Fox v. Clinton

• Decision Date: 12 June 2012
• Docket Number: No. 11–5010.,11–5010.
• Citation: 684 F.3d 67
• Parties: Kenneth R. FOX, Appellant v. Hillary Rodham CLINTON, Secretary of State, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

684 F.3d 67

Kenneth R. FOX, Appellant

v.Hillary Rodham CLINTON, Secretary of State, Appellee.

No. 11–5010.

United States Court of Appeals, District of Columbia Circuit.

Argued March 5, 2012.

Decided June 12, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00553).

Jack L.B. Gohn argued the cause and filed the briefs for appellant.

Bradley B. Banias, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Tony West, Assistant Attorney General. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

EDWARDS, Senior Circuit Judge:

Dr. Kenneth Fox (“Appellant”)—a Jewish American by birth who has lived in Israel as an Israeli national for over a decade—seeks a Certificate of Loss of Nationality (“a CLN”) from the Department of State (“the Department” or “the agency”). He claims to be entitled to a CLN under two provisions of the Immigration and Nationality Act of 1952 (“the INA” or “the Act”). See Pub.L. No. 414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 et seq. (2006)). First, he claims that under Section 349(a)(1) (“Section 1”) of the INA, he intentionally surrendered his U.S. nationality by “obtaining naturalization in a foreign state,” Israel, “upon his own application ..., after having attained the age of eighteen years.” 8 U.S.C. § 1481(a)(1). Second, he claims that under Section 349(a)(2) (“Section 2”) of the INA, he intentionally relinquished his U.S. nationality by “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state,” again, Israel, “after having attained the age of eighteen years.” Id. § 1481(a)(2).

By a representative, Appellant first submitted a request for a CLN to the State Department in 2009. The Department denied the request, however, claiming that Appellant's acts did not satisfy the INA's requirements. With respect to Section 1 of the INA, the Department noted that, under Israeli law, Appellant had obtained Israeli nationality “by return,” rather than “by naturalisation.” Nationality Law, 5712–1952, 6 LSI 50, § 1 (1951–1952); see also id. §§ 2, 5. This was determinative, according to the agency, because, in the Department's view, the conferral of Israeli nationality “by naturalisation” occurs “upon ... application,” as the INA requires, whereas the conferral of nationality “by return” occurs merely by automatic operation of law— i.e., not upon application. With respect to Section 2 of the INA, the Department found that there was insufficient evidence that Appellant had sworn a meaningful oath of allegiance to Israel.

Appellant appealed the agency's denial through informal administrative procedures to no avail. He then filed this suit challenging the Department's final decision, contained in a letter issued on March 8, 2010. See Letter from Edward A. Betancourt, Dir., Office of Policy Review and Interagency Liaison, Bureau of Consular Affairs, to Jack. L.B. Gohn, Esq. (March 8, 2010) (“Betancourt Letter”), reprinted in App. 139. Appellant's complaint invoked the District Court's jurisdiction under 28 U.S.C. § 1331. The District Court assumed that the complaint stated a cause of action under the Administrative Procedure Act (“the APA”), 5 U.S.C. § 501 et seq. (2006). See Fox v. Clinton, 751 F.Supp.2d 122, 127 & n. 3 (D.D.C.2010) (citing 5 U.S.C. §§ 702, 704, 706). The Department filed a motion to dismiss, which the District Court granted. See id. at 131. Appellant then appealed the District Court's decision to this court.

We affirm the District Court's judgment only insofar as it upholds the Department's decision that Appellant is not eligible for a CLN under Section 2 of the INA. We reverse and remand, however, the District Court's judgment dismissing Appellant's challenge to the Department decision denying his request for a CLN under Section 1. The agency's statutory interpretation of Section 1 of the INA, as rendered in the Betancourt Letter, is not entitled to Chevron deference. And, because the Department failed to provide any coherent explanation for its decision regarding the applicability of Section 1, the agency's action was arbitrary and capricious for want of reasoned decisionmaking. We reverse the judgment of the District Court on these points and remand with instructions to remand the case to the Department for reconsideration of Appellant's request for a CLN pursuant to Section 1 of the INA.

I. Background

A. The Statutory Framework

1. The INA

The INA states that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing” any designated expatriating act “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). Appellant claims to have performed two such expatriating acts:

(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or

(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years....

Id.

The INA defines “naturalization” as

the conferring of nationality of a state upon a person after birth, by any means whatsoever.

Id. § 1101(a)(23) (emphasis added). This definition obviously controls the meaning of “naturalization” under Section 1 of the INA.

Congress adopted the “intention of relinquishing United States nationality” requirement in 1986. See Immigration and Nationality Act Amendments of 1986, Pub.L. No. 99–653, § 18, 100 Stat. 3655, 3658. Even prior to the 1986 amendments to the INA, however, the law was clear that an American citizen could not lose his or her nationality absent a showing that he or she committed an “expatriating act” with a specific “intent to terminate United States citizenship.” Vance v. Terrazas, 444 U.S. 252, 263, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980); see also Afroyim v. Rusk, 387 U.S. 253, 267–68, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967).

Finally, the Act provides that “[w]henever the loss of United States nationality is put in issue in any action or proceeding ... the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence.” 8 U.S.C. § 1481(b). The Act also establishes a rebuttable presumption that a person who commits an expatriating act does so voluntarily. See id.

2. Israel's Nationality Law and Law of Return

Israel's Nationality Law sets forth the procedures that immigrants must follow to obtain Israeli nationality. That law, as amended, states:

Israel nationality is acquired—

by return (section 2),

by residence in Israel (section 3),

by birth (section 4)[,]

by birth and residence in Israel (section 4A)[,]

by naturalisation (sections 5 to 8) or

by grant (section 9).

There shall be no Israel nationality save under this Law.

Nationality Law, 5712–1952, 6 LSI 50, § 1, as amended by Nationality (Amendment No. 2) Law, 5728–1968, § 1; see Addendum. The dispute in this case is focused on nationality acquired “by return” or “by naturalisation” under Israel's Nationality Law.

Nationality “by Return”

Section 2 of Israel's Nationality Law describes the requirements for obtaining Israeli nationality “by return.” The relevant portions of Section 2, as amended, read as follows:

(a) Every ‘oleh under the Law of Return shall become an Israel national.

(b) Israel nationality by return is acquired—

...

(2) by a person having come to Israel as an ‘oleh after the establishment of the State—with effect from the day of his ‘aliyah;

...

(4) by a person who has received an ‘oleh 's certificate under section 3 of the Law of Return—with effect from the day of the issue of the certificate.

(c) This section does not apply—

...

(2) to a person of full age who immediately before the day of his aliyah or immediately before the day of the issue of his oleh's certificate was a foreign national and who, on or before that day or within three months thereafter and while still a foreign national declares that he does not wish to become an Israel national....

Nationality Law, 5712–1952, 6 LSI 50, § 2 (footnotes omitted) (citations omitted), as amended by Nationality (Amendment No. 2) Law, 5728–1968, § 2; see Addendum. “ ‘[ O ] leh and ‘aliyah mean respectively a Jew immigrating, and the immigration of a Jew, into the Land of Israel.’' Nationality Law, 5712–1952, 6 LSI 50, Translator's Note.

The Law of Return, which, as noted above, is expressly incorporated by the Nationality Law, reads, in relevant part, as follows:

1. Every Jew has the right to come to this country as an oleh.

2. (a) Aliyah shall be by oleh 's visa.

(b) An oleh 's visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of the Interior is satisfied that the applicant

(1) is engaged in an activity directed against the Jewish people; or

(2) is likely to endanger public health or the security of the State; or

(3) is a person with a criminal past, likely to endanger public welfare.

3. (a) A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh 's certificate.

(b) The restrictions specified in section 2(b) shall apply also to the grant of an oleh 's certificate, but a person shall not be regarded as endangering public health on account of an illness contracted after his arrival in Israel.

Law of Return, 5710–1950, 4 LSI 114, §§ 1–3, (1949–1950) (footnote omitted), as amended by Law of Return (Amendment 5714–1954); see Addendum.

It is plain from the foregoing provisions that nationality “by...