Farrell v. Blinken

Citation4 F.4th 124
Decision Date13 July 2021
Docket NumberNo. 19-5357,19-5357
Parties Gerald Lee FARRELL, Appellant v. Antony BLINKEN, Secretary of State, et al., Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Bradley Banias, Charleston, SC, argued the cause and filed the briefs for appellant.

P. Angel Martinez, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, and Yamileth Davila, Assistant Director.

Before: Katsas, Rao and Walker, Circuit Judges.

Dissenting opinion filed by Circuit Judge Katsas.

Rao, Circuit Judge:

While United States citizenship is one of the most sought after in the world, American citizens sometimes choose to relinquish this privilege and place their allegiance elsewhere. Congress has specified the actions that will result in expatriation and also vested authority in the Secretary of State to recognize the loss of nationality. Before recognizing a person's expatriation, the Department of State (the "Department") requires citizens to comply with various procedures. If it is satisfied that expatriation has occurred, the Department will issue a certificate of loss of nationality ("CLN"). This case involves a challenge to the procedures for obtaining a CLN. Gerald Farrell claims that he has performed an expatriating act by naturalizing as a Swiss citizen with the intent to relinquish his United States citizenship. The Department denied Farrell's request for a CLN because he has not appeared at a consulate abroad to fill out forms that, according to the Department, must be completed in person to obtain a CLN. Farrell challenges this "in-person requirement," arguing that it is contrary to law, ultra vires, and arbitrary and capricious. The district court upheld the in-person requirement.

We first explain the basis of Farrell's standing and our jurisdiction to decide this case. On the merits, we agree with the district court that the Department has statutory authority to impose an in-person requirement; however, we hold the Department acted arbitrarily and capriciously in denying Farrell a CLN. In a series of letter responses to Farrell's request for a CLN, the Department offered conflicting and ever-evolving reasons for denying the CLN and failed to explain what tasks Farrell was required to complete in person. We thus reverse and remand to the district court with instructions to remand to the Department to reconsider Farrell's request for a CLN.

I.

Farrell enjoyed U.S. citizenship by virtue of his birth in Santa Clara, California. In 1994 he moved to Switzerland, where he married a Swiss citizen and had a child. In 2004, he naturalized as a Swiss citizen, allegedly with the intent of relinquishing his United States nationality pursuant to 8 U.S.C. § 1481(a)(1). Section 1481(a) lists various acts by which a United States national can expatriate. One such expatriating act is "voluntarily ... with the intention of relinquishing United States nationality ... obtaining naturalization in a foreign state." Id . § 1481(a)(a)(1). Farrell claims that he possessed the requisite intent and cites as evidence that for almost ten years following his naturalization in Switzerland, he made no use of his U.S. citizenship and did not step foot in the United States. In 2013, however, Farrell was arrested in Spain while on vacation with his family and extradited to stand trial in the United States for the crimes of interstate travel with intent to engage in sex with a minor and possession of child pornography, which he committed ten years earlier in the United States. He pleaded guilty and was sentenced to ninety-six months’ imprisonment in the United States. See Judgment at 1–2, United States v. Farrell , No. 1:04-cr-00180 (D. Idaho June 25, 2014), ECF No. 48.

While imprisoned, Farrell corresponded with the State Department, requesting a certificate of loss of nationality to recognize that he had lost his U.S. nationality when he naturalized in Switzerland. First, Farrell sent a letter to the U.S. Ambassador in Switzerland, asking that she review Farrell's citizenship and issue him a CLN. Farrell explained that he sought a CLN under Section 1481(a)(1) because he naturalized in Switzerland with the intent to relinquish U.S. nationality. The Embassy replied with information about a loss of nationality under Section 1481(a)(5). But Farrell was not pursuing loss of nationality under that section, which permits expatriation by "making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state." 8 U.S.C. § 1481(a)(5).

Farrell again wrote to the Ambassador, reiterating that his request fell under Section 1481(a)(1). The Embassy responded and explained the process for obtaining a CLN under Section 1481(a)(1) : It advised that if Farrell wished to obtain a CLN, "he would have to come to the Embassy in Bern to sign form DS-4081 ‘Statement of Understanding’ in person in front of a consular officer." J.A. 131. Before it issues a CLN, the Department requires CLN applicants to complete Form DS-4081, which attests to an understanding of the irrevocable consequences of losing U.S. citizenship. See U.S. Dep't of State, 7 Foreign Affairs Manual § 1212(a)(4); id. § 1227(a)(4). The Department also requires the completion of Form DS-4079, which asks questions about the nature of the CLN applicant's expatriating act. See id. § 1212(a)(1), (b)(1); id. § 1224.3(a)(2). These procedural requirements, the Department explained, are designed so the consular officer may "determine whether the expatriating act was performed voluntarily and with the intent to relinquish U.S. citizenship." J.A. 175.

In a third round of correspondence, Farrell argued that he had already committed the expatriating act in 2004, when he naturalized in Switzerland, and was now attesting that he did so voluntarily with the intent to lose his nationality, so the Department should simply issue the CLN recognizing as much. The Embassy responded and explained that pursuant to 8 U.S.C. § 1483, Farrell could not lose his citizenship while he was in the United States, so the Department could not issue him a CLN while he was imprisoned in the United States. Farrell replied, repeating his now-familiar arguments that he had already expatriated when he naturalized in Switzerland and thus was entitled to a CLN.

Farrell next contacted the Bureau of Consular Affairs in Washington, D.C. In response, the Bureau explained that loss of citizenship becomes effective when a CLN is issued, not upon commission of the expatriating act, and that Farrell had not signed "the required Department of State forms before a consular officer" to obtain a CLN. J.A. 152. In response to another letter from Farrell, the Bureau again rebuffed his CLN request, but provided more specific directions that "[t]he process for obtaining a CLN ... includes the individual signing the DS-4079 before a consular officer at post abroad, and completing an interview with a consular officer to determine whether the expatriating act was performed voluntarily and with the intent to relinquish U.S. citizenship." J.A. 175.

After this back and forth that ranged from May 2016 to February 2017, Farrell sued the Department in the U.S. District Court for the District of Columbia. He claimed that the Department was unlawfully denying him a CLN because the in-person requirement is contrary to statute, ultra vires, and arbitrary and capricious. He sought, among other requested relief, an order that the Department issue him a CLN. The district court granted summary judgment to the Department, holding that the Department's denial of a CLN based on Farrell's failure to appear in person was valid. Farrell v. Pompeo , 424 F. Supp. 3d 1 (D.D.C. 2019). The district court concluded that the Secretary of State's authority to create procedural rules regarding CLNs provided statutory authorization for an in-person requirement. See id. at 17–18 (relying on 8 U.S.C. § 1104(a) ). Although the Department had offered scant explanation for its in-person requirement, the district court found its rationale reasonably discernible: The "in-person appearance requirement seeks to ensure that an applicant understands the consequences of loss of nationality," and thus that the applicant performed the expatriating act with the requisite intent. Id. at 19. The district court held that the requirement is not arbitrary and capricious. Id. at 21.

This timely appeal followed. While this case was on appeal, Farrell was released from prison and returned to Switzerland.

II.

Although no party disputes Farrell's standing, the absence of standing is a defect in this court's subject matter jurisdiction that we have an obligation to consider at the outset. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 88–89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "[T]he irreducible constitutional minimum of standing" consists of three familiar elements. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have suffered an injury in fact that is concrete, particularized, and actual or imminent; the injury must be causally connected to the conduct that the plaintiff is complaining of; and it must be likely that a favorable decision of the court will redress the injury. Id. at 560–61, 112 S.Ct. 2130 ; see also Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) ("Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’ ").

Farrell asserts that his Swiss naturalization, taken with the intent to expatriate, caused him to lose his citizenship. The State Department, however, maintains that "an individual ... remains a U.S. national until the Department's approval of a CLN." State Dep't Br. 18. The question of injury here is whether the...

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