Proof of Citizenship Issued Erroneously

Proof of Citizenship Issued Erroneously in 2013 (Continuation)

United States views on international law [1] in relation to Proof of Citizenship Issued Erroneously: 3. The State Department Acted Lawfully in Canceling Hizam's Erroneously Issued CRBA and U.S. Passport In any event, the State Department acted lawfully in revoking Hizam's erroneously issued CRBA and U.S. passport.

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a. The State Department Is Authorized to Cancel or Revoke Erroneously Issued CRBAs and U.S. Passports As provided in 8 U.S.C. § 1504, the State Department may “cancel” a CRBA or U.S. passport “if it appears that such document was illegally, fraudulently, or erroneously obtained.” 8 U.S.C. § 1504(a). Such a cancellation “shall affect only the document and not the citizenship status of the person in whose name the document was issued.” Id. Section 1504, enacted in 1994, codified the State Department's existing administrative authority to correct agency or other errors, specifically with respect to erroneously issued CRBAs and U.S. passports. As the Supreme Court recognized in Haig v. Agee, although the statute granting the U.S. Secretary of State the power to issue passports “does not in so many words confer upon the Secretary a power to revoke [or deny] a passport,” “[n]either, however, does any statute expressly limit those powers.” 453 U.S. at 290. The Court concluded that “[i]t is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the statutes,” and that it was conceded that “if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.” Id. at 290-91. That the power to revoke a passport inheres in the power to grant one has been “consistent[ly]” reflected in the State Department's regulations, promulgated pursuant to its “broad rule-making authority.” Id. at 291 & n.20 (quotation marks omitted); see also Exec. Order 7856, ¦ 124 (Mar. 31, 1938) (granting U.S. Secretary of State “discretion . . . to withdraw or cancel a passport already issued”); Exec. Order 11,295 (Aug. 5, 1966) (superseding Exec. Order 7856 and delegating to U.S. Secretary of State power to promulgate “rules governing the granting, issuing, and verifying of passports” (emphasis added)). More generally, agencies have inherent authority to correct their own errors. NRDC v. Abraham, 355 F.3d 179, 202-03 (2d Cir. 2004) (noting “power to reconsider decisions reached in individual cases by agencies in the course of exercising quasi-judicial powers”); Dun & Bradstreet Corp. Foundation v. U.S. Postal Service, 946 F.2d 189, 193 (2d Cir. 1991) (“It is widely accepted that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review.”); Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360-61 (Fed. Cir. 2008); Last Best Beef, LLC v. Dudas, 506 F.3d 333, 340 (4th Cir. 2007). That inherent power applies even when the error is “inadvertent,” and when several years pass before the error is detected. American Trucking Ass'ns v. Frisco Transp. Co., 358 U.S. 133, 145 (1958) (“the presence of authority in administrative officers and tribunals to correct such errors has long been recognized—probably so well recognized that little discussion has ensued in the reported cases”). And it applies as well even when a person has relied to his detriment on the agency error, for as the Supreme Court has recognized, because “Congress, not the [agency], prescribes the law,” an agency's error cannot subvert federal statutory requirements. Dixon v. United States, 381 U.S. 68, 72-73 (1965) (agency “empowered retroactively to correct mistakes of law. . . even where a [person] may have relied to his detriment on the [agency's] mistake”) … The State Department properly exercised these inherent powers in this case. There is no doubt that the State Department could and should have denied the applications for a CRBA and U.S. passport for Hizam when they were submitted, because Hizam's father did not meet the statutory requirement for physical presence in the United States and therefore could not transmit citizenship to Hizam at birth. See 22 C.F.R. §§ 50.7 (CRBA issued only upon “submission of satisfactory proof”), 51.2 (passport may only be issued to U.S. national). Accordingly, as the Supreme Court recognized in Agee, the State Department has inherent authority to revoke those documents, thus correcting its initial error. Additionally, the State Department acted properly under its § 1504(a) authority, which permits it to “cancel” CRBAs and U.S. passports if they were issued “erroneously.” While Hizam argued in the district court that § 1504(a) only allows cancellation of citizenship documents if the applicant, rather than the agency, committed an error, that contravenes the plain text of § 1504, which contains no such limitation. See Friend v. Reno, 172 F.3d 638, 640, 646-47 (9th Cir. 1999) (citizenship certificate may be revoked if obtained through agency error alone, even when applicant “fully disclosed” truthful but legally incorrect basis of claim to citizenship). Moreover, any rule that citizenship documents issued through agency error cannot be revoked is inconsistent with the fundamental principle that “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship,” and if those statutory conditions are not met the citizenship has been ” 'illegally procured,' and naturalization that is unlawfully procured can be set aside.” Fedorenko, 449 U.S. at 506…

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b. The District Court Erred in Rejecting the State Department's Authority to Revoke Erroneously Issued Citizenship Documents In determining that the State Department has no power to revoke Hizam's CRBA and U.S. passport, the district court relied on two arguments. First, the court held that 22 U.S.C. § 2705, as interpreted by the Ninth Circuit, precludes the State Department from revoking those documents. Second, the court held that because statutes are presumed not to apply retroactively, § 1504 cannot be validly applied to the issuance of CRBAs and U.S. passports prior to its 1994 enactment. Both contentions are incorrect.

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i. Section 2705 Does Not Preclude Cancellation of Citizenship Documents First, § 2705—which provides that valid U.S. passports and CRBAs “have the same force and effect as proof of United States citizenship as certificates of citizenship issued by the Attorney General or by a court having naturalization jurisdiction”—does not address the State Department's authority to cancel documents issued in error to a person who is not a U.S. citizen. As is clear from the text of the statute itself, § 2705 concerns the evidentiary force and effect of CRBAs and U.S. passports, but says nothing about the State Department's ability to cancel or revoke them, or any procedures it must follow in doing so. In concluding to the contrary, the district court relied on the Ninth Circuit's decision in Magnuson v. Baker, which held that by providing that CRBAs and U.S. passports have the “same force and effect” as certificates of citizenship or naturalization, § 2705 thereby also incorporated the procedural and substantive requirements specified in separate statutes for the revocation of the latter certificates. 911 F.2d 330, 333-36 (9th Cir. 1990). But Magnuson was wrongly decided, and the district court erred in following it. To begin with, Magnuson is inconsistent with the text of § 2705. As noted above, that text concerns only the evidentiary force and effect of the documents at issue. But the Ninth Circuit unreasonably inferred that by specifying the “force and effect” those documents would have as “proof” of citizenship, Congress also incorporated requirements for revoking those documents, such that revocation could only occur after a hearing and only on the grounds of fraud or illegality. Id. at 335. Had Congress intended to adopt those procedural and substantive requirements, it surely would have done so by saying so—as it did for certificates of citizenship and naturalization, see 8 U.S.C. §§ 1451, 1453—rather than requiring courts to discern those protections in language that does not mention them. Indeed, it would make no sense for Congress to specify procedures for the revocation of CRBAs and U.S. passports by reference to two other sets of procedures that differ significantly from each other, leaving courts to guess which of them must be applied. See 8 U.S.C. §§ 1451 (district court proceedings for revoking naturalization order and canceling naturalization certificate), 1453 (administrative proceedings for canceling certificates of citizenship or naturalization). The Ninth Circuit held that if it did not incorporate the procedures required for revoking a citizenship or naturalization certificate into the process for canceling a passport, it would “accord those who use their passport as evidence of their citizenship less protection than those who use other documents as evidence denoting citizenship,” contradicting § 2705. 911 F.2d at 335. But that confuses the ability to use a document, which is protected by § 2705, with the right to have it in the first place, a subject on which the statute is silent. Moreover, both the Magnuson court and the district court misunderstood the nature of the documents they considered. As reflected in § 2705, a CRBA documents that a child born abroad acquired United States citizenship at birth. See 8 U.S.C. § 1504(b); 22 C.F.R. § 50.7(a); 75 Fed. Reg. 36,522, 36,525 (2010). But neither a CRBA nor a U.S. passport can confer U.S. citizenship upon a person who is not a citizen, and neither their issuance nor their cancellation has any effect on a person's underlying U.S. citizenship status. A child born abroad automatically acquires U.S. citizenship at birth if the statutory requirements are met, regardless of whether that person is ever issued a CRBA or U.S. passport. Just as a person who has never applied for or been issued a CRBA or U.S. passport could have nonetheless acquired citizenship at birth, a person, like Hizam, who was erroneously issued a CRBA does not become a U.S. citizen by virtue of that mistake. And if a person acquired U.S. citizenship at birth, that status is unaffected even if that person's U.S. passport or CRBA is revoked: as 8 U.S.C. § 1504 states, “[t]he cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued.” Because CRBAs and passports have different functions from certificates of citizenship and naturalization, both the district court and Magnuson erred in imposing the more rigorous procedures specified for revoking a naturalization certificate on the revocation of a CRBA or U.S. passport. To establish eligibility for a U.S. passport, a naturalized citizen must show that naturalization occurred, typically by producing a naturalization certificate. But a person born abroad who acquired U.S. citizenship at birth may simply prove that the requirements of the applicable citizenship transmission statute were met, regardless of whether he or she has previously been issued a CRBA or U.S. passport. There is, therefore, no need—or logical reason—to subject the cancellation of CRBAs (which only document the acquisition of citizenship) to the same standards as cancellation of naturalization certificates (which are effectively the only means of proving citizenship status). Contrary to the district court's conclusion, the State Department was not “taking away” Hizam's citizenship when it canceled his CRBA; it was only canceling the document it issued and correcting its own prior mistake. Those actions are not equivalent to loss of nationality or denaturalization. See Kelso v. U.S. Dep't of State, 13 F. Supp. 2d 1, 4 (D.D.C. 1998) (“Yet to admit that passports are evidence of citizenship is to say nothing about whether their revocation implicates the fundamental right of citizenship.” (citing Agee, 453 U.S. at 309-10)). In any event, even if § 2705 could be read as the Ninth Circuit did in Magnuson, such that the provision precludes the State Department from revoking a CRBA or U.S. passport without meeting the procedural and substantive requirements for canceling naturalization or citizenship certificates, the enactment of § 1504 four years later effectively overruled that decision. By clearly confirming that the State Department has the authority to cancel CRBAs and U.S. passports that have been issued “erroneously,” and to do so without a pre-cancellation hearing, Congress laid to rest any argument that either § 2705 or any other statute abrogates that preexisting power.

ii. Section 1504 Is Not Impermissibly Retroactive Second, although the State Department's inherent authority to correct its error was alone sufficient to revoke Hizam's documents, its action was also justified by § 1504, which is not impermissibly retroactive. As the Supreme Court held in Landgraf v. USI Film Products, although there is a presumption against retrospective application of statutes, “[a] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” 511 U.S. at 269-70 (citation omitted). Only a statute that “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.” Id. at 269 (quotation marks omitted). In determining whether a statute should be subject to the presumption against retroactivity, a court should look to “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id. at 270. Central to this analysis is whether a statute “impos[es] new burdens on persons after the fact.” Id. However, “[w]hen the intervening statute authorizes. . . prospective relief, application of the new provision is not retroactive.” Id. at 273. Similarly, an intervening statute that “takes away no substantive right but simply changes the tribunal” is one that “speak[s] to the power of the court rather than to the rights or obligations of the parties” and is therefore not retroactive. Id. at 274. Under these standards, § 1504 is not impermissibly retroactive. To begin with, the statute merely confirms preexisting authority—and, as the Court held in Landgraf, when “even before the enactment of [a statute]” the same or similar authority existed, the statute “simply 'did not impose an additional or unforeseeable obligation' ” on any person. Landgraf, 511 U.S. at 277-78 (quoting Bradley v. School Board of Richmond, 416 U.S. 696, 721 (1974)). There is accordingly no bar to applying such a statute to preenactment conduct. Even if the Court were to conclude that § 1504 did more than confirm the State Department's prior authority, it did not affect substantive rights or impose burdens. As the Landgraf Court noted, even when procedural rights and obligations of parties may have changed, it remains permissible to apply new rules to prior facts when those parties' underlying substantive rights and obligations are unaffected. 511 U.S. at 276. Thus, for instance, when “new hearing procedures did not affect either party's obligations under [a] lease agreement,” those procedures can be applied to acts taken before the procedures were issued. Id.…. Similarly, here, Hizam's underlying right or lack of a right to citizenship was unaffected by passage of § 1504, which “speak[s] to the power of” the State Department rather than the rights of individuals. 511 U.S. at 274. Hizam either acquired US. citizenship at birth or he did not, an issue unaffected by the State Department's power to later correct errors in issuing documents.

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Proof of Citizenship Issued Erroneously in Digest of United States Practice in International Law