Hizam v. Kerry

• Citation: 747 F.3d 102
• Decision Date: 12 March 2014
• Docket Number: No. 12–3810.,12–3810.
• Parties: Abdo HIZAM, Plaintiff–Appellee, v. John KERRY, Secretary of State, United States Department of State; United States Department of State, United States of America, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

747 F.3d 102

Abdo HIZAM, Plaintiff–Appellee,

v.John KERRY, Secretary of State, United States Department of State; ¹ United States Department of State, United States of America, Defendants–Appellants.

No. 12–3810.

United States Court of Appeals,Second Circuit.

Argued: Sept. 30, 2013.

Decided: March 12, 2014.

Shane P. Cargo, Assistant United States Attorney, Southern District of New York, (Preet Bharara, United States Attorney, Benjamin H. Torrance, Assistant United States Attorney, on the brief) New York, NY, for Defendants–Appellants.

Meredythe M. Ryan, Ropes & Gray, LLP, (Christopher P. Conniff, Ropes & Gray, LLP; Nancy Morawetz, Washington Square Legal Services, on the brief) New York, NY, for Plaintiff–Appellee.

Before NEWMAN, POOLER, and LIVINGSTON, Circuit Judges.

POOLER, Circuit Judge:

Abdo Hizam was born in Yemen in October 1980. His father was a naturalized U.S. citizen. In 1990, his father submitted an application for a Consular Report of Birth Abroad (“CRBA”) on Hizam's behalf, and the parties agree that the representations made in the application were truthful. The consular officer at the U.S. Embassy in Yemen issued Hizam a CRBA, which served as proof of his U.S. citizenship. Hizam moved to the United States when he was nine years old to live with his grandparents. He attended school, went on to college, worked and built a life for himself in the United States in reliance on his citizenship status as established by his CRBA. The State Department twice renewed his passport without incident during this period. In 2011, the State Department notified Hizam that his passport and CRBA were improperly issued due to its own error in processing the CRBA application in 1990. It revoked his passport and CRBA.

Hizam commenced an action in the United States District Court for the Southern District of New York pursuant to 8 U.S.C. § 1503(a), seeking a declaration of U.S. nationality and the return of his CRBA and passport. Both parties moved for summary judgment. The district court (Francis, M.J.) granted Hizam's motion. The district court acknowledged that both parties agreed that Hizam had not acquired citizenship at the time of his birth, but nevertheless found that the government exceeded its authority when it revoked his CRBA. The district court found the statute which permitted the Department of State to cancel passports and CRBAs, 8 U.S.C. § 1504, was enacted after Hizam's CRBA was issued and was not susceptible to retroactive application. On appeal, the government argues the district court erred in allowing Hizam to retain documentary proof of his U.S. citizenship when Hizam is indisputably not a citizen. We agree. Section 1503(a) allows a district court to grant just one type of relief: a declaration that a person is a U.S. national. The statute provides no authority for the remedy ordered by the district court: the return of Hizam's CRBA. Moreover, the enactment of Section 1504 did not change the citizenship rights provided by statute, and simply providing jurisdiction where none existed previously does not create an impermissible retroactive effect. Finally, despite the considerable equities in Hizam's favor, the courts are simply unable to provide Hizam with the relief he seeks. Accordingly, we REVERSE the district court's grant of summary judgment and REMAND with directions to dismiss the complaint.

BACKGROUND

Unless otherwise noted, the facts in this case are not in dispute.

I. Issuance and Revocation of the CRBA.

Hizam was born in 1980 in Yemen to a naturalized U.S. citizen father and a Yemeni mother. In 1990, Hizam's father submitted an application for a CRBA and U.S. passport for Hizam to the U.S. Embassy in Sana'a, Yemen. A CRBA is issued by a consular officer to document a citizen born abroad, and has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship.” 22 U.S.C. § 2705; see also8 U.S.C. § 1401 (delineating the circumstances under which an individual born abroad acquires U.S. citizenship at birth). Hizam's father truthfully stated in the application that he had arrived in the United States in 1973, and was physically present in the United States for approximately seven years at the time of Hizam's birth in October 1980. The consular officers granted the application and issued a CRBA and passport to Hizam.

There is no dispute that the consular officer issued the CRBA and passport to Hizam in error. Citizenship of a person born abroad is determined by law in effect at the time of birth. Drozd v. Immigration and Naturalization Serv., 155 F.3d 81, 86 (2d Cir.1998). At the time of Hizam's birth, the child of a United States citizen born outside of the United States was eligible for citizenship if the parent was present in the United States for at least 10 years at the time of the child's birth. 8 U.S.C. § 1401(g) (Supp. III 1980). However, the law had changed by the time Hizam's father sought a CRBA on Hizam's behalf. The amended law required the parent to be present in the United States for just five years. 8 U.S.C. § 1401(g). It appears that the consular officer erroneously applied the five-year rule in granting Hizam a CRBA.

After receiving a CRBA and passport, Hizam traveled to the United States to live with his grandparents. Hizam attended elementary, middle and high school in Dearborn, Michigan. He became fluent in English and did well in school, where he was a member of his high school's swim team. Hizam began working while in high school, and worked two jobs to support himself while attending college in the United States. He graduated from Davenport University in 2003 with a degree in business administration. He eventually moved to the Bronx, New York, to live with his brothers. During his residence in the United States from 1990 through 2002, his passport was renewed twice without incident. In 2002, Hizam traveled to Yemen, where he married, and subsequently had two children. Between 2002 and 2009, Hizam traveled back and forth regularly betweenthe United States and Yemen, where his wife and children reside. At the time he commenced this litigation, Hizam worked at the family business, Moe's Deli, in New York. He is the primary caretaker for one of his brothers, a minor, and is pursuing a master's in business administration at Mercy College.

In 2009, Hizam applied for CRBAs and U.S. passports for his two children at the U.S. Embassy in Sana'a, Yemen. U.S. officials at the embassy told Hizam there was an issue with his passport, and retained his passport for about three weeks. After his passport was returned, Hizam returned to the United States. In April 2011, while Hizam was in the United States, the State Department notified him via letter that his CRBA and passport were wrongly issued “due to Department error.” The letter stated that while “[t]his error was evident from your CRBA application[,] there is no indication that your father fraudulently obtained citizenship documentation for you,” and “there is no evidence of fraud on your part.” It concluded that “[u]nfortunately ... the Department of State lacks authority to create a remedy that would in some way confer U.S. citizenship on anyone absent a statutory basis for doing so.” Subsequent letters from the Department of State informed Hizam that his CRBA had been cancelled, and his passport revoked, and requested that he return those documents, which he did in May 2011.

II. District Court Proceedings

In October 2011, Hizam filed suit against the U.S. Department of State in the United States District Court for the Southern District of New York, seeking a declaratory judgment affirming his status as a national of the United States. In his complaint, Hizam alleged three principal causes of action that: (1) the State Department wrongly denied him his rights and privileges as a national pursuant to 8 U.S.C. § 1503; (2) the State Department lacked the authority to cancel his CRBA because the plain language of 8 U.S.C. § 1504 did not authorize cancellation due to error committed by the agency, and, in any event, did not apply retroactively; and (3) the State Department was equitably estopped from revoking his CRBA and passport given that he rightfully relied on his U.S. citizenship for more than twenty years.

In its answer, the State Department asserted that neither it nor the district court was authorized to grant the relief Hizam sought, as Hizam did not acquire U.S. citizenship at birth, or satisfy the statutory requirements for naturalization, and as a matter of law the district court lacked authority to confer citizenship upon him. Furthermore, the State Department asserted that because Hizam was not a U.S. citizen, it had authority to revoke the documents showing proof of such citizenship, and Hizam was not entitled to their reissuance.

Both parties moved for summary judgment. In July 2012, the district court issued an order granting Hizam's motion for summary judgment. The district court agreed that Hizam was not a citizen, and that the “federal courts may not order an alien naturalized by exercise of their equitable powers.” Hizam v. Clinton, No. 11 Civ. 7693(JCF), 2012 WL 3116026, at *5 (S.D.N.Y. July 27, 2012). The district court concluded that “Hizam does not, however, seek to be naturalized by court order. Rather, he seeks a declaratory judgment finding that the State Department exceeded its authority when it cancelled his CRBA and an order compelling its return.” Id.

The district court also determined that the State Department lacked the authority to revoke Hizam's CRBA. Id. at *8. The district court held that the application of Section 1504 to Hizam would be impermissibly retroactive, as it would undermine any consideration of fair notice and upset long settled expectations of established residence in the United States. The district court rejected the State Department's argument that the power to issue citizenship documents implied the power to...