Abuhajeb v. Pompeo
| Decision Date | 31 March 2021 |
| Docket Number | CIVIL ACTION NO. 20-10340-TSH |
| Citation | 531 F.Supp.3d 447 |
| Parties | Abedalhameed M. ABUHAJEB, Abdellatif M. Abuhajeb, Sara M. Abuhajeb, Sara M. Abuhajeb, and Osama M. Abuhajeb, Plaintiffs, v. Michael R. POMPEO, Secretary of State; Donald J. Trump, President of the United States; Jonathan Rolbin, Director of Legal Affairs and Law Enforcement Liaison/Consular Affairs – Passport; Carl Risch, Assistant Secretary of State for Consular Affairs; M. Kelly Cullum, Consular Officer, American Citizen Services, U.S. Embassy, Amman, Jordan, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Laura Murray-Tjan, Federal Immigration Appeals Project, Boston, MA, Stephanie E.Y. Marzouk, Marzouk Law LLC, Arlington, MA, for Plaintiffs.
Annapurna Balakrishna, Erin E. Brizius, U.S. Attorney's Office, Boston, MA, for Defendants.
ORDER AND MEMORANDUM ON DEFENDANTS’ MOTION TO DISMISS (Docket No. 13)
HILLMAN, D.J.
Abedalhameed M. Abuhajeb, Abdellatif M. Abuhajeb, Safa M. Abuhajeb, Sara M. Abuhajeb, and Osama M. Abuhajeb (the "Abuhajeb Siblings" or "Siblings") filed this action against the Secretary of State, the President of the United States, and various State Department officers and agents regarding the revocation of their U.S. passports in August 2019. The Abuhajeb Siblings allege that the State Department's actions violated their rights under 8 U.S.C. § 1503 (the Declaration of Citizenship Act), 5 U.S.C. § 704 (the Administrative Procedure Act), and the First and Fifth Amendments of the U.S. Constitution. (Docket No. 1). They also ask that the Court reverse the revocation and declare the Siblings to be U.S. citizens. The Government moves to dismiss all claims. (Docket No. 13). For the following reasons, the Court GRANTS the motion.
The Abuhajeb Siblings were born in Jordan. Their father, Mousa Abuhajeb, immigrated to the United States as a student in 1984, adjusted his status to lawful permanent resident in 1995, and became a naturalized U.S. citizen in 1999.
In 2004, Mr. Abuhajeb petitioned the U.S. Embassy in Jordan for immigrant visas for his five children. The embassy granted his petition, and on or about January 23, 2005, the Siblings, then all under the age of 18, lawfully entered the United States as legal permanent residents in their father's custody. Four days after later, their parents applied for U.S. passports for the Siblings.
On January 28, 2005, the State Department Boston Passport Agency issued passports to the Siblings in recognition that they had derived citizenship from their father, a naturalized citizen, under the Child Citizenship Act ("CCA"). The Act provides that children who are born outside the United States to at least one U.S. citizen parent automatically acquire citizenship if they are under the age of 18 and "[are] resid[ing] in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence." 8 U.S.C. § 1431(a) (Immigration and Nationality Act § 320).
The Siblings returned to Jordan on February 6, 2005, approximately 15 days after their arrival. None of the Siblings returned to the United States before their eighteenth birthday. Now adults, two of the five siblings live in the United States. Until 2019, all the Siblings renewed their U.S. passports when required to do so without issue.
In 2019, Sara, one of the siblings living abroad, visited the U.S. Embassy in Jordan to renew the passports of her three children, who were born in the United States. This visit triggered the immediate revocation of all the Siblings’ passports. On August 19 and August 27, 2019, the State Department issued five letters revoking the Siblings’ U.S. passports under 22 C.F.R. § 51.62(a)(2) as "erroneously issued."2 The letters stated that none of the Siblings were entitled to hold U.S. passports because they had not obtained U.S. citizenship under the CCA before turning 18. According to the State Department, the Siblings’ 15-day stay in Massachusetts in 2005 did not meet the CCA's requirement that foreign-born children of U.S. citizens applying for U.S. citizenship are "residing in" the United States or had resided there at some point before their eighteenth birthday.
On November 24, 2019, Abdellatif visited the U.S. Embassy in Jordan to obtain proof of U.S. citizenship for his second child, who was born in Jordan. A consular officer told Abdellatif that "he was no longer a U.S. citizen and that the law was not clear on how long a lawful permanent resident had to be in the United States to derive citizenship from a parent under 8 U.S.C. § 1431." The office denied proof of citizenship for Abdellatif's child, confiscated Abdellatif's passport, and told him "that many other people were in the same situation as Abdellatif, i.e., had their U.S. passports revoked."
Abdellatif requested a hearing, which was held at the U.S. Embassy in Jordan on February 12, 2020. Abdellatif argued that neither the CCA nor the State Department's Foreign Affairs Manual ("FAM") require a specific period of physical presence before citizenship can be derived, that the Department's abrupt reinterpretation of the CCA was arbitrary, and that U.S. citizenship cannot be involuntarily taken away without a voluntary renunciation. The hearing officer upheld the revocation, agreeing with Abdellatif that the CCA and the FAM do not require a specific period of physical presence but finding that the State Department correctly applied other provisions of the FAM which direct consular officers to scrutinize the length and character of a CCA claimant's stay to determine whether the child "is residing" or had resided in the United States before reaching eighteen years of age. (Docket No. 19-1 at 3-7). On June 14, 2020, the State Department sent Abdellatif a final decision letter upholding the revocation of his passport. (Docket 19-1 at 2).
The Abuhajeb Siblings filed the instant complaint for violations of their statutory rights and their constitutional rights under the First and Fifth Amendments. They also brought a sixth claim for equitable estoppel. (Docket No. 1). The United States has moved to dismiss all claims under Fed. R. Civ. P. 12(b)(6). (Docket No. 13).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. Am. Airlines, Inc. , 199 F.3d 68, 69 (1st Cir. 2000). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernandez v. Fortuno-Burset , 640 F.3d 1, 13 (1st Cir. 2011). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Fed. R. Civ. P. 8(a)(2) ).
The Child Citizenship Act ("CCA"), which is codified at § 320 of the Immigration and Nationality Act ("INA"), provides that:
Whether the Siblings automatically attained citizenship and were thus entitled to hold U.S. passports depends on whether their 15-day stay in the United States in 2005 satisfies the (a)(3) requirement that they "resided" in the United States before the age of 18. The CCA does not define "residing," but § 1101 of the INA defines residence as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." 8 U.S.C. § 1101(a)(33).
The State Department Foreign Affairs Manual (FAM) provides detailed guidance on how consular officers should determine whether a person claiming to have automatically attained citizenship pursuant to the CCA satisfied the statute's residency requirement before they reached eighteen years of age:
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...Alternative Remedy “Federal courts may only review an APA claim if there is ‘no other adequate remedy in a court.'” Abuhajeb v. Pompeo, 531 F.Supp.3d 447, 454 (D. Mass. 2021) (quoting 5 U.S.C. § 704). “The APA generally precludes review where Congress has provided a ‘special and adequate re......