United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT COURT JUDGE.
Lihong Xia, Wei Liu, Hua Chen, Hoi Lun Li, and Jinsong Chen
have brought suit against the Secretary of State and the
Secretary of Homeland Security in their official capacities
for alleged violations of the Administrative Procedure Act
("APA"). Plaintiffs allege that the Department of
Homeland Security ("DHS") wrongfully cancelled
their certificates of naturalization and that the Department
of State wrongfully revoked or refused to renew their U.S.
passports. Defendants have moved for partial dismissal of
certain claims and summary judgment on the remaining claims.
ECF No. 61. Even though the same two attorneys represented
all five plaintiffs at the summary judgment stage, only one
plaintiff-Lihong Xia-responded to Defendants' Motion for
Summary Judgment and Motion for Partial
Dismissal. ECF No. 65. Lihong Xia is also the only
plaintiff who has moved for summary judgment. ECF No. 65, 67.
For the reasons set forth below, the Court will grant in part
and deny in part Defendants' Motion for Summary Judgment
and Motion for Partial Dismissal. The Court will also deny
Plaintiffs Cross-Motion for Summary Judgment.
initially brought this lawsuit in 2014. This Court dismissed
all claims, but the D.C. Circuit remanded plaintiffs' APA
claims back to this Court. See L. Xia v. Tillerson, 865
F.3d 643 (D.C. Cir. 2017). In April of 2019, defendants
complied with the Court's order to respond to
plaintiffs' APA claims and provide the certified
administrative records ("CARs") from the United
States Citizenship and Immigration Services
("USCIS") and the State Department for all five
plaintiffs. This Court must now determine whether defendants
complied with the APA when cancelling plaintiffs'
certificates of naturalization and when revoking or refusing
to renew their U.S. passports.
Naturalization & Passport Procedures
U.S. government has very specific procedures for both
obtaining and cancelling certificates of naturalization.
Cancellation of a certificate of naturalization also directly
impacts a person's U.S. passport if that certificate was
used as the basis for proving citizenship.
Obtaining Certificates of Naturalization
applicant for naturalization must file a Form N-100, an
Application for Naturalization, and the required filing fee
to begin the citizenship process. 8 C.F.R. §§
103.7, 316.4. USCIS will then accept the application,
complete a background check, and schedule an interview with
the applicant. 8 C.F.R. §335.2. There are multiple
levels of review before an applicant is approved and
permitted to take the Oath of Allegiance. A person cannot
become a citizen of the United States unless all steps in the
naturalization process are properly completed and "all
statutory requirements are complied with." United
States v. Ginsberg, 243 U.S. 472, 475 (1917); see
Fedorenko v. United States, 449 U.S. 490, 506 (1981)
(explaining that "[t]here must be strict compliance with
all the congressionally imposed prerequisites to the
acquisition of citizenship.").
Cancelling Certificates of Naturalization
a certificate of naturalization generally constitutes proof
of U.S. citizenship (8 U.S.C. § 1449), the certificate
itself does not confer citizenship status if it was acquired
unlawfully. Matter of Zhang, 27 I. & N. Dec.
569, 573-74 (BIA 2019). USCIS is thus authorized to cancel any
certificate that it determines "was illegally or
fraudulently obtained" or "created through
illegality or by fraud." 8 U.S.C. § 1453. Before
cancelling a certificate, however, USCIS must provide written
notice to the certificate's holder and state its basis
for believing that the certificate should be cancelled.
Id. The notice must also advise the holder that she
or he has sixty days to respond in writing under oath or
affirmation to demonstrate why the certificate should not be
cancelled. Id; 8 C.F.R. § 342.1. Additionally,
the notice must advise the holder of the right to appear in
person before a naturalization examiner (with or without an
attorney) to demonstrate why the certificate should not be
cancelled. 8 C.F.R. §§ 342.1, 342.5. If someone
goes through either the written or in-person response process
and USCIS still decides to cancel the certificate, she or he
has thirty days to file a timely notice of appeal to the
USCIS Administrative Appeals Unit ("AAU"). 8 C.F.R
Revoking or Refusing to Renew U.S. Passports
State Department has authority to issue passports to U.S.
citizens. 22 C.F.R. §§ 51.2(a), 211(a), 212. U.S.
passports "have the same force and effect as proof of
United States citizenship as certifications of naturalization
or of citizenship issued by the Attorney General or by a
court having naturalization jurisdiction." 22 U.S.C.
§ 2705. The State Department's authority to revoke
passports comes from 22 C.F.R. § 51.62. The State
Department may revoke a passport if it finds "that the
bearer of the passport is not a U.S. national, or the
Department is on notice that the bearer's certificate of
citizenship or certificate of naturalization has been
cancelled." 22 C.F.R. § 51.62(b). When
someone's passport is revoked or someone's
application is denied based on a finding of non-nationality
pursuant to § 51.62(b), there is no opportunity for that
person to attend an administrative hearing or ask the agency
to reconsider. See 22 C.F.R. §§ 51.70(a),
(b)(5). The only form of relief available is to seek review
in federal court under 8 U.S.C. § 1503(a).
the early 1990s until his arrest and resignation in 2006, a
USCIS employee named Robert Schofield used his position to
fraudulently and illegally issue numerous false immigration
documents to ineligible immigrants in exchange for bribes.
Mr. Schofield pled guilty to Bribery' of a Public
Official in violation of 18 U.S.C. §§ 2,
201(b)(2)(C) and to Aiding and Abetting Procurement of
Citizenship or Naturalization Unlawfully in violation of 18
U.S.C. §§ 2, 1425. As part of his plea agreement,
Mr. Schofield cooperated with numerous law enforcement
agencies, including the Federal Bureau of Investigation, the
State Department's Diplomatic Security Service, DHS, and
the USCIS Office of Fraud Detection and National Security.
The information that he provided implicated the plaintiffs in
1: Lihong Xia
October 21, 2011, USCIS sent Lihong Xia ("Ms. Xia")
a Notice of Intent to Cancel Certificate of Naturalization.
She requested to appear in person, and after USCIS repeatedly
rescheduled to accommodate her, she appeared briefly at the
hearing but did not remain for its entirety. Her attorney
then agreed to continue the cancellation proceedings on
paper, and USCIS ultimately cancelled Ms. Xia's
certificate on October 25, 2013. She appealed this decision
to the AAU, who dismissed her appeal on December 13, 2014.
Because her certificate had been cancelled, the State
Department also revoked her passport. Her attorney asked for
review of the decision to revoke her passport, but the State
Department correctly explained that no review is available
through their agency. The State Department also informed her
that if she obtained a valid certificate of naturalization,
she would be permitted to apply for a new passport.
2: Wei Liu
15, 2012, USCIS sent Wei Liu ("Mr. Liu") a Notice
of Intent to Cancel Certificate of Naturalization. Mr. Liu
requested to appear in person before a naturalization
examiner, and his hearing was conducted on June 27, 2013.
USCIS subsequently cancelled his certificate on September 4,
2013, and he did not appeal that decision to the AAU. The
State Department did not revoke his passport, but after it
expired, he applied for a new one. The State Department
denied that application on the basis that his certificate of
naturalization had been revoked.
3: Hua Chen
15, 2012, USCIS sent Hua Chen ("Ms. Chen") a Notice
of Intent to Cancel Certificate of Naturalization. Ms. Chen
requested to appear in person before a naturalization
examiner, and her hearing was conducted on June 27, 2013.
USCIS subsequently cancelled her certificate on September 4,
2013, and she did not appeal that decision to the AAU. The
State Department did not revoke her passport, but it expired
in 2012. The State Department then denied her application for
a new passport.
4: Hoi Lun Li
30, 2012, USCIS sent Hoi Lun Li ("Ms.
Li") a Notice of Intent to Cancel Certificate
of Naturalization. Ms. Li initially requested to appear in
person before a naturalization examiner, but she later waived
her right to that hearing. USCIS cancelled her certificate on
January 22, 2013, and she did not appeal that decision to the
AAU. The State Department revoked her passport on March 13,
2013 because her certificate had been cancelled.
5: Jinsong Chen
12, 2013, USCIS sent Jinsong Chen ("Mr. Chen") a
Notice of Intent to Cancel Certificate of Naturalization. Mr.
Chen requested to appear in person before a naturalization
examiner, and his hearing was held on December 14, 2014, with
his attorney appearing telephonically. At this hearing, Mr.
Chen admitted that he was not properly interviewed for
naturalization, that he did not independently take or pass
any naturalization exams, and that he did not take the Oath
of Allegiance. He also admitted that he obtained his
certificate illegally. USCIS cancelled his certificate on
March 9, 2015, and he did not appeal that decision to the
AAU. The State Department did not revoke his passport, but ...