865 F.2d 608
Clarence J. SUTTON, Petitioner-Appellee,v.STATE OF MARYLAND;  Maryland House of Correction,Respondents-Appellants.
No. 88-6619.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 3, 1988.Decided Jan. 17, 1989.Order Granting Rehearing In Banc March 20, 1989.*

Mary Ellen Barbera, Asst. Atty. Gen.  (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Office of Atty. Gen., Criminal Appeals Div., on brief), for respondents-appellants.
Laurin Mills, Student Counsel (Steven H. Goldblatt, Dori K. Bernstein, Maureen F. Del Duca, Supervising Attys., Catherine Pinkerton, Student Counsel, Appellate Litigation Program, Georgetown University Law Center on brief), for petitioner-appellee.
Before WINTER, Chief Judge, and SPROUSE and CHAPMAN, Circuit Judges.
HARRISON L. WINTER, Chief Judge:

1
The district court ruled that Clarence J. Sutton, a habeas petitioner who was convicted under Maryland law of common law assault, was entitled to a writ of habeas corpus to the extent that the fifteen-year sentence imposed on him exceeded the maximum penalty of ten years for the least aggravated form of statutory assault of which he might be found guilty, although no Maryland statutory offense was charged.  The State of Maryland appeals.  We affirm.

I.

2
Clarence Sutton was convicted of common law assault under an indictment which charged him only with that offense.  The evidence at trial established that Sutton had forced his victim into a car, stabbed him twice in the neck and three times in the chest, and then dragged him out of the car, leaving him abandoned in a street gutter.  Under Maryland law there is no prescribed maximum punishment for common law assault.  See Simms v. State, 288 Md. 712, 714, 421 A.2d 957, 958 (1980).  The only restriction on the sentence which may be imposed is the Eighth Amendment as made applicable to the states by the Fourteenth Amendment, and its counterpart in the Maryland Declaration of Rights, Id.    Based upon the facts of the case and Sutton's prior criminal record, including convictions for robbery, theft and three charges of assault, he was sentenced to fifteen-years imprisonment.

3
Maryland has refined the common law of assault by creating the statutory crimes of assault with intent to rob, assault with intent to murder, and assault with intent to rape or to commit certain sexual offenses.  The maximum punishment for these crimes is ten years, thirty years, and fifteen years, respectively.  3A Ann.Code of Md., Art. 27, Sec. 12.  In addition there is the statutory crime of assault with intent to maim, disfigure or disable or to prevent lawful apprehension which carries a maximum penalty of ten years.  3A Ann.Code of Md., Art. 27, Sec. 386.  It is the law of Maryland that the common law crime of assault is a lesser included offense in the various statutory crimes of aggravated assault.  See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987);  Simms v. State, supra;  Walker v. State, 53 Md.App. 171, 452 A.2d 1234 (1982), cert. denied, 296 Md. 63 (1983).

4
After Sutton's conviction, he attacked its validity by direct appeal and by post-conviction proceedings.  He also attacked the validity of his sentence by post-conviction proceedings.  We need not recite the history of these efforts because Maryland does not dispute that Sutton has exhausted all available remedies without success and our review of those proceedings persuades us that exhaustion has occurred.  We therefore are brought to decide whether the sentence imposed on Sutton offends the Eighth Amendment's proscription of cruel and unusual punishment.

5
In a considered and carefully written opinion, the district court concluded that the Eighth Amendment had been violated to the extent that Sutton's sentence exceeded ten years.  Sutton v. State, 681 F.Supp. 291 (D.Md.1988).  Its reasoning, succinctly stated, was that the concept of proportionality embodied in the Eighth Amendment is violated when the State seeks to punish a conviction for the lesser offense of common law assault more severely than a conviction of the least aggravated statutory assault for which he could have been prosecuted and convicted.

6
The district court relied heavily on our decision in Roberts v. Collins, 544 F.2d 168 (4 Cir.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 368 (1977), and subsequently decided Supreme Court cases, principally Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).  It also found persuasive Heathe v. State, 257 Ind. 345, 274 N.E.2d 697 (1971), in which the Supreme Court of Indiana held that the sentence for a lesser included offense may not, under the Eighth Amendment and Indiana's constitution, exceed that provided for a greater offense, even if the greater offense is not charged.  Accord, Application of Cannon, 203 Or. 629, 281 P.2d 233 (1955).  It found no permissible basis for distinguishing, as Maryland courts do, between cases in which the defendant is charged with both a statutory assault and common law ("simple") assault and cases in which only the common law offense is charged.  See e.g., Simms v. State, supra;  Walker v. State, supra.II.

7
Before us, Maryland contends that the issue we must decide is whether "a fifteen-year sentence for common law assault [is] cruel and unusual punishment in violation of the Eighth Amendment ... where the defendant ordered the victim into his car at knifepoint, stabbed him five times about the head and chest, then dragged him out of the car and abandoned him?"    If the circumstances of the crime were the sole test of proportionality, the case would not warrant argument because we would readily agree that the sentence was not disproportionate to the gravity of the offense.  In that circumstance the sentence would not appear unduly harsh;  it would not be cruel and unusual.

8
However, Solem v. Helm, supra, teaches that the principle of proportionality embodied in the Eighth Amendment is not tested solely by the gravity of the offense.  Rather, it holds that

9
a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty;  (ii) the sentences imposed on other criminals in the same jurisdiction;  and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

10
462 U.S. at 292, 103 S.Ct. at 3010.    Significantly, with respect to the comparison of sentences imposed on other criminals in the same jurisdiction, the Court said, "[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive."    Id. at 291, 103 S.Ct. at 3010.    This statement should also be read in conjunction with the Court's discussion of the application of the factors to specific cases.  First, the Court discussed the ability of courts to judge the gravity of an offense, and it recognized that there are widely shared views as to the relative seriousness of crimes.  It then added:

11
There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society.  The absolute magnitude of the crime may be relevant....  Few would dispute that a lesser included offense should not be punished more severely than the greater offense.  Thus, a court is justified in viewing assault with intent to murder as more serious than simple assault.  [citing, inter alia, Roberts v. Collins, supra ]

463 U.S. at 293, 103 S.Ct. at 3011.1

12
In Roberts v. Collins, supra, the accused, indicted under Maryland law for assault with intent to murder and for simple common law assault, pleaded guilty to the common law assault charge.  We held that the Eighth Amendment did not permit the defendant to be sentenced to a term greater than that authorized for conviction of assault with intent to murder.2   Our specific holding was "the Constitution does not sanction the imposition of a greater punishment for a lesser included offense than lawfully may be imposed for the greater offense."    544 F.2d at 170.

13
We think that holding is applicable here.  The only difference between Roberts and the instant case is that in Roberts the defendant was charged with aggravated assault and common law assault.  But we think this difference does not amount to a distinction.  Common law assault is a lesser included offense of the various forms of statutory assault in those cases where the circumstances of the crime would support a conviction for the statutory offense, regardless of whether the statutory offense is charged.

14
The Maryland Court of Appeals has reached the same result as Roberts in a case in which the accused was charged with both a greater offense and a lesser included offense and convicted only of the lesser included offense.  However, it emphasized that it did so as a matter of Maryland common law and not under the compulsion of the Eighth Amendment or the Maryland Declaration of Rights.  Simms v. State, 421 A.2d at 964.    The stated basis of the decision was that "where the State charges both assault with intent to rob and simple assault ... the State has in effect elected to prosecute for the ten year maximum specified for the greater offense of assault with intent to rob."    Simms at 965.

15
More importantly, the Simms Court in dictum rejected the proposition that the punishment for a lesser included offense may not exceed the maximum described for the greater offense, even where the greater is not charged.  Explaining this position, the Maryland Court of Appeals first noted that "when the Legislature creates a greater offense by adding an element to a basic crime" the added element occasionally may be "viewed as a mitigating rather than an aggravating factor, and for this reason a lesser penalty is provided for the particular greater offense."    Simms at 965.    It also commented that "[s]ome 'simple assaults' may involve more brutal or heinous conduct than may be present in other cases falling within one of the statutory aggravated assaults", and when this occurs and the accused is prosecuted only for common law assault, a sentence exceeding the statutory maximum for statutory assault would not be proscribed by the Eighth Amendment.  Id.  The Court concluded, "we do not believe that a sentence for simple assault, which exceeds the ten year maximum sentence for assault with intent to rob, necessarily violates the prohibition against cruel and unusual punishment."    Id.

16
With due respect to our Maryland brethren, we do not find either point persuasive.

17
First, we doubt whether a greater statutory offense may be less heinous than a lesser included common law offense.  The examples given in Simms were shoplifting (the crime of larceny in a mercantile setting) and welfare fraud (the crime of false pretenses with respect to welfare payments), each of which carry maximum sentences less than the common law offenses which they include.  The Maryland court deemed these statutory crimes to be examples of "less heinous greater offenses" because the additional element which must be proved to convict is a mitigating rather than an aggravating factor.

18
Under the general rules set forth in Solem, the more aggravated offense involves a greater degree of culpability than the lesser offense it includes.  Thus, it is arguable whether larceny and false pretenses, respectively, are lesser included offenses precisely because the additional elements needed to convict for the statutory crimes are mitigating circumstances rendering a defendant less culpable.  Similarly, it is also arguable whether the "required evidence" test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), articulating the test to determine what is a "greater" and what is a "lesser" offense, applies when the additional element to be proved is a mitigating factor.  In the Eighth Amendment context of proportionality inquiry, unlike the Fifth Amendment context of double jeopardy, there is no apparent logical necessity to count an additional mitigating element (as opposed to an aggravating one) for purposes of determining which is the greater or lesser offense.  We do not, however, decide either of these issues.

19
With regard to the second objection raised in Simms, we recognize that there is an infinite variety of criminal conduct constituting common law assault, but not amounting to any form of statutory aggravated assault.  In such a case the maximum sentences prescribed for the statutory assaults may be relevant for comparative purposes, but do not constitute a cap on the sentence which may be imposed.  The instant case, however, is clearly not in this category because, as the trial judge said in imposing sentence:

20
Mr. Sutton, although the offense for which you were found guilty was assault, there's no question in my mind that for all intents and purposes the assault was with an intent to murder.  All the ingredients of assault with intent to murder are present here.  I say this not to say I am sentencing you for that offense.  I'm sentencing you for assault, but I am allowed whatever discretion I feel just and appropriate under the circumstances for an assault conviction, and I'm entitled to look at the nature of the assault.

21
If the facts were such that had he been prosecuted for assault with intent to murder he could have been found guilty, we think that it is equally true that if he had been prosecuted for assault with intent to maim or disable, he could have been found guilty of that crime.

22
Although we leave open the sentencing rule that would apply if a defendant is found guilty of common law assault on facts that would not support a finding of guilt of any form of statutory aggravated assault, we think that the Maryland statutory scheme determines the parameters of cruel and unusual punishment for any conviction of simple assault on facts that would warrant a conviction for aggravated assault, irrespective of whether the latter is charged.  Maryland argues that the Legislature did not intend to preempt the field of assault crimes in creating a class of statutory aggravated assaults.  This may be true with respect to the vast array of conduct amounting to assault, but not amounting to any form of statutory assault.  However, this does not, as Maryland suggests, lead inexorably to the conclusion that the sentencing scheme thereby created does not preempt the field of permissible sentences for Eighth Amendment purposes where the acts constituting simple assault also constitute one or more forms of statutory assault.3

23
The argument that some criminal actions may warrant the imposition of longer sentences than those authorized under the least (or even under the most) aggravated statutory assault does not alter the fact that the Maryland Legislature has made its own determination of the appropriate maximum punishment for various classes of criminal assault.  Thus, we reject the argument that the presence or absence of a cap on the permissible sentence for common law assault depends upon whether the prosecutor has also charged a statutory aggravated assault.  We think that such distinction is irrational because it renders the existence of the statutory offenses meaningless, raises potential equal protection problems, and perhaps raises problems of denial of due process of law.4   Rather, the cap is one prescribed by the Legislature, and it applies even though the statutory crime is not charged.5

24
We therefore hold that where common law assault alone is charged and a conviction obtained by trial or plea of guilty, the maximum sentence which may be imposed, consistent with the Eighth Amendment, is the maximum sentence for conviction of the least aggravated statutory crime for which the evidence would support a conviction.6   On the facts of this case, Sutton could have been found guilty of assault with intent to maim or disable for which the maximum sentence is ten years.  Of course, as the trial judge said, he could also have been found guilty of assault with intent to murder.  But that crime was not charged, even if it was proved, so we look to the least aggravated crime of assault to identify the maximum permissible sentence.

25
AFFIRMED.

CHAPMAN, Circuit Judge, dissenting:

26
I dissent.  I do not think that Roberts v. Collins, 544 F.2d 168 (4th Cir.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 368 (1977) is applicable to the present facts because Sutton was only charged with and convicted of common law assault.  Roberts was charged with common law assault and assault with intent to murder and entered a plea to common law assault.  We held in Roberts that under the facts the sentence for common law assault could not exceed fifteen years, which was the maximum sentence for assault with intent to murder.

27
I do not think the sentence imposed on Sutton violates the cruel and unusual punishment language of the Eighth Amendment, nor does it in any way fail a proportionality analysis.  Clarence Sutton was married to Lucille Sutton, who, prior to her marriage to Clarence, had lived with Cecil Jordan.  After her marriage, Lucille Sutton continued to see Cecil Jordan from time to time.  She explained that her relationship with Jordan was now platonic, but her husband felt otherwise, and he stabbed Jordan five times about the head and chest and left him bleeding by the side of the road.  The Maryland prosecutor exercised the judgment and discretion allowed his office by law, and he indicted Sutton only for common law assault.  The prosecutor was aware of the evidence he had to prove the charge and he knew the Maryland law of common law assault.

28
As the majority opinion points out, the Maryland legislature has created different classifications of assault for special treatment.  Assault with intent to murder has a maximum penalty of thirty years;  assault with intent to rob, and assault with intent to maim, disfigure or disable have a ten year maximum;,  and assault with intent to rape has a fifteen year maximum.  The legislature chose not to set a specific maximum for common law assault, and therefore, the sentence is in the discretion of the trial judge and subject only to the provisions of the Eighth Amendment forbidding cruel and unusual punishment, and the Supreme Court's requirement of proportionality as enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

29
The Court of Special Appeals of Maryland in Walker v. State, 53 Md.App. 171, 452 A.2d 1234 (1982), has clearly explained the state's plan for handling common law assault cases and the reason no statutory maximum punishment has been set by statute.

30
The appellant's thesis also ignores the reality that the statutory assaults have not preempted the field of all serious and aggravated assaults.  Our Legislature has cut out of the herd for special treatment four assaults where the aggravating factor is a special mens rea or specific intent.  This by no means exhausts the category of more grievous and blameworthy assaults.  The aggravating factor in a particular case might well be the modality of an assault, and not its mens rea --assault with a deadly weapon, assault by poison (this modality alone makes first-degree murder out of ordinary murder), assault by bomb.  Many states have made assault with a deadly weapon a special crime.  Maryland has not done so, but has trusted the wide discretion of the common law sentencing provisions to deal appropriately with such severely aggravated assaults.  The aggravating factor might well be the harmful consequences of a particular assault and not its mens rea.    Even where drugs or alcohol have diminished the capacity of a mind to form a specific intent or where there simply has been no specific intent, a brutal beating that leaves its victim blinded, crippled, disfigured, in a wheel chair for life, in a psychiatric ward for life, is severely aggravated.  Once again, Maryland has not dealt with this form of aggravation legislatively but has left it to the discretion of common law sentencing.  We sometimes overlook this reality because of the linguistic power of inadvertent phrasing.  Whenever we say "simple assault" when what we mean is "common law assault," we subconsciously convey a sense of triviality where that is far from the necessary case.  A common law assault is theoretically capable of being as aggravated as or more aggravated than any of our statutory assaults.

31
Id. 452 A.2d at 1247-48.

32
The present case is one of those special cases Maryland had in mind when it provided no statutory maximum for common law assault and left it to the discretion of the trial judge to fashion a proper and adequate punishment.  The assault by Sutton upon Jordan was aggravated and was by use of a deadly weapon.  The majority states:  "If the circumstances of the crime were the sole test of proportionality, the case would not warrant argument because we would readily agree that the sentence was not disproportionate to the gravity of the offense".  However, under the majority's reasoning and under its holding, no sentence for common law assault in Maryland may exceed ten years no matter how grievous and aggravated the assault may be.

33
The reliance of the district judge and the majority on Roberts v. Collins is misplaced.  Roberts was charged with two counts of assault with intent to murder and two counts of common law assault.  At the time of Roberts' sentence, Maryland law provided a fifteen year maximum penalty for assault with intent to murder.  Roberts entered pleas of guilty to the two common law assault counts, and he received twenty year sentences on each count, with the sentences to run consecutively.  We held:  "When, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment".  Roberts, 544 F.2d at 170.

34
In the present case Sutton did not relieve the state of proving any element of the crime.  He was proved guilty beyond a reasonable doubt of the only crime with which he was charged.  The rationale of Roberts is not applicable.  The courts in Maryland have held that where one is charged with assault with intent to murder and common law assault, and the assault with intent to murder is disposed of by nolle prosequi, the sentence for common law assault may not exceed ten years, which is the maximum for assault with intent to maim and is the shortest maximum sentence provided for any of the four Maryland statutory mens rea assaults.  See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987).  Johnson has the same result we reached in Roberts and for the same reason, but that reason is not applicable to the present case because Sutton was charged only with common law assault.

35
The majority places great weight on its finding that common law assault is a lesser included offense of assault with intent to murder, to maim, to rob, or to rape.  This is true only when two offenses are charged on the same set of facts.  When only common law assault is charged, it stands alone and is not a lesser included offense because there is no other offense within which it may be included or with which it may merge.  Walker makes clear that, in Maryland, common law assault may be more serious and aggravated than the various forms of statutory assault.  This was recognized by the trial judge at the time of sentencing when he stated:

36
Mr. Sutton, although the offense for which you were found guilty was assault, there's no question in my mind that for all intents and purposes the assault was with an intent to murder.  All the ingredients of assault with intent to murder are present here.  I say this not to say I am sentencing you for that offense.  I am sentencing you for assault, but I am allowed whatever discretion I feel just and appropriate under the circumstances for an assault conviction, and I am entitled to look at the nature of the assault.

37
You stabbed this man.  You took him out to Lincoln Park, stabbed him out there, punctured him, and then drove him back into the city.  You threw him out of the car.  You threw him in the gutter of a street and left him there for dead, and it was hours later that he was spotted by the police and taken to the hospital and miraculously lived.

38
The judge then recited the long criminal record of Sutton and took this into consideration in setting the fifteen year sentence.

39
I submit that the majority's proportionality analysis is not persuasive because it is based on a conclusion that common law assault is always a lesser included offense of the legislative created forms of assault.  The majority uses Johnson v. State and Walker v. State to support this lesser included offense finding, but both of these cases involved defendants who were charged with both common law assault and another form of statutory assault.  Johnson was charged with assault with intent to murder, and Walker was charged with assault with intent to rape, both in addition to a charge of common law assault.  Under such indictments, common law assault is a lesser included offense because assault with intent to murder and assault with intent to rape require the proof of the additional essential element of intent.

40
Walker makes clear 452 A.2d at 1247-48, quoted above, that in Maryland the statutory forms of assault do not "exhaust the category of more grievous and blameworthy assaults."    Rather than trying to list in a statute every circumstance that might make an assault more grievous, Maryland wisely left common law assault in place and trusted its trial judges to fashion an appropriate punishment within constitutional limits.

41
I question the necessity for a proportionality analysis in this case.  In United States v. Rhodes, 779 F.2d 1019, 1027-28 (4th Cir.1985), we concluded:

42
Therefore, to the extent that Solem does not overrule the reasoning ofRummel [v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) ] and [Hutto v.] Davis [454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556] but, rather, explicitly accepts the position asserted in those cases, that in noncapital cases successful proportionality challenges will be extremely rare, 463 U.S. at 289-290, 103 S.Ct. at 3009, it seems to us that Solem requires an extensive proportionality analysis only in those cases involving life sentences without parole.

43
This is in keeping with footnote 16 of Solem:

44
Contrary to the dissent's suggestions, post at 305, 315 [103 S.Ct. at 3017, 3022], we do not adopt or imply approval of a general rule of appellate review of sentences.  Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence;  rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits.  In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disappropriate.

45
Solem, 463 U.S. at 290, 103 S.Ct. at 3009.

46
Even if we do engage in a proportionality analysis using the objective criteria established in Solem,

47
(i) The gravity of the offense and the harshness of the penalty;

48
(ii) The sentences imposed on other criminals in the same jurisdiction;  and

49
(iii) The sentences imposed for commission of the same crime in other jurisdictions,

50
I do not find the fifteen year sentence for common law assault to be disproportionate.  The majority concedes that the gravity of the offense would justify a fifteen year sentence.  As to sentences imposed on other criminals in the same jurisdiction, the Walker court found that a sentence of twenty years for common law assault was not illegal under Maryland law nor unconstitutional, but under the indictment and proof in Walker, it found that the common law assault had merged with the attempted rape.  No evidence has been submitted on the third element to show sentences imposed for the same crime in other jurisdictions, and Sutton had the burden of producing such evidence.

51
I would hold that when only common law assault is charged in a Maryland indictment, and the defendant is convicted of said charge by jury verdict or by guilty plea, he may be sentenced without reference to or limitation by the maximum sentences provided for the statutory mens rea assaults;  the sentence to be subject only to the Eighth Amendment prohibition barring cruel and unusual punishment.  Sutton's sentence does not violate the U.S. Constitution and I would reverse.

ORDER

52
The appellant's petition for rehearing and suggestion for rehearing in banc were submitted to the Court.  A majority of judges having voted in a requested poll of the Court to grant rehearing in banc,

53
IT IS ORDERED that the rehearing in banc is granted.

54
IT IS FURTHER ORDERED that this case shall be calendared for argument at the June 5-9, 1989 session of Court.  Within ten days of the date of this order five (5) additional copies of appellant's briefs (brief and reply brief) and nine (9) additional copies of appellees briefs shall be filed and appellant will file ten (10) additional copies of the joint appendix.

*
 Opinion vacated

1
 The dissent challenges the necessity of any proportionality analysis in this case based on the court's opinion in United States v. Rhodes, 779 F.2d 1019, 1027-28 (4 Cir.1985), and the avowed limits of Solem v. Helm, 463 U.S. at 290 n. 16, 103 S.Ct. at 3009 n. 16.    See dissent, post at 616-617.  In this case there is no necessity for the extensive and inherently factual proportionality analysis contemplated in Rhodes, nor are we endeavoring to substitute our "judgment for that of the sentencing court as to the appropriateness of a particular sentence."    We are engaged here in a much narrower inquiry, i.e., whether the Eighth Amendment precludes imposition of a longer sentence upon conviction of a lesser included common law assault than is legislatively permitted upon conviction of the related statutory offense which the prosecutor elected not to attempt to prove

2
 In that case, unlike the instant one, no contention was made that the maximum sentence for common law assault was limited to the maximum sentence for the least heinous forms of aggravated assault (assault with intent to rob or assault with intent to maim).  Rather we were asked to limit the sentence, twenty years per count with an aggregate of fifty-four years, to the maximum sentence for assault with intent to murder which was then fifteen years.  We did not go beyond the contention of counsel

3
 We find the dissent confusing on this point.  The dissent first argues that this is one of the "special cases," not covered by the Maryland statutory scheme but warranting a stiff sentence, and then quotes the precise language of the sentencing judge (also referenced in our opinion) which observes the contrary.  See dissent, post at 615, 616.  Our ruling today is confined to the situation where the facts support a conviction of a statutory aggravated assault.  Under these circumstances, we can only conclude that a failure to bring the statutory aggravated assault charge combined with a longer sentence than may be imposed for a conviction of the aggravated crime results in a circumvention of the legislative sentencing scheme, and is therefore cruel and unusual

4
 In In re Winship, 397 U.S. 358, 375, 90 S.Ct. 1068, 1078, 25 L.Ed.2d 368 (1970), the Court held that a state must prove all the elements of an offense beyond a reasonable doubt.  Sutton argues that to permit the prosecutor to elect to try him only for common law assault and to permit him to be punished as severely as he could have been punished had he been charged with aggravated assault, without the necessity of proof of the additional factor required for conviction of the aggravated offense, would violate the holding in Winship
We note that subsequent decisions by the Court in this area leave open the possibility that Sutton's argument in this regard has merit.  See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).  Cf. United States v. Brewer, 841 F.2d 667, 668 (6 Cir.1988) ("Therefore, it appears that all nine members of the Court would require notice in the indictment and proof beyond a reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the other elements of the offense.")    We do not decide this issue because it is not properly before us having never been raised in the prior proceedings.  We mention it here only to highlight further the potential infirmities in Maryland's position.

5
 The dissent argues that our reasoning is faulty because common law assault is not a lesser included offense of the various statutory assaults unless a statutory assault is actually charged.  See dissent, post at 615-616.  We cannot agree.  The nature of the criminal offense must be determined by the facts of the case and the elements of the crime to be proved, not by the simple election of the prosecutor to bring a single or multiple count indictment.  In the name of judicial sentencing discretion, the dissent would remove any necessity for the prosecutor ever to chose between the possibility of a longer sentence and the need to prove an additional element of the crime

6
 To link the common law sentencing cap to the maximum penalty for any offense other than the least aggravated statutory assault for which the evidence supports a conviction also would countenance a circumvention of the proportionality scheme established by the Maryland Legislature


                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       March 28, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                No. 05-30901
                              Summary Calendar

WANDA TURNBOW,
                                                      Plaintiff-Appellant,

v.

SOCIAL SECURITY ADMINISTRATION
                                                       Defendant-Appellee.

           Appeal from the United States District Court
               for the Western District of Louisiana
                      (3:04-CV-01377-RGJ-JDK)

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appellant Wanda Turnbow appeals the district court’s adoption

of the magistrate judge’s report and recommendation that the

judgment of the Social Security Administration (“SSA”) denying her

application for disability benefits be affirmed. Turnbow’s primary

argument   on   appeal   is   that   the   SSA   Appeals   Council   and    the

magistrate judge erred in not considering the new evidence that she

presented to the Appeals Council after the administrative law judge

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
rendered her opinion.   Turnbow’s argument is without merit: Under

Higginbotham v. Barnhart, a district court should review additional

information that a petitioner submits to the Appeals Council after

the ALJ has reached a decision.1       Under Falco v. Shalala, however,

this rule applies only if the new information relates to the time

period for which the benefits were sought.2          Thus, the Appeals

Council and the district court are under no obligation to review

information submitted for the first time to the Appeals Council

when, as here, it relates only to the subsequent deterioration of

a previously non-disabling condition.

     The remainder of Turnbow’s arguments on appeal are without

merit; and, after reviewing the record, we affirm for the reasons

given by the magistrate judge.

AFFIRMED.

     1
      405 F.3d 332 (5th Cir. 2005).
     2
      27 F.3d 160, 164 (5th Cir. 1994).

                                   2


749 F.2d 732
Laryv.Century International*
NO. 84-7326
United States Court of Appeals,Eleventh Circuit.
DEC 04, 1984

1
Appeal From:  N.D.Ala.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 23


                             NONPRECEDENTIAL DISPOSITION
                              To be cited only in accordance with
                                       Fed. R. App. P. 32.1

              United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                     Argued November 8, 2011
                                    Decided November 16, 2011

                                                Before

                                MICHAEL S. KANNE, Circuit Judge

                                DIANE S. SYKES, Circuit Judge

                                DAVID F. HAMILTON, Circuit Judge

No. 11‐1241

UNITED STATES OF AMERICA,                                Appeal from the United States District
     Plaintiff‐Appellee,                                 Court for the Eastern District of
                                                         Wisconsin.
        v.
                                                         No. 10‐CR‐133
AMANI BOOKER,
    Defendant‐Appellant.                                 Charles N. Clevert, Jr.,
                                                         Chief Judge.

                                               ORDER

       Amani  Booker  pled  guilty  to  sex  trafficking  of  a  minor.  18  U.S.C.  §  1591(a).  At  his
sentencing hearing he argued that he should receive a below‐guidelines sentence because (1)
he did not believe the minor was under eighteen and (2) the minor was already working as a
prostitute when he recruited her. The district court imposed a sentence of 168 months in prison,
the bottom of the applicable guidelines range. Booker contends that the district court made
procedural errors by not adequately considering his two arguments for a below‐guidelines
sentence and by referring to a matter that was not in the record. Because the district court
adequately addressed Booker’s arguments and the out‐of‐record reference was harmless, we
affirm his sentence.
No. 11‐1241                                                                                Page 2

I.      Factual and Procedural Background

       Booker and Holly Arnold, a sex worker who worked for Booker, approached M.M. after
observing her soliciting prostitution business. Booker asked M.M. how old she was, and she
replied “eighteen.”  He and Arnold asked M.M. for her real age several more times, but neither
asked for any identification.  M.M. entered Booker’s car and went to a hotel with Booker and
Arnold.  Once there, Booker took nude pictures of her and posted them on the internet along
with an advertisement for M.M.’s prostitution services.  Arnold taught M.M. how to recognize
customers  and  to  refuse  to  deal  with  men  who  asked  too  many  questions.    Several  men
responded to the advertisement, and M.M. participated in at least one prostitution date over
the next two days.

        Two days after Booker brought M.M. to the hotel room, the hotel manager told a police
officer that he suspected that the owner of a particular vehicle was involved in a prostitution
business.  The officer stopped that vehicle later that day; Booker was driving both Arnold and
M.M. in it.  M.M. told the police officer she was seventeen.  Neither Booker nor Arnold was her
parent, and the officer thought M.M. looked like a minor.  He took M.M. into custody. At the
police station, M.M. gave her real name and date of birth; she was fourteen years old.  She
described her prostitution activities of the previous two days, and the police arrested Booker
and Arnold.

        Booker pled guilty to sex trafficking of a minor.  18 U.S.C. § 1591(a) . At sentencing,
Booker made two arguments.  First, he pointed out that M.M. was already a sex worker when
he approached her.  Because he did not lure her into prostitution, he argued, he should receive
a sentence of 120 months, 48 months below the low end of his guidelines range of 168 to 210
months.  Booker also argued that he should receive a sentence below the guidelines range
because M.M. appeared older than her fourteen years and he did not believe she was a minor.
(Under the statute, lack of knowledge of the minor’s age is not a defense if the defendant had
“a reasonable opportunity to observe” the victim.  See 18 U.S.C. § 1591(c).) In support, Booker
relied on an expert report from a pediatrician who opined that a lay person would not be able
to conclude with reasonable confidence just from her appearance that M.M. was under 21 years
old. The government recommended that Booker receive a sentence of 168 months.

        The  district  court  rejected  Booker’s  arguments  for  a  below‐guidelines  sentence  and
instead imposed a 168‐month sentence. In response to Booker’s first argument that he believed
M.M. to be eighteen, the court acknowledged the pediatrician’s report but found that Booker
actually believed that M.M. was under eighteen because he repeatedly quizzed her about her
age, showing that he doubted her claim of being eighteen.  The court also adopted and relied
on  facts  in  the  record  and  the  presentence  report,  which  included  that  (1)  Booker  did  not
No. 11‐1241                                                                                Page 3

demand identification from M.M. to verify her age, even though he usually asks this of his sex
workers and sometimes even helps women obtain identification to verify their ages; (2) M.M.
was unable to hold an adult conversation; and (3) the police officer who pulled over Booker’s
vehicle thought that M.M. looked underage.  In response to Booker’s second argument that
M.M. was already a sex worker, the court explained that, even so, Booker and Arnold still
victimized  her.    They  published  nude  photos  of  her  on  the  internet,  “schooled”  her  about
prostitution, and taught her that “what she was selling for $50 could be sold for a lot more.”

      When  sentencing  Booker,  the  court  mentioned  that  Arnold  described  M.M.  as
“inappropriately dressed” when Arnold first saw her.  This statement is not in the record of
Booker’s case.  (The government believes that Arnold said this during her guilty plea colloquy.)
Booker did not object to the court’s comment.

II.     Analysis

        We review procedural challenges to sentences de novo.  United States v. Aljabari, 626 F.3d
940,  950  (7th  Cir.  2010).    At  sentencing,  a  judge  should  address  all  arguments  that  have
recognized legal merit.  United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).

        Booker  first  argues  that  the  district  court  procedurally  erred  by  failing  to  address
adequately his argument that he should receive a lower sentence because M.M. was already a
sex  worker  when  he  approached  her.    This,  he  asserts,  makes  him  less  culpable  than  a
defendant who initiates a minor into prostitution.  It is not clear that it would have been error
for  the  court  to  fail  to  say  anything  about  this  argument.    Booker  does  not  cite  any  legal
authority for his argument, so its legal merit is uncertain.  In any event, the court did address
the argument and reject it. Although it recognized that M.M. was already a sex worker, the
court reasoned that a below‐guidelines sentence was not warranted because Booker taught her
how to prostitute herself more profitably.  He also posted her nude photos on the internet.  Both
acts victimized her to a new level.  This explanation was enough.  See United States v. Laufle, 433
F.3d 981, 987 (7th Cir. 2006).

        Booker next argues  that the district court did not address sufficiently his argument
based on the pediatrician’s report that, because a layperson could not confidently determine
from her appearance that M.M. was a minor, Booker deserved a below‐guidelines sentence.
Again,  Booker  cites  no  legal  authority  to  support  his  argument.    Regardless,  the  court
specifically addressed the expert’s report and rejected it based on the weight of conflicting
information in the record.  The report was not convincing, the court explained, because Booker
repeatedly questioned M.M. about her age, and his dissatisfaction with her answers showed
that he must not have believed M.M.’s claim that she was eighteen.  The court thus discussed
the report adequately by acknowledging it and explaining why it was not persuasive.  See
No. 11‐1241                                                                                Page 4

United States v. Curby, 595 F.3d 794, 798 (7th Cir. 2010) (deciding that district court did not
commit  procedural  error  when  it  explicitly  stated  it  considered  expert  opinion,  but  cited
defendant’s criminal history in rejecting below‐guidelines request).
         Last, Booker argues that the district court erred when it mentioned Arnold’s statement
to  Booker  that  M.M.  was  “inappropriately  dressed”  because  this  statement  was  not  in  the
record. The statement goes to Booker’s knowledge of M.M.’s age, he contends, and without it,
the only evidence supporting the court’s finding that Booker knew M.M. was a minor is the
multiple times that Booker asked M.M. about her age.  The government asserts that because
Booker did not raise this objection to the district court, this court may review it only for plain
error.  But a litigant is not required to make an exception to a statement that appears for the first
time in the district court’s sentencing order or explanation.  United States v. Bradley, 628 F.3d
394, 399 (7th Cir. 2010); United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009); United States
v. Castro‐Juarez, 425 F.3d 430, 433‐434 (7th Cir. 2005).  Nevertheless, the harmless‐error standard
is still applicable. See FED. R. CRIM. P. 52(a); United States v. Abbas, 560 F.3d 660, 666 (7th Cir.
2009).

        As  both  parties  correctly  observe,  Arnold’s  statement  was  not  in  the  record,  so  the
district court erred by considering it. See United States v. Ngatia, 477 F.3d 496, 500 (7th Cir.
2007); United States v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005).  But the error was harmless
because it did not affect the district court’s selection of the sentence imposed.  See United States
v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010).  The district court’s finding that Booker knew M.M.
was under eighteen has ample support in the record.  As Booker concedes, he asked M.M.
multiple times for her age, reflecting that he disbelieved her claim.  The record also shows that
Booker avoided demanding valid identification from M.M., even though he usually asks his
sex workers for it.  That omission suggests that he was consciously avoiding information that
he knew could inculpate him.  Beyond that, the record also demonstrates that M.M. was unable
to carry an adult conversation and that the police could tell that M.M. looked like a minor.
When  the  court  explained  its  sentence  as  a  whole,  in  terms  of  the  factors  under  18  U.S.C.
§ 3553(a), Arnold’s statement played a very minor role. Under these circumstances, we are
confident that the error was harmless.  See United States v. Spano, 476 F.3d 476, 480–481 (7th Cir.
2007) (concluding that procedural errors were harmless when district court record and court’s
explanation otherwise thoroughly supported sentence).

        We therefore AFFIRM the district court’s judgment.


                     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.


732 F.2d 159
Minniescheskev.Vocke
81-2943, 82-1322
United States Court of Appeals,Seventh Circuit.
3/27/84

1
E.D.Wis.

AFFIRMED IN PART AND REVERSED IN PART