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Chacoty v. Kerry

United States District Court, District of Columbia

January 16, 2018

BARAK CHACOTY, et al., Plaintiffs,
REX W. TILLERSON, U.S. Secretary of State, et al., Defendants.


          RANDOLPH D. MOSS United States District Judge

         Plaintiffs are eighteen Israeli citizens[1] 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 § 1401(c).

         Plaintiffs 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.

         They 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.

         As 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.

         I. BACKGROUND

         A. Statutory Framework

         “The 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. § 1101(a)(33).

         Congress 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.

         In 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 omitted).

         If the 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.

         B. Factual Background

         Plaintiffs' Third Amended Complaint, [2] 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.

         Of the 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. ¶ 46).

         According 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).

         First, 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.

         According 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).

         At some 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”).

         The 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. ¶¶66).

         Based 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 ...

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