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Farrell v. Tillerson

United States District Court, District of Columbia

April 16, 2018

GERALD LEE FARRELL, Plaintiff,
v.
REX W. TILLERSON, in his official capacity as Secretary of State of the United States, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE.

         The pro se plaintiff, Gerald Lee Farrell, brings this civil action against the defendants, Rex W. Tillerson, the Secretary of the United States Department of State (the “Secretary”) and Corrin Ferber, Director of the Office of Legal Affairs, Bureau of Consular Affairs of the United States Department of State (“the Department”), alleging that the defendants' denial of his request for a Certificate of Loss of Nationality violated the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1537 (2012), 18 U.S.C. § 1429 (2012), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2012). See generally Amended Complaint (“Am. Compl.”). Currently before the Court is the Defendants' Motion to Dismiss (“Defs.' Mot.”), which seeks dismissal of the plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6); the Defendants' Motion for Relief from Local Civil Rule 7(n) (“Defs.' Rule 7(n) Mot.”); and the plaintiff's Motion for Summary Judgment (“Pl.'s Mot.”). Upon consideration of the parties' submissions, [1] the Court concludes that it must deny the defendants' motion to dismiss, deny as moot the defendants' motion for relief from Local Civil Rule 7(n), and order the defendant to respond to the plaintiff's motion for summary judgment.

         I. BACKGROUND

         A. Statutory and Regulatory Framework

         Section 349 of the INA provides that “a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any [one] of [seven] acts with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). These acts are codified as subsections (a)(1) through (a)(7) of 8 U.S.C. § 1481. With regards to subsections (a)(1) through (a)(5), the statute provides that “no national of the United States can lose United States nationality . . . while within the United States . . . .” Id. § 1483(a). At issue in this case is subsection (a)(1), which provides that an individual “shall lose his nationality by voluntarily . . . [, and] with the intention of relinquishing United States nationality[, ] . . . obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years.” 8 U.S.C. § 1481(a)(1).[2] Under the INA,

[w]henever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality under [8 U.S.C. § 1481] . . ., he shall certify the facts upon which such belief is based to the Department . . ., in writing, under regulations prescribed by the Secretary[.] If the report of the diplomatic or consular officer is approved by the Secretary . . ., the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates. Approval by the Secretary . . . of a certificate . . . shall constitute a final administrative determination of loss of United States nationality[.]

8 U.S.C. § 1501. The certificate to which the statute refers is known as a “Certificate of Loss of Nationality.” See, e.g., 7 Foreign Affairs Manual 1227(a) (instructing consular officers to prepare a “Certificate of Loss of Nationality” when they “have reason to believe that [an] individual has committed an expatriating act voluntarily and with the intention of relinquishing U.S. nationality”); see also Weber v. U.S. Dep't of State, 885 F.Supp.2d 46, 50 (D.D.C. 2012) (referring to the “certificate” described in § 1501 as a Certificate of Loss of Nationality).

         The Secretary is responsible for administering and enforcing loss of nationality under subsections (a)(1) through (a)(5). See Defs.' Mem. at 4; see also 8 U.S.C. § 1104(a) (“The Secretary . . . [is] charged with the administration and the enforcement of . . . the powers, duties, and functions of diplomatic and consular officers of the United States, . . . and [ ] the determination of nationality of a person not in the United States.”). In connection with these duties, the Secretary has promulgated various regulations, including 22 C.F.R. § 50.40, which provides that the Secretary will “presume[]” that a citizen who obtains naturalization in a foreign state pursuant to subsection (a)(1) “inten[ds] to retain [United States] citizenship”; however, if that citizen “affirmatively asserts to a consular officer, after he or she has committed [the] potentially expatriating act, that it was his . . . intent to relinquish [United States] citizenship, ” then the presumption is rebutted and the citizen “will lose his . . . citizenship.” 22 C.F.R. § 50.40(a) (2017).

         The Secretary has also provided specific guidance to consular officers regarding the administration of loss of nationality claims in his Foreign Affairs Manual (the “Manual” or “FAM”). Relevant to subsection (a)(1), the Manual provides that if consular officers considering a claim brought under subsection (a)(1) “become aware [that] a citizen acquired foreign nationality [a]nd[] the citizen asserts or advises [them] . . . that [his] intent was to relinquish [United States] citizenship, ” then “[t]he administrative presumption of intention to retain [United States] nationality is inapplicable[ a]nd[] it is necessary to develop the case and assess [the] voluntariness and intent.” 7 FAM 1221, Exhibit (“Ex.”) 1 (Loss-of-Nationality Flow Chart (“Flow Chart”)). In this situation, the Manual instructs a consular officer to send a letter to the citizen that “[p]rovide[s] [him with a copy of] . . . Form DS-4079, Questionnaire: Information for Determining Possible Loss of [United States] Citizenship, ” id., and requests that he “fill out . . . and [ ] submit [the] form, ” 7 FAM 1224.3(2). The Manual also instructs a consular officer to “arrange to interview the citizen, ” 7 FAM 1221, Ex. 1 (Flow Chart), explaining that “it may be necessary to contact the [citizen] to discuss next steps and clarify any issues that arise in reviewing the responses to Form DS-4079, ” but that “[c]onsular officers can be flexible in determining whether this should include an in person, telephone, or e-mail contact, ” 7 FAM 1224.5. Finally, to prepare a Certificate of Loss of Nationality, the Manual instructs consular officers to assemble and submit a package containing, inter alia, Form DS-4079 and Form DS-4081, which is a “Statement of Understanding Concerning the Consequences and Ramifications of Relinquishment or Renunciation of [United States] Citizenship.” 7 FAM 1227(a)(3)-(4). Both Forms DS-4079 and DS-4081 instruct citizens to sign the forms in the presence of a consular officer. See Form DS-4079: Request for Determination of Possible Loss of United States Citizenship, https://eforms.state.gov/Forms/ds4079.pdf (last visited Apr. 12, 2018) (instructing applicants to sign the form “before a [c]onsular [o]fficer at a [United States] Embassy or Consulate”); see also Form DS-4081: Statement of Understanding Concerning the Consequences and Ramifications of Renunciation or Relinquishment of U.S. Nationality, https://eforms.state.gov/Forms/ds4081.pdf (last visited Apr. 12, 2018) (requiring a “consular officer's attestation” that the citizen “appeared personally . . . and signed th[e] statement . . . before [the officer]”).[3]

         B. Factual and Procedural History

         The plaintiff is a United States citizen by birth. See Am. Compl., Ex. 1 (Certificate of Live Birth); see also Defs.' Mem. at 8. However, he alleges that he “moved to Switzerland in . . . []1994[], ” “married a Swiss citizen in 1996, ” and “obtain[ed] naturalization in Switzerland” in 2004. Am. Compl. at 5. In 2014, the plaintiff pleaded guilty in the United States to federal criminal charges and was sentenced to a ninety-six-month prison term. See Judgment at 1-2, United States v. Farrell, Crim. Action No. 4-180-BLW (D. Idaho June 25, 2014), ECF No. 48.[4] The plaintiff is currently incarcerated at the Federal Correctional Institution in Big Spring, Texas. See Am. Compl. ¶ 14; see also Defs.' Mem. at 8.[5]

         On May 31, 2016, the plaintiff sent a letter to then-United States Ambassador to Switzerland Susan LeVine, requesting that she issue him a Certificate of Loss of Nationality pursuant to § 1481(a)(1). See Am. Compl., Ex. 6 (Letter from Gerald Lee Farrell to the Honorable Susan LeVine, United States Ambassador to Switzerland (May 31, 2016) (“May 31, 2016 Letter”)) at 1.[6] In the letter, he represented that he “became [a] Swiss [citizen] ¶ 2004, ” having been issued a Swiss passport in that year, and that he did so “voluntarily and with the intent to irrevocably lose [his] United States citizenship.” Id., Ex. 6 (May 31, 2016 Letter) at 1. In support of his position, he attached several documents, including an affidavit in which he stated that he had “applied for citizenship in . . . Switzerland, while on Swiss soil with the intent of losing [his] citizenship of the United States of America, ” id., Ex. 6 (May 31, 2016 Letter) at 4; as well as what purports to be a Form DS-4081, notarized by a Texas-commissioned notary public, see id., Ex. 6 (May 31, 2016 Letter) at 3.

         On June 22, 2016, an unnamed representative of the United States Embassy in Switzerland (the “Embassy”) responded by letter to the individual designated by the plaintiff as having power of attorney to act on his behalf. See id., Ex. 7 (Letter from American Citizen Services Section, United States Embassy, Bern, Switzerland, to Rene Schreiber (June 22, 2016) (“June 22, 2016 Letter”)) at 1. In the response, the representative explained that because a “[United States] passport was issued to [the plaintiff] ¶ 2013[, after he] acquired Swiss nationality in 2004, . . . expatriation d[id] not apply in his case.” Id., Ex. 7 (June 22, 2016 Letter) at 1. But, the representative advised that if the plaintiff “should now choose to renounce his [United States] nationality, ” he could do so by “renounc[ing] [ ] in the presence of a consular officer; [ ] outside [of] the United States; and [ ] in the precise form prescribed by the Secretary of State.” Id., Ex. 7 (June 22, 2016 Letter) at 1.

         On July 21, 2016, the plaintiff's counsel sent a letter to the Ambassador asserting that “[t]he current denial to issue [the plaintiff] a Certificate of Loss of Nationality was solely based on a misunderstanding of the origin of the alleged 2013 [United States p]assport, which was actually solely requested and obtained by the [United States] Government, ” id., Ex. 8 (Letter from Craig Harris Collins to the Honorable Susan LeVine, United States Ambassador to Switzerland (July 21, 2016) (“July 21, 2016 Letter”)) at 2, “presumably . . . for [the plaintiff's] extradition . . . to the United States, ” id., Ex. 8 (July 21, 2016 Letter) at 3. The plaintiff's counsel represented that “[i]n 2004, [the plaintiff] voluntarily became a citizen of Switzerland . . . pursuant [to] 8 U.S.C. § 1481(a)(1), ” and argued that “[t]he loss of [the plaintiff's] United States nationality was effective immediately, not when it is administratively or judicially determined.” Id., Ex. 8 (July 21, 2016 Letter) at 1.

         On August 9, 2016, the Vice Consul for the Embassy responded to the plaintiff's counsel's letter, explaining that “to pursue expatriation . . ., [the plaintiff] would have to come to the Embassy in [Switzerland] to sign form DS-4081 . . . in person in front of a consular officer, ” as well as “complete . . . the enclosed form DS-4079 . . . and send [it] to [the Embassy].” Id., Ex. 9 (Letter from Matthew Boullioun, Vice Consul, United States Embassy, Bern, Switzerland, to Craig Harris Collins (Aug. 9, 2016)). The plaintiff's counsel responded, reiterating his “legal position for [the plaintiff]'s 2004 expatriation” and incorporating from his July 21, 2016 letter “all [of] the relevant statutes, . . . [r]egulations and controlling case law [ ] substantiat[ing] this position.” Id., Ex. 10 (Letter from Craig Harris Collins to Matthew Boullioun, Vice Consul, United States Embassy, Bern, Switzerland (Aug. 19, 2016)) at 2. The Vice Consul again responded and asserted that “[United States] citizens cannot lose [United States] nationality while within the United States on the basis of . . . (a)(1).” Id., Ex. 11 (Letter from Matthew Boullioun, Vice Consul, United States Embassy, Bern, Switzerland, to Craig Harris Collins (Sept. 14, 2016)) at 1 (citing 8 U.S.C. § 1483(a)). The plaintiff's counsel then sent a final letter to the Vice Consul on September 14, 2016, restating his position and requesting that the Vice Consul “consult internally with a legal officer before making a final denial [of the plaintiff]'s . . . request.” See id., Ex. 12 (Letter from Craig Harris Collins to Matthew Boullioun, Vice Consul, United States Embassy, Bern, Switzerland (Sept. 14, 2016)).

         On September 19, 2016, the plaintiff's counsel sent a letter to the Director of the Bureau of Consular Affairs of the Department, informing the Director that the plaintiff “ha[d] been informally denied by [the] Consulate in [Switzerland] the issuance of a Certificate of Loss of Nationality, ” id., Ex. 13 (Letter from Craig Harris Collins to Director, Office of Legal Affairs, Bureau of Consular Affairs, United States Department of State (Sept. 19, 2016) (“Sept. 19, 2016 Letter”) at 3, and requesting “a reevaluation by the Department of this informal decision, ” id., Ex. 13 (Sept. 19, 2016 Letter) at 6. In the letter, he argued that “there is no personal appearance requirement” for an act committed under subsection (a)(1), “only a written affirmation” requirement. Id., Ex. 13 (Sept. 19, 2016 Letter) at 3. In support of the plaintiff's counsel's position, the letter purported to attach a notarized copy of the plaintiff's Swiss passport, see id., Ex. 13 (Sept. 19, 2016 Letter) at 1, as well as the plaintiff's affidavit “confirming his voluntary commission in 2004 of [an expatriating act under subsection (a)(1)] on Swiss soil [and] his intent to lose his [United States] nationality, ” see id., Ex. 13 (Sept. 19, 2016 Letter) at 2.

         On November 9, 2016, defendant Ferber responded to the plaintiff's counsel by letter, informing him that although the Department had “carefully reviewed [his] explanation of [the plaintiff]'s circumstances, the history of [his] correspondence with the [Embassy] . . ., and [his] legal arguments in support of [the plaintiff]'s request [for] a [Certificate of Loss of Nationality] under section 349(a)(1), ” it could not “approve a [Certificate of Loss of Nationality] for [the plaintiff] based on 349(a)(1) at th[at] time.” Id., Ex. 14 (Letter from Corrin M. Ferber, Director, Overseas Citizens Services, Office of Legal Affairs, United States Department of State, to Craig Harris Collins (Nov. 9, 2016) (“Nov. 9, 2016 Letter”) at 1. The letter explained that

[a]s a threshold matter, the Department cannot approve a [Certificate of Loss of Nationality] based on [§] 349(a)(1) while the [United States] national is residing in the United States. . . . There is no question that a [United States] citizen who seeks a [Certificate of Loss of Nationality] based on [§] 349(a)(1) remains so until the Department's approval of the [Certificate of Loss of Nationality], which, by statute, constitutes the final administrative determination of loss. Loss is not automatic upon the commission of the potentially expatriating act.

Id., Ex. 14 (Nov. 9, 2016 Letter) at 1. It further explained that the plaintiff

did not comply with the applicable procedures to obtain a [Certificate of Loss of Nationality] . . . on the basis of [ ] section 349(a)(1) while abroad prior to his incarceration, including [his] signature on the required Department . . . forms before a consular officer, and [he] cannot do so now while he is within the United States.

Id., Ex. 14 (Nov. 9, 2016 Letter) at 2. Finally, defendant Ferber informed the plaintiff's counsel that “[n]othing in [her] letter preclude[d] [the plaintiff] from properly submitting an application for a [Certificate of Loss of Nationality] on the basis of [§] 349(a)(1) at some point in the future, once he is outside of the United States.” Id., Ex. 14 (Nov. 9, 2016 Letter) at 3.

         On December 1, 2016, the plaintiff's counsel responded by letter to defendant Ferber's letter. See id., Ex. 15 (Letter from Craig Harris Collins to Corrin M. Ferber, Director, Overseas Citizens Services, Office of Legal Affairs, United States Department of State (Dec. 1, 2016) (“Dec. 1, 2016 Letter”)) at 1. The plaintiff's counsel raised a number of legal arguments seeking to refute defendant Ferber's “contention that [the Department] cannot issue [the plaintiff] a [Certificate of Loss of Nationality] while he is on [United States] soil, ” reiterating his position “that [the plaintiff] has already lawfully expatriated under 349(a)(1) . . . [and] is presently solely a Swiss citizen . . . deportable [ ] under . . . the INA.” Id., Ex. 15 (Dec. 1, 2016 Letter) at 2; see also id., Ex. 15 (Dec. 1, 2016 Letter) at 3-11. The plaintiff's counsel “request[ed] that [defendant Ferber] indicate in [his] response to th[e] letter that ‘this is [the Department's] final agency action' in this matter.” Id., Ex. 15 (Dec. 1, 2016 Letter) at 12.

         On February 8, 2017, defendant Ferber again responded to the plaintiff's counsel by letter, informing him that the Department had “reviewed [the plaintiff's] additional arguments, ” but that “the Department maintain[ed] that [it could ]not approve a [Certificate of Loss of Nationality for [the plaintiff] under section 349(a)(1) . . . at th[at] time.” Id., Ex. 16 (Letter from Corrin M. Ferber, Director, Overseas Citizens Services, Office of Legal Affairs, United States Department of State (Feb. 8, 2017 Letter)) at 1.[7] Specifically, defendant Ferber

reiterate[d] that [the plaintiff's] request for a [Certificate of Loss of Nationality] on the basis of [§] 349(a)(1) is unavailing[] because [the plaintiff] is within the United States and, thus, ineligible to expatriate under that section. In accordance with [the] INA . . ., the Department can only issue a [Certificate of Loss of Nationality] on the basis of an application properly completed abroad, in accordance with procedures set forth at 7 FAM 1200 . . . . The process for obtaining a [Certificate of Loss of Nationality] on the basis of [ ] section 349(a)(1) includes the individual signing the DS-4079 before a consular officer at post abroad, and completing an interview with a consular officer to determine whether the expatriating act was performed voluntarily and with the intent to relinquish [United States] citizenship.

Id., Ex. 16 (Feb. 8, 2017 Letter) at 1. The letter further explained that “[n]one of the cases on which [the plaintiff's counsel] rel[ied] would permit the Department's issuance of a [Certificate of Loss of Nationality] on the basis of [ ] section 349(a)(1) to a [United States] citizen requesting a [Certificate of Loss of Nationality] from within the United States.” Id., Ex. 16 (Feb. 8, 2017 Letter) at 1. Finally, the letter “reiterate[d that] th[e] decision d[id] not preclude [the plaintiff] from properly submitting an application for a [Certificate of Loss of Nationality] on the basis of [ ] section 349(a)(1) once he is outside of the United States, ” and added that “[s]hould [the plaintiff] do so, the Department would evaluate the substantive aspects of his application at that time.” Id., Ex. 16 (Feb. 8, 2017 Letter) at 1. In addition, the letter “refer[red the plaintiff] to the ...


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