to naturalization, they were not
deprived of those entitlements without due process.”). In
Wauchope v. U.S. Dep’t of State, 985 F.2d 1407 (9th Cir.
1993), we held that a court may confer citizenship to remedy
Equal Protection violations; we said nothing about whether an
alien has a constitutionally protected interest in applying for
citizenship. In fact, my colleagues cite to no case that has
held that this constitutionally protected interest exists, so
today’s decision is novel indeed.
24                    BROWN V. HOLDER

     We may need to decide, once the record is complete,
whether there is a constitutionally protected right to apply for
citizenship, and whether the government can violate that right
by not following its own citizenship application procedures.
Declaring now the existence of a heretofore unrecognized
constitutionally protected right to citizenship is premature. I
think it inadvisable to advise the district court, at this stage,
how to decide questions of law or which facts to consider.
Knowing that we judge best when we judge on a robust
record, we should have given the district court the first crack
at these important issues.
