Chacoty v. Tillerson

• Decision Date: 16 January 2018
• Docket Number: Civil Action No. 14–764 (RDM)
• Citation: 285 F.Supp.3d 293
• Parties: Barak CHACOTY, et al., Plaintiffs, v. Rex W. TILLERSON, U.S. Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

285 F.Supp.3d 293

Barak CHACOTY, et al., Plaintiffs,

v.Rex W. TILLERSON, U.S. Secretary of State, et al., Defendants.

Civil Action No. 14–764 (RDM)

United States District Court, District of Columbia.

Signed January 16, 2018

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

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

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiffs are eighteen Israeli citizens¹ and a Canadian citizen, all of whom were born outside the United States. They 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 if both parents are U.S. citizens and one parent "has had a residence in the United States" prior to the person's birth. Id. Each of the Plaintiffs applied to the State Department for proof of citizenship in the form of Consular Reports of Birth Abroad ("CRBAs"). The State Department either denied their CRBA applications or, for two of the Plaintiffs, revoked already-issued CRBAs. The Department's rationale: Plaintiffs are not, in fact, U.S. citizens because none of their parents satisfy the residency requirement of § 1401(c).

Plaintiffs filed this action against the United States, Secretary of State Rex Tillerson, and other State Department officials (collectively, "the Department") asserting claims under the Administrative Procedure Act ("APA") and the Due Process Clause of the Fifth Amendment. They contend that the State Department applied an impermissibly strict interpretation of the term "residence" in denying their applications, which is contrary to the plain terms of § 1401(c) ; that the Department departed from its prior, longstanding interpretation of the statute without following the requirements of the APA and the Department's Foreign Affairs Manual; and that the Department has not applied its new reading of the statute consistently nor embodied that reading in Department "policy."

The Department moves to dismiss on four grounds. Its principal contention is that the Court lacks subject matter jurisdiction because Plaintiffs' sole remedy lies in 8 U.S.C. § 1503. Invoking the § 1503 remedy requires either (1) presence in the United States, which Plaintiffs do not allege, or (2) a set of conditions that Plaintiffs have not fulfilled: application for a certificate of identity, presence at a "port of entry" to the United States, an application for admission, and, if necessary, a petition for a writ of habeas corpus. Second, the Department argues that, under the general six-year statute of limitations for claims against the United States, 28 U.S.C. § 2401(a), the claims of four of the Plaintiffs are untimely and that the Court, accordingly, lacks jurisdiction over those claims. Third, the Department contends that all but two of the remaining Plaintiffs have failed to allege facts sufficient to state claims for relief under the APA. Finally, the Department disputes the adequacy of Plaintiffs' due process claims.

As explained below, the Court concludes that for the most part, it has subject matter jurisdiction because Plaintiffs' claims arise under federal law and fall within the APA's waiver of sovereign immunity; it lacks subject matter jurisdiction over the claims of four Plaintiffs, which are time barred; and the Department's limited challenges to the factual specificity of Plaintiffs' individual APA claims and due process claims are unpersuasive. The Court will, accordingly, GRANT the Department's motion to dismiss in part and DENY it in part.

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 of 1952, Pub. L. No. 82–414, § 301(a)(3), 66 Stat. 163, 235–36. That section sets forth "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 term "residence" is defined 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). The issuance or rescission of a CRBA, however, "affect[s] only the document and not the citizenship status of the person." 8 U.S.C. § 1504(a). This 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.

In addition to prescribing conditions for birthright citizenship, the Immigration and Nationality Act provides a remedy for anyone who is denied a "right or privilege" by the federal government on "the ground that [s]he is not a national of the United States." 8 U.S.C. § 1503. That remedy, codified at 8 U.S.C. § 1503, encompasses the rejection of a CRBA application and the revocation of a CRBA. See Xia v. Tillerson , 865 F.3d 643, 655 (D.C. Cir. 2017). 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 U.S. national. 8 U.S.C. § 1503(a). She need only make "a prima facie case establishing [her] citizenship." Perez v. Brownell , 356 U.S. 44, 47 n.2, 78 S.Ct. 568, 2 (L.Ed.2d 603 1958), overruled on other grounds by Afroyim v. Rusk , 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). The government must then produce "clear, unequivocal, and convincing" evidence to rebut her showing. Id. (citation omitted).

If the aggrieved party is "not within the United States," however, her route to relief under § 1503 is more difficult. Her starting point is § 1503(b), which permits an aggrieved party to apply for a "certificate of identity" from the U.S. diplomatic or consular officer in the country in which she resides. 8 U.S.C. § 1503(b). If the officer declines to issue a certificate of identity, the applicant may appeal that decision to the Secretary of State. Id. But, even if she successfully obtains a certificate of identity, the process does not end there; rather, the aggrieved party must then travel to the United States and apply for admission at a port of entry as a U.S. citizen. 8 U.S.C. § 1503(c). If the Attorney General determines that she is not a U.S. citizen and therefore "not entitled to admission," her final recourse is to seek judicial review of the Attorney General's nationality determination by filing a petition for a writ of habeas corpus. Id.

B. Factual Background

Plaintiffs' Third Amended Complaint,² Dkt. 28, sets forth the relevant facts, which the Court must accept as true for purposes of the Department's motion to dismiss. See Wood v. Moss , ––– U.S. ––––, 134 S.Ct. 2056, 2065–67 & n.5, 188 L.Ed.2d 1039 (2014) ; Xia , 865 F.3d at 646.

Of the nineteen Plaintiffs, sixteen are minor Israeli citizens from nine different families who reside in Israel and applied for CRBAs. See Dkt. 28 at 5–8 (Am. Compl. ¶¶ 2–11, 14–20). Their requests were rejected by officials at the U.S. Consulate General in Jerusalem; the earliest denial occurred in November 2007, the latest in April 2016. Id. at 10–11 (Am. Compl. ¶¶ 33, 39, 44). Two additional Plaintiffs, Kayla and Chana Sitzman, are Israeli citizens residing in Israel whose CRBAs were revoked. Id. at 7, 10 (Am. Compl. ¶¶ 12–13, 32). The Consulate General cancelled both CRBAs in August 2010. Id. at 10 (Am. Compl. ¶¶ 34–35). After the Sitzmans timely appealed, the State Department affirmed the revocations in February 2012. Id. at 10 (Am. Compl. ¶¶ 34–35). The final Plaintiff, Kenton Manning, is a Canadian citizen residing in Canada. Id. at 8 (Am. Compl. ¶ 21). Manning's "claim to U.S. [c]itizenship" was denied in July 2006. Id. at 11–12 (Am. Compl. ¶ 45). The State Department affirmed the decision in May 2007. Id. at 12 (Am. Compl. ¶ 46).

According to the complaint, each Plaintiff's CRBA was either not approved or revoked based on the State Department's conclusion that neither of the applicant's parents satisfied § 1401(c)'s residency requirement. Id. at 10 (Am. Compl. ¶¶ 32–33). Although the complaint does not set forth the rationales or decisions provided by the State Department in each case, it provides the following "example[s]." Id. at 13 (Am. Compl. ¶ 49).

First, in denying the application submitted on behalf of the three Chacoty children, the U.S. Consulate General in Jerusalem concluded that "[t]he activities described in [the] affidavits [submitted with the application] are the normal activities in which a person engages while on visit. There is no indication that the United States was ever the place of general abode." Id. (Am. Compl. ¶ 49). Second, in denying the application submitted on behalf of the Spector child, the Consulate General wrote, "Based on a thorough review of the...