Chacoty v. Pompeo

Decision Date17 July 2019
Docket NumberCivil Action No. 14-764 (RDM)
Parties Barak CHACOTY, et al., Plaintiffs, v. Mike POMPEO, U.S. Secretary of State, et al., Defendants.
CourtU.S. District Court — District of Columbia

Daniel M. Kowalski, Centennial, CO, for Plaintiffs.

Joshua Samuel Press, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiffs contend that they are U.S. citizens by birth pursuant to 8 U.S.C. § 1401(c). That provision confers birthright citizenship on a person born abroad, as Plaintiffs were, if both her parents are U.S. citizens and one of her parents "has had a residence in the United States" prior to her birth. 8 U.S.C. § 1401(c). Each of the Plaintiffs applied to the State Department for proof of citizenship in the form of a Consular Report of Birth Abroad ("CRBA"). The State Department either denied their CRBA applications or, in the case of two of the Plaintiffs, revoked their previously-issued CRBAs. The Department concluded that Plaintiffs are not U.S. citizens because none of their parents satisfied the residency requirement of § 1401(c). Plaintiffs challenge those decisions under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , and the Due Process Clause of the Fifth Amendment. The Court previously concluded that it has jurisdiction to consider Plaintiffs' claims. The parties' cross-motions for summary judgment on the merits with respect to two representative plaintiffs are now before the Court. Dkt. 52; Dkt. 53. Both of those plaintiffs initially received CRBAs, which the Department subsequently cancelled.

Plaintiffs' motion for summary judgment is premised on the contention that § 1401(c)'s "residence" requirement demands no more than "physical presence" in the United States for any period, no matter how short. They argue that the Department itself once employed that test and that its more recent, more demanding test is arbitrary and capricious. The Department, in its opposition and cross-motion, argues that the two representative plaintiffs may not challenge the cancellation of their CRBAs under the APA because the APA cause of action is available only to plaintiffs who have "no other adequate remedy in a court," 5 U.S.C. § 704, and because 8 U.S.C. § 1503(b) provides an alternative means for a person who is not in the United States to seek a determination of her citizenship. But, even if the APA provides an avenue for challenging the denial or cancellation of a CRBA, the Department continues, the representative plaintiffs' claims fail on the merits because § 1401(c)'s "residence" requirement demands more than fleeting physical presence in the United States.

As explained below, the Court agrees with Plaintiffs that § 1503 does not provide an adequate remedy sufficient to supplant Plaintiffs' APA causes of action (and does not even arguably supplant their stand-alone due process claims) but agrees with the Department that Plaintiffs' claims fail on the merits. The Court, accordingly, will DENY Plaintiffs' motion for summary judgment and will GRANT the Department's cross-motion.

I. BACKGROUND
A. Statutory Framework

"The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401." Sessions v. Morales-Santana , ––– U.S. ––––, 137 S. Ct. 1678, 1686, 198 L.Ed.2d 150 (2017) ; see Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235–36, codified as amended, 8 U.S.C. § 1401. That section provides "rules for determining who ‘shall be nationals and citizens of the United States at birth’ by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth." Morales-Santana , 137 S. Ct. at 1686 (quoting 8 U.S.C. § 1401 ). The subsection relevant here, § 1401(c), confers birthright U.S. citizenship on any person "born outside of the United States ... of parents both of whom are citizens of the United States and one of whom has had a residence in the United States ... prior to the birth of such person." 8 U.S.C. § 1401(c). The INA defines "residence" as "the place of general abode," which in turn refers to a person's "principal, actual dwelling place in fact, without regard to intent." 8 U.S.C. § 1101(a)(33).

Congress has charged the Secretary of State with "the administration and the enforcement of ... immigration and nationality laws relating to ... the determination of nationality of a person not in the United States." 8 U.S.C. § 1104. Pursuant to that authority, the Secretary may issue Consular Reports of Birth Abroad—or CRBAs—to U.S. citizens born abroad "[u]pon application and the submission of satisfactory proof of birth, identity and nationality." 22 C.F.R. § 50.7(a). The Secretary is also authorized to cancel a CRBA that was "illegally, fraudulently, or erroneously obtained." 8 U.S.C. § 1504(a) ; see also 22 C.F.R. § 51.62(c). The issuance or cancelation of a CRBA, however, "affect[s] only the document and not the citizenship status of the person." 8 U.S.C. § 1504(a). That is because CRBAs, like passports, do not confer citizenship; rather, they merely provide proof of one's status as a citizen. See 22 U.S.C. § 2705(2) ; 8 U.S.C. § 1504 (a) ; see also Xia v. Tillerson , 865 F.3d 643, 655 (D.C. Cir. 2017) (addressing administrative cancelation of a passport). In the event the Secretary cancels a CRBA, the affected individual may request a hearing to "review the basis for the ... cancellation." 22 C.F.R. § 51.70(a). If requested, the hearing is held before a "hearing officer," who considers the relevant testimony and evidence and makes a recommendation to the Deputy Assistant Secretary for Passport Services or her designee in the Bureau of Consular Affairs (hereinafter "the Deputy Assistant Secretary"). Id. § 51.71. After reviewing the hearing record and the hearing officer's preliminary findings of fact and recommendation, the Deputy Assistant Secretary renders a "final" decision on whether to uphold or overturn the cancellation of the CRBA. Id. § 51.74.

Although not specific to CRBAs, the INA provides a remedy for anyone who is denied a "right or privilege" by the federal government on "the ground that he is not a national of the United States." 8 U.S.C. § 1503. An aggrieved party seeking to take advantage of § 1503 must take one of two paths. If she is "within the United States," § 1503(a) creates a cause of action allowing her to seek a declaration that she is "a national of the United States." 8 U.S.C. § 1503(a) ; see also 28 U.S.C. § 2201 (declaratory judgment remedy). If the aggrieved party is "not within the United States," however, her route to relief under § 1503 is more arduous. Her starting point is § 1503(b), which permits an aggrieved party to apply for a "certificate of identity"—a document allowing the individual to travel "to a port of entry in the United States [to] apply[ ] for admission"— from the U.S. diplomatic or consular officer in the country in which she resides. 8 U.S.C. § 1503(b) ; see also 22 C.F.R. § 50.11 ; 7 Foreign Affairs Manual (hereinafter "FAM") 1110 App. H (addressing "Certificates of Identity for Purposes of Traveling to a Port of Entry in the United States and Applying for Admission"). If the consular officer declines to issue a certificate of identity, the applicant may appeal that decision to the Secretary of State. 8 U.S.C. § 1503(b). After the aggrieved party obtains a certificate of identity, she must then travel to the United States and apply for admission at a port of entry "and shall be subject to all the provisions of" the INA "relating to the conduct of proceedings involving aliens seeking admission to the United States." 8 U.S.C. § 1503(c). If the Attorney General renders a "final determination" that she is "not entitled to admission," her exclusive recourse is to seek judicial review of the Attorney General's determination by filing a petition for a writ of habeas corpus. Id. As the Supreme Court has observed, " [t]he net effect of this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures,’ " which "include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.’ " Rusk v. Cort , 369 U.S. 367, 378-79, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962) (quoting S. Rep. No. 82-1137, at 50 (1952)).

B. Factual and Procedural Background

This is not the Court's first occasion to consider whether and how § 1503 applies to Plaintiffs' claims. The case was originally brought by eighteen Israeli citizens and a Canadian citizen, all of whom were born outside the United States and all of whom claimed that they are U.S. citizens by birth pursuant to 8 U.S.C. § 1401(c). In a memorandum opinion and order issued in 2018, the Court dismissed the claims of four of the plaintiffs as untimely. Chacoty v. Tillerson , 285 F. Supp. 3d 293, 306 (D.D.C. 2018) (" Chacoty I "). As to the remaining plaintiffs, however, the Court denied the Department's motion to dismiss. The bulk of the Department's motion, and the bulk of the Court's analysis, focused on the question whether Plaintiffs' claims fall within the APA's waiver of sovereign immunity. Id. at 301–04. That waiver, contained in 5 U.S.C. § 702, is unavailable "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702. The Department argued that 8 U.S.C. § 1503 is such a statute because it provides a mechanism to challenge the denial or cancelation of a CRBA, although that mechanism requires traveling to a port of entry to the United States, seeking admission, and, if necessary, filing a petition for a writ of habeas corpus. Chacoty I , 285 F. Supp. 3d at 302–303.

The Court was unpersuaded, concluding that the Supreme Court had considered, and rejected, the same...

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6 cases
  • Valerio v. Limon
    • United States
    • U.S. District Court — Southern District of Texas
    • April 6, 2021
    ...subject matter jurisdiction, Rusk's construction of § 1503 remains good law. Id. (footnote omitted). See also Chacoty v. Pompeo , 392 F. Supp. 3d 1, 9–12 (D.D.C. 2019) (critiquing Hinojosa v. Horn , providing a lengthy history of relevant authority, and finding that the non-abrogated portio......
  • Sabra v. Pompeo
    • United States
    • U.S. District Court — District of Columbia
    • March 9, 2020
    ...citizens born abroad ‘[u]pon application and the submission of satisfactory proof of birth, identity and nationality.’ " Chacoty v. Pompeo , 392 F. Supp. 3d 1, 3 (2019) (quoting 22 C.F.R. § 50.7(a) ).The Secretary has the authority "to cancel any [U.S.] passport ... if it appears that such ......
  • Boisson v. Pompeo
    • United States
    • U.S. District Court — District of Columbia
    • April 28, 2020
    ...these circumstances and concluded that § 1503(b) and (c) are not an adequate alternative remedy to an APA action. See Chacoty v. Pompeo, 392 F. Supp. 3d 1, 9 (D.D.C. 2019). But the government is undeterred, offering several reasons why Cort does not control here.3 None of them are persuasiv......
  • Abuhajeb v. Pompeo
    • United States
    • U.S. District Court — District of Massachusetts
    • March 31, 2021
    ...is not adequate process under the APA. See Gonzalez Boisson v. Pompeo , 459 F.Supp.3d 7, 15–16 (D.D.C. 2020) ; Chacoty v. Pompeo , 392 F.Supp. 3d 1, 11-12 (D.D.C. 2019) ; contra Hinojosa v. Horn , 896 F.3d 305, 311 (5th Cir. 2018). According to the Government, the Supreme Court's decision i......
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