The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Kenneth R. Fox wants the Department of State to recognize what he claims to be acts of expatriation under 8 U.S.C. § 1481, the statute governing the procedure for relinquishing one's citizenship, dated as of 2002, the year in which he became a citizen of Israel. Mr. Fox insists that he has relinquished his citizenship by two expatriating acts under § 1481: (1) obtaining naturalization in a foreign state by application, see 8 U.S.C. § 1481(a)(1); and (2) taking an oath or formal declaration of allegiance to a foreign state, see 8 U.S.C. § 1481(a)(2). The Department of State finds the proffered evidence of such acts lacking, but suggests an alternative course under § 1481 that would suffice: make a formal renunciation of nationality before a diplomatic or consular officer of the United States at the U.S. embassy in Tel Aviv, see 8 U.S.C. § 1481(a)(5). For some reason, Mr. Fox is unwilling to take this route to expatriation and, instead, has retained counsel and sued Hilary R. Clinton, Secretary of State, and Edward Betancourt, Director of the Office of Policy Review and Interagency Liaison, demanding that they recognize the validity of his stated acts of expatriation. Defendants have filed a motion to dismiss for failure to state a claim. Mr. Fox most gracefully opposes, but does not explain why he doesn't just go to Tel Aviv and make a formal renunciation of nationality. The motion to dismiss will be granted and the Court will remain mystified.
Kenneth Fox is a United States citizen by birth. Compl. [Dkt. # 1] ¶ 1. He now lives in Israel and has acquired Israeli citizenship. Id. He states that he became a citizen of Israel in 2002, by filing an Application for Permit of Permanent Residence in Israel, which he states "constituted an application to be naturalized as an Israeli citizen" under Israeli law. Id. ¶ 10.
On July 8, 2009, Mr. Fox, through counsel, wrote to the Bureau of Consular Affairs in Washington, D.C., and requested a Certificate of Loss of Nationality. Id. ¶ 15. Accompanying the request was an affidavit signed by Mr. Fox on July 7, 2009, in which he stated that "in 2002 I renounced my United States citizenship, due to my becoming an Israeli citizen and my intent of renunciation at that time." Id., Attach. 1, Ex. A, p. 4 (Affidavit of Renunciation of United States Citizenship). He added, "Finally, I would like to affirm that it has been my express intent to renounce my citizenship in 2002 coupled with the act of either becoming a citizen of another country, taking another country's oath, or a combination of the two." Id. On July 21, 2009, Kim Richter, am employee within the Department of State responded to Plaintiff's counsel by email: "You sent the Department of State a letter for Kenneth Richard Fox renouncing his citizenship. Mr. Fox needs to go to the U.S. Embassy in Tel Aviv to formally renounce his citizenship. You cannot do it for him." Id., Attach. 1, Ex. B. Counsel for Mr. Fox replied that he knew that he could achieve renunciation by going to Tel Aviv but Mr. Fox "wishes to legally invoke his renunciation (or past act of renunciation) through obtaining naturalization in a foreign state and/or taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions." Id., Attach. 1, Ex. C (citations omitted).
On August 5, 2009, after checking with the lawyers at the Department of State, Ms. Richter wrote again to Mr. Fox's counsel by email:
Mr. Fox acquired Israeli citizenship pursuant to the Law of Return.*fn1 In a sense, he can be viewed as a dual national since birth who in 2002 simply took advantage of a status that he always had. He did not apply for naturalization so as to place him within the purview of [8 U.S.C. § 1481](a)(1). Furthermore, any expression of allegiance to Israel would not be viewed as meaningful given the fact that he has in effect had a claim to Israeli citizenship from the get go and therefore always owed a certain degree of allegiance to that state. If he chooses, he may formally renounce his citizenship before a U.S. consular officer.
Unhappy with this result, Mr. Fox retained counsel in the United States, who wrote to Defendant Edward Betancourt on September 8, 2009, inquiring about the procedure for appealing Ms. Richter's decision. Id., Attach. 1, Ex. G. Mr. Betancourt answered on September 29, 2009:
From the information provided to us, it is our understanding that Mr. Fox became an Israeli citizen on January 30, 2002, in accordance with the Israeli Law of Return. With respect to acquisition of Israeli nationality pursuant to this law, the Israeli Foreign Ministry in an information sheet dated August 4, 1998, notes that "Israeli citizenship becomes effective on the day of arrival in country or of receipt of an oleh's certificate, whichever is later. A person may declare within three months, that he/she does not wish to become a citizen . . . ."
Section 349(a)(1) requires the U.S. citizen to naturalize as a citizen of a foreign state "upon his own application." (Our emphasis) An individual whose citizenship is automatically conferred upon him, as was the case of Mr. Fox, has not committed a statutory act of expatriation . . . .
[T]he underlying act is not one that the law recognizes as being expatriating.
Id., Attach. 1, Ex. H (emphasis in original). Noting the absence of evidence that Mr. Fox had taken an oath of allegiance to a foreign state, Mr. Betancourt indicated a willingness to review such evidence. Id.
When Mr. Fox, through counsel, next wrote to Mr. Betancourt, he explained that the Israeli "Application for permit of permanent residence in Israel/change of visa category . . . becomes an application for citizenship under the Law of Return when the first box (Certificate of 'oleh') is checked. An 'oleh' becomes a citizen upon issuance of the certificate." Id., Attach. 1, Ex. M1, pp. 1--2 n.1. He insisted that "[t]here is nothing automatic about consideration of the application" and, in fact, Mr. Fox was initially denied citizenship in Israel. Id., p. 2. Mr. Fox explicitly denied reliance on Section 5 of the Israeli Nationality Law of 1952, which provides for acquiring citizenship through naturalization. Id. While arguing that he had submitted the necessary "application" for Israeli citizenship, Mr. Fox also noted that the "Israeli Ministry of the Interior is legally required to accept adult candidates for citizenship who satisfy Israeli tests for Jewish identity and who are otherwise acceptable for naturalization." Id. His application for a permit of permanent residence, he contended, satisfied § 1481(a)(1). Id., p. 4.
Mr. Fox further argued that he had declared his allegiance to Israel by the same declaration preceding naturalization under the Israeli Nationality Law of 1952, i.e., "I declare that I will be a ...