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Media Alerts - Hizam v. Kerry - Second Circuit
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March 12, 2014
  Hizam v. Kerry - Second Circuit
Headline: The Second Circuit Reverses Order Mandating that the State Department Return Documentation of Citizenship Erroneously Granted to Plaintiff by State as a Child, Despite Plaintiff Having Spent Years Building a Life in the United States in Reliance on the Erroneous Documentation of his United States Citizenship

Area of Law: Immigration; Nationality and Naturalization

Issue(s) Presented: Whether the State Department improperly revoked plaintiff's documentary proof of citizenship, a Consular Report of Birth Abroad (CRBA) and passport, that were issued to him as a child erroneously due to a State Department error and upon which he relied in establishing a life in the United States and in forgoing other paths to citizenship?

Brief Summary: The Secretary of State and United States Department of State appealed from a July 2012 judgment of the United States District Court for the Southern District of New York, granting Plaintiff Abdo Hizam's motion for summary judgment in his action for declaratory relief affirming his United States citizenship and ordering State to return his passport and documentation of citizenship. The Second Circuit reversed holding that, because Hizam's documentation of citizenship was issued due to a State Department error, and he is not and never was a United States citizen, "while the equities . . . weigh heavily in Hizam's favor, well-settled law does not allow the courts to provide the relief that Hizam seeks."

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...630c4f09c13/5/hilite/

Extended Summary: The Plaintiff, Abdo Hizam, was born in Yemen. When Hizam was 2 years old, his father, a naturalized United States citizen, applied on his behalf, for an application for a Consular Report of Birth Abroad ("CRBA"). All of the information contained in his father's application was truthful and accurate. Hizam was issued a CRBA, which was valid proof of his citizenship, and at age 9 he moved to the United States to live with his grandparents. In the several years that followed, Hizam lived in Michigan with his grandparents, attended elementary, middle, and high school, became fluent in English, and attended and graduated from college while working two jobs. Twice during this time period, Hizam applied for and was granted renewal of his United States passport without incident. At the time of this action Hizam was working at his family deli in New York, taking care of his younger brother, and pursuing a grauate degree at Mercy College. In 2011, the State Department discovered, and notified Hizam, that his passport and CRBA had been improperly issued due to its own error in processing the original CRBA application in 1980, and revoked his passport and CRBA.

At the time the Hizam's birth, a child born outside of the United States could obtain citizenship if the child's parent was "present in the United States for at least 10 years at the time of the child's birth." When Hizam's father applied for the CRBA on his behalf when Hizam was two years old, the law had changed and required that the parent of the child be present within the United States for only five years. At the time he applied, Hizam's father had been in the United States 7 years, which he truthfully stated on the CRBA application. The consular officer that granted the CRBA apparently erroneously applied the law at the time of application, rather than the law at the time of the Hizam's birth.

Hizam commenced an action on October 2011 in the United States District Court for the Southern District of New York, seeking an declaration of his status as a national of the United States under 8 U.S.C. § 1503(a). In support of his request for a declaration by the court, he alleged that: 1) the State Department wrongfully denied him his rights and privileges as a national by revoking his CRBA and passport; 2) the State Department lacked the authority to cancel his CRBA because the plain language of 8 U.S.C. § 1504, which authorizes the cancellation of a CRBA under certain circumstances, does not authorize cancellation due to agency error, and, in any event, did not apply retroactively to Hizam's CRBA, granted before that section was enacted; and 3) the State Department was equitably estopped from revoking his CRBA and passport because he had "rightfully relied on his United States citizenship for more than twenty years."

The District Court found that the State Department lacked authority to cancel Hizam's CRBA, and held that doing so would impermissibly apply § 1504 retroactively. The District Court rejected the Defendant's argument that "the power to issue citizenship documents implied the power to revoke those documents," reasoning that allowing that power would render the provision authorizing the cancellation of CRBAs superfluous.

The Second Circuit reversed, holding that the District Court exceeded its authority under § 1503(a) by ordering the Defendant to return Hizam's CRBA. The Second Circuit also disagreed with the District Court's finding that the Defendant's application of § 1504 - which authorizes the State Department to cancel a CRBA under certain circumstances - impermissibly applied the law retroactively, explaining that "the enactment of Section 1504 neither changed the citizenship rights provided by statute, nor attached new legal consequences to a prior acquisition of citizenship," and thus was not impermissibly retroactive." The court reasoned that, although the consular officer erroneously erred by granting the CRBA, and Hizam, through admittedly no fault of his own, relied on the CRBA, Hizam is not a United States citizen because his father did not meet the necessary requirements that were stated in the statute at the time of the Plaintiff's birth. Section 1504, therefore, did not change the Hizam's status, because he was not a citizen or national to begin with. "A finding of retroactive effect in this case would allow a non-citizen to keep documents that serve as conclusive proof of American citizenship when he is not a U.S. citizen."

The Second Circuit also found that, although "[t]he equities in this case overwhelmingly favor" Hizam, who was plainly prejudiced by the State Department error and delay in correcting its error, which delay foreclosed several other avenues to citizenship that Hizam could have pursued at an earlier time, courts cannot grant citizenship through their equitable powers. The court ordered that the District Court's order to return his passport and CRBA be reversed, but called upon the State Department to "support other lawful means to provide relief to Hizam, including a private bill in Congress should one be introduced."

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...630c4f09c13/5/hilite/

Panel: Judges Newman, Pooler, and Livingston.

Argument: 09/30/2013

Date of Issued Opinion: 03/12/2014

Docket Number: 12-3810

Decided: Reversed and Remand with directions to dismiss the complaint.

Case Alert Author: Amy Stein

Counsel: Ropes & Gray, LLP and Morawetz, Washington Square Legal Services, for the Plaintiff-Appellee; Assistant United States Attorney, Southern District of New York, for the Defendants - Appellants.

Author of Opinion: Judge Pooler

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 03/12/2014 07:34 PM     2nd Circuit  

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