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Abdo Hizam v. Hillary Clinton

September 20, 2012

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



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

MEMORANDUM AND ORDER

Plaintiff Abdo Hizam brought this action against defendants Hillary Clinton, the United States Department of State, and the United States of America (collectively the "State Department") seeking a judgment declaring that he is a citizen of the United States and an order compelling the defendants to re-issue his Consular Report of Birth Abroad for a Citizen of the United States ("CRBA") and passport. (Memorandum Opinion and Order dated July 27, 2012 ("July 27 Order") at 1). The parties consented to my exercise of jurisdiction for all purposes, and on July 27, 2012, I granted Mr. Hizam's motion for summary judgment and denied the State Department's cross-motion for summary judgment. (July 27 Order at 2).

On August 21, 2012, the State Department filed a motion requesting that I stay the July 27 Order while it considers whether to appeal, and if an appeal is filed, extend the stay pending resolution of that appeal. (Memorandum of Law in Support of Defendants' Motion for Stay Pending Consideration of Appeal ("Def. Stay Memo.") at 1, 13). Mr. Hizam opposes the application. (Memorandum in Opposition to Defendant's Motion for a Stay Pending Expiration of the Time for Filing a Notice of Appeal and Pending Appeal Should a Notice of Appeal Be Filed ("Pl. Stay Memo.")).

For the reasons that follow, the State Department's motion is denied.

Background

The facts of the case are set out in the July 27 Order, with which I assume familiarity. Nevertheless, some background will be helpful in understanding the following discussion.

Mr. Hizam was born in 1980 in Al Mahaqira, Yemen. (July 27 Order at 2). At that time, his parents were married, and his father was a naturalized citizen of the United States. (July 27 Order at 2). In 1990, Mr. Hizam's father applied for United States passports and CRBAs for his children at the United States Embassy in Sana'a, Yemen and the consular officers issued a CRBA and passport to Mr. Hizam. (July 27 Order at 2-3).

Mr. Hizam first came to the United States in 1990 and remained in this country thereafter. (July 27 Order at 3). In 1996 and again in 2001, the State Department renewed Mr. Hizam's passport. (July 27 Order at 3).

In May 2002, Mr. Hizam traveled to Yemen where he married and had two children, both of whom currently reside there. (July 27 Order at 4). In 2009, while Mr. Hizam was in Yemen visiting his wife and children, he applied for CRBAs and passports for his two children at the United States Embassy in Sana'a, Yemen. (July 27 Order at 4). Embassy employees suggested to Mr. Hizam that there was an unspecified issue with his passport and instructed him to contact the State Department upon his return to the United States. (July 27 Order at 4).

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. (July 27 Order at 4). Subsequently, the State Department informed Mr. Hizam that his CRBA had been canceled and his passport revoked and requested the return of those documents. (July 27 Order at 5). On May 19, 2011, he complied. (July 27 Order at 5).

On October 28, 2011, Mr. Hizam filed the instant suit and both parties subsequently cross-moved for summary judgment. (July 27 Order at 5). In the July 27 Order, I held, first, that prior to the passage of 8 U.S.C. § 1504 in 1994, no statutory authority permitted the State Department to revisit an individual's nationality determination and revoke a passport or cancel a CRBA. (July 27 Order at 9). Rather, prior to the enactment of Section 1504, the only grounds for revoking a passport were on the basis of fraud, misrepresentation, or some other exceptional reasons such as national security. (July 27 Order at 9-10). Second, I held that Section 1504 may not be applied retroactively because it would "upset the settled expectations of the entire class of persons who received CRBAs prior to the passage of [Section 1504]." (July 27 Order at 16). Therefore, permitting retroactive application of Section 1504 would be inconsistent with the second prong of the analysis required by Landgraf v. USI Film Products, 511 U.S. 244 (1994). (July 27 Order at 14-15). Third, I found that the State Department had no other authority to revoke proof of Mr. Hizam's citizenship. (July 27 Order at 18-20). Therefore, I held that in absence of authority for the State Department to revoke Mr. Hizam's citizenship documents, he is entitled to the return of his CRBA and could presumably apply for and obtain a new passport. (July 27 Order at 21).

Discussion

A. Authority to Issue a Stay

The State Department has requested a stay of the July 27 Order pending its decision whether to appeal and, if an appeal is taken, pending resolution of that appeal.*fn1 (Def. Stay Memo. at 1, 13). Mr. Hizam argues that Rule 62 of the Federal Rules of Civil Procedure provides no basis for obtaining a ...


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