Hizam v. Kerry

Citation: Not availableDocket: 12-3810

Court: Court of Appeals for the Second Circuit; March 12, 2014; Federal Appellate Court

Original Court Document: View Document

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Abdo Hizam, born in Yemen in 1980 to a naturalized U.S. citizen, received a Consular Report of Birth Abroad (CRBA) in 1990, which served as proof of his U.S. citizenship. After moving to the United States at age nine, Hizam lived and worked under this citizenship status, during which the State Department renewed his passport twice without issues. In 2011, the State Department revoked his passport and CRBA, claiming they were improperly issued due to an error in processing. Hizam filed a lawsuit under 8 U.S.C. § 1503(a) for a declaration of U.S. nationality and the return of his documents. The district court ruled in favor of Hizam, stating the government overstepped its authority in revoking the CRBA, despite acknowledging that he did not acquire citizenship at birth. On appeal, the Second Circuit reversed the district court's judgment, ruling Hizam is not a U.S. citizen and that the application of 8 U.S.C. § 1504(a) did not have a retroactive effect. The court determined that while the circumstances favored Hizam, established legal principles did not support his claim, leading to a remand to dismiss the complaint.

The district court determined that 8 U.S.C. § 1504, which allows the Department of State to cancel passports and Consular Reports of Birth Abroad (CRBAs), was enacted after Hizam’s CRBA was issued and cannot be applied retroactively. On appeal, the government contended that the district court incorrectly permitted Hizam to maintain proof of U.S. citizenship despite his non-citizen status. The appellate court agreed, stating that 8 U.S.C. § 1503(a) only permits the court to declare someone a U.S. national, without authority to return Hizam’s CRBA. The enactment of § 1504 did not alter citizenship rights and establishing jurisdiction does not equate to retroactive application. Despite Hizam's favorable circumstances, the court found it could not grant him the relief sought, thus reversing the district court's summary judgment and directing the dismissal of the complaint. 

Background details reveal that Hizam was born in 1980 to a U.S. citizen father and a Yemeni mother. His father applied for a CRBA and passport for him in 1990, which were issued erroneously based on a misapplication of citizenship law. Hizam resided in the U.S. from 1990 to 2002, attending school and working multiple jobs. He married in Yemen and had two children, regularly traveling between the U.S. and Yemen. At the time of litigation, Hizam was employed and attending graduate school, while also caring for a minor brother. In 2009, he sought CRBAs and passports for his children.

U.S. embassy officials informed Hizam of an issue with his passport and retained it for approximately three weeks. After its return, he traveled back to the U.S. In April 2011, the State Department notified him that his Consular Report of Birth Abroad (CRBA) and passport had been mistakenly issued due to agency error, stating there was no evidence of fraud on his or his father's part. The Department clarified it lacked the authority to confer citizenship without statutory backing. Following this, Hizam’s CRBA was canceled, and his passport revoked, prompting him to return these documents in May 2011.

In October 2011, Hizam filed a lawsuit against the U.S. Department of State in the Southern District of New York, seeking a declaratory judgment affirming his U.S. national status. He alleged three main claims: (1) wrongful denial of his national rights under 8 U.S.C. § 1503, (2) lack of authority to cancel his CRBA based on 8 U.S.C. § 1504’s language, and (3) equitable estoppel against the State Department for revoking his documents after over twenty years of reliance on his citizenship.

The State Department countered that Hizam did not acquire U.S. citizenship at birth nor meet naturalization requirements, asserting its authority to revoke documents proving citizenship. Both parties moved for summary judgment. In July 2012, the district court ruled in favor of Hizam, acknowledging he was not a citizen and that federal courts could not naturalize an alien. However, it recognized Hizam's request was for a declaration that the State Department exceeded its authority in canceling his CRBA. The court concluded the retroactive application of Section 1504 would violate fair notice principles and disrupt settled expectations regarding his residency. It rejected the State Department's implied power argument for revoking citizenship documents. The court ordered the State Department to return Hizam's CRBA, with judgment entered on July 31, 2012. In August, the State Department's motion to stay the order was denied, contingent upon Hizam not seeking citizenship status for his family. The CRBA was subsequently re-issued, allowing Hizam to obtain a passport.

On September 25, 2012, the State Department filed an appeal regarding a judgment. The review of summary judgment orders is conducted de novo. The Secretary of State is responsible for administering the Immigration and Nationality Act, which includes issuing Consular Reports of Birth Abroad (CRBAs) to U.S. citizens born outside the country. CRBAs and passports serve as proof of U.S. citizenship, equivalent to certificates of naturalization. Citizenship can only be acquired through birth or naturalization. A person born outside the U.S. becomes a citizen at birth only if the birth circumstances meet the statutory requirements at the time of application. At the time of Hizam's application, a person born to one U.S. citizen and one non-citizen parent would only acquire citizenship if the citizen parent had been physically present in the U.S. for at least ten years. Hizam's father had only seven years of presence, meaning Hizam did not meet the requirements for citizenship. Issuing a CRBA does not grant citizenship but certifies that a person was a citizen at birth, and revoking a CRBA does not change citizenship status but withdraws proof of status. Hizam sought relief under 8 U.S.C. § 1503(a) after being denied rights by the State Department. The district court determined he was seeking a judgment that the State Department exceeded its authority by canceling his CRBA. However, the court exceeded its authority by ordering the State Department to return the CRBA, as Section 1503(a) does not provide for judicial review of agency actions but allows for a determination of national status.

Section 1503(a) allows a court to declare an individual a national of the United States, but Hizam does not meet the necessary statutory requirements for citizenship at birth, which means he cannot be declared a U.S. citizen or national. The district court mistakenly attempted to differentiate between declaring Hizam a citizen and ordering the return of his citizenship documents. It believed its order required the State Department to adhere to Section 2705, which prevents the agency from reevaluating Hizam’s citizenship status. However, Section 1503(a) does not grant the court the authority to provide such a remedy, and the evidence does not support declaring Hizam a U.S. national.

Regarding retroactivity, the district court found Section 1504, which empowers the State Department to address issues relating to Certificates of Birth Abroad (CRBAs) and to cancel them under certain circumstances, to be retroactive. This conclusion is disputed, as the issuance of a CRBA does not confer citizenship, and thus Section 1504 does not alter existing citizenship rights or impose new obligations retroactively. To assess retroactivity, courts first check if a statute explicitly states it has retroactive effect, which Section 1504 does not. The second step involves examining if applying Section 1504 to individuals like Hizam, who had CRBAs before its enactment in 1994, would create an impermissible retroactive effect. A statute is deemed retroactive if it impairs vested rights or imposes new duties concerning past transactions. Section 1504 merely grants administrative authority over CRBAs without infringing on substantive rights, and the distinction made by the Supreme Court between statutes that create jurisdiction and those that impose new legal frameworks supports the conclusion that Section 1504's application does not result in an impermissible retroactive effect.

No new legal consequences arise from Hizam's father's application for a Consular Report of Birth Abroad (CRBA) in 1990. The State Department does not penalize Hizam or his father but seeks to manage the CRBA, which remains effective. The principle against retroactivity ensures individuals can understand and adhere to the law, as established in Landgraf. The statute governing citizenship at birth specifies residency requirements, which Hizam's father did not meet. Although Hizam relied on the consular officer's nationality determination, the statute provided sufficient notice regarding Hizam’s citizenship status, and the enactment of Section 1504 did not alter that status. 

Hizam argues that the lack of statutory authority to cancel the CRBA at the time it was issued creates new legal consequences. His reliance on the CRBA led him to forgo other citizenship options and build a life in the U.S. However, the case does not typically involve property or contracts; it relates to citizenship. Allowing retroactive effects would enable a non-citizen to retain citizenship documents wrongly issued, which courts cannot do, as affirmed by INS v. Pangilinan. 

The district court's order for the State Department to reissue the CRBA, despite Hizam not being a citizen, would permit him to maintain false proof of citizenship. Retroactive corrections by agencies are permissible, even if the individual relied on a prior mistake, as seen in Dixon v. United States.

Regarding Hizam’s laches defense, he contends that the State Department's 21-year delay in revoking the CRBA prejudiced him. Laches requires showing the opposing party’s lack of diligence and resulting prejudice. The State Department's prolonged inaction in correcting its mistake demonstrates a lack of diligence.

Hizam was adversely affected by the State Department's delay in correcting an error that restricted his options for pursuing citizenship. The case's equities favor Hizam, acknowledged even by the State Department. However, courts do not have the authority to use equitable powers for naturalization, as established by precedent (Pangilinan, Fedorenko, Wong Kim Ark). The courts cannot grant Hizam the relief he seeks. The State Department has admitted that its mistake—issuing a Consular Report of Birth Abroad (CRBA) and U.S. passport—was not Hizam's fault, and it recognizes the resulting inequity that may have denied him lawful permanent resident status and citizenship opportunities. The department has notified USCIS of the situation and is willing to support alternative relief measures, including the potential introduction of a private bill in Congress. The State Department's counsel reaffirmed these commitments during oral arguments. Consequently, the district court's judgment is reversed, and the case is remanded with instructions to dismiss the complaint.