Kaufman v. Mukasey

• Decision Date: 02 May 2008
• Docket Number: No. 06-5259.,06-5259.
• Parties: James J. KAUFMAN, Appellant v. Michael B. MUKASEY, Attorney General, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

524 F.3d 1334

James J. KAUFMAN, Appellant v. Michael B. MUKASEY, Attorney General, et al., Appellees.

No. 06-5259.

United States Court of Appeals, District of Columbia Circuit.

Argued January 8, 2008.

Decided May 2, 2008.

Brendan F. Quigley, Student Counsel, argued the cause as amicus curiae in support of appellant. With him on the briefs was Steven H. Goldblatt, appointed by the court, and Jeremy M. McLaughlin, Student Counsel.

James J. Kaufman, pro se, filed briefs.

Heather Graham-Oliver, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: RANDOLPH and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part by Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

James Kaufman seeks to renounce his United States citizenship pursuant to section 349 of the Immigration and Nationality Act, 66 Stat. 163 (1952) ("the Act"), codified at 8 U.S.C. § 1481. The Act provides that a citizen shall lose his nationality upon making a formal renunciation request of the Attorney General "whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense." 8 U.S.C. § 1481(a)(6). When Kaufman failed to receive the response he sought to his renunciation request, he filed suit alleging the violation of his statutory and constitutional rights. Kaufman now seeks reversal of the district court's dismissal of his complaint, contending that he is entitled to a court order compelling the Attorney General to carry out his duty under section 1481(a)(6). The government's brief responds that mandamus will not lie in view of the discretionary nature of the Attorney General's duty under the statute. At oral argument, however, the government contended that the Attorney General's authority under the Act was transferred to a bureau within the Department of Homeland Security and that Kaufman did receive a response to his renunciation request from that bureau indicating that he is ineligible for relief under section 1481(a)(6).

We remand the case to the district court for a determination, in the first instance, of whether the Attorney General retains his authority under section 1481(a)(6). If the district court determines that the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), codified at 6 U.S.C. § 101 et seq. ("Homeland Security Act"), divested the Attorney General of this authority, it shall determine whether the Department of Homeland Security's response to Kaufman is statutorily permissible.

I.

Beginning in July 2004, Kaufman wrote a series of letters to various United States government entities, including the Attorney General, the State Department, and the United States Citizenship and Immigration Services Bureau ("Bureau" or "USCIS") of the Department of Homeland Security, in an attempt "to initiate the renunciation of [his] United States citizenship, pursuant to the Immigration and Nationality Act, codified in 8 U.S.C. § 1481(a)(6)."¹ Most of the addressees, including the Attorney General, either failed to respond to Kaufman or referred him to other government entities. The prominent exception was the Bureau, which in multiple letters rejected his request on its merits, noting an apparent intent on Kaufman's part to remain in the United States and concluding that he thus failed to comply with section 349 of the Act.² After some months of correspondence with government departments, Kaufman concluded that the Bureau had "avoided answering [his] questions, referred [him] to offices which do not have jurisdiction, and . . . basically given [him] the `runaround.'"³

On August 12, 2005, Kaufman, acting pro se, filed suit, alleging that the Attorney General and the Secretaries of State and Homeland Security had violated his statutory and constitutional rights by refusing to allow him to renounce his citizenship pursuant to section 1481(a)(6). He sought a declaration that the Attorney General has jurisdiction over renunciation under section 1481(a)(6) and has failed to comply with his statutory duty.⁴ The defendants moved to dismiss on grounds of sovereign immunity and the inapplicability of the mandamus statute, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Kaufman subsequently withdrew his claim for monetary damages. The district court dismissed the complaint, ruling that the Attorney General's discretionary decision under section 1481(a)(6) is judicially unreviewable. Kaufman appeals, and our review is de novo. Tootle v. Sec'y of Navy, 446 F.3d 167, 173 (D.C.Cir.2006); see also Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C.Cir.2006).

II.

The APA provides that "[a] person suffering legal wrong because of agency action . . . within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702.⁵ "Agency action" encompasses a "failure to act" for purposes of judicial review. Id. § 551(13). "A `failure to act' is not the same thing as a `denial.' The latter is the agency's act of saying no to a request; the former is simply the omission of an action without formally rejecting a request. . . ." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The APA further authorizes the court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). However, consistent with underlying separation of powers considerations, "a claim under [section] 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." S. Utah Wilderness Alliance, 542 U.S. at 64, 124 S.Ct. 2373 (emphasis in original). Thus, contrary to the district court's ruling, when an agency is compelled by law to act, but the manner of its action is left to the agency's discretion, the "court can compel the agency to act, [although it] has no power to specify what th[at] action must be." Id. at 65, 124 S.Ct. 2373.

A.

As an initial matter, we address the contention, raised by the government during oral argument but not included in any party's brief, that the Attorney General's powers under section 1481(a)(6) have been transferred to the Department of Homeland Security. Oral Arg. Tape at 10:39 (Jan. 8, 2008). It is prudent for the court to consider this threshold question, especially given Kaufman's request for a declaration that the Attorney General retains authority under section 1481(a)(6). If the Homeland Security Act realigned citizenship and immigration functions among the government agencies, transferring section 1481(a)(6) authority from the Attorney General to another agency, then the question would become not whether the Attorney General failed to respond but whether the Bureau's responses were legally sufficient.

Prior to 2002, the Attorney General had delegated his authority under the Act to the Immigration and Naturalization Service ("INS"). 8 C.F.R. § 100.2 (1994). In 2002 however, Congress abolished the INS when it enacted the Homeland Security Act, 6 U.S.C. § 291, and assigned to the Department of Homeland Security various functions previously performed by other government agencies. Specifically, Congress created within the new department a Directorate of Border and Transportation Security, id. § 201, and the Bureau, id. § 271, vesting these divisions with broad authority encompassing that previously held by the INS, see id. §§ 202(3), 271(b)(5). While we have found no explicit reference to section 1481(a)(6), the Homeland Security Act provides in sweeping terms that adjudication of visa petitions, naturalization petitions, and "[a]ll other adjudications performed by the [INS]" are "transferred from the Commissioner of [the INS] to the Director of the Bureau." Id. § 271(b). Additionally, the Homeland Security Act expressly provides that the Attorney General has authority over certain immigration functions specifically relating to immigration courts, id. § 521,⁶ suggesting that the Attorney General may no longer retain other functions under the Act that he had delegated to the INS. Cf. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)) (alteration in original)).

There thus exists the possibility that the powers ascribed to the Attorney General by the briefs on appeal are now vested in the Bureau. In addition, neither Kaufman nor amicus have presented any argument challenging the Bureau's position that, as a matter of law, because Kaufman intended to remain in the United States, he was ineligible for renunciation under section 1481(a)(6).⁷ This unrebutted legal interpretation by the Bureau and the history of the enactment of section 1481(a)(6), see Tadayasu Abo v. Clark, 77 F.Supp. 806, 809 (N.D.Cal.1948), raise additional questions regarding section 1481(a)(6)'s availability to Kaufman. However, our review has been constrained by the fact that neither the parties' briefs nor amicus's brief nor the district court addressed the threshold question of whether the Attorney General retains authority under section 1481(a)(6) after enactment of the Homeland Security Act. In these circumstances, it is appropriate to remand the case to the district court to determine, in the first instance, whether the Attorney General retains authority under this section. Cf. Felter v. Kempthorne, 473 F.3d 1255, 1261 (D.C.Cir.2007). If the district court concludes that the Attorney General...