Proof of Citizenship
Proof of Citizenship Issued Erroneously in 2013
United States views on international law [1] in relation to Proof of Citizenship Issued Erroneously: On January 22, 2013, the United States submitted its brief on appeal in a case brought by an individual born in Yemen challenging the Department's revocation of his Consular Report of Birth Abroad of a Citizen of the United States (“CRBA”) and U.S. passport. Hizam v. Clinton, No. 12-3810 (2d. Cir.). The plaintiff, Abdo Hizam, brought suit under 8 U.S.C. § 1503 seeking to have his CRBA reissued. Although Mr. Hizam conceded that his U.S. citizen father did not meet the statutory requirements to transmit citizenship to him at birth (not having resided in the United States the requisite number of years prior to his son's birth), he nonetheless argued that he was entitled to keep his CRBA, which serves as proof of U.S. citizenship, on the ground that the State Department lacked any authority to revoke it. Ruling on cross-motions for summary judgment, the district court agreed with Mr. Hizam and ordered the State Department to reissue the CRBA. The United States brief on appeal is excerpted below (with footnotes omitted) and available at (Secretary of State website) state.gov/s/l/c8183.htm
Some Aspects of Proof of Citizenship Issued Erroneously
Under the United States Constitution, there are “two sources of citizenship, and two only—birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)…A person born outside the United States, such as Hizam, may acquire citizenship at birth only as provided by an act of Congress. Rogers, 401 U.S. at 828, 830-31; … In interpreting such a statute, courts must accord “[d]eference to the political branches” and apply ” 'a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.' ” Miller, 523 U.S. at 434 n.11 (plurality) (quoting Mathews v. Diaz, 426 U.S. 67, 82 (1976)). Thus, ” '[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with.' ” Rogers, 401 U.S. at 830 (quoting United States v. Ginsburg, 243 U.S. 472, 475 (1917)). Congress has provided the terms under which a child born abroad to a U.S. citizen parent or parents acquires automatic U.S. citizenship at birth. Citizenship of a person born abroad is determined by the law in effect at the time of birth. Drozd, 155 F.3d at 86. In 1980, the year of Hizam's birth, the Immigration and Nationality Act granted citizenship to a child born in wedlock to one U.S. citizen parent if that parent was “physically present in the United States . . . for a period or periods totaling not less than ten years prior to the birth of the child.” 8 U.S.C. § 1401(g) (Supp. III 1980).
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Hizam does not dispute that his U.S. citizen father did not meet the physical-presence requirement. (JA 112 (Ali Hizam's physical presence was “less than 10 years . . . since Ali Hizam first arrived in the United States in 1973 and [Hizam] was born in 1980”)). Accordingly, Hizam did not acquire U.S. citizenship at birth. Nor does he allege that he is a citizen by virtue of a different statutory provision conferring citizenship at birth, by birth in the United States, or by naturalization. Accordingly, it is beyond doubt that Hizam is not, and never has been, a U.S. citizen.
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B. Because He Did Not Acquire U.S. Citizenship at Birth or Through Naturalization, Hizam Is Not Entitled to a CRBA or U.S. Passport Because Hizam is not a U.S. citizen, he is not entitled to a CRBA or U.S. passport.
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1. Legal Authorities Governing CRBAs and U.S. Passports Congress has charged the U.S. Secretary of State with the duty of “determining [the] nationality of a person not in the United States.” 8 U.S.C. § 1104(a). Pursuant to that power, the State Department adjudicates the citizenship claims of persons born abroad and, where appropriate, issues CRBAs and U.S. passports. 22 C.F.R. § 50.7(a); see 8 U.S.C. § 1504(b) (CRBA is “issued by a consular officer to document a citizen born abroad”); Zivotofsky, 132 S. Ct. at 1436 (Alito, J., concurring in judgment) (“a CRBA is a certification made by a consular official that the bearer acquired United States citizenship at birth”). Like a CRBA, a U.S. passport may only be issued to a citizen or other national of the United States. 22 U.S.C. § 212; 22 C.F.R. § 51.2(a). Both a CRBA and a valid U.S. passport serve as proof of citizenship. 22 U.S.C. § 2705 (“same force and effect as proof of United States citizenship” as naturalization certificate or citizenship certificate). While the State Department has the authority to make citizenship determinations in connection with adjudicating applications for citizenship documents, it does not have the authority to confer or revoke citizenship status itself. See 8 U.S.C. § 1421(a) (“The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.”); Perriello v. Napolitano, 579 F.3d 135, 139-40 (2d Cir. 2009) (same).
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2. The District Court Lacked Authority to Direct the State Department to Return the CRBA Although Hizam is not entitled to a CRBA or U.S. passport because he is not a U.S. citizen, see in this world legal Encyclopedia Point B.3, as a threshold matter the district court lacked authority to direct the State Department to provide those documents. Hizam brought this action under 8 U.S.C. § 1503. That statute provides that a person in the United States who “claims a right or privilege as a national of the United States,” but is “denied such right or privilege . . . upon the ground that he is not a national of the United States,” may “institute an action under [the Declaratory Judgment Act] against the head of [the] department or independent agency [that denied the claim of nationality] for a judgment declaring him to be a national of the United States.” 8 U.S.C. § 1503(a). Neither Hizam nor the district court invoked any source of authority other than § 1503. (JA 1, 3 (relying solely on § 1503)); (JA 158, 163 (same)). Thus, the district court's authority was limited to declaring that Hizam is a citizen or national of the United States. Yet the district court did not enter such a declaration—presumably because it lacked any ground on which to do so, as Hizam is indisputably not a U.S. citizen or national. See in this world legal Encyclopedia Point A. Instead, the district court ordered the State Department to reissue a CRBA to Hizam—a remedy that the court had no authority to grant under § 1503. Moreover, the district court had no other power to enter the order it did, which effectively required the State Department to violate Congress's statutory citizenship scheme by issuing proof of citizenship to a person who is not a U.S. citizen. “[T]he power to make someone a citizen of the United States has not been conferred upon the federal courts . . . as one of their generally applicable equitable powers,” and therefore ” '[o]nce it has been determined that a person does not qualify for citizenship, the district court has no discretion to ignore the defect and grant citizenship.' ” INS v. Pangilinan, 486 U.S. 875, 884 (1988) (quoting Fedorenko v. United States, 449 U.S. 490, 517 (1981) (alteration omitted)); accord 8 U.S.C.§ 1421(d) (naturalization may occur “in the manner and under the conditions prescribed in [the INA] and not otherwise” (emphasis added)). Thus, a court may not grant citizenship “by the application of the doctrine of equitable estoppel, nor by invocation of equitable powers, nor by any other means.” Pangilinan, 486 U.S. at 884-85; accord Mustanich v. Mukasey, 518 F.3d 1084, 1088 (9th Cir. 2008) (statutory requirement for naturalization “cannot be ignored,” even where agency misconduct alleged, because “[e]stoppel in these circumstances would amount to precisely the type of equity-based departure from the requirements of the immigration statutes that Pangilinan prohibits”)… Although the district court did not explicitly order the government to confer citizenship on Hizam, it directed the State Department to issue a CRBA—a document that may be issued only to persons who acquired U.S. citizenship at birth according to the terms of a statute, and which (like a U.S. passport) has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction.” 22 U.S.C. § 2705. Thus, the illogical and impermissible effect of the district court's order is that Hizam will be entitled to prove citizenship that he does not have. Additionally, on the basis of his court-ordered, nonrevocable CRBA, Hizam may enjoy most if not all of the benefits of U.S. citizenship, including obtaining a U.S. passport (which he has already done), filing an immediate-relative petition for his alien wife so that she may obtain an immigrant visa, and applying for CRBAs and U.S. passports for his children. The ultimate effect is the same as if the court had simply declared Hizam to be a U.S. citizen as a matter of equity, something it lacks authority to do. Pangilinan, 486 U.S. at 883-85. Because the district court's order was outside its lawful power, it must be reversed.
Resources
Notes
- Proof of Citizenship Issued Erroneously in Digest of United States Practice in International Law
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