                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


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

 LORETTA E. LYNCH, Attorney
 General,                                           OPINION
                       Respondent.


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

            Argued and Submitted April 7, 2014
                 Petition Denied in part and
    Transferred in part to District Court August 18, 2014
          District Court order November 24, 2015
     Order for Supplemental Briefing January 22, 2016
                  San Francisco, California

                      Filed August 2, 2016

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

                   Opinion by Judge Clifton

 *
   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

    Following transfer, in part, of the case to the District
Court for the Central District of California to make findings
of fact and conclusions of law concerning a claim to United
States citizenship, the panel denied Mark Brown’s petition for
review of the Board of Immigration Appeals’ dismissal of his
appeal of a removal order.

    The panel also held that the district court did not err in
finding that Brown failed to establish that the former
Immigration and Naturalization Service violated his
procedural due process right to apply for citizenship in
rejecting his applications for naturalization. The panel held
that the district court did not clearly err in finding that neither
INS employees nor policymakers acted with deliberate
indifference toward Brown’s attempts to naturalize.


                             COUNSEL

Khaldoun Shobaki, and Michael Behrens (argued), Hueston
Hennigan LLP, Los Angeles, California, for Petitioner.

Yamileth G. Davila (argued) and Nancy K. Canter, Trial
Attorneys; Katherine E. Clark, Senior Litigation Counsel;
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; Office of Immigration Litigation, Civil Division,

  **
     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

United States Department of Justice, Washington, D.C.; for
Respondent.



                         OPINION

CLIFTON, Circuit Judge:

    Mark Brown, a native and citizen of India, petitions for
review of the decision by the Board of Immigration Appeals
to dismiss his appeal from an order of removal. Brown argues
that the former Immigration and Naturalization Service
violated his constitutional rights by preventing him from
deriving citizenship through his parents and obstructing his
attempt to apply for citizenship on his own account. We
previously transferred Brown’s case to the District Court for
the Central District of California to make findings of fact and
conclusions of law concerning his claim that he is entitled to
U.S. citizenship. Brown v. Holder, 763 F.3d 1141 (9th Cir.
2014). The district court concluded that Brown had not
established that his constitutional right to apply for
citizenship was violated. Having considered the district
court’s order and the supplemental briefing filed thereafter by
the parties, we deny the petition.
4                       BROWN V. HOLDER

I. Background1

    Brown was born in Madras, India, on July 4, 1968, and
entered the United States lawfully as an immigrant along with
his family on March 25, 1977. In April 1983, his father,
Trevor Brown, and mother, Marjorie Brown, submitted
petitions for naturalization. As part of those applications,
each of Brown’s parents filed separate N-400 forms. Marjorie
also filed a separate N-604 form for derivative citizenship on
Brown’s behalf. Under then-applicable law, Brown was
eligible for derivative citizenship if both of his parents
naturalized before July 4, 1986, his eighteenth birthday.
8 U.S.C. § 1432(a)(1) (1982).

    Trevor attended a citizenship interview with the INS on
May 16, 1985, during which the agency approved his
naturalization application. Trevor had listed Brown as one of
his children on his N-400 and indicated that he wanted a
certificate of citizenship for Brown. At the time of the
interview, the INS examiner in charge of Trevor’s application
informed the family that Marjorie’s application had been lost
and that she would have to reapply. Trevor was naturalized
six months later, on November 15, 1985.

    The INS eventually located Marjorie’s lost N-400 form.
A handwritten note, dated June 11, 1985, was attached to the
form, but exactly who found the application and how it was
discovered remain unknown. What is known is that the INS


    1
     We only recount here the facts relevant to the district court’s
determination that the INS did not violate Brown’s constitutional rights.
The factual and procedural background of Brown’s case is explained in
more detail in our previous opinion in this matter. Brown, 763 F.3d at
1144–46.
                      BROWN V. HOLDER                          5

informed Marjorie on January 13, 1986 that her naturalization
interview would take place on February 7, 1986. On the day
of the interview, Marjorie completed a new N-400 and once
again listed Brown as one of her children. However, though
Marjorie indicated she wanted a “certificate of citizenship for
those of my children who are in the U.S. and are under age 18
years that are named below,” Marjorie did not write any
names in the space provided. Following the interview, the
examiner informed Marjorie that her application had been
approved. Trevor met Marjorie at the door of her interview
and asked about the status of Brown’s derivative citizenship
application. The examiner informed him that Brown had
become a citizen through his parents. But Marjorie’s
naturalization ceremony did not take place until August 26,
1986, nearly two months after Brown’s eighteenth birthday.
As a result, Brown did not receive derivative citizenship.

    Although Brown was no longer eligible for derivative
citizenship after he turned eighteen, he remained eligible, at
least initially, to apply for citizenship in his own right. On or
around May 21, 1991, Brown and his father went to the INS
office, and Brown filed his own N-400. Brown’s application
was then reviewed by an INS examiner. According to
Trevor’s recollection, the examiner stopped reviewing
Brown’s application as soon as he noticed Brown’s answer to
question six on the form, in which Brown had noted that both
of his parents were U.S. citizens. At that point, according to
Trevor, the examiner incorrectly informed Brown that there
was no need for him to complete the N-400 because he was
already a citizen.

    Brown was convicted of a series of misdemeanors
between 1987 and 1997. These crimes ultimately made him
ineligible to obtain U.S. citizenship. At some undetermined
6                    BROWN V. HOLDER

time, the INS placed Brown in removal proceedings. After his
applications for asylum and withholding of removal were
rejected by the Immigration Judge, he was ordered removed
to India, where he currently resides.

    Brown filed a timely petition for review before this court.
Brown, 763 F.3d at 1146. We dismissed in part Brown’s
challenge to his order of removal because he had not
exhausted his asylum and withholding of removal claims with
the agency, thus depriving us of jurisdiction over those
claims. Id. We also denied his claim that the government was
estopped from denying his U.S. citizenship as well as his
claim that he was statutorily entitled to U.S. citizenship. Id.
at 1151–53. However, we held that Brown’s constitutional
claim that the INS violated his right to procedural due process
in rejecting his applications for naturalization had potential
merit, although the factual record was insufficiently clear to
make a final determination. Id. at 1149–50. Accordingly, we
held Brown’s petition in abeyance and transferred his
constitutional claim to the district court to make the necessary
findings to establish whether or not Brown’s constitutional
rights had been violated. Id. at 1150.

    After an initial hearing and discovery, the district court
determined that an evidentiary hearing was unnecessary
because the parties agreed on the essential facts. The court
concluded that Brown had failed to show that INS employees
or policymakers acted with a sufficiently culpable mental
state to violate Brown’s constitutional rights. We
subsequently obtained supplemental briefing from the parties
on the issue of whether Brown’s petition should be denied in
light of the district court’s opinion.
                         BROWN V. HOLDER                                  7

II. Discussion

    In transferring this case to the district court, we held that
Brown could succeed on his constitutional claim if he could
demonstrate that the INS “arbitrarily and intentionally
obstructed his application” or if it was “deliberately
indifferent to whether his application was processed.” Id. A
finding of deliberate indifference requires “(1) ‘a showing of
an objectively substantial risk of harm’; and (2) ‘a showing
that the officials were subjectively aware of facts from which
an inference could be drawn that a substantial risk of serious
harm existed’ and (a) ‘the official actually drew that
inference’ or (b) ‘that a reasonable official would have been
compelled to draw that inference.’” Henry A. v. Willden,
678 F.3d 991, 1001 (9th Cir. 2012) (quoting Tamas v. Dep’t
of Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010)).
After reviewing the evidence submitted by the parties, the
district court found that Brown had not established that the
conduct of the INS amounted to either arbitrary and
intentional obstruction or deliberate indifference under those
standards.

    Brown contends that the district court erred in its
determination that the conduct of the INS, while potentially
negligent or even grossly negligent, did not rise to the level
of deliberate indifference.2 Because a finding of deliberate
indifference involves a factual inquiry, we review the district
court’s findings for clear error. Mondaca-Vega v. Lynch,
808 F.3d 413, 426–28 (9th Cir. 2015) (en banc) (applying a
clear error standard of review to district court’s factual


 2
   Brown has not argued that the district court erred in finding that he had
failed to establish that the agency had arbitrarily and intentionally
obstructed his application.
8                     BROWN V. HOLDER

finding that petitioner was not a U.S. national). Accordingly,
the court must defer to the district court’s findings unless it is
“left with the definite and firm conviction that a mistake has
been committed.” Id. at 426.

    As part of its findings, the district court concluded that
(1) the INS employees in charge of Marjorie and Brown’s
naturalization applications did not act with deliberate
indifference toward Brown’s application; and (2) the INS
policies in place at the time of Brown’s naturalization
application were not deliberately indifferent toward
individuals in his circumstances. Brown argues that both of
these findings by the district court were clearly erroneous. We
disagree.

    A. The conduct of INS employees

    Brown argues that the INS employees managing his
parents’ applications exhibited deliberate indifference toward
the risk that he would age out before receiving derivative
citizenship on three separate occasions.

    Brown first alleges that the INS officials handling
Trevor’s application acted in a deliberately indifferent
manner by failing to immediately schedule Marjorie for a
new interview once they became aware that the agency had
lost her application. This argument fails because it is not clear
that those officials either knew or should have known about
the risk that their inaction posed to Brown’s chances at
citizenship. Trevor’s INS interview took place on May 16,
1985, more than a year before Brown’s eighteenth birthday.
Although in retrospect we now know that Marjorie’s
application was not found and processed in time for Brown to
receive derivative citizenship, Brown has not established that
                     BROWN V. HOLDER                         9

it would have been reasonable for officials to assume that this
was a necessary or even likely outcome of the decision not to
schedule Marjorie a new naturalization interview as soon as
possible.

    Second, Brown contends that the INS employee or
employees who eventually located Marjorie’s application in
July 1985 acted with deliberate indifference when they too
failed to immediately schedule a new interview with
Marjorie, instead waiting until February 1986. According to
Brown, this delay was in violation of INS policies that
required applications to be processed in the order in which
they were received. Even assuming that this interpretation of
INS policy is correct, “the mere failure of an agency to follow
its regulations is not a violation of due process.” Brown,
763 F.3d at 1148. With no evidence before it of exactly who
found Brown’s application and what they knew about the
circumstances surrounding Marjorie’s application, the district
court did not clearly err in concluding that Brown could not
establish that any individual INS employee acted with
deliberate indifference.

    The third alleged act of deliberate indifference involved
the decision by INS employees not to expedite Marjorie’s
naturalization ceremony following the approval of her
application in 1986. At the time of Brown’s application, at
least some INS policymakers, including the INS district
director for naturalization, had the authority to expedite
naturalization ceremonies. However, although the individuals
directly in charge of Marjorie’s application were plausibly
aware of the risk posed to Brown by failing to expedite her
naturalization ceremony, Brown has not shown either that
those individuals possessed the authority to expedite
ceremonies or that anyone who did have such authority had
10                     BROWN V. HOLDER

been made aware of his situation. Accordingly, the failure to
expedite Brown’s ceremony did not amount to deliberate
indifference.

     B. INS policies

    In the context of claims under 42 U.S.C. § 1983, it has
long been established that plaintiffs can demonstrate a
constitutional violation by showing that the policies of a
municipality or government agency violated their rights. See
Gibson v. Cty. of Washoe, 290 F.3d 1175, 1185 (9th Cir.
2002). “A ‘policy’ is ‘a deliberate choice to follow a course
of action . . . made from among various alternatives by the
official or officials responsible for establishing final policy
with respect to the subject matter in question.’” Fairley v.
Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam)
(quoting Oviatt ex rel Waugh v. Pearce, 954 F.2d 1470, 1477
(9th Cir. 1992)). A plaintiff can prevail by pointing to both
policies of “action” and of “inaction.” Id. Brown argues that
at the time of the naturalization applications of his parents
and of Brown himself, the INS had policies in place that
exhibited deliberate indifference toward his opportunity to
naturalize.

     Brown first alleges that the INS had a deliberate policy
of refusing to expedite the naturalization applications of
individuals who had children at risk of aging out. However,
he has put forward no evidence that any INS policymaker was
ever made aware that such a risk existed, either because there
had been previous instances of aging out or because they
were notified by Brown’s family or by someone in a similar
situation. In previous instances in which we have held that a
policy of inaction amounted to a constitutional violation, we
have required evidence that policymakers were aware or
                       BROWN V. HOLDER                            11

should have been aware of the serious risks posed by their
failure to act. See, e.g. Gibson, 290 F.3d at 1191–92
(evidence established that county officials were aware of the
risks of failing to immediately treat prisoners exhibiting
manic symptoms); Fairley, 281 F.3d at 918 (chief of police
knew that it was “not uncommon” for individuals to be
arrested on the wrong warrant but failed to institute
procedures to alleviate the problem). The district court did
not err in rejecting this argument.

    Brown also argues that the INS failed to properly train its
employees to handle naturalization applications by
individuals with U.S.-citizen parents. According to Brown,
the agency failed to instruct its employees to compare the
applicant’s birth date to the date of his or her parents’
naturalization to determine whether an applicant had already
received derivative citizenship. The evidence presented to the
district court belies this accusation. An INS officer employed
at the time of Brown’s application testified that the INS had
policies in place to train examiners to ask applicants
questions about their or their parents’ citizenship status upon
discovering that one or both of an applicant’s parents were
U.S. citizens. Although the examiner in charge of Brown’s
1991 naturalization application may have acted contrary to
those policies by incorrectly informing Brown that he had
received derivative citizenship, there is no evidence that INS
policymakers themselves acted with deliberate indifference
toward naturalization applicants with U.S.-citizen parents.3




  3
    Brown has not argued that the INS examiner who conducted his 1991
interview violated his constitutional rights.
12                    BROWN V. HOLDER

III.     Conclusion

    Brown has not demonstrated that the district court clearly
erred in finding that neither INS employees nor INS
policymakers acted with deliberate indifference toward his
attempts at naturalization. Accordingly, we deny Brown’s
petition for review because he has not shown that the INS
violated his constitutional rights.

       PETITION FOR REVIEW DENIED.
