United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
are eighteen Israeli citizens and a Canadian citizen, all of
whom were born outside the United States. They contend that
they are U.S. citizens by birth pursuant to 8 U.S.C. §
1401(c). That provision confers birthright citizenship on a
person born abroad if both parents are U.S. citizens and one
parent “has had a residence in the United States”
prior to the person's birth. Id. Each of the
Plaintiffs applied to the State Department for proof of
citizenship in the form of Consular Reports of Birth Abroad
(“CRBAs”). The State Department either denied
their CRBA applications or, for two of the Plaintiffs,
revoked already-issued CRBAs. The Department's rationale:
Plaintiffs are not, in fact, U.S. citizens because none of
their parents satisfy the residency requirement of §
filed this action against the United States, Secretary of
State Rex Tillerson, and other State Department officials
(collectively, “the Department”) asserting claims
under the Administrative Procedure Act (“APA”)
and the Due Process Clause of the Fifth Amendment.
contend that the State Department applied an impermissibly
strict interpretation of the term “residence” in
denying their applications, which is contrary to the plain
terms of § 1401(c); that the Department departed from
its prior, longstanding interpretation of the statute without
following the requirements of the APA and the
Department's Foreign Affairs Manual; and that the
Department has not applied its new reading of the statute
consistently nor embodied that reading in Department
“policy.” The Department moves to dismiss on four
grounds. Its principal contention is that the Court lacks
subject matter jurisdiction because Plaintiffs' sole
remedy lies in 8 U.S.C. § 1503. Invoking the § 1503
remedy requires either (1) presence in the United States,
which Plaintiffs do not allege, or (2) a set of conditions
that Plaintiffs have not fulfilled: application for a
certificate of identity, presence at a “port of
entry” to the United States, an application for
admission, and, if necessary, a petition for a writ of habeas
corpus. Second, the Department argues that, under the general
six-year statute of limitations for claims against the United
States, 28 U.S.C. § 2401(a), the claims of four of the
Plaintiffs are untimely and that the Court, accordingly,
lacks jurisdiction over those claims. Third, the Department
contends that all but two of the remaining Plaintiffs have
failed to allege facts sufficient to state claims for relief
under the APA. Finally, the Department disputes the adequacy
of Plaintiffs' due process claims.
explained below, the Court concludes that for the most part,
it has subject matter jurisdiction because Plaintiffs'
claims arise under federal law and fall within the APA's
waiver of sovereign immunity; it lacks subject matter
jurisdiction over the claims of four Plaintiffs, which are
time barred; and the Department's limited challenges to
the factual specificity of Plaintiffs' individual APA
claims and due process claims are unpersuasive. The Court
will, accordingly, GRANT the
Department's motion to dismiss in part and
DENY it in part.
general rules for acquiring U.S. citizenship are found in 8
U.S.C. § 1401.” Sessions v.
Morales-Santana, 137 S.Ct. 1678, 1686 (2017);
see Immigration and Nationality Act of 1952, Pub. L.
No. 82-414, § 301(a)(3), 66 Stat. 163, 235-36. That
section sets forth “rules for determining who
‘shall be nationals and citizens of the United States
at birth' by establishing a range of residency and
physical-presence requirements calibrated primarily to the
parents' nationality and the child's place of
birth.” Morales-Santana, 137 S.Ct. at 1686
(quoting 8 U.S.C. § 1401). The subsection relevant here,
§ 1401(c), confers birthright U.S. citizenship on any
person “born outside of the United States . . . of
parents both of whom are citizens of the United States and
one of whom has had a residence in the United States . . .
prior to the birth of such person.” 8 U.S.C. §
1401(c). The term “residence” is defined as
“the place of general abode, ” which in turn
refers to “[a person's] principal, actual dwelling
place in fact, without regard to intent.” 8 U.S.C.
has charged the Secretary of State with “the
administration and the enforcement of . . . immigration and
nationality laws relating to . . . the determination of
nationality of a person not in the United States.” 8
U.S.C. § 1104. Pursuant to that authority, the Secretary
may issue Consular Reports of Birth Abroad-or CRBAs-to U.S.
citizens born abroad “[u]pon application and the
submission of satisfactory proof of birth, identity and
nationality.” 22 C.F.R. § 50.7(a). The Secretary
is also authorized to cancel a CRBA that was
“illegally, fraudulently, or erroneously
obtained.” 8 U.S.C. § 1504(a). The issuance or
rescission of a CRBA, however, “affect[s] only the
document and not the citizenship status of the person.”
8 U.S.C. § 1504(a). This is because CRBAs, like
passports, do not confer citizenship; rather, they merely
provide proof of one's status as a citizen. See
22 U.S.C. § 2705.
addition to prescribing conditions for birthright
citizenship, the Immigration and Nationality Act provides a
remedy for anyone who is denied a “right or
privilege” by the federal government on “the
ground that [s]he is not a national of the United
States.” 8 U.S.C. § 1503. That remedy, codified at
8 U.S.C. § 1503, encompasses the rejection of a CRBA
application and the revocation of a CRBA. See Xia v.
Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017). An
aggrieved party seeking to take advantage of § 1503 must
take one of two paths. If she is “within the United
States, ” § 1503(a) creates a cause of action
allowing her to seek a declaration that she is a U.S.
national. 8 U.S.C. § 1503(a). She need only make
“a prima facie case establishing [her]
citizenship.” Perez v. Brownell, 356 U.S. 44,
47 n.2 (1958), overruled on other grounds by Afroyim v.
Rusk, 387 U.S. 253 (1967). The government must then
produce “clear, unequivocal, and convincing”
evidence to rebut her showing. Id. (citation
aggrieved party is “not within the United States,
” however, her route to relief under § 1503 is
more difficult. Her starting point is § 1503(b), which
permits an aggrieved party to apply for a “certificate
of identity” from the U.S. diplomatic or consular
officer in the country in which she resides. 8 U.S.C. §
1503(b). If the officer declines to issue a certificate of
identity, the applicant may appeal that decision to the
Secretary of State. Id. But, even if she
successfully obtains a certificate of identity, the process
does not end there; rather, the aggrieved party must then
travel to the United States and apply for admission at a port
of entry as a U.S. citizen. 8 U.S.C. § 1503(c). If the
Attorney General determines that she is not a U.S. citizen
and therefore “not entitled to admission, ” her
final recourse is to seek judicial review of the Attorney
General's nationality determination by filing a petition
for a writ of habeas corpus. Id.
Third Amended Complaint,  Dkt. 28, sets forth the relevant facts,
which the Court must accept as true for purposes of the
Department's motion to dismiss. See Wood v.
Moss, 134 S.Ct. 2056, 2065-67 & n.5 (2014);
Xia, 865 F.3d at 646.
nineteen Plaintiffs, sixteen are minor Israeli citizens from
nine different families who reside in Israel and applied for
CRBAs. See Dkt. 28 at 5-8 (Am. Compl. ¶¶
2-11, 14-20). Their requests were rejected by officials at
the U.S. Consulate General in Jerusalem; the earliest denial
occurred in November 2007, the latest in April 2016.
Id. at 10-11 (Am. Compl. ¶¶ 33, 39, 44).
Two additional Plaintiffs, Kayla and Chana Sitzman, are
Israeli citizens residing in Israel whose CRBAs were revoked.
Id. at 7, 10 (Am. Compl. ¶¶ 12-13, 32).
The Consulate General cancelled both CRBAs in August 2010.
Id. at 10 (Am. Compl. ¶¶ 34-35). After the
Sitzmans timely appealed, the State Department affirmed the
revocations in February 2012. Id. at 10 (Am. Compl.
¶¶ 34-35). The final Plaintiff, Kenton Manning, is
a Canadian citizen residing in Canada. Id. at 8 (Am.
Compl. ¶ 21). Manning's “claim to U.S.
[c]itizenship” was denied in July 2006. Id. at
11-12 (Am. Compl. ¶ 45). The State Department affirmed
the decision in May 2007. Id. at 12 (Am. Compl.
to the complaint, each Plaintiff's CRBA was either not
approved or revoked based on the State Department's
conclusion that neither of the applicant's parents
satisfied § 1401(c)'s residency requirement.
Id. at 10 (Am. Compl. ¶¶ 32-33). Although
the complaint does not set forth the rationales or decisions
provided by the State Department in each case, it provides
the following “example[s].” Id. at 13
(Am. Compl. ¶ 49).
in denying the application submitted on behalf of the three
Chacoty children, the U.S. Consulate General in Jerusalem
concluded that “[t]he activities described in [the]
affidavits [submitted with the application] are the normal
activities in which a person engages while on visit. There is
no indication that the United States was ever the place of
general abode.” Id. (Am. Compl. ¶ 49).
Second, in denying the application submitted on behalf of the
Spector child, the Consulate General wrote, “Based on a
thorough review of the information contained in your
application . . . it has been determined that your child did
not acquire citizenship at birth because neither [parent] had
a ‘residence' in the United States prior to the
child's birth.” Id. (Am. Compl. ¶
50). Third, in revoking the CRBAs issued to Chana and Kayla
Sitzman, the State Department explained that “[t]he
sole issue for decision at the revocation hearing was whether
there was sufficient evidence . . . that [their mother's]
visits to the United States constituted residence, ”
and the deciding official found that “the character of
[her] visits to the United States d[id] not constitute
‘residence' within the meaning of” §
1401(c). Id. (Am. Compl. ¶ 51). Finally,
Plaintiffs attach to their complaint a letter from the Consul
to the Consulate General rejecting the CRBA application of
the Nachshon child, noting that the trips that his parents
took to the United States before his birth never lasted
longer than two months and concluding that those “short
trips to the U.S. were visits and indicate [that they] never
established a residence there.” Dkt. 28-4 at 1.
to Plaintiffs, the State Department's decisions denying
their CRBA applications constitute a substantial departure
from prior practice and, indeed, a departure from the
practice at other embassies and consulates around the world.
Until 2007, Plaintiffs assert, the Department
“published and disseminated a fact sheet”
explaining that “if both parents were [U.S.] citizens,
they could transmit citizenship to their children provided
that one of the parents could show one day of physical
presence in the United States.” Dkt. 28-1 at 1;
see Dkt. 28 at 32 (Am. Compl. Conclusion).
point, however, the Department adopted a new approach that
requires more to establish “residence.” This new
approach is reflected in “updates” to the
Department's Foreign Affairs Manual and in at least one
administrative decision, which is also attached to the
complaint. See Dkt. 28 at 15-16 (Am. Compl. ¶
61-62); Dkt. 28-2 (final administrative decision). Under that
new approach, the consular officer must “take into
account the nature and quality of the person's connection
to the place.” Dkt. 28 at 15-16 (Am. Compl. ¶ 61)
(quoting 7 FAM 1133.5(b)). As a result, more is required
“than a temporary presence”: “visits to the
United States, ” without more, “are insufficient
to establish residency for purposes of citizenship
transmission under” § 1401(c). Id. (Am.
Compl. ¶ 61) (quoting 7 FAM 1133.5(b)). Among other
factors, the Department now considers whether the
“person owns or rents property” and “the
duration of [the] person's stay in a particular place in
the United States.” Id. (Am. Compl. ¶ 61)
(quoting 7 FAM 1133.5(d), (f)); see also Dkt. 28-2
at 2 (final administrative decision) (noting that
“[r]esidence is not determined solely by the length of
time spent in a place, but also takes into account the nature
and quality of the person's connection to the place,
” and that “[g]enerally, visits to the United
States are insufficient, ” and, instead, the consular
official must engage in “a close examination, on a
case[-]by[-]case basis, of the facts related to one's
stay in the United States”).
complaint alleges that the State Department further revised
the relevant portions of the Foreign Affairs Manual on
February 24, 2016. Dkt. 28 at 17 (Am. Compl. ¶ 66). The
complaint does not, however, describe those revisions or
whether or how they might bear on Plaintiffs' claims, all
of which involve determinations made before February 24,
2016. Rather, the complaint merely asserts that these
revisions demonstrate that the State Department's
“interpretation” of § 1401(c) is a
“moving target.” Id. (Am. Compl.
on these allegations, Plaintiffs seek declaratory and
injunctive relief, including an order directing that the
State Department issue CRBAs to all of the Plaintiffs, except
Kenton Manning, “who should be issued a
passport.” Dkt. 28 at 33 (Prayer for Relief). This
relief is warranted, in their view, for several reasons. They
contend that the Department has misinterpreted § 1401(c)
and has-at least implicitly-impermissibly read an
“intent” standard into the statute. They also
contend that the Department committed procedural errors in
departing from its prior interpretation of the statute by
failing (1) to engage in notice and comment rulemaking; (2)
to follow the standards for revising the Foreign Affairs
Manual set forth in the manual itself; and (3) to adopt a