Kaufman v. Nielsen

• Decision Date: 20 July 2018
• Docket Number: No. 16-5065,16-5065
• Parties: James J. KAUFMAN, Appellant v. Kirstjen M. NIELSEN, Secretary, United States Department of Homeland Security, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

896 F.3d 475

James J. KAUFMAN, Appellant

v.Kirstjen M. NIELSEN, Secretary, United States Department of Homeland Security, et al., Appellees

No. 16-5065

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 2017

Decided July 20, 2018

Amit R. Vora, Supervising Attorney, Georgetown University Law Center, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steven H. Goldblatt, Director, appointed by the court, and Stephan S. Dalal, Cole H. Mayhew, and Damon R. Porter, Student Counsel.

James J. Kaufman, pro se, filed the briefs for appellant.

Yamileth G. Davila, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, and Sarah S. Wilson, Senior Litigation Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: Tatel, Griffith, and Wilkins, Circuit Judges.

Griffith, Circuit Judge:

James Kaufman has tried to renounce his U.S. citizenship for more than a decade. In 2014, a field office of U.S. Citizenship and Immigration Services (USCIS) denied Kaufman’s renunciation request, claiming that he lacked the "intention" necessary to relinquish his citizenship under the Immigration and Nationality Act (INA). Kaufman challenged USCIS’s decision in district court under the Administrative Procedure Act (APA). The court granted summary judgment for USCIS. Because USCIS wrongly interpreted the INA’s intention requirement, we reverse.

I

A

Kaufman is a native-born U.S. citizen, and he holds no dual citizenship with any other country. In 1997, he was convicted in Wisconsin state court of first-degree sexual assault of a minor. Beginning in 2004, while serving his prison sentence, Kaufman began his still-ongoing effort to renounce his U.S. citizenship under the INA.

Under 8 U.S.C. § 1481(a), a U.S. citizen may give up his nationality by voluntarily performing any one of seven expatriating acts "with the intention of relinquishing United States nationality." (emphasis added).¹ One expatriating act, for example, is to make a "formal renunciation" of citizenship while abroad. Id. § 1481(a)(5) (the "foreign-renunciation provision"). Kaufman has sought to relinquish his citizenship through a provision that permits renunciation while on U.S. soil. Id. § 1481(a)(6). This "domestic-renunciation provision" permits Kaufman to forfeit his citizenship while in the United States if he voluntarily and intentionally makes a "formal written renunciation of nationality." Id. The provision contains several additional requirements, but they are not at issue in this case. The only issue here is whether Kaufman satisfied the "intention" requirement that applies to all seven expatriating acts.

Kaufman began his efforts by sending renunciation requests to several federal agencies, including the Department of Justice, the Department of State ("State Department"), and USCIS, which is within the Department of Homeland Security (DHS). Most of the agencies either redirected Kaufman to other agencies or did not respond to his request at all. While it was clear that the State Department administers foreign renunciations, there was some confusion over which agency and office was responsible for administering domestic renunciations after the creation of DHS in 2002. However, USCIS ultimately responded to Kaufman’s request and denied it on the merits.

Kaufman then filed a pro se lawsuit against the Attorney General and the Secretaries of the State Department and DHS, arguing that they had violated his statutory and constitutional rights by refusing to allow him to renounce his citizenship. See Kaufman v. Gonzalez , No. 05-1631, 2006 WL 1725579 (D.D.C. June 20, 2006). Kaufman sought a declaration that the Attorney General had jurisdiction over domestic renunciations and failed to fulfill his duty to administer such renunciations. The district court granted the government’s motion to dismiss, but we reversed. See Kaufman v. Mukasey , 524 F.3d 1334 (D.C. Cir. 2008). Although we did not decide which agency had jurisdiction over domestic renunciations, we instructed the district court to address that question on remand. Id. at 1336.

On remand, the parties agreed that USCIS is responsible for administering the domestic-renunciation provision. See Kaufman v. Holder , 686 F.Supp.2d 40, 41-42 (D.D.C. 2010). Kaufman then renewed his request, which USCIS denied because the United States was not in a "state of war," as required by the statute. Id. at 42 (quoting 8 U.S.C. § 1481(a)(6) ). Kaufman challenged USCIS’s denial as arbitrary and capricious under the APA, and the district court found that USCIS erred as a matter of law when it concluded that only congressional declarations of war satisfied the "state of war" requirement. The court concluded that the plain meaning of the domestic-renunciation provision was more expansive and included certain congressional authorizations for the use of military force. Id. at 44-45. The government initially appealed the district court’s decision but then voluntarily moved to dismiss the appeal. See Kaufman v. Holder , No. 10-5124, 2010 WL 3245512 (D.C. Cir. Aug. 17, 2010) (granting the government’s motion to dismiss). In the instant case, USCIS assumes that the "state of war" requirement is satisfied.

On remand from the district court, USCIS held Kaufman’s renunciation request in abeyance until he completed his prison sentence. While he was still in prison, USCIS sent Kaufman a letter asking him to answer numerous questions and provide certain documents. The letter warned of the consequences of renouncing citizenship under the domestic-renunciation provision, including that "[r]enunciants who do not possess the nationality/citizenship of any country other than the United States, upon renunciation will become stateless persons." App. 64. "[S]uch renunciant[s]," the letter predicted, "may face extreme difficulties" when they attempt "traveling outside of the United States." Id. USCIS further cautioned that such stateless persons "may be taken into custody by the [DHS], and remain in custody pending removal proceedings and during the post-order removal period." Id. The letter closed by asking Kaufman if he still wanted to proceed. He responded that he did.

In May 2013, Kaufman was released from prison, subject to mandatory supervision in Wisconsin and other restrictions as a sex offender. Kaufman’s terms of supervision required him to maintain or seek full-time employment, forbade him from leaving Wisconsin without permission from his supervisory agent, and restricted his travel outside the United States. Kaufman’s supervision ended in January 2016.

In June 2013, USCIS asked Kaufman to provide additional information and reiterated the consequences that he would face if he became stateless in the United States. Kaufman provided the information and confirmed that he still wished to renounce his citizenship.

In October 2013, Kaufman attended an interview at USCIS’s field office in Bloomington, Minnesota. Two USCIS officers asked Kaufman a number of questions under oath. Because USCIS had no experience in processing a renunciation, the questions were taken from forms used by the State Department, which had experience handling foreign-renunciation requests in its overseas consular offices. See 8 U.S.C. § 1481(a)(5).

In response to the officers’ questions, Kaufman explained that he understood that if he were to lose his U.S. citizenship without acquiring the nationality of another country, he would become stateless. When asked if he intended to "retain the right to continue to live in the U.S.," Kaufman said "no." App. 31. The officers told him that he would become an alien after losing his citizenship and asked if he had obtained a visa certification that would allow him to remain in the United States as an alien. Kaufman said he had not because he intended to leave the country. The officers also asked Kaufman about his departure plans. Although Kaufman had saved several thousand dollars, researched various countries, and corresponded with several of them, he had not secured entry into another country. Kaufman explained that he did not believe he could obtain a U.S. passport because he could not profess allegiance to the United States.

When asked how he would leave the United States without a passport, Kaufman said he hoped the United States would ultimately issue him the travel documents applicable to stateless persons. The officers asked him how he could leave the country despite his community-supervision restrictions in Wisconsin, and Kaufman suggested that the state would likely "go along" with the federal government if he were permitted to depart the country. App. 143. Before leaving the field office, Kaufman signed a formal statement confirming that he understood the consequences of relinquishing his citizenship and that he freely and intentionally chose to do so.

B

In March 2014 Leslie D. Tritten, director of the USCIS field office, sent Kaufman a letter denying his renunciation request. See Letter from Leslie D. Tritten, Field Office Director, USCIS St. Paul Field Office, to James Kaufman (Mar. 21, 2014) (the "Tritten Letter"), App. 10-17. Tritten found that Kaufman had failed to show by a preponderance of the evidence that he had the requisite "intention" to relinquish his citizenship under the domestic-renunciation provision.

Interpreting the "intention" requirement, Tritten concluded that a person cannot intend to renounce his citizenship "while simultaneously intending to exercise a fundament[al] right of citizenship, such as continuing to reside in the United States."² App. 14. To determine if a person intends to continue exercising the right of residency, USCIS looks to "whether the renunciant genuinely and credibly intends to sever ties with the United States and relocate to a foreign...