L. Xia, et al v. John Kerry, et al

Filing

OPINION [1686728] filed (Pages: 32) for the Court by Judge Pillard. [16-5010]

USCA Case #16-5010

Document #1686728

Filed: 08/01/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2017

Decided August 1, 2017
No. 16-5010
L. XIA, ET AL.,
APPELLANTS
v.

REX W. TILLERSON, SECRETARY OF THE UNITED STATES
DEPARTMENT OF STATE, IN OFFICIAL CAPACITY AND JOHN F.
KELLY, SECRETARY OF THE UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, IN OFFICIAL CAPACITY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00057)

Ning Ye argued the cause and filed the brief for appellants.
Michael E. Rosman argued the cause and filed the brief for
amicus curiae Center for Individual Rights in support of
appellants.
Elianis N. Perez, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause and filed the brief for
appellees. Wynne P. Kelly and R. Craig Lawrence, Assistant
U.S. Attorneys, entered appearances.

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Before: PILLARD, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The plaintiffs, five former
Chinese nationals, received certificates of United States
naturalization, on the basis of which they obtained United
States passports. In 2006, government investigators discovered
that Robert Schofield, an employee of the United States
Customs and Immigration Services (USCIS), had illegally
issued nearly 200 certificates of naturalization to individuals—
mostly Chinese nationals—who, the government contends, had
not satisfied the requirements to become U.S. citizens. After
USCIS learned of Schofield’s illegal activities, it
administratively canceled plaintiffs’ certificates of
naturalization without seeking a court order, and the State
Department administratively revoked or refused to renew their
passports.
The plaintiffs sued, claiming that the administrative
processes by which the United States canceled their certificates
of naturalization and revoked their passports violated their
rights to constitutionally and statutorily adequate process and
to be free from discrimination based on their Chinese ethnicity.
The government moved to dismiss the case for lack of subject
matter jurisdiction on the ground that the United States had not
waived sovereign immunity. The district court rejected that
ground but, after giving plaintiffs an opportunity to amend their
complaint, dismissed the amended complaint for failure to state
a claim on which relief can be granted. Plaintiffs appealed.
We affirm the dismissal of plaintiffs’ claims that the
government’s revocations of their certificates of naturalization
and their passports violated the Immigration and Nationality

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Act and due process because they took place through
administrative rather than judicial process. We also affirm the
dismissal of their claims of ethnicity or national origin
discrimination. Because the government denied plaintiffs the
administrative review of their passport revocations or nonrenewals that the INA and agency rules require, however, we
reverse insofar as the district court held that any plaintiff is
barred by failure to exhaust administrative remedies from (a)
challenging under the APA the government’s failure to afford
plaintiffs the review the law requires, and (b) pursuing 8 U.S.C.
§ 1503 claims in the correct venues. We therefore remand
plaintiffs’ APA and section 1503 claims to the district court
with a suggestion that the court consider transferring the APA
claims together with the section 1503 claims to the venues
required for consideration of the latter.
I. Background
A. Factual Allegations
On review of a dismissal for failure to state a claim, our
description of events relies on plaintiffs’ allegations, which we
provisionally accept as true. Aware that discovery and proffers
of proof might well alter our understanding of the facts, we
allow untested allegations of the complaint to set the factual
stage for now. The government has yet to file an answer to the
complaint, and the parties have neither conducted discovery
nor presented or tested evidence as they would on summary
judgment motions or at trial. But under the Federal Rules of
Civil Procedure, if plaintiffs lack legally valid claims even on
the facts as they allege them, we need go no further. See Fed.
R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). Because the district court denied plaintiffs
leave to amend based on the legal inadequacy of the amended
complaint, we draw the following facts from that document.

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The plaintiffs in this litigation—Lihong Xia, Wei Liu, Hoi
Lun Li, Jinsong Chen, and Hua Chen—were Chinese citizens
before they obtained their certificates of naturalization and
United States passports. According to plaintiffs, China’s
Nationality Law provides that any “Chinese national who has
settled abroad and who has been naturali[z]ed as a foreign
national . . . shall automatically lose Chinese nationality.”
App’x 202. When Chinese authorities discovered that
plaintiffs had become U.S. citizens, the Chinese government
responded by rescinding their Chinese citizenship.
After USCIS officer Robert Schofield pleaded guilty to
bribery and the unlawful procurement of citizenship or
naturalization, 1 the United States government revoked each
plaintiff’s certificate of naturalization and either revoked or
denied renewal of their passports. Plaintiffs allege that they
satisfied the requirements for naturalization and therefore are
U.S. citizens. Neither the complaint nor any public record the
parties have identified or provided explains precisely whether
or how these plaintiffs’ facially valid certificates of
naturalization and passports were affected by Schofield’s
activities. No information before the court at this stage shows
that plaintiffs were aware of inadequacies or fraud in the
procurement of their naturalization certificates or passports.
That said, the details of plaintiffs’ situations are not
entirely clear. The allegations focus primarily on the
1

See Plea Agreement, United States v. Schofield, No. 06-CR-427,
Doc. 32 (E.D. Va. Nov. 30, 2006); see also Jerry Markon,
Immigration Official Pleads Guilty to Falsifying Documents, The
Washington
Post,
Dec.
1,
2006,
http://www.washingtonpost.com/wpdyn/content/article/2006/11/30/AR2006113000603.html
(last
accessed July 26, 2017).

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experience of plaintiff Lihong Xia. The complaint alleges that
Xia was naturalized and obtained her United States passport in
2004. She resided in the United States as a citizen, and traveled
back and forth without incident between the United States and
China, where her parents lived, until October 2009, when an
officer from U.S. Immigration and Customs Enforcement
(ICE) stopped Xia at the airport as she returned to the United
States. After questioning her, the officer deemed Xia an
“arriving alien” and seized her passport. Am. Compl. ¶ 15.
The government initiated a removal proceeding, but the
immigration court dismissed the proceeding because the
Department of Homeland Security (DHS) failed to prosecute.
Xia repeatedly contacted DHS to demand the return of her
passport, to no avail.
A year and a half later, in 2011, USCIS sent Xia a notice
of its intent to cancel her certificate of naturalization, asserting
that Xia was among the nearly 200 individuals who received
naturalization certificates from Schofield. The notice gave Xia
sixty days to refute USCIS’s decision in writing or request a
hearing. Xia opposed cancellation and requested a hearing
within the time limit. While the proceeding before USCIS was
pending, the State Department notified Xia that it had revoked
her passport based on USCIS’s cancellation of her certificate
of naturalization.
Contrary to the State Department’s
explanation, however, USCIS had not yet issued any decision
canceling Xia’s certificate of naturalization and would not do
so for another year. Once USCIS notified Xia that it had
canceled the certificate, she appealed to USCIS’s
Administrative Appeals Office and appeared for a hearing. She
once again denied USCIS’s charge that her naturalization
certificate was not adequately supported. By that time, USCIS
asserted that it was her parents who were on the list of people
affected by Schofield’s misconduct. Xia strenuously disputed
that her parents could have had any contact with Schofield

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because they had never set foot in the United States. Her
position was that any irregularity on Schofield’s part had not
been shown to undermine her naturalization, and argued that
USCIS’s administrative procedure for revoking certificates of
naturalization did not satisfy the Due Process Clause of the
Fifth Amendment. USCIS dismissed the appeal, without
addressing Xia’s due process arguments because they were
“outside the jurisdiction of th[e] office.” App’x 154.
The complaint contains sparse but similar allegations
about Wei Liu. He allegedly was naturalized around 2001 and
traveled abroad freely as a U.S. citizen. While on a trip to
China in December 2007, however, he attempted to renew his
U.S. passport. The State Department denied his application
and confiscated his passport. USCIS sent Liu a notice of its
intent to cancel his certificate of naturalization and provided
him with an administrative hearing at the U.S. Embassy in
Beijing. After the hearing, USCIS canceled Liu’s certificate of
naturalization. USCIS notified Liu of his opportunity to appeal
its decision administratively, but the complaint does not say
whether Liu pursued an appeal.
There is less we can glean about the remaining plaintiffs
from their sparse and unclear allegations. Plaintiffs claim
without elaboration that
•

ICE agents confiscated Hoi Lun Li’s passport at the Los
Angeles International Airport, and USCIS later
canceled her certificate of naturalization “without due
process proceedings,” Am. Compl. ¶ 62;

•

The State Department denied Jinsong Chen’s passport
renewal application while he was in Shanghai; and

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•

Hua Chen’s passport and certificate of naturalization
were administratively cancelled.

In addition to making various statutory and constitutional
claims that the government failed to follow the requisite
processes to revoke their passports and certificates of
naturalization, plaintiffs contend that the government targeted
them for that unfair treatment based on their Chinese ethnicity.
In support of the discrimination claims, plaintiffs attached to
their complaint a list of individuals, who they contend were not
Asian, who, they say, “received full evidentiary hearings”
before being denaturalized. App’x 161-82 (list of former U.S.
citizens who have been denaturalized).
B. District Court Proceedings
Plaintiffs sued the Secretary of State and Secretary of
Homeland Security in their official and individual capacities.
As relevant to this appeal, plaintiffs sought declaratory and
injunctive relief under (1) the Due Process Clause of the Fifth
Amendment to the Constitution; (2) the Immigration and
Nationality Act (INA), 8 U.S.C. §§ 1421, 1451(a); (3) the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.;
and (4) two provisions of the Civil Rights Acts, sections 1981
and 1983 of Title 42 of the U.S. Code.
Defendants moved to dismiss the case for lack of subject
matter jurisdiction under Rule 12(b)(1) of the Federal Rules of
Civil Procedure. They principally argued that the government
had not waived sovereign immunity for this type of suit. See
Defs.’ Mot. to Dismiss, Xia v. Kerry, 14-cv-57 (June 13, 2014).
The district court rejected that argument, Xia v. Kerry (Xia I),
73 F. Supp. 3d 33, 39 (D.D.C. 2014), but sua sponte dismissed
the complaint without prejudice under Rule 12(b)(6) for failure
to state a claim, id. at 39-46.

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The court held that plaintiffs failed to state a due process
claim because it was “impossible to discern the procedures to
which plaintiffs believe they were entitled but deprived.” Id.
at 42. The court dismissed plaintiffs’ civil rights claims under
sections 1981 and 1983 for want of allegations that the
government acted under color of state (as opposed to federal)
law. Id. at 43-44. Plaintiffs’ INA claims likewise failed, the
court said, because none of the INA provisions plaintiffs cited
applied to the government’s alleged conduct. Id. at 44. As for
plaintiffs’ APA claim, the court concluded that the complaint
identified nothing arbitrary in the government’s actions. Id. at
44-45. Alternatively, the court held, section 1503 of Title 8 of
the U.S. Code provides an adequate alternative judicial remedy
for plaintiffs, thus barring any APA claim. Id. at 45. Section
1503 would allow plaintiffs to sue in federal court for a
declaration of their United States citizenship. Id at 46. The
district court cautioned, however, that section 1503 requires
plaintiffs to first exhaust their administrative remedies, which
it held that only Xia had done. Id. at 45-46. The court therefore
dismissed the complaint without prejudice. Id. at 46.
Plaintiffs moved for leave to amend their complaint to
address the shortfalls the district court identified. Their
proffered amended complaint added claims under 8 U.S.C.
§§ 1447(b) and 1503 seeking declarations that they are U.S.
citizens and so entitled the restoration of their naturalization
certificates and passports. Plaintiffs also included new
allegations that they were entitled to “full, fair and meaningful
De-Naturalization proceedings.” Am. Compl. ¶ 5. Despite
those changes, the district court denied leave to amend the
complaint, concluding that the proffered amended complaint
“failed to cure inadequacies present in their previous complaint
that led th[e] Court to dismiss their claims.” Xia v. Kerry (Xia
II), 145 F. Supp. 3d 68, 74 (D.D.C. 2015). The court held that

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it could not decide the new section 1503 claims because Xia
alleges she resides in New Jersey, making the federal court
there, not here, the proper venue under section 1503, and
because, in its view, no other plaintiff alleged the requisite
exhaustion of administrative remedies that it saw as a
prerequisite to a section 1503 claim. Id at 73-74.
II. Analysis
The district court dismissed plaintiffs’ case in its entirety
and denied as futile their motion for leave to amend. We affirm
the dismissal of plaintiffs’ claims that the government violated
the INA and due process by revoking their certificates of
naturalization and their passports through administrative rather
than judicial process. We also affirm the dismissal of
plaintiffs’ claims of discrimination, and the determination that
the District of Columbia is the wrong venue for their claims
under 8 U.S.C. § 1503. However, we reverse the district
court’s determination that plaintiffs are barred due to a failure
to exhaust their administrative remedies from pursuing (a)
APA claims challenging the government’s failure to afford
them proper administrative review, and (b) section 1503 claims
in the correct venue.
We ordinarily review the denial of a motion for leave to
amend for abuse of discretion, but where, as here, a district
court denies leave to amend because the amended complaint
would not survive a motion to dismiss, our review is de novo.
In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 218
(D.C. Cir. 2010). As on review of a dismissal under Rule
12(b)(6), “we treat the complaint’s factual allegations as true
and must grant the plaintiff[s] the benefit of all inferences that
can be derived from the facts alleged.” Abdelfattah v. U.S.
Dep’t of Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015)
(alteration omitted). “To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
A. Claims of Inadequate Procedure Under the INA and
Due Process Clause
We begin with the most troubling aspect of plaintiffs’ case:
Their claims that their citizenship was revoked without the
process required by the Constitution and federal law. Plaintiffs
allege that they were “stripp[ed] of U.S. citizenship” without
“any kind of due process,” i.e. the judicial process the INA
requires to effectuate denaturalization. Appellants Br. 13.
1.
Citizenship is among the most momentous elements of an
individual’s legal status. “It would be difficult to exaggerate
its value and importance.” Schneiderman v. United States, 320
U.S. 118, 122 (1943). Many invaluable benefits flow from
United States citizenship, including rights to vote in federal
elections, to travel internationally with a U.S. passport, to
convey citizenship to one’s own children even if they are born
abroad, to be eligible for citizen-only federal jobs, and, indeed,
to be free of discrimination by Congress on the basis of
alienage. Before an individual may obtain U.S. citizenship
through naturalization, “there must be strict compliance with
all the congressionally imposed prerequisites to the acquisition
of citizenship.” Fedorenko v. United States, 449 U.S. 490, 506
(1981).

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The possessor of a facially valid naturalization certificate
is presumptively a citizen. “Congress has vested sole
naturalization authority in the Attorney General, 8 U.S.C.
§ 1421(a), and a certificate of naturalization represents
conclusive evidence of the Attorney General's determination.”
United States v. Straker, 800 F.3d 570, 586 (D.C. Cir. 2015),
cert. denied, 136 S. Ct. 1170 (2016) (citing Tutun v. United
States, 270 U.S. 568, 577 (1926); 8 U.S.C. § 1443(e)).
Citizenship is constitutionally protected by due process from
unintentional relinquishment. Afroyim v. Rusk, 387 U.S. 253,
268 (1967).
“[O]nce citizenship has been acquired, its loss can have
severe and unsettling consequences.” Fedorenko, 449 U.S. at
505. Denaturalization “may result in the loss of both property
and life; or of all that makes life worth living.” United States
v. Minker, 350 U.S. 179, 187 (1956). Reflecting the gravity of
that step, revocation or cancellation of citizenship may only be
accomplished by a federal judicial order. See United States v.
Zucca, 351 U.S. 91, 95 & n.8 (1956); Bindczyck v. Finucane,
342 U.S. 76, 79 (1951); Schneiderman, 320 U.S. at 122-23;
Gorbach v. Reno, 219 F.3d 1087, 1092-98 (9th Cir. 2000) (en
banc).
In other words, although citizenship may be
administratively bestowed, it can only be revoked by a federal
court.
If the government concludes that a naturalized citizen is
not legally entitled to citizenship, it may seek to effect
denaturalization either through federal criminal prosecution or
a civil action in federal court. If an individual knowingly
procures naturalization or a certificate or evidence of
citizenship to which the putative citizen is not entitled, the
government may criminally prosecute her under 18 U.S.C.
§ 1425. Once a person is convicted under section 1425, the
federal court in which the conviction occurred shall on that

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ground revoke the defendant’s citizenship. See 8 U.S.C.
§ 1451(e); see Maslenjak v. United States, 582 U.S. ___, slip
op. at 1 (June 22, 2017).
If proof of the requisite mens rea is lacking or some other
factor counsels against criminal prosecution, the government
alternatively may denaturalize a person by obtaining a civil
denaturalization order in federal court pursuant to 8 U.S.C.
§ 1451. “The exclusive [noncriminal] process for challenging
the validity of the grant of a naturalization petition is through a
revocation of naturalization proceeding pursuant to 8 U.S.C.
§ 1451.” United States v. Clarke, 628 F. Supp. 2d 15, 23
(D.D.C. 2009), aff’d sub nom. United States v. Straker, 800
F.3d 570. Whenever any person procures a naturalization order
or certificate illegally, or by concealment of a material fact or
willful misrepresentation, section 1451 authorizes the
government to sue “for the purpose of revoking and setting
aside the order admitting such person to citizenship and
cancelling the certificate of naturalization.”
8 U.S.C.
§ 1451(a); see Zucca, 351 U.S. at 91; Bindczyck, 342 U.S. at
83. In that proceeding, the government “carries a heavy burden
of proof.” Costello v. United States, 365 U.S. 265, 269 (1961).
“[I]n view of the grave consequences to the citizen,
naturalization decrees are not lightly to be set aside—the
evidence must indeed be ‘clear, unequivocal, and convincing’
and not leave ‘the issue in doubt.’” Id. (quoting Schneiderman,
320 U.S. at 125, 158; Baumgartner v. United States, 322 U.S.
665, 670 (1944)) (alteration omitted); see Nowak v. United
States, 356 U.S. 660, 663 (1958).
Here, however, the government has not gone to court to
seek denaturalization of any of the plaintiffs in this case; it has
administratively canceled their certificates of naturalization
and revoked their passports. The Attorney General has
statutory authority, without a court order, to “cancel any

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certificate of citizenship” where it appears “to the Attorney
General’s satisfaction” that the document was illegally or
fraudulently obtained. 8 U.S.C. § 1453. The Department of
Homeland Security has promulgated regulations governing
that process. 8 C.F.R. §§ 342.1-342.9. The regulations require
the government to provide written notice of its intent to cancel
a certificate of naturalization. 8 C.F.R. § 342.1. The certificate
holder, who may be represented by counsel, can then dispute
the cancellation either in writing or in person. 8 C.F.R. § 342.1.
If the government decides to cancel the certificate of
naturalization, it must inform the affected individual of the
right to appeal to the USCIS Administrative Appeals Office.
See 8 C.F.R. § 342.8. The statute makes clear, however, that
administrative cancellation of a certificate of naturalization
“shall affect only the document and not the citizenship status
of the person in whose name the document was issued.” 8
U.S.C. § 1453.
Similarly, if the State Department discovers that a passport
was “illegally, fraudulently, or erroneously obtained,” the
Secretary of State is authorized to cancel it. 8 U.S.C. § 1504(a).
Generally, the passport holder “shall be given, at such person’s
last known address, written notice of the cancellation of such
document, together with the procedures for seeking a prompt
post-cancellation hearing.” Id. But administrative cancellation
of a citizen’s passport, like administrative cancellation of a
certificate of naturalization, shall “affect only the document
and not the citizenship status of the person in whose name the
document was issued.” Id.
Even though administrative cancellation of a certificate of
naturalization or passport cannot affect an individual’s
citizenship, those actions nevertheless have consequences.
Without proof of one’s citizenship, for example, a person will

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be unable to travel abroad, or to establish entitlement to the
many other rights and privileges of citizenship.
Subject to exceptions relating to removal proceedings not
relevant here, anyone in the United States who “claims a right
or privilege as a national of the United States and is denied such
right or privilege by any department or independent agency, or
official thereof, upon the ground that he is not a national of the
United States” has a statutory right to claim the benefits of
citizenship in a declaratory judgment action under 8 U.S.C.
§ 1503(a). Section 1503 empowers “the district court of the
United States for the district in which such person resides or
claims a residence” to enter “a judgment declaring [her] to be
a national of the United States.” 8 U.S.C. § 1503(a). The
plaintiff “need make only a prima facie case establishing [her]
citizenship by birth or naturalization.” Perez v. Brownell, 356
U.S. 44, 47 n.2 (1958), overruled on other grounds by Afroyim,
387 U.S. 253. The government must then respond with “clear,
unequivocal, and convincing” evidence rebutting the plaintiff’s
showing of citizenship. Id.
2.
Plaintiffs contend that the government violated their right
to statutorily and constitutionally adequate process by failing
to provide them “full, fair and meaningful De-Naturalization
proceedings.” Am. Compl. ¶ 5. The district court faulted
plaintiffs for failing to identify the process they claim they are
due. Although admittedly far from crystalline, we find it clear
enough that plaintiffs claim entitlement to pre-deprivation
process in the form of an action by the Attorney General in
federal court, in which the government bears the burden of
proof, as contemplated by 8 U.S.C. § 1451. See Am. Compl.
¶ 30 (“[A]ll plaintiffs are U.S. citizens whose citizenship can
only be taken away through denaturalization proceedings by

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the U.S. Judiciary Branch and none [has] been offered such . . .
process . . . yet.”) (emphasis omitted); see also Fedorenko, 449
U.S. at 505 (citing Costello, 365 U.S. at 269). Plaintiffs’ due
process claim thus dovetails with their claims under the INA.
They argue that the Constitution required the government
formally to denaturalize them under one provision of the INA
(section 1451) rather than rest on administrative action under
other INA provisions (sections 1453 and 1504).
Plaintiffs challenge the validity of the administrative
cancellations as, in effect, an unauthorized and unconstitutional
workaround of the requisite denaturalization process,
accomplished by treating the revocation of plaintiffs’
certificates of citizenship and passports as having confirmed
plaintiffs’ lack of U.S. citizenship without the requisite court
order. Am. Compl. ¶ 27. Plaintiffs are now, as they put it, in
“a gray limbo,” unable to travel abroad or, in the cases of Wei
Liu or Jinsong Chen, to return to the United States, and lacking
any proof of United States citizenship that would allow them
to enjoy its benefits. Id. At the same time, viewed by China as
having been naturalized here, plaintiffs are unable to live in or
travel to and from China as citizens of the nation of their birth.
The government appears to have two responses to
plaintiffs’ challenge:
First, the government argues that, because plaintiffs
received their certificates of naturalization through an illegal
and inadequate process tainted by the criminal conduct of
USCIS officer Robert Schofield, plaintiffs simply never
became citizens. A person who is a non-citizen is not entitled
to either a certificate of naturalization or a passport. Once the
authorized administrative processes took away those
unlawfully conferred documents, the government reasons, the

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problem was fixed and no more process was due. See Oral Arg.
Audio 19:41-20:27, 24:20-25:27.
Second, even assuming plaintiffs must be treated as if they
were validly naturalized until proven otherwise, and
acknowledging that judicial process under 8 U.S.C. § 1451 or
18 U.S.C. § 1425 is required for denaturalization, the
government’s revocation of plaintiffs’ documents did not
denaturalize them.
Because the administrative actions
plaintiffs challenged were incapable of vitiating citizenship,
those actions did not have to conform to denaturalization’s predeprivation judicial process. See Oral Arg. Audio 31:06-31:43,
32:14-32:32; see also Schneiderman, 320 U.S. at 122-23.
a.
The first of these arguments is fatally circular. When
pressed at oral argument as to why it did not seek orders in
federal court under section 1451 to declare plaintiffs
denaturalized, the government asserted that it need not do so
because plaintiffs were never United States citizens to begin
with. In their view, plaintiffs did not receive valid certificates
of naturalization, so there is no citizenship for a court to revoke
in an action under section 1451.
But that argument assumes what the government must
prove. We cannot begin our analysis where the government
does for two reasons. First, we are reviewing the denial of
leave to amend the complaint for failure to state a claim, and
so must provisionally credit plaintiffs’ allegations. See
Interbank, 629 F.3d at 218. Plaintiffs allege that they met the
naturalization requirements, and that their applications and
eligibility were not undermined by USCIS official Schofield’s
fraudulent scheme.
It is not clear why plaintiffs’
naturalizations would be invalid if, for example, they were not

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in fact among those Schofield illegally dealt with, or were
extorted by Schofield and his illegal brokers in the process of
obtaining naturalization for which they were nonetheless fully
eligible. The government has not disputed that plaintiffs
previously had facially valid certificates of naturalization and
passports; it has not in this litigation yet had the chance to prove
that plaintiffs did not qualify as citizens. At this stage, we must
assume, as plaintiffs allege, that their certificates and passports
evidenced U.S. citizenship.
The government’s first rebuttal to plaintiffs’ procedural
claims is inadequate for another, more fundamental reason.
The government’s own administrative decision—even if well
supported and ultimately vindicated—cannot relieve it of its
burden to prove to a court by clear and convincing evidence
that plaintiffs’ apparent naturalization is invalid. Indeed,
section 1451, providing for judicial action to revoke
naturalization, explicitly speaks to cases in which
naturalizations “were illegally procured or were procured by
concealment of a material fact or by willful misrepresentation.”
8 U.S.C. § 1451(a). The government’s theory would appear to
allow it to circumvent in every such case its burden to obtain a
judicial denaturalization order, based on the theory that the
naturalization was never valid to begin with.
The
denaturalization statute itself seems to foreclose that approach.
The very cases that establish the principle that
denaturalization requires a court order, obtained upon the
government’s clear and convincing proof, likewise rebut the
government’s position here. In those cases, as here, the
government contended that naturalization was defective from
the start.
The entire denaturalization question in Schneiderman, for
example, was whether Mr. Schneiderman’s certificate of

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naturalization was lawfully cancelled twelve years after it was
granted because he had fraudulently procured it in the first
place. 320 U.S. at 120-22. The government argued that
Schneiderman had never validly qualified as someone
“attached to the principles of the Constitution of the United
States” because he concealed his Communist affiliation in his
application. Id. at 121. The Court did not treat Schneiderman
as a non-citizen simply because the government was convinced
that he fraudulently obtained his U.S. citizenship, but instead
required the government to persuade the Court with “the
clearest sort of justification and proof.” Id. at 122.
In Baumgartner v. United States, too, the government sued
for denaturalization of a man whom, it asserted, falsely claimed
in the naturalization process his allegiance to the Constitution
and laws of the United States while in fact remaining loyal to
the German Reich. 322 U.S. at 666. The Court emphasized
“the importance of ‘clear, unequivocal, and convincing’ proof
on which to rest the cancellation of a certificate of
naturalization” and placed that “weighty proof” burden on the
government notwithstanding the government’s claim that the
certificate of naturalization was never valid because
fraudulently procured ab initio. Id. at 671, 675.
So, too, the petitioner in Costello v. United States, was
ostensibly naturalized 27 years before the government sought
to divest him of his citizenship. 365 U.S. at 268. The Court
noted that the record left no doubt that, at the time of his
application, petitioner Costello willfully misrepresented his
occupation as “real estate” and concealed that he was in fact an
illegal bootlegger. Id. at 272. Before it treated Mr. Costello as
a noncitizen, however, the government was required to file a
federal denaturalization complaint under section 1451 and
shoulder its “heavy burden of proof.” Id. at 269; see
Fedorenko, 449 U.S. at 508-09 (underscoring government’s

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burden to prove the materiality of a false statement in a visa
application in a case in which it was “seeking to revoke
petitioner’s citizenship because of the alleged unlawfulness of
his initial entry into the United States”); Nowak, 356 U.S. at
661, 663 (holding that the government had failed to prove by
clear and convincing evidence “that Nowak had obtained his
citizenship both fraudulently and illegally”).
The government’s position here contradicts both the INA
and the long line of precedent requiring the government to use
federal judicial process and meet a high standard of proof to
effectuate denaturalization. If the government were correct
that a successful administrative challenge to a naturalization
certificate or passport on the ground that it was unlawfully
procured sufficed to reveal the holder’s true status as a
noncitizen, obviating any need for judicial action under section
1451 to effect denaturalization, the precedents, the process
provided by section 1451, and the express preservation of
citizenship status in sections 1504 and 1453 would be illusory.
On the government’s logic, anyone whose naturalization the
government deemed invalidly obtained would not be protected
by the requirement of a court order to denaturalize, but could
instead be denaturalized administratively. No court of which
we are aware has accepted the contention that, in such
circumstances, judicial process is unnecessary.
b.
The second response to plaintiffs’ due process claim hits
the mark: The administrative actions that the government has
thus far taken are not procedurally inadequate because they
have not denaturalized the plaintiffs. In fact, the statutory
authority on which the government relied is quite explicit that
it authorizes only revocation of certain evidence of citizenship,
not the citizenship status itself. See Gorbach, 219 F.3d at 1093

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(noting that the INA “is unambiguous in not conferring upon
the Attorney General the power to denaturalize citizens
administratively” (emphasis omitted)).
The logic of the administrative route is that it stops short
of denaturalization, and thus comports with denaturalization’s
more robust procedural prerequisites. As discussed above, if
the government wishes to revoke a naturalized person’s status
as a citizen without first criminally prosecuting her, see 18
U.S.C. § 1425, it must seek a court order under section 1451.
And, according to the complaint, the only actions the
government has so far concluded against these plaintiffs are
administrative.
Assuming, as we must, that plaintiffs were naturalized
United States citizens, they retain that citizenship status until
the government obtains a court order vitiating it.
Administrative actions alone are inadequate to extinguish any
United States citizenship plaintiffs may have. The statutory
authority that permits USCIS administratively to revoke a
certificate of naturalization expressly provides that such
revocation “shall affect only the document and not the
citizenship status of the person in whose name the document
was issued.” 8 U.S.C. § 1453. The authority on which the State
Department depends to cancel a passport administratively
contains the same limitation. 8 U.S.C. § 1504(a). Because the
administrative actions plaintiffs challenged were incapable of
vitiating citizenship, plaintiffs were not entitled to
denaturalization’s pre-deprivation judicial process.
Denying plaintiffs’ inadequate-process claims, however,
need not leave plaintiffs in limbo. If plaintiffs believe that they
are United States citizens and that USCIS erroneously
invalidated their certificates of naturalization and passports,
they may pursue (in the correct venue, as discussed below) the

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section 1503 claims in their amended complaint. Section 1503
provides for judicial review of denial of any “right or privilege”
of citizenship, including invalidations of passports or
naturalization certificates. Of course, any such claim requires
objectively reasonable factual and legal support. See Fed. R.
Civ. P. 11(b).
That said, while section 1503 provides plaintiffs an
adequate avenue to assert their citizenship claims, it is not
available to them in the District of Columbia. The district court
correctly held that this is the wrong venue. Section 1503
requires a claimant to file in “the district in which such person
resides or claims a residence.” 8 U.S.C. § 1503(a). The
amended complaint states that Xia resides in Edison, New
Jersey; Wei Liu resides in Los Angeles, California, but is
currently living in Beijing; and Li resides in Los Angeles,
California. The complaint does not allege any United States
residence for Jinsong Chen, only that he “is now living under
duress in Shanghai.” Am. Compl. ¶ 78. The paragraph of the
complaint that identifies the Los Angeles residence of Wei Liu
also mentions his wife, plaintiff Hua Chen, without specifying
whether she also resides in Los Angeles, id., but plaintiffs’
counsel confirmed at oral argument that she does not reside in
Washington, D.C. Because none of the plaintiffs has alleged
residence here, the District of Columbia is the wrong venue for
their section 1503 action.
Plaintiffs object that requiring them to seek recourse under
section 1503 impermissibly shifts the burden onto them to
prove their citizenship, thus effectively depriving them of their
procedural rights. See Am. Compl. ¶ 57. But we cannot say
that the minimal initial showing the statute requires of a
plaintiff to trigger the government’s proof burden facially
invalidates section 1503 as a matter of due process, or puts it in
conflict with section 1451. The threshold showing required of

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a section 1503 plaintiff is minimal. She or he need only show
prima facie evidence of citizenship. See Perez, 356 U.S. at 47
n.2. Presenting proof of a naturalization certificate or
passport—even if already administratively cancelled—would
seem to satisfy that prima facie requirement. The government
would then be put to its burden to establish by “clear,
unequivocal, and convincing evidence” the plaintiff’s lack of
entitlement to the disputed “right or privilege” of citizenship.
Id.
c.
We now consider the balance of plaintiffs’ INA claims.
Plaintiffs contend that the government violated sections 1421,
1447(b), and 1451(a) of the INA. But those provisions do not
apply to the conduct plaintiffs challenge here.
Section 1421 grants the Attorney General the power to
naturalize individuals. 8 U.S.C. § 1421. It says nothing about
denaturalization or cancellation of certificates of
naturalization.
Section 1447(b) permits a person whose application for
naturalization has been pending without decision to apply for a
hearing before the district court “for the district in which the
applicant resides.” 8 U.S.C. § 1447(b). That section is
inapplicable here. Plaintiffs’ applications were not denied
during the naturalization process; the government cancelled
their certificates of naturalization years after they ostensibly
became U.S. citizens. The government’s argument that it may
treat plaintiffs as if they were never naturalized might lend
some logic to plaintiffs’ invocation of section 1447(b), but we
reject that argument for the reasons stated above.

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Plaintiffs also assert that section 1451(a) authorizes the
government to seek a court order denaturalizing a citizen. 8
U.S.C. § 1451(a). In this case, however, the government did
not attempt to denaturalize the plaintiffs under section 1451(a).
Instead, they canceled their certificates of naturalization
through an administrative proceeding under section 1453—a
proceeding that, as discussed above, is powerless to bring about
a denaturalization.
There is, however, some resonance to the section 1451
claim insofar as that provision appears not only to authorize but
to obligate the government to file in court if it has information
that a certificate of naturalization may have been illegally
procured. 8 U.S.C. § 1451 (declaring that “it shall be the duty
of the United States attorneys for the respective districts, upon
affidavit showing good cause therefor, to institute”
denaturalization proceedings) (emphasis added). To the extent
that the government has the requisite evidence to prove
plaintiffs’ non-citizenship, the statute suggests that it should
have filed a civil case under section 1451.
B. Administrative Procedure Act Claims
This brings us to plaintiffs’ APA claim. Under the APA,
a party aggrieved by agency action may seek judicial review to
set aside a final agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2); id. § 702. To obtain such review, the
aggrieved party must show that a statute makes the agency
action reviewable or, if no other statute explicitly provides for
review, that it is a “final agency action for which there is no
other adequate remedy in a court.” 5 U.S.C. § 704. There is
no dispute that the challenged actions were final. And no
argument has been made, nor does it appear, that the statutes
authorizing the government to revoke the plaintiffs’ certificates

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of naturalization and passports independently provide for
judicial review. 8 U.S.C. § 1453 (cancellation of certificate of
naturalization); 8 U.S.C. § 1504 (cancellation of passport).
Thus, plaintiffs may obtain judicial review under the APA so
long as there is no other, adequate judicial remedy available.
The complaint appears to assert an APA claim challenging
as arbitrary and procedurally inadequate the administrative
revocation of the both the certificates of naturalization and the
passports of all plaintiffs. Am. Compl. ¶¶ 70-71. The factual
allegations specific to Xia allege that the State Department
informed Xia on February 11, 2012, that it had revoked her
passport because Xia’s certificate of naturalization had been
canceled by USCIS, but that was untrue and thus arbitrary.
Am. Compl. ¶ 19. “Actually,” the complaint alleges, at the
time of the passport revocation “there was no cancellation
decision in place” regarding her certificate of naturalization;
USCIS did not formally cancel Xia’s certificate of
naturalization until October 2, 2012. Id. When Xia sought
reconsideration, the State Department informed her that she
was not entitled to a post-cancellation hearing under 22 C.F.R.
§§ 51.70-.74. App’x 201. Xia’s passport revocation was
allegedly arbitrary because putatively based on an event that
had yet to occur, and allegedly contrary to law because
accomplished without the requisite administrative hearing.
The district court rejected plaintiffs’ APA claims for
failure to exhaust administrative remedies. Xia II, 145 F. Supp.
3d at 73. We disagree, for two reasons.
First, plaintiffs’ APA claims are plausibly alleged, given
that the government took the position that no administrative
remedies were open to them through which to seek return or
reissuance of their passports. They had nothing to exhaust
before filing their APA claims. Plaintiffs accordingly have a

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futility defense to any failure to exhaust administrative
remedies regarding the passport deprivations.
The State Department informed Xia that she was not
entitled to any post-revocation hearing after it denied her
request for the return of her passport. See App’x 201. In
responding to Xia, the government cited a series of regulations,
22 C.F.R. §§ 51.70-.74, without making clear which one
applied. The State Department presumably relied on the same
authority regarding the other plaintiffs’ lack of any right to
administrative review of their passport revocations.
Section 51.70(b)(1) states that a person whose passport
was denied or revoked based on “Non-nationality” is not
entitled to a post-cancellation hearing. To the extent that the
government relied on plaintiffs’ putative non-nationality as a
reason to deny them post-deprivation process, section
51.70(b)(1) cannot bear the weight that the government appears
to assign it. The reasons detailed above in connection with the
INA claims explain why a governmental assertion of nonnationality likewise cannot obviate a passport holder’s right to
a hearing under section 51.70(b)(1). However finally it may
have administratively invalidated plaintiffs’ documents, the
government must do more than assume plaintiffs’ nonnationality to treat them as noncitizens.
Second, and more importantly, the APA requires
exhaustion of administrative remedies “only when expressly
required by statute or . . . an agency rule.” Darby v. Cisneros,
509 U.S. 137, 154 (1993). The government argues in a
footnote that plaintiffs’ APA claims are barred for failure to
exhaust, Appellee Br. 27 n.8, but it points to no statute or rule
requiring exhaustion in this case.

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The amended complaint seeks, among other forms of
relief, an injunction instructing the Department of State to
reconsider its decision to revoke plaintiffs’ passports and notify
them of “the procedures to be followed for the administrative
or judicial appeal.” Am. Compl. ¶ 104(E). Because the
relevant law does not require exhaustion and, in any event,
exhaustion would have been futile with respect to the passport
invalidations, we vacate the district court’s judgment in part
and remand for further consideration of the APA claims, or for
transfer of those claims together with the section 1503 claims
to the correct venues.
C. Civil Rights Claims
Plaintiffs contend that the government targeted them for
adverse treatment based on their Chinese ethnicity and
nationality in violation of 42 U.S.C. §§ 1981 and 1983. The
district court dismissed those claims on the ground that sections
1981 and 1983 apply only to actions taken under color of state,
not federal, law. Xia II, 145 F. Supp. 3d at 73. On appeal,
plaintiffs do not challenge the district court’s determination
that the government’s conduct falls outside the scope of section
1983—nor could they, as section 1983 does not apply when
federal officials act under color of federal law. Jones v. Horne,
634 F.3d 588, 594 n.2 (D.C. Cir. 2011); Williams v. United
States, 396 F.3d 412, 414-15 (D.C. Cir. 2005). In any event,
plaintiffs do not seek damages. Whatever constitutional
support they invoke for their claims for injunctive relief does
not depend on section 1983.
Plaintiffs, aided on these issues by amicus Center for
Individual Rights, focus instead on the section 1981 claim.
Section 1981 guarantees to “[a]ll persons within the
jurisdiction of the United States” the “same right” as white
citizens enjoy “to make and enforce contracts . . . and to the full

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and equal benefit of all laws and proceedings” as well as equal
“punishment, pains, penalties, taxes, licenses, and exactions.”
42 U.S.C. § 1981(a). In the Civil Rights Act of 1991, Congress
amended various civil rights laws in an effort to “strengthen
and improve” them. The Act amended section 1981 in two
ways, first by rejecting the narrow interpretation, in Patterson
v. McLean Credit Union, 491 U.S. 164 (1989), of the section
1981 right to “make and enforce contracts,” and, second, by
forestalling any construction of that statute as inapplicable to
private actors. In the course of deciding Patterson, the Court
had sua sponte ordered reargument on whether it should
overrule Runyon v. McCrary’s holding that section 1981
“reaches private conduct.” 427 U.S. 160, 173 (1976); see
Patterson v. McLean Credit Union, 485 U.S. 617, 617 (1988)
(restoring case for reargument); CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 450 (2008) (“Congress passed the
Civil Rights Act of 1991 with the design to supersede
Patterson.”).
In response to Patterson’s reading of section 1981 not to
prohibit on-the-job racial harassment, Congress added section
1981(b), specifying that “‘make and enforce contracts’
includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship.” Id.; see Civil Rights Act of 1991, Pub. L. No.
102-166, § 101, 105 Stat. 1071, 1071-72 (codified at 42 U.S.C.
1981(b)). And, because the Court had seemed poised to
overrule Runyon, Congress added subsection (c), declaring that
the rights identified above are “protected against impairment
by nongovernmental discrimination and impairment under
color of State law.” § 101, 105 Stat. at 1072 (codified at 42
U.S.C. § 1981(c)); see also 137 Cong. Rec. 30,630, 30,678
(Nov. 7, 1991) (Statement of Rep. Hyde) (“[T]his section of the
Act codifies the holding of Runyon v. McCrary, under which

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section 1981 prohibits private, as well as governmental,
discrimination.”) (citation omitted); 137 Cong. Rec. 28,999,
29,034 (Oct. 30, 1991) (Statement of Sen. Dole) (same).
The district court held that subsection (c) limits section
1981 to claims against private parties or state actors, excluding
federal actors. Xia I, 73 F. Supp. 3d at 44. Before the 1991
amendment, however, the Supreme Court had treated section
1982, which “closely parallel[s]” section 1981, Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 441-42 n.78 (1968), to apply to
“federal as well as state” discrimination, District of Columbia
v. Carter, 409 U.S. 418, 422 (1973). Plaintiffs challenge the
district court’s holding that federal discrimination is no longer
covered, contending that Congress did not intend its
affirmation in subsection (c) of section 1981’s application to
private and “State” actors implicitly to eliminate claims based
on the exercise of federal governmental authority. The district
court’s narrower view would, anomalously, make section 1981
inapplicable to territories, a result in tension with subsection
(a)’s coverage of all persons “in every State and Territory.”
The 1991 Civil Rights Act should not, plaintiffs say, be read to
effect by implication such a momentous repeal.
See
Appellants’ Br. 39-41; Amicus Br. for Ctr. for Individual
Rights 16-22.
We have not had occasion to decide whether the Civil
Rights Act of 1991 affected section 1981’s coverage of federal
government discrimination, and we find no occasion to do so
here because plaintiffs have “not nudged [their] claims of
invidious discrimination across the line from conceivable to
plausible.” Iqbal, 556 U.S. at 680. In pleading a claim under
section 1981, the “plaintiff[s’] initial burden is not onerous.”
Nanko Shipping, U.S.A. v. Alcoa, Inc., 850 F.3d 461, 467 (D.C.
Cir. 2017). They must allege only facts that, “accepted as true,”
suffice to “state a claim to relief that is plausible on its face.”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
The allegations of discrimination in the amended complaint are
so threadbare, however, that they do not meet even that low
burden. 2
Plaintiffs acknowledge that the government asserted it
cancelled plaintiffs’ certificates of naturalization for the nonracial reason that former USCIS employee Robert Schofield
issued them unlawfully. Other than the conclusory allegation
that the “defendants acted under color of law . . . to discriminate
on the basis of race and original ethnicity, by denying their full
and fair proceedings,” Am. Compl. ¶ 97, no factual allegation
in the complaint suggests plaintiffs were targeted because they
were Chinese. Their corresponding briefing—asserting that
the government’s “taking” of their “property and liberty rights”
and failure to afford them due process “may have been
motivated by the Appellant’s color, race, ethnicity and of their
national origin,” Appellant Br. 26—is speculative and vague.

2

An additional reason makes it inappropriate to decide an important
question of statutory interpretation in this case. Plaintiffs seek only
injunctive relief, not damages, and injunctive relief is unquestionably
available against federal officials for violation of the Fifth
Amendment’s Due Process Clause, including its equal protection
component. Thus, if plaintiffs plausibly alleged discrimination based
on their ethnicity, the court could grant them the relief they seek
without regard to whether discrimination by federal actors creates an
entitlement to damages under section 1981.
See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995) (claim for
injunctive relief for racial discrimination “arises under the Fifth
Amendment to the Constitution”); Navab-Safavi v. Glassman, 637
F.3d 311, 318-19 (D.C. Cir. 2011) (acknowledging availability of
constitutional claim against the federal government of discrimination
because of ethnicity or national origin).

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The most concrete basis plaintiffs identify for their claims
of discrimination is a chart that purports to list denaturalized
former U.S. citizens, many of whom were implicated in the
commission of war crimes. App’x 161-82. Plaintiffs assert
without factual support that the list contains over a hundred
“similarly situated persons of other” (i.e., non-Chinese)
“original ethnicity” who were denaturalized via valid processes
not equally offered to the plaintiffs. Am. Compl. ¶ 34. That
chart (which appears to have been copied from Wikipedia) 3 and
plaintiffs’ associated allegations fail to identify the listed
individuals’ ethnicities or the process they received before
being denaturalized. “The complaint and supporting materials
simply do ‘not permit the court to infer more than the mere
possibility of misconduct.’” Atherton v. D.C. Office of Mayor,
567 F.3d 672, 688 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at
679). We therefore affirm the district court’s dismissal of
plaintiffs’ Civil Rights Act claims on the alternative ground
that they are not adequately pleaded. See EEOC v. Aramark
Corp., 208 F.3d 266, 268 (D.C. Cir. 2000) (“[B]ecause we
review the district court’s judgment, not its reasoning, we may
affirm on any ground properly raised.”).
III. Conclusion
We affirm the district court’s judgment insofar as it
dismissed the due process and INA claims that plaintiffs are
entitled to a judicial determination of the validity of the
cancellations of their certificates of naturalization and
passports. We also affirm the district court’s dismissal of the
claims under 42 U.S.C. §§ 1981 and 1983 on the ground that
3

List of denaturalized former citizens of the United States,
WIKIPEDIA,
available
at
https://en.wikipedia.org/wiki/List_of_denaturalized_former_citizen
s_of_the_United_States (last accessed July 11, 2017).

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the complaint fails plausibly to allege ethnicity discrimination.
And we affirm the district court’s decision that the section 1503
claims may only be resolved in the districts in which the
plaintiffs reside. See 28 U.S.C. §§ 1406, 1631.
We reverse the district court’s dismissal of the APA
claims, including the district court’s associated conclusion that
the 8 U.S.C. § 1503 claims of all plaintiffs except for Lihong
Xia are barred by a failure to exhaust; no exhaustion bar applies
here.
Plaintiffs say that they are stranded. With no certificates
of naturalization and no passports, they cannot fully exercise
the rights and privileges of U.S. citizenship. Yet it appears that,
at least unless and until they are denaturalized here, the Chinese
government will not reinstate their Chinese citizenship.
According to plaintiffs, that renders them effectively stateless.
But assuming, as discussed above, that they were
naturalized, plaintiffs have not yet been denaturalized. The
government has a strong interest in promptly clarifying the
plaintiffs’ status, and where grounds for denaturalization
appear, the government should initiate denaturalization
proceedings under 8 U.S.C. § 1451(a). Or the plaintiffs
themselves may trigger a resolution of their dilemma under 8
U.S.C. § 1503 by pursuing, in the appropriate venues, their
claims that they have been denied “a right or privilege as a
national of the United States,” and thereby put the government
to its proof that they are not citizens. 8 U.S.C. § 1503(a).
The district court should consider on remand whether it is
in the interest of justice to transfer plaintiffs’ section 1503
claims to the appropriate venues rather than dismissing them.
We note that it is our normal practice “to transfer the entire
case,” rather than severing the claims that were properly raised

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in this venue—here, the APA claims. Cameron v. Thornburgh,
983 F.2d 253, 257 n.5 (D.C. Cir. 1993). Our decision today is
without prejudice to plaintiffs’ ability to seek leave to file
amended complaints in the correct venues to clarify and
develop their APA and section 1503 claims.
So ordered.

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