Whitehead v. Haig
| Decision Date | 27 June 1986 |
| Docket Number | No. 85-5631,85-5631 |
| Parties | Robert E. WHITEHEAD v. Alexander M. HAIG, Jr., Secretary of State, of the United States Appeal of Robert E. WHITEHEAD. |
| Court | U.S. Court of Appeals — Third Circuit |
Sam Bernsen (argued), Fragomen, Del Rey & Bernsen, P.C., Washington, D.C., Shelley Siegal, West Orange, N.J., for appellant.
Thomas W. Greelish, U.S. Atty., Ruth V. Simon (argued), Sp. Asst. U.S. Atty., Newark, N.J., for appellee.
Before SEITZ, HIGGINBOTHAM and BECKER, Circuit Judges.
This is an appeal from a final order of the district court dismissing the complaint of appellant Whitehead as time barred. Whitehead brought this action for a declaratory judgment adjudging him to be a national of the United States pursuant to section 360(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1503(a) (1982), and the Declaratory Judgments Act, 28 U.S.C. Sec. 2201. For the reasons that follow, we will reverse and remand.
Whitehead was born in Los Angeles, California in 1943, thereby acquiring United States citizenship. He held a valid United States passport continuously between the years 1948-1964 for the stated purposes of travel and education abroad. On March 25, 1965, he surrendered his United States passport for an Irish passport at the Irish Embassy in Rome. Acquisition of Irish Whitehead was convicted of various state and federal crimes during the period 1973 to 1976. After serving time in prison, Whitehead applied for a United States passport. It was denied on March 3, 1980, on the basis that he was not a national of the United States because of his 1965 renunciation. On April 18, 1981, Whitehead filed the complaint in this action in the United States District Court for the Southern District of New York.
citizenship in this fashion did not repudiate his American citizenship. On April 12, 1965, at the age of 22 years, Whitehead formally renounced his United States citizenship at the United States Embassy in Tokyo. He now alleges that his renunciation was involuntary and, thus, void. The American Embassy in Tokyo forwarded a Certificate of Loss of Nationality, pursuant to 8 U.S.C. Sec. 1501,see footnote 2 infra, together with other papers related to Whitehead's renunciation, to the Department of State on April 19, 1965, and on April 30, 1965, the Department of State approved the Certificate of Loss of Nationality. In 1968 Whitehead returned to the United States as a visitor carrying his Irish passport. He applied for a change from "non-immigrant" status to that of "student" in that same year. This application was approved through October 17, 1969. In 1970, Whitehead applied for and was granted an "immigrant" visa and on the basis of that visa, his application for "lawful permanent resident status" was granted on April 13, 1970.
In his complaint, Whitehead alleged that, while he had formally renounced his citizenship in Tokyo, upon the basis of which a Certificate of Loss of Nationality was approved by the Department of State, this renunciation was the result of coercion, duress and undue influence and was therefore involuntary and, consequently, his renunciation was invalid and should be vacated. He further alleged that the 1979 denial of his application for a United States passport constituted a final administrative denial of a right or privilege as a citizen of the United States, giving him a cause of action under 8 U.S.C. Sec. 1503(a). See footnote 3 infra.
On December 29, 1981, the Immigration and Naturalization Service instituted deportation proceedings against Whitehead, alleging as cause, first, that he had not been in possession of a valid immigrant visa at the time of his 1970 entry into the United States, and second, that he had been convicted of crimes involving moral turpitude. These proceedings have been stayed pending the outcome in this case.
The instant case was transferred to the District of New Jersey where the defendant Secretary of State filed an answer alleging that to the extent Whitehead's claim sought to vacate his 1965 renunciation of citizenship, it was time barred by the five-year limitation provision contained in Sec. 1503(a). Defendant then moved to dismiss the complaint, and his motion was granted after oral argument. This appeal followed.
Whitehead purported to formally renounce his citizenship under the provisions of 8 U.S.C. Sec. 1481(a)(5). 1 Consequently, he was issued a Certificate of Loss of Nationality pursuant to 8 U.S.C. Sec. 1501. 2
The sole issue for resolution by this Court is whether the applicable "final administrative denial" for determining when the five year limitation period contained in 8 U.S.C. Sec. 1503(a) 3 has run is the approval of Whitehead's Certificate of Loss of Nationality in 1965 or the denial of his passport application in 1980.
The Secretary of State contends that when a Certificate of Loss of Nationality is approved by the Secretary, it is a final adjudication that that person is not a citizen of the United States. He further contends that the approval takes away all rights of United States citizenship and is a "final administrative denial" of a claim to United States citizenship, entitling the individual to bring a declaratory judgment action under Sec. 1503(a) for a period of five years therefrom.
The district court agreed with the Secretary's position and based its dismissal of Whitehead's complaint on the finding that his (App. at 37-38.) In so holding, the court relied on Linzalone v. Dulles, 120 F.Supp. 107 (S.D.N.Y.1954) and Garcia-Sarquiz v. Saxbe, 407 F.Supp. 789 (S.D.Fla.1974), aff'd, 527 F.2d 1389 (5th Cir.1976). We cannot agree with the district court's holding.
Linzalone was a case in which a Certificate of Loss of Nationality had been issued to plaintiff, and deportation proceedings had been predicated upon it. To avoid defending his claim to citizenship in the deportation proceeding, plaintiff brought a separate action under 8 U.S.C. Sec. 1503(a) seeking a declaratory judgment that he was a United States citizen. The government moved to dismiss, contending first that the statute required a final administrative denial of a right or privilege claimed by a person as a national of the United States before that person can bring an action under Sec. 1503(a), and second, that there can be no "final administrative denial" without an administrative proceeding. The court disagreed with defendant's second contention and found that where no administrative proceeding was available to plaintiff in the course of issuance of the Certificate of Loss, the administrative denial was final and no administrative proceeding was required in order to commence an action under Sec. 1503(a). The court held that the issuance of the Certificate of Loss of Nationality to the plaintiff there was a "final administrative determination of [his] loss of nationality by the Department of State. It finally denied [him] the right or privilege as a national of the United States to have his status as such recognized and to be free from the obligation of appearing at and defending the deportation proceeding The Linzalone court rested its decision on the ground that because no administrative proceeding exists to relieve the party challenging the issuance of the Certificate of Loss, the issuance of the certificate under Sec. 1501 is itself an administrative denial and an action will lie under Sec. 1503(a). We disagree. Section 1501 is not a statute specifying a procedure for the administrative "determination" of a claim of a right or privilege as a national of the United States. The functions required of the various entities are purely ministerial. The language of the statute itself does not speak in terms common to those prescribing administrative procedures. It speaks only in terms directing an automatic transmittal, for informational purposes, of certified facts related to the expatriation of a United States citizen. Legislative history of the section confirms our view that Sec. 1501 was not intended to provide any mechanism for administrative adjudication or determination by the Secretary of State as part of its mandate to approve and issue the Certificate of Loss. In the letter of submittal from the President accompanying the proposed Nationality Laws of the United States dated June 1, 1938, the committee designated by Executive order to revise and codify the nationality laws into a comprehensive law for submission to Congress stated the following:
commenced subsequent to that certification of loss of his nationality." 120 F.Supp. at 109. Thus, the court denied the government's motion and entertained plaintiff's cause
The provisions of Chapter IV, Loss of Nationality, are of special importance. Loss of nationality is in all cases to result from the existence of stated facts. In this relation mention may be made to the provision of [Sec. 1501], in which diplomatic and consular officers are required to send to the Department of State reports concerning persons found by them to have committed acts resulting in loss of American nationality under the provisions of Chapter IV of the proposed act. It is important to note that such reports are intended merely for the information of the Department of State, the Department of Labor, and any other branches of the Government which may be interested.
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