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Abdo Hizam v. Hillary Clinton

July 27, 2012

ABDO HIZAM,
PLAINTIFF,
v.
HILLARY CLINTON, SECRETARY OF STATE, UNITED STATES DEPARTMENT OF STATE, UNITED STATES DEPARTMENT OF STATE, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

Twenty-two years ago, the United States Department of State (the "State Department") deemed Abdo Hizam, who was then nine years old, a United States citizen and issued him a passport. Since that time, it has twice renewed his passport. Now, the State Department has cancelled the Consular Report of Birth Abroad of a Citizen of the United States ("CRBA") it issued to Mr. Hizam and has revoked his passport, contending that its original action was a mistake.

Mr. Hizam initiated this action pursuant to 8 U.S.C. § 1503 seeking a judgment declaring that he is a citizen of the United States and an order compelling the defendants to re-issue his passport and CRBA. He argues that although the State Department erroneously adjudicated his citizenship in the first instance, it lacks the statutory authority now to revoke the documents at issue.

In the alternative, he contends that the State Department should be barred from denying his citizenship on the basis of equitable estoppel and the doctrine of laches. Both parties consented to my exercise of jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c), and each has moved for summary judgment. For the reasons discussed below, the plaintiff's motion is granted and the defendants' motion is denied.

Background

Mr. Hizam was born in 1980 in Al Mahaqira, Yemen. (Judgment Confirming Marriage and Birth ("Judgment"), attached as Exh. 1 to Declaration of Natasha Oeltjen dated April 13, 2012 ("Oeltjen Decl."). At that time, his parents were married (Judgment), and his father, Ali Yahya Hizam, was a naturalized citizen of the United States. (Naturalization Certificate of Ali Hizam, dated Nov. 19, 1979, attached as Exh. 2 to Oeltjen Decl.; Application for Report of Birth Abroad of a Citizen of the United States of America on behalf of Abdo Hizam ("CRBA Application"), attached as Exh. 3 to Oeltjen Decl.). On February 18, 1990, Mr. Hizam's father applied for U.S. passports and CRBAs for his children at the United States Embassy in Sana'a, Yemen. (CRBA Application). Mr. Hizam's father provided a variety of information in support of the applications and truthfully indicated that he had spent seven years physically present in the United States at the time of Mr. Hizam's birth.

(CRBA Application). Even though the applicable derivative citizenship statute required the United States citizen parent to have lived in this country for ten years in order to transmit U.S. citizenship to his child, the consular officers issued a passport and CRBA to Mr. Hizam. (CRBA Application; Passport of Abdo Hizam, issued Feb. 18, 1990, attached as Exh. A-1 to Plaintiff's Motion for Summary Judgment ("Pl. Motion")).

Mr. Hizam first came to the United States in 1990. (Plaintiff's Rule 56.1 Statement of Material Facts in Support of Motion for Summary Judgment ("Pl. 56.1 Statement"), ¶ 15; Passport of Abdo Hizam issued Feb. 18, 1990, attached as Exh. A-1 to Pl. Motion; Declaration of Abdo Hizam dated March 22, 2012, attached as Exh. A to Pl. Motion ("Hizam Decl."), ¶ 8). He remained in this country thereafter, living with his grandparents. (Hizam Decl., ¶ 8). In 1995, the plaintiff's grandfather, who was his legal guardian pursuant to a power of attorney, applied for a renewed passport for Mr. Hizam. (Application for Passport Renewal dated Dec. 5, 1995, attached as Exh. E to Pl. Motion). The State Department issued the renewed passport on January 9, 1996. (Passport of Abdo Hizam, issued Jan. 9, 1996, attached as Exh. F to Pl. Motion). Mr. Hizam's passport was again renewed on May 10, 2001. (Passport of Abdo Hizam, issued May 10, 2001, attached as Exh. G to Pl. Motion).

Shortly thereafter, in May 2002, Mr. Hizam traveled to Yemen, where he married and had two children, both of whom currently reside there. (Pl. 56.1 Statement, ¶ 36; Hizam Decl., ¶ 23). At some point thereafter, Mr. Hizam returned to the United States. (Pl. 56.1 Statement, ¶ 36-37; Hizam Decl., ¶ 22-24).

In 2009, the plaintiff again traveled to Yemen to visit his wife and children. (Pl. 56.1 Statement, ¶ 41; Hizam Decl., ¶ 31). On January 24, 2009, he applied for CRBAs and passports for his two children at the U.S. Embassy in Sana'a, Yemen. (Pl. 56.1 Statement, ¶ 41, Hizam Decl., ¶ 31). Embassy employees suggested to Mr. Hizam that there was an unspecified issue with his passport and withheld it from him for approximately three weeks. (Pl. 56.1 Statement, ¶ 42; Hizam Decl., ¶¶ 32-33). In May 2009, the embassy returned Mr. Hizam's passport and instructed him to contact an attorney at the State Department upon his return to the United States. (Hizam Decl., ¶ 33). Due to his uncertainty regarding his status, Mr. Hizam has not traveled outside of the United States since his return from Yemen. (Pl. 56.1 Statement, ¶ 43; Hizam Decl., ¶ 34).

On April 18, 2011, the State Department informed Mr. Hizam by letter of its opinion that it had committed an error in calculating the physical presence requirement for his acquisition of citizenship at birth. (Pl. 56.1 Statement, ¶¶ 48-49; Letter of Edward Betancourt dated April 18, 2011, attached as Exh. J to Pl. Motion). Subsequent letters informed Mr. Hizam that his CRBA had been canceled and his passport revoked and requested that he return those documents. (Letter of Jonathan M. Rolbin dated April 28, 2011, attached as Exh. K to Pl. Motion; Letter of Jonathan M. Rolbin dated April 28, 2011 attached Exh. L to Pl. Motion). He complied on May 19, 2011. (Pl. 56.1 Statement, ¶ 50; Hizam Decl., ¶ 38).

On October 28, 2011, the plaintiff filed the instant suit and both parties subsequently cross-moved for summary judgment. In his motion, Mr. Hizam argues (1) that the statute relied upon by the State Department to revoke his passport and CRBA, 8 U.S.C. § 1504, should be interpreted to apply only to citizenship documents obtained by fraud or error on the part of the applicant, and not to error by the agency, (2) that application of Section 1504 to him would give the statute an impermissible retroactive effect, (3) that the government should be equitably estopped from revoking his documents, and (4) that the principle of laches prevents the revocation of those documents. (Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment at 6-30). The government, in turn, argues that Mr. Hizam never acquired citizenship in the first instance, that the State Department has the authority to revoke erroneously issued citizenship documents independent of Section 1504, and that citizenship may not be obtained by equity under any circumstances. (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Cross Motion for Summary Judgment ("Def. Memo.") at 7-20). It further points out that Mr. Hizam's passport has since expired and argues that the State Department could not now issue him a new passport because he is not actually a U.S. citizen. (Def. Memo. at 19-20 & n.8).

Discussion

A. Jurisdiction Jurisdiction exists in this case by virtue of 8 U.S.C. ยง 1503(a), which ...


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