Xia v. Tillerson

• Decision Date: 01 August 2017
• Docket Number: No. 16-5010,16-5010
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

865 F.3d 643

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.

No. 16-5010

United States Court of Appeals, District of Columbia Circuit.

Argued March 21, 2017

Decided August 1, 2017

Ning Ye, Washington, D.C., argued the cause and filed the brief for appellants.

Michael E. Rosman, Washington, D.C., 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.

Before: Pillard, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

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 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 non-renewals 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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.

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 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 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

• 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...