Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Xia v. Pompeo

United States District Court, District of Columbia

November 25, 2019

Lihong Xia, et al., Plaintiffs,
v.
Michael R. Pompeo, Secretary of State, et al., Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT COURT JUDGE.

         Plaintiffs 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.[1] 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.

         BACKGROUND

         I. Procedural Posture

         Plaintiffs initially brought this lawsuit in 2014. This Court dismissed all claims, but the D.C. Circuit remanded plaintiffs' APA claims back to this Court.[2] 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.

         II. Naturalization & Passport Procedures

         The 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.

         A. Obtaining Certificates of Naturalization

         An 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.").

         B. Cancelling Certificates of Naturalization

         Although 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).[3] 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 § lO3.3(a)(2)(i).

         C. Revoking or Refusing to Renew U.S. Passports

         The 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).

         STATEMENT OF FACTS

         From 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 this case.

         Plaintiff 1: Lihong Xia

         On 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.

         Plaintiff 2: Wei Liu

         On May 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.

         Plaintiff 3: Hua Chen

         On May 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.

         Plaintiff 4: Hoi Lun Li

         On May 30, 2012, USCIS sent Hoi Lun Li ("Ms. Li")[4] 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.

         Plaintiff 5: Jinsong Chen

         On July 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.