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Chacoty v. Pompeo

United States District Court, District of Columbia

July 17, 2019

BARAK CHACOTY, et al., Plaintiffs,
MIKE POMPEO, [1] U.S. Secretary of State, et al., Defendants.



         Plaintiffs 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, as Plaintiffs were, if both her parents are U.S. citizens and one of her parents “has had a residence in the United States” prior to her birth. 8 U.S.C. § 1401(c). Each of the Plaintiffs applied to the State Department for proof of citizenship in the form of a Consular Report of Birth Abroad (“CRBA”). The State Department either denied their CRBA applications or, in the case of two of the Plaintiffs, revoked their previously-issued CRBAs. The Department concluded that Plaintiffs are not U.S. citizens because none of their parents satisfied the residency requirement of § 1401(c). Plaintiffs challenge those decisions under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Due Process Clause of the Fifth Amendment. The Court previously concluded that it has jurisdiction to consider Plaintiffs' claims. The parties' cross-motions for summary judgment on the merits with respect to two representative plaintiffs are now before the Court. Dkt. 52; Dkt. 53. Both of those plaintiffs initially received CRBAs, which the Department subsequently cancelled.

         Plaintiffs' motion for summary judgment is premised on the contention that § 1401(c)'s “residence” requirement demands no more than “physical presence” in the United States for any period, no matter how short. They argue that the Department itself once employed that test and that its more recent, more demanding test is arbitrary and capricious. The Department, in its opposition and cross-motion, argues that the two representative plaintiffs may not challenge the cancellation of their CRBAs under the APA because the APA cause of action is available only to plaintiffs who have “no other adequate remedy in a court, ” 5 U.S.C. § 704, and because 8 U.S.C. § 1503(b) provides an alternative means for a person who is not in the United States to seek a determination of her citizenship. But, even if the APA provides an avenue for challenging the denial or cancellation of a CRBA, the Department continues, the representative plaintiffs' claims fail on the merits because § 1401(c)'s “residence” requirement demands more than fleeting physical presence in the United States.

         As explained below, the Court agrees with Plaintiffs that § 1503 does not provide an adequate remedy sufficient to supplant Plaintiffs' APA causes of action (and does not even arguably supplant their stand-alone due process claims) but agrees with the Department that Plaintiffs' claims fail on the merits. The Court, accordingly, will DENY Plaintiffs' motion for summary judgment and will GRANT the Department's cross-motion.

         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 (“INA”), Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235-36, codified as amended, 8 U.S.C. § 1401. That section provides “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 INA defines “residence” 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); see also 22 C.F.R. § 51.62(c). The issuance or cancelation of a CRBA, however, “affect[s] only the document and not the citizenship status of the person.” 8 U.S.C. § 1504(a). That 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(2); 8 U.S.C. § 1504 (a); see also Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017) (addressing administrative cancelation of a passport). In the event the Secretary cancels a CRBA, the affected individual may request a hearing to “review the basis for the . . . cancellation.” 22 C.F.R. § 51.70(a). If requested, the hearing is held before a “hearing officer, ” who considers the relevant testimony and evidence and makes a recommendation to the Deputy Assistant Secretary for Passport Services or her designee in the Bureau of Consular Affairs (hereinafter “the Deputy Assistant Secretary”). Id. § 51.71. After reviewing the hearing record and the hearing officer's preliminary findings of fact and recommendation, the Deputy Assistant Secretary renders a “final” decision on whether to uphold or overturn the cancellation of the CRBA. Id. § 51.74.

         Although not specific to CRBAs, the INA provides a remedy for anyone who is denied a “right or privilege” by the federal government on “the ground that he is not a national of the United States.” 8 U.S.C. § 1503. 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 national of the United States.” 8 U.S.C. § 1503(a); see also 28 U.S.C. § 2201 (declaratory judgment remedy). If the aggrieved party is “not within the United States, ” however, her route to relief under § 1503 is more arduous. Her starting point is § 1503(b), which permits an aggrieved party to apply for a “certificate of identity”-a document allowing the individual to travel “to a port of entry in the United States [to] apply[] for admission”- from the U.S. diplomatic or consular officer in the country in which she resides. 8 U.S.C. § 1503(b); see also 22 C.F.R. § 50.11; 7 Foreign Affairs Manual (hereinafter “FAM”) 1110 App. H (addressing “Certificates of Identity for Purposes of Traveling to a Port of Entry in the United States and Applying for Admission”). If the consular officer declines to issue a certificate of identity, the applicant may appeal that decision to the Secretary of State. 8 U.S.C. § 1503(b). After the aggrieved party obtains a certificate of identity, she must then travel to the United States and apply for admission at a port of entry “and shall be subject to all the provisions of” the INA “relating to the conduct of proceedings involving aliens seeking admission to the United States.” 8 U.S.C. § 1503(c). If the Attorney General renders a “final determination” that she is “not entitled to admission, ” her exclusive recourse is to seek judicial review of the Attorney General's determination by filing a petition for a writ of habeas corpus. Id. As the Supreme Court has observed, “‘[t]he net effect of this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures, '” which “include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.'” Rusk v. Cort, 369 U.S. 367, 378-79 (1962) (quoting S. Rep. No. 82-1137, at 50 (1952)).

         B. Factual and Procedural Background

         This is not the Court's first occasion to consider whether and how § 1503 applies to Plaintiffs' claims. The case was originally brought by eighteen Israeli citizens and a Canadian citizen, all of whom were born outside the United States and all of whom claimed that they are U.S. citizens by birth pursuant to 8 U.S.C. § 1401(c). In a memorandum opinion and order issued in 2018, the Court dismissed the claims of four of the plaintiffs as untimely. Chacoty v. Tillerson, 285 F.Supp.3d 293, 306 (D.D.C. 2018) (“Chacoty I”). As to the remaining plaintiffs, however, the Court denied the Department's motion to dismiss. The bulk of the Department's motion, and the bulk of the Court's analysis, focused on the question whether Plaintiffs' claims fall within the APA's waiver of sovereign immunity. Id. at 301-04. That waiver, contained in 5 U.S.C. § 702, is unavailable “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. The Department argued that 8 U.S.C. § 1503 is such a statute because it provides a mechanism to challenge the denial or cancelation of a CRBA, although that mechanism requires traveling to a port of entry to the United States, seeking admission, and, if necessary, filing a petition for a writ of habeas corpus. Chacoty I, 285 F.Supp.3d at 302-303.

         The Court was unpersuaded, concluding that the Supreme Court had considered, and rejected, the same contention over fifty years ago in Rusk, 369 U.S. 367 (1962), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Chacoty I, 285 F.Supp.3d at 303. In reaching that conclusion, the Court distinguished between the Department's motion to dismiss for lack of subject-matter jurisdiction, which turned on whether the waiver of sovereign immunity in 5 U.S.C. § 702 is available, and the separate question whether a cause of action is available under the APA, which turns on whether some “other adequate remedy in a court” exists within the meaning of 5 U.S.C. § 704. Id. at 303-04. Finally, the Court (1) rejected the Department's challenge to the adequacy of Plaintiffs' Third Amended Complaint, finding that the complaint contained sufficient factual specificity to place the Department on reasonable notice that Plaintiffs' claims are based on the legal theory that a single day's presence in the United States is sufficient to satisfy § 1401(c)'s residency requirement, and (2) held that Plaintiffs' due process claims do not seek damages but, rather, seeks only declaratory and injunctive relief, and thus need not satisfy the requirements of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Chacoty I, 285 F.Supp.3d at 306-07.

         Following a status conference held in February 2018, the Court directed that (1) the Department file an updated administrative record; (2) Plaintiffs “file a motion for summary judgment concerning a maximum of three representative plaintiffs;” and (3) the Department file an opposition and combined cross-motion in response to that motion. Minute Order (Feb. 7, 2018). Plaintiffs, in turn, elected to move for summary judgment on behalf of two of the remaining fifteen plaintiffs-Kayla and Chana Sitzman.[2] Dkt. 52. Because the pending motions address only the Sitzmans' CRBAs, and because Chacoty I sets forth the relevant background in detail, 285 F.Supp.3d at 298-300, the Court will only briefly summarize the relevant facts as they related to the Sitzmans.

         Kayla and Chana Sitzman-or, more precisely, their parents acting on their behalf- applied for and obtained CRBAs from the U.S. Consulate in Jerusalem in 2006. AR CIV000262. In support of those applications, their mother “represented that she had been in the United States for approximately 10 days in 1988 (although the actual year may have been 1990).” AR CIV000257. In 2010, however, the Department cancelled the CRBAs because “the record show[ed] that the[ir] father, Abraham Sitzman, has never been to the U.S., ” and “the record also shows that the[ir] mother, Masha Bodenheimer, visited the U.S. for approximately ten days as a child.” AR CIV000287. The Department concluded that “there is nothing in the record to indicate that this visit constituted ‘residence' in the U.S. for purposes of fulfilling the requirements of the statute.” Id.

         After the State Department cancelled the Sitzmans' CRBAs, the sisters challenged that decision and requested a hearing, which was held on May 11, 2011. AR CIV000257. Because the “recording mechanism” employed at the hearing “failed to record the proceedings, ” the parties stipulated to the following facts after the hearing. AR CIV000262. “Masha Bodenheimer Sitzman[] was in the United States . . . prior to . . . [Kayla and Chana's'] births” from “July 31, 1974 to September 11, 1974;” from “April 4, 1982 to May 3, 1982;” and “[i]n February 1990, for approximately 10 days.” AR CIV000263. “During these sojourns in the United States, the Bodenheimer family stayed with relatives on both sides of the family and participated in family activities and chores as a member of each household with whom they lived although they did not contribute to household finances.” Id. During the 1974 stay, the family “stopped their mail in Israel, ” but the Bodenheimers did not “look[] for employment or schooling opportunities.” Id.

         The parties further agreed (1) that, “[a]t the time of the CRBA applications and thereafter until at least 2007, the [United States] Consulate [in Jerusalem] published and disseminated a fact sheet that explained that if both parents were United States 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, ” and (2) that the Sitzmans “applied for, and the Consulate issued, the CRBAs in question” based “upon [those] instructions and explanation of the law in the aforesaid factsheet.” Id. “Other United States missions, ” moreover, “have provided similar guidance.” Id. “The Embassy in Cairo, Egypt, for example, provide[d] the same advice as the Consulate” in Jerusalem, and its “instructions state[d] that parents do not need to prove five years of physical presence if ‘[b]oth parents are U.S. citizens[, ] [and] either of them have any period of physical presence in the U.S.” Id.

         Relying on these stipulated facts, the hearing officer recommended that Kayla and Chana Sitzman “should prevail in this matter and their citizenship should be acknowledged and their CRBAs restored.” AR CIV000261. The Deputy Assistant Secretary, reviewing the hearing officer's decision, however, disagreed and concluded that neither of the parents had “resided” within the United States within the meaning of the INA. Dkt. 2822 at 2. The Deputy Assistant Secretary concluded that “the Hearing Officer's Finding of Fact” and “Recommendation [were] based on flawed reasoning, an incorrect understanding and interpretation of INA 301(c), and a failure to properly apply Department policy to the evidence.” Dkt. 28-2 at 3. Instead, in the Deputy Assistant Secretary's view, “[t]he evidence presented with the CRBA applications and at the revocation hearing simply [did] not support the claim that Mrs. [Bodenheimer Sitzman] ever ‘resided' in the United States.” Id. at 2. To the contrary, the fact that Masha Bodenheimer Sitzman visited the United States “on three occasions and that for one of the trips her parents [i.e., Kayla and Chana's grandparents] temporarily stopped mail delivery in Israel while they visited the United States [did] not support the claim that [Masha Bodenheimer Sitzman] had a residence here.” Id. Because the Deputy Assistant Secretary saw “no evidence that these visits to the U.S. were anything other than vacation visits to see family and attend family events, ” she upheld the revocations. Id.

         II. ANALYSIS

         The Department raises two principal challenges to the Sitzmans' APA claims. First, it argues that the APA cause of action is unavailable because 8 U.S.C. § 1503 provides an alternative “adequate remedy” within the meaning of 5 U.S.C. § 704. Second, it argues that, even if the APA cause of action is available, the decision to cancel the Sitzmans' CRBAs was neither arbitrary and capricious nor contrary to law. As explained below, the Court is unpersuaded by the Department's first argument but is convinced by its second.

         A. Whether 8 U.S.C. § 1503 Precludes Plaintiffs' APA Claims

         The Department first argues that the Plaintiffs' APA claims fail because 8 U.S.C. § 1503(b) and (c) constitutes an alternative “adequate remedy” within the meaning of 5 U.S.C. § 704. Dkt. 53-1 at 19-23. The APA's cause of action is available only if “there is no other adequate remedy in a court” for the allegedly unlawful agency action. 5 U.S.C. § 704. Section 704 is neither a grant nor a limitation on the jurisdiction of the federal courts; rather, it defines “a limited cause of action for parties adversely affected by agency action.” Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006); see also Bennett v. Spear, 520 U.S. 154, 175 (1997). In Chacoty I, the Court rejected the Department's contention that 8 U.S.C. § 1503 “establishes an exclusive remedy [such that] the waiver of sovereign immunity contained in § 702 of the APA [is] unavailable, and the Court [therefore] lack[s] jurisdiction.” 285 F.Supp.3d at 302-03. The Court did not, however, reach the question whether § 704's separate “adequate alternative remedy” requirement “provides a basis to challenge the legal sufficiency of Plaintiffs' claim.” Id. at 304.

         The Department now presses that argument, positing that “the procedure laid out in” 8 U.S.C. § 1503 “provides Plaintiffs with an adequate remedy” within the meaning of 5 U.S.C. § 704. Dkt. 53-1 at 21. For support, the Department points to two judicial precedents: one from the D.C. Circuit, which the Department contends is controlling and compels dismissal, id. at 22, and one from the Fifth Circuit, which the Department contends is both on point and persuasive, id. at 21. The Court disagrees on both counts. As explained below, the D.C. Circuit precedent is not on point, and the Fifth Circuit precedent is on point but unpersuasive.

         The Department first argues that the D.C. Circuit recently resolved the question presented in Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017). In Xia, five former Chinese nationals challenged the administrative revocation or non-renewal of their United States passports under both the APA and the INA. Id. at 648. In addressing the plaintiff's claims that they were denied adequate process, the D.C. Circuit observed that, “[i]f plaintiffs believe that they are United States citizens and that [the U.S. Citizenship and Immigration Service] erroneously invalidated their certificates of naturalization and passports, they may pursue . . . [§] 1503 claims.” Id. at 655. The only reason that § 1503 failed to provide the plaintiffs with a means of seeking review was that the plaintiffs had sued in the wrong venue; a person present in the United States may file suit under § 1503(a) only in “the district in which such person resides or claims a residence.” 8 U.S.C. § 1503(a); see also Xia, 865 F.3d at 655. From this, the Department infers that Xia held that § 1503(b) and (c) provide an “adequate remedy” in circumstances analogous to those present here.

         That, however, is not what the D.C. Circuit said or did. To be sure, the district court had held, in the alternative, that § 1503(a) “provides an adequate alternative judicial remedy for plaintiffs, thus barring any APA claim.” Xia, 865 F.3d at 649. But that conclusion provides no aid to the Department in this case, which involves the entirely different remedies available to putative citizens outside the Untied States under 8 U.S.C. § 1503(b) and (c). Moreover, the D.C. Circuit did not hold that § 1503 provided an adequate alternative remedy that precluded the plaintiffs' APA claims. To the contrary, the Court of Appeals discussed § 1503 only in the context of the plaintiffs' due process claims and the district court's denial of leave to amend based on § 1503's venue requirements. Any doubt about the scope of the D.C. Circuit's decision, moreover, is put to rest by the court's disposition of the appeal, which reversed the district court's dismissal of the plaintiffs' APA claims and remanded the case, “without prejudice to plaintiffs' ability to seek leave to file amended complaints in the correct venues to clarify and develop their APA and [§] 1503 claims.” Id. at 661. Thus, even read most favorably to the Department, Xia did not reach the question whether § 1503(a)-much less § 1503(b) and (c)- provides an alternative, adequate remedy “barring any APA claim, ” and it merely left that question for further consideration by the district court on remand or by the transferee court. Id.

         This Court, accordingly, must determine for itself whether § 1503 provides an “adequate remedy.” In limiting the APA cause of action to cases in which “there is no other adequate remedy in a court, ” 5 U.S.C. § 704, Congress resolved “that ‘the general grant of review in the APA' ought not ‘duplicate existing procedures for review of agency action' or ‘provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.'” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017) (“CREW”) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903, (1988)). Although an “alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the ‘same genre, '” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (internal citation omitted), Courts must not “constru[e] [§ 704] to defeat the [APA's] central purpose of providing a broad spectrum of judicial review of agency action, ” Bowen, 487 U.S. at 903. In conducting its inquiry into whether “an alternative remedy is ‘adequate' and therefore preclusive of APA review, ” the Court must therefore look for signs of ...

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