Hizam v. Clinton et al
Filing
23
MEMORANDUM AND ORDER granting 12 Motion for Summary Judgment; denying 15 Motion for Summary Judgment. Accordingly, the plaintiff's motion for summary judgment (Docket no. 12) is granted, and the defendants' motion (Docket no. 15) is denied. The Clerk of Court shall enter judgment and close this case. (Signed by Magistrate Judge James C. Francis on 7/27/2012) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ABDO HIZAM,
:
:
Plaintiff,
:
:
- against :
:
HILLARY CLINTON, Secretary of
:
State, United States Department of :
State, UNITED STATES DEPARTMENT OF :
STATE,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
11 Civ. 7693 (JCF)
MEMORANDUM
AND ORDER
Twenty-two years ago, the United States Department of State
(the “State Department”) deemed Abdo Hizam, who was then nine years
old, a United States citizen and issued him a passport. Since that
time, it has twice renewed his passport. Now, the State Department
has cancelled the Consular Report of Birth Abroad of a Citizen of
the United States (“CRBA”) it issued to Mr. Hizam and has revoked
his passport, contending that its original action was a mistake.
Mr. Hizam initiated this action pursuant to 8 U.S.C. § 1503
seeking a judgment declaring that he is a citizen of the United
States and an order compelling the defendants to re-issue his
passport and CRBA.
He argues that although the State Department
erroneously adjudicated his citizenship in the first instance, it
lacks the statutory authority now to revoke the documents at issue.
1
In the alternative, he contends that the State Department should be
barred from denying his citizenship on the basis of equitable
estoppel and the doctrine of laches.
Both parties consented to my
exercise of jurisdiction for all purposes pursuant to 28 U.S.C. §
636(c), and each has moved for summary judgment.
discussed
below,
the
plaintiff’s
motion
is
For the reasons
granted
and
the
defendants’ motion is denied.
Background
Mr. Hizam was born in 1980 in Al Mahaqira, Yemen.
(Judgment
Confirming Marriage and Birth (“Judgment”), attached as Exh. 1 to
Declaration of Natasha Oeltjen dated April 13, 2012 (“Oeltjen
Decl.”).
At that time, his parents were married (Judgment), and
his father, Ali Yahya Hizam, was a naturalized citizen of the
United States.
(Naturalization Certificate of Ali Hizam, dated
Nov. 19, 1979, attached as Exh. 2 to Oeltjen Decl.; Application for
Report of Birth Abroad of a Citizen of the United States of America
on behalf of Abdo Hizam (“CRBA Application”), attached as Exh. 3 to
Oeltjen Decl.).
On February 18, 1990, Mr. Hizam’s father applied
for U.S. passports and CRBAs for his children at the United States
Embassy in Sana’a, Yemen.
(CRBA Application).
Mr. Hizam’s father
provided a variety of information in support of the applications
and truthfully indicated that he had spent seven years physically
present in the United States at the time of Mr. Hizam’s birth.
2
(CRBA
Application).
Even
though
the
applicable
derivative
citizenship statute required the United States citizen parent to
have lived in this country for ten years in order to transmit U.S.
citizenship to his child, the consular officers issued a passport
and CRBA to Mr. Hizam.
(CRBA Application; Passport of Abdo Hizam,
issued Feb. 18, 1990, attached as Exh. A-1 to Plaintiff's Motion
for Summary Judgment (“Pl. Motion”)).
Mr.
Hizam
first
came
to
the
United
States
in
1990.
(Plaintiff’s Rule 56.1 Statement of Material Facts in Support of
Motion for Summary Judgment (“Pl. 56.1 Statement”), ¶ 15; Passport
of Abdo Hizam issued Feb. 18, 1990, attached as Exh. A-1 to Pl.
Motion; Declaration of Abdo Hizam dated March 22, 2012, attached as
Exh. A to Pl. Motion (“Hizam Decl.”), ¶ 8).
He remained in this
country thereafter, living with his grandparents.
8).
(Hizam Decl., ¶
In 1995, the plaintiff’s grandfather, who was his legal
guardian pursuant to a power of attorney, applied for a renewed
passport for Mr. Hizam.
(Application for Passport Renewal dated
Dec. 5, 1995, attached as Exh. E to Pl. Motion).
The State
Department issued the renewed passport on January 9, 1996.
(Passport of Abdo Hizam, issued Jan. 9, 1996, attached as Exh. F to
Pl. Motion).
2001.
Mr. Hizam’s passport was again renewed on May 10,
(Passport of Abdo Hizam, issued May 10, 2001, attached as
Exh. G to Pl. Motion).
3
Shortly thereafter, in May 2002, Mr. Hizam traveled to Yemen,
where he married and had two children, both of whom currently
reside there.
(Pl. 56.1 Statement, ¶ 36; Hizam Decl., ¶ 23).
At
some point thereafter, Mr. Hizam returned to the United States.
(Pl. 56.1 Statement, ¶ 36-37; Hizam Decl., ¶ 22-24).
In 2009, the plaintiff again traveled to Yemen to visit his
wife and children.
(Pl. 56.1 Statement, ¶ 41; Hizam Decl., ¶ 31).
On January 24, 2009, he applied for CRBAs and passports for his two
children
at
the
U.S.
Embassy
in
Sana’a,
Statement, ¶ 41, Hizam Decl., ¶ 31).
Yemen.
(Pl.
56.1
Embassy employees suggested
to Mr. Hizam that there was an unspecified issue with his passport
and withheld it from him for approximately three weeks.
Statement, ¶ 42; Hizam Decl., ¶¶ 32-33).
(Pl. 56.1
In May 2009, the embassy
returned Mr. Hizam’s passport and instructed him to contact an
attorney at the State Department upon his return to the United
States. (Hizam Decl., ¶ 33). Due to his uncertainty regarding his
status, Mr. Hizam has not traveled outside of the United States
since his return from Yemen.
(Pl. 56.1 Statement, ¶ 43; Hizam
Decl., ¶ 34).
On April 18, 2011, the State Department informed Mr. Hizam by
letter of its opinion that it had committed an error in calculating
the
physical
presence
citizenship at birth.
requirement
for
his
acquisition
of
(Pl. 56.1 Statement, ¶¶ 48-49; Letter of
4
Edward Betancourt dated April 18, 2011, attached as Exh. J to Pl.
Motion).
Subsequent letters informed Mr. Hizam that his CRBA had
been canceled and his passport revoked and requested that he return
those documents.
(Letter of Jonathan M. Rolbin dated April 28,
2011, attached as Exh. K to Pl. Motion; Letter of Jonathan M.
Rolbin dated April 28, 2011 attached Exh. L to Pl. Motion).
complied on May 19, 2011.
He
(Pl. 56.1 Statement, ¶ 50; Hizam Decl.,
¶ 38).
On October 28, 2011, the plaintiff filed the instant suit and
both parties subsequently cross-moved for summary judgment. In his
motion, Mr. Hizam argues (1) that the statute relied upon by the
State Department to revoke his passport and CRBA, 8 U.S.C. § 1504,
should be interpreted to apply only to citizenship documents
obtained by fraud or error on the part of the applicant, and not to
error by the agency, (2) that application of Section 1504 to him
would give the statute an impermissible retroactive effect, (3)
that the government should be equitably estopped from revoking his
documents, and (4) that the principle of laches prevents the
revocation of those documents.
(Memorandum of Law in Support of
Plaintiff’s Motion for Summary Judgment at 6-30).
The government,
in turn, argues that Mr. Hizam never acquired citizenship in the
first instance, that the State Department has the authority to
revoke erroneously issued citizenship documents independent of
5
Section 1504, and that citizenship may not be obtained by equity
under
any
circumstances.
(Defendant’s
Memorandum
of
Law
in
Opposition to Plaintiff’s Motion for Summary Judgment and in
Support of Defendant’s Cross Motion for Summary Judgment (“Def.
Memo.”) at 7-20).
It further points out that Mr. Hizam’s passport
has since expired and argues that the State Department could not
now issue him a new passport because he is not actually a U.S.
citizen.
(Def. Memo. at 19-20 & n.8).
Discussion
A. Jurisdiction
Jurisdiction exists in this case by virtue of 8 U.S.C. §
1503(a), which states in relevant part:
If any person who is within the United States 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, such
person may institute an action under the provisions of
section 2201 of Title 28 [the Declaratory Judgment
statute] against the head of such department or
independent agency for a judgment declaring him to be a
national of the United States . . . .
8
U.S.C.
§
determination
national.
1503(a).
of
whether
Section
the
1503(a)
plaintiff
authorizes
qualifies
as
de
novo
a
U.S.
Patel v. Rice, 403 F. Supp. 2d 560, 562 (N.D. Tex. 2005)
(citing Richards v. Secretary of State, 752 F.2d 1413, 1417 (9th
Cir. 1985), and Delmore v. Brownwell, 135 F. Supp. 470, 473 (D.N.J.
6
1955)).
B. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate where “‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits . . . show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.’”
Marvel Characters, Inc. v. Simon, 310 F.3d
280, 285-86 (2d Cir. 2002) (citing former Rule 56(c)); see also
Andy Warhol Foundation for the Visual Arts, Inc. v. Federal
Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999).
The moving party
bears the initial burden of identifying “the absence of a genuine
issue of material fact.”
323 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
The opposing party then must come forward with
“specific facts showing that there is a genuine issue for trial.”
Id. at 324 (internal quotation marks omitted). Where the nonmovant
fails to make “a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party
will bear the burden of proof at trial,” summary judgment must be
granted.
Id. at 322.
In assessing the record to determine whether there is a
genuine
issue
of
material
fact,
the
court
must
resolve
all
ambiguities and draw all factual inferences in favor of the
7
nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d
Cir.
1995).
But
the
court
must
inquire
whether
“there
is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party” and grant summary judgment where
the
nonmovant's
evidence
significantly probative.
litigant
opposing
summary
is
conclusory,
speculative,
or
Anderson, 477 U.S at 249-50.
judgment
may
not
rest
upon
not
“The
mere
conclusory allegations or denials, but must bring forth some
affirmative indication that his version of relevant events is not
fanciful.”
(2d
Cir.
Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101
1997)
(internal
quotation
marks
omitted);
see
also
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material facts”);
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18
(2d Cir. 1995) (nonmovant “may not rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible”).
“Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving
party, there is no ‘genuine issue for trial.’”
Matsushita, 475
U.S. at 587 (quoting First National Bank of Arizona v. Cities
Service Co., 391 U.S. 253, 288 (1968)).
8
Here, the parties do not appear to disagree with respect to
any material facts.
Rather, their dispute turns on the legal
significance of those facts.
C. Statutory Scheme Governing Passports and CRBAs
Congress
has
administration
Immigration
entrusted
and
and
the
enforcement
Nationality
State
of
Act]
Department
the
with
“the
of
[the
provisions
relating
to
.
.
.
the
determination of nationality of a person not in the United States.”
8 U.S.C. § 1104(a)(3).
As the State Department concedes, Section
1104 does not authorize it to grant or revoke citizenship as such;
rather, its authority is limited to determining an individual’s
nationality.
Prior
to
authority
the
(Def. Memo. at 14 (citing 8 U.S.C. § 1104(a)(3)).
passage
permitted
of
the
Section
State
1504
in
Department
1994,
to
no
statutory
revisit
such
a
determination and revoke a passport or cancel a CRBA.
Instead, since the passage of 22 U.S.C. § 2705 in 1956, the
State Department has been required to treat CRBAs and valid
passports as having “the same force and effect as proof of United
States
citizenship
as
certificates
of
naturalization
or
of
citizenship issued by the Attorney General or by a court having
naturalization jurisdiction.”
22 U.S.C. § 2705.
Section 2705 has
been interpreted to mean that, “assuming the Secretary [of State
could] revoke a passport, he [could] do so only if he . . .
9
[sought] revocation on the basis of fraud, misrepresentation, or
some other exceptional ground.”
Magnuson v. Baker, 911 F.2d 330,
334 (9th Cir. 1990); cf. Haig v. Agee 453 U.S. 280, 290-91 (1981)
(holding that the Secretary of State may deny or revoke a passport
for exceptional reasons, such as national security, “not specified
in the statutes”).
“[S]econd thoughts” about an individual’s
status as a U.S. citizen do not constitute such an exceptional
ground because “if the Secretary could revoke a passport [or CRBA]
on a whim” then Section 2705’s command that passports and CRBAs be
given
“the
same
force
and
effect
as
proof
of
United
States
citizenship” as a certificate of citizenship would be nullified.
Magnuson, 911 F.3d at 332, 334, 336 n.14; see 22 U.S.C. § 2705.
Congress granted the State Department express authority to
cancel passports and CRBAs with the enactment of Section 1504,
which states in relevant part that “[t]he Secretary of State is
authorized to cancel any United States passport or Consular Report
of Birth, or certified copy thereof, if it appears that such
document was illegally, fraudulently, or erroneously obtained from,
or was created through illegality or fraud practiced upon, the
Secretary.”
8 U.S.C. § 1504(a).1
1
The enactment of Section 1504
Clearly, the “legal landscape regarding cancellation of
passports has changed substantially” since the Ninth Circuit
decided Magnuson. See Atem v. Ashcroft, 312 F. Supp. 2d 792, 799
(E.D. Va. 2004) (finding Magnuson superseded by Section 1504 to
10
expanded the circumstances under which a passport or CRBA could be
canceled.
See
Nationality
Procedures
--
Report
of
Birth
Regulation; Passport Procedures -- Revocation or Restriction of
Passports Regulation, 64 Fed. Reg. 19,713, 19,713 (April 22, 1999)
(acknowledgement
by
State
Department
that
“[Immigration
and
Nationality Technical Corrections Act of 1994 (the “INTCA”)] added
new grounds for denying, revoking, or canceling a passport, and for
cancelling a [CRBA]”).
D. Equitable Estoppel
Before addressing the State Department’s authority to cancel
Mr. Hizam’s CRBA, it is necessary to resolve the government’s claim
that regardless of its authority to revoke Mr. Hizam’s documents,
no remedy whatsoever is available to him in federal court.
their
view,
the
fact
that
the
State
Department
In
erroneously
adjudicated Mr. Hizam’s citizenship in the first instance means
that he has never been a U.S. citizen, despite holding conclusive
proof of that status for the past twenty-two years.
As a result,
they argue, any remedy that results in the reissuance of Mr.
Hizam’s CRBA would constitute naturalization by equity, an outcome
extent it held pre-revocation hearings required for State
Department to revoke passport). Nonetheless, because Mr. Hizam’s
CRBA was issued prior to the passage of Section 1504 and because,
as discussed below, Section 1504 is non-retroactive, the Secretary
of State’s authority to revoke his documents remains constrained by
the limits identified in Magnuson.
11
barred by unequivocal Supreme Court precedent.
The State Department is correct that federal courts may not
order an alien naturalized by exercise of their equitable powers.
Congress
has
clearly
stated
that
“[a]
person
may
only
be
naturalized as a citizen of the United State in the manner and
under
the
otherwise.”
conditions
prescribed
8 U.S.C. § 1421(d).
in
this
subchapter
and
not
The Supreme Court, in turn, has
interpreted Section 1421(d) to mean that naturalized citizenship
may be obtained solely “in strict compliance with the terms of
[the] authorizing statute . . . .
Neither by application of the
doctrine of estoppel, nor by invocation of equitable powers, nor by
any other means, does a court have power to confer citizenship in
violation of these limitations.”
Immigration and Naturalization
Service v. Pangilinan, 486 U.S. 875, 884-85 (1988); see also
Edwards v. INS, 393 F.3d 299, 309 (2d Cir. 2004).
Mr. Hizam does
not, however, seek to be naturalized by court order.
Rather, he
seeks a declaratory judgment finding that the State Department
exceeded its authority when it cancelled his CRBA and an order
compelling its return.
E. Retroactivity of Section 1504
Because Mr. Hizam’s CRBA was issued in 1990 and Section 1504
was not enacted until 1994, whether that section authorized the
State Department’s actions in this case depends on whether it is
12
retroactive.
There is a long-established presumption against
retroactively applying new legislation.
Landgraf v. USI Film
Products, 511 U.S. 244, 265 (1994) (“[T]he presumption against
retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic.”); INS
v. St. Cyr, 533 U.S. 289, 321-24 (2001) (applying presumption
against retroactivity to protect discretionary relief for lawful
permanent residents).
Determining whether a statute operates
retroactively requires a two-step analysis.
First, a court must
assess whether, using “ordinary tools of statutory construction,”
Congress intended the statute to apply to events prior to its
passage.
Herrera Molina v. Holder, 597 F.3d 128, 133 (2d Cir.
2010); see also Landgraf, 511 U.S. at 280.
Where there is
ambiguity with regard to whether Congress intended a statute to be
retroactive, the second step calls for a determination of “whether
the
new
provision
attaches
new
completed before its enactment.”
legal
consequences
Id. at 270.
to
events
If it does,
retroactivity demands a clear statement of Congressional intent.
St. Cyr, 533 U.S. at 315-16, 325 n.55; Landgraf, 511 U.S. at 270.
Here, it is unclear whether Congress intended Section 1504 to
be retroactive.
INTCA.
Congress passed it as part of Title I of the
Where Congress intended the INTCA to apply retroactively,
it said so explicitly.
For example, 8 U.S.C. § 1401, the first
13
provision in Title I, includes a subsection mandating retroactive
application. See Immigration and Nationality Technical Corrections
Act of 1994, Pub. L. No. 103-416, § 101, 108 Stat. 4305 (1994)
(“RETROACTIVE
APPLICATION.
--
.
.
.
[T]he
immigration
and
nationality laws of the United States shall be applied (to persons
born before, on, or after the date of the enactment of this Act) as
though the amendment made by subsection (a), and subsection (b),
had been in effect as of the date of their birth . . . .”); see
also
Henderson
v.
INS,
157
F.3d
106,
129-30
(2d
Cir.
1998)
(“Congress’ use of explicitly retroactive language in that part of
the bill, and its failure to employ any analogous language in the
nearby and closely related [provision] by itself strongly indicates
that Congress did not intend [the latter provision] to apply
retroactively.”).
However, at least two sections of the INTCA
expressly provide for non-retroactive application where Congress so
intended: Title I, Sections 104 and 108, which removed a statutory
provision requiring naturalized citizens to permanently reside in
the U.S. and removed the English language requirement for certain
longtime U.S. residents. See Immigration and Nationality Technical
Corrections Act of 1994 §§ 104, 108.
Thus, Congress’ intent with
respect to Section 1504, which contains no provision addressing
retroactivity, is ambiguous.
The argument for retroactivity for Section 1504 instead fails
14
at the second step of the Landgraf analysis.2
That step requires
a “commonsense, functional judgment about whether a new provision
attaches new legal consequences to events completed before its
enactment” that draws upon “familiar considerations of fair notice,
reasonable reliance, and settled expectations.”
at 321 (internal quotation marks omitted).
St. Cyr, 533 U.S.
Landgraf’s requirement
of a clear Congressional statement if retroactive application would
create new legal consequences ensures that it occurs only where
“Congress itself has determined that the benefits of retroactivity
outweigh the potential for disruption or unfairness” inherent in
retroactive application of a statute.
Landgraf, 511 U.S. at 268.
The common sense judgment called for by St. Cyr indicates that
retroactive
application
of
Section
1504
would
undermine
any
consideration of fair notice to Mr. Hizam and upset long settled
expectations.
When the State Department initially adjudicated Mr.
Hizam’s citizenship in 1990, no statute authorized the State
Department to cancel a CRBA.
of
Birth
Restriction
Regulation;
of
See Nationality Procedures -- Report
Passport
Passports
Procedures
Regulation,
64
--
Fed.
Revocation
Reg.
at
or
19,713
(acknowledgment by State Department that the “INTCA added new
2
Because of this, there is no need to address the plaintiff’s
argument that Section 1504 extends only to mistakes by the
applicant and not to agency error.
15
grounds for denying, revoking, or cancelling a passport and for
cancelling a Consular Report of Birth.”). Fully four years elapsed
between Mr. Hizam obtaining his CRBA and the passage of the INTCA;
thus
it
was
impossible
for
him
to
have
received
any
notice
whatsoever that his CRBA could be revoked in the future.
Moreover, interpreting Section 1504 to permit its retroactive
application would, as the plaintiff argues, upset the settled
expectations of the entire class of persons who received CRBAs
prior to the passage of the INTCA; these individuals are likely to
have long ago taken steps associated with established residence in
the United States, including starting families and paying into
various government benefits systems.
The possibility of the State
Department revoking their CRBAs could cost them the benefit of such
steps.
Mr. Hizam’s own circumstances make clear the potential for
retroactivity to upset settled expectations; he has lived and
worked in the United States for decades, paid into Social Security,
and currently lives and works with his younger siblings, all of
whom have obtained U.S. citizenship.
(Hizam Decl., ¶ 2).
Loss of
his CRBA undermines the stability of all of these commitments.
It is therefore unsurprising that courts and Congress have
repeatedly recognized the value of protecting citizenship status
once it is bestowed or recognized.
States,
320
U.S.
118,
122-23
See Schneiderman v. United
(1943)
16
(“[The
consequences
of
depriving an individual of citizenship are] more serious than a
taking of one’s property, or the imposition of a fine or other
penalty.”);
requirements
naturalized
8
U.S.C.
for
§
loss
citizens);
1481
of
8
(2006)
(setting
nationality
U.S.C.
§
among
1451
highly
native
(2006)
specific
born
and
(stating
the
processes for denaturalization, including a mandatory hearing
before a district court of the United States).
F. Other Authority to Revoke Proof of Citizenship
The government does not directly challenge the plaintiff’s
claim that Section 1504 is non-retroactive. Rather, it argues that
it is “beside the point” (Def. Memo. at 19) because the State
Department has authority to verify an individual’s citizenship
status
and
deny
or
revoke
citizenship
documentation
that
independent of and predates the passage of Section 1504.
is
(Def.
Memo. at 17-20). Specifically, 8 U.S.C. 1104(a)(3) charges the
Secretary of State with “the administration and enforcement of the
provisions of [the INA] relating to . . . the determination of
nationality of a person not in the United States.”
1104(a)(3).
In
the
government’s
view,
“[t]his
8 U.S.C.
authority
to
determine an individual’s citizenship necessarily encompasses the
authority to determine that the individual is not a U.S. citizen,”
because
“inherent
in
the
authority
to
determine
and
verify
citizenship is the authority to review and correct erroneous
17
determinations of U.S. citizenship.”
(Def. Memo. at 18).
In so arguing, the government necessarily asserts that the
power to issue citizenship documents implies the power to revoke
them.
to
Regardless of whether the power to grant implies the power
revoke
in
other
circumstances,
both
the
statutory
scheme
governing immigration and the relevant case law demonstrate that in
this context it does not.
“[A]n agency may not confer power upon
itself.” Gorbach v. Reno, 219 F.3d 1087, 1092-93 (9th Cir. 2000).
Specifically, there must be “some statutory authority to have the
power to take away an individual's American citizenship,” and as a
result courts should begin their inquiry by “seeking in the
relevant statutes some express or implied delegation of authority
to . . . revoke . . . .”
Id. at 1093 (requiring express statutory
authority from Congress for the Attorney General to denaturalize
citizens even if there is already authority to naturalize);3
see
also Magnuson, 911 F.2d at 334 (concluding that 22 U.S.C. § 2705
“grants no revocation power to the Secretary [of State] and
certainly none greater than could be exercised by the Attorney
3
This is not technically an attempt by the government to take
away Mr. Hizam’s citizenship, but the underlying point made by the
court in Gorbach remains: with respect to citizenship-related
documents, the power to revoke is independent of the power to
grant. Furthermore, if this were not true for CRBAs and passports,
Section 2705’s mandate that those documents be treated as proof of
citizenship would be rendered toothless.
18
General or a naturalization court.”).
Thus, the Magnuson court
noted that although Section 2705 “vested the power in the Secretary
of State to decide who is a United States citizen,” it nonetheless
“grant[ed]
the
[Secretary
of
State]
Magnuson, 911 F.2d at 333, 334.
no
revocation
power.”
Furthermore, the fact that
Congress considered it necessary in 1956 to grant the Attorney
General the express power to cancel certificates of citizenship
indicates
that
it
did
not
conceive
of
the
power
to
grant
citizenship-related documents as implying the power to revoke them.
See 8 U.S.C. § 1453 (“The Attorney General is authorized to cancel
any certificate of citizenship . . . if it shall appear to the
Attorney General’s satisfaction that such document or record was
illegally or fraudulently obtained . . . .”).
More broadly, the State Department’s assertion of authority to
revoke the plaintiff’s passport and CRBA independent of Section
1504 is at odds with the basic rules of statutory interpretation.
“A statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant.”
Hibbs v. Winn, 542 U.S. 88, 101 (2004)
(quoting 2A N. Singer, Statutes and Statutory Construction § 46.06,
at 181-86 (rev. 6th ed. 2000)) (internal quotation marks and
punctuation omitted); see also United States v. Blasius, 397 F.2d
203, 207 n.9 (2d Cir. 1968) (“There is a presumption against
19
construing a statute as containing superfluous or meaningless words
or giving it a construction that would render it ineffective.”).
If
Section
1104(a)(3)
grants
the
State
Department
both
the
authority to determine citizenship status and to freely revisit its
decisions based on second thoughts or the belief that it acted in
error, Section 1504 would not “add[] new grounds for denying,
revoking, or canceling a passport, and for cancelling a [CRBA],” as
the defendants acknowledge it was intended to do.
(Def. Memo. at
19).
G. Nature of the Remedy
Here, because Section 1504 is non-retroactive and because the
State Department lacks any other authority to cancel a CRBA under
these circumstances, an order requiring the agency to reissue Mr.
Hizam’s CRBA is not an order that he be naturalized.
Rather, it is
an order that the State Department comply with Section 2705, which
barred the agency from re-opening its prior adjudication of Mr.
Hizam’s status or revoking his citizenship documents based on
second thoughts.
See Magnuson, 911 F.2d at 336 n.14 (“Because we
have concluded that the Secretary’s power to revoke a passport
cannot
be
based
on
second
thoughts
about
the
citizenship
determination, the existence of a factual dispute with respect to
20
[the plaintiff’s] citizenship is irrelevant.”).4
Finally, because
Pangilinan addressed neither the issue of when or how the State
Department may re-open prior adjudications of citizenship, nor the
related issue of whether the State Department may disregard Section
2705 in the absence of authority under Section 1504 to do so, that
case does not preclude relief here.
Conclusion
In the absence of authority for the State Department to revoke
his documents, Mr. Hizam is entitled to the return of his CRBA.
Moreover, under 22 U.S.C. § 2705, Mr. Hizam’s CRBA “has the same
force and effect as proof of United States citizenship” as would a
certificate of citizenship, and he can presumably apply for and
obtain a new passport on that basis.
Accordingly, the plaintiff’s motion for summary judgment
(Docket no. 12) is granted, and the defendants’ motion (Docket no.
4
In contrast to Magnuson, the parties here do not dispute
that the State Department erred in its original adjudication.
Nonetheless, with regard to Mr. Hizam, who was found to be a
citizen prior to the enactment of Section 1504 and whose case
presents no exceptional circumstance, the agency lacked the
authority to review that error. Thus here, as in Magnuson, the
question of whether or not the original determination was in error
is irrelevant; the State Department was legally barred from
re-adjudicating Mr. Hizam's status in 2011 and cannot in the future
deny it.
I need not determine at this time what circumstances
might qualify as exceptional in other cases such that State
Department would have authority, either by statute or as a matter
of its residual power, to revoke proof of citizenship documents.
21
15) is denied.
The Clerk of Court shall enter judgment and close
this case.
SO ORDERED.
(;F:: /-~:J;;s~ IZ
UNITED STATES MAGISTRATE JUDGE
Dated: New York New York
July 271 2012
l
Copies ma
ed this date:
Nancy B. Morawetz Esq.
Alina Das Esq.
Semuteh Freeman Legal Intern
Kevin TerrYI Legal Intern
Washington Square Legal Services
245 Sullivan Street
New York NY 10012
i
l
l
l
Inc.
l
Natasha Oeltjen Esq.
Assistant United States Attorney
86 Chambers Street
New York, NY 10007
l
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?