Farrell v. Pompeo

424 F.Supp.3d 1

Gerald Lee FARRELL, Plaintiff,

v.Michael R. POMPEO, in his official capacity as Secretary of State of the United States, et al., Defendants.

Civil Action No. 17-490 (RBW)

United States District Court, District of Columbia.

Signed November 27, 2019

Gerald Lee Farrell, Yazoo City, MS, pro se.

Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, for Plaintiff.

P. Angel Martinez, U.S. Department of Justice Office of Immigration Litigation, Yamileth G. Davila, United States Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The pro se plaintiff, Gerald Lee Farrell, brings this civil action against the defendants, Michael R. Pompeo, the Secretary of the United States Department of State (the "Secretary"), and Corrin Ferber, Director of the Office of Legal Affairs, Bureau of Consular Affairs of the United States Department of State ("the Department"), alleging that the defendants' denial of his request for a Certificate of Loss of Nationality violated the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 – 1537 (2012), 18 U.S.C. § 1429 (2012), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706 (2012). See generally Amended Complaint ("Am. Compl."). Currently before the Court are the parties' cross-motions for summary judgment. See Motion for Summary Judgment ("Pl.'s Mot."); Cross-Motion for Summary Judgment ("Def.'s Cross-Mot."). Upon consideration of the parties' submissions,¹ the Court concludes that it must deny the plaintiff's motion and grant the defendants' motion.

I. BACKGROUND

A. Statutory and Regulatory Framework

Section 349 of the INA provides that "a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any [one] of [seven] acts with the intention of relinquishing United States nationality." 8 U.S.C. § 1481(a). These acts are codified in subsections (a)(1) through (a)(7) of 8 U.S.C. § 1481. With regards to subsections (a)(1) through (a)(5), the statute provides that

no national of the United States can lose United States nationality ... while within the United States ... but loss of nationality shall result from the performance within the United States ... of any of the acts or the fulfillment of any of the conditions specified in [ § 1481(a)(1) through (a)(5) ] if and when the national thereafter takes up a residence outside the United States[.]

Id. § 1483(a). At issue in this case is subsection (a)(1), which provides that an individual "shall lose his nationality by voluntarily ...[, and] with the intention of relinquishing United States nationality[,] ... obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years." Id. § 1481(a)(1).² Under the INA,

[w]henever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality under [ 8 U.S.C. § 1481 ] ..., he shall certify the facts upon which such belief is based to the Department ..., in writing, under regulations prescribed by the Secretary[.] If the report of the diplomatic or consular officer is approved by the Secretary ..., the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates. Approval by the Secretary ... of a certificate ... shall constitute a final administrative determination of loss of United States nationality[.]

Id. § 1501. The certificate to which the statute refers is known as a "Certificate of Loss of Nationality." See, e.g., 7 Foreign Affairs Manual § 1227(a) (instructing consular officers to prepare a "Certificate of Loss of Nationality" when they "have reason to believe that [an] individual has committed an expatriating act voluntarily and with the intention of relinquishing [United States] nationality"); see also Weber v. U.S. Dep't of State, 885 F. Supp. 2d 46, 50 (D.D.C. 2012) (referring to the "certificate" described in § 1501 as a Certificate of Loss of Nationality).

With respect to loss of nationality under the INA, the Secretary has promulgated a number of regulations, including 22 C.F.R. § 50.40, which provides that the Secretary will "presume[ ]" that a citizen who obtains naturalization in a foreign state pursuant to subsection (a)(1) "inten[ds] to retain [United States] citizenship." 22 C.F.R. § 50.40(a) (2017). However, if that citizen "affirmatively asserts to a consular officer, after he ... has committed [the] potentially expatriating act, that it was his ... intent to relinquish [United States] citizenship," then the presumption is rebutted and the regulation provides that the citizen "will lose his ... citizenship." Id.

The Secretary has also provided specific guidance to consular officers regarding loss of nationality claims in his Foreign Affairs Manual (the "Manual" or "FAM"). Relevant to subsection (a)(1), the Manual provides that if consular officers considering a claim brought under subsection (a)(1) "become aware [that] a citizen acquired foreign nationality [a]nd[ ] the citizen asserts or advises [them] ... that [his] intent was to relinquish [United States] citizenship," then "[t]he administrative presumption of intention to retain [United States] nationality is inapplicable[ a]nd[ ] it is necessary to develop the case and assess [the] voluntariness and intent." 7 FAM § 1221, Exhibit ("Ex.") 1 (Loss-of-Nationality Flow Chart ("Flow Chart")). In such situations, the Manual instructs a consular officer to send a letter to the citizen that "[p]rovide[s] [him with a copy of] ... Form DS-4079, Questionnaire: Information for Determining Possible Loss of [United States] Citizenship," id., and request that he "fill out ... and [ ] submit [the] form," 7 FAM § 1224.3(2). The Manual also instructs a consular officer to "arrange to interview the citizen," 7 FAM § 1221, Ex. 1 (Flow Chart), and more generally instructs that "it may be necessary to contact the [citizen] to discuss next steps and clarify any issues that arise in reviewing the responses to Form DS-4079" but that "[c]onsular officers can be flexible in determining whether this should include an in person, telephone[,] or e-mail contact," 7 FAM § 1224.5. Finally, to prepare a Certificate of Loss of Nationality, the Manual instructs consular officers to assemble and submit a package containing, inter alia, Form DS-4079 and Form DS-4081, which is a "Statement of Understanding Concerning the Consequences and Ramifications of Relinquishment or Renunciation of [United States] Citizenship." 7 FAM § 1227(a)(3)–(4). Both Forms DS-4079 and DS-4081 instruct citizens to sign the forms in the presence of a consular officer (the "in-person appearance requirement"). See Administrative Record ("AR") 107 (Form DS-4079 instructing applicants to sign the form "before a [c]onsular [o]fficer at a [United States] Embassy or Consulate"); see also AR 109 (Form DS-4081 requiring consular officers to attest that the citizen "appeared personally ... and signed th[e] statement ... before [the officer]").

B. Factual and Procedural History

The plaintiff is a United States citizen by birth. See AR 13. In 2014, the plaintiff pleaded guilty in the United States to federal criminal charges and was sentenced to a term of incarceration of ninety-six-months. See Judgment in a Criminal Case at 1–2, United States v. Farrell, Crim. Action No. 4-180-BLW (D. Idaho June 25, 2014), ECF No. 48.³ He is currently serving his prison sentence at the Federal Correctional Institution in Yazoo City, Mississippi. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Aug. 26, 2019).

On June 20, 2016, an individual designated by the plaintiff as having power of attorney to act on his behalf (the "plaintiff's power of attorney") forwarded to then-United States Ambassador to Switzerland Susan LeVine (the "Ambassador") a letter from the plaintiff requesting that the Ambassador issue the plaintiff a Certificate of Loss of Nationality pursuant to § 1481(a)(1). See AR 5.⁴ In the letter, the plaintiff represented that he "became [a] Swiss [citizen] in 2004," having been issued a Swiss passport in that year, and that he did so "voluntarily and with the intent to irrevocably lose [his] United States citizenship." AR 5. In support of his position, the plaintiff attached several documents, including an affidavit in which he stated that he had voluntarily "applied for citizenship in ... Switzerland, while on Swiss soil with the intent of losing [his] citizenship of the United States," AR 7, as well as what purports to be a Form DS-4081 filled out by him and notarized by a Texas-commissioned notary public, AR 15.

On June 22, 2016, an unnamed representative of the American Citizen Services Section of the United States Embassy in Switzerland (the "Embassy") responded by letter to the person acting with power of attorney on the plaintiff's behalf. See AR 16. In the response, the Embassy representative explained that because a "[United States] passport was issued to [the plaintiff] in 2013[, after he] acquired Swiss nationality in 2004, ... expatriation d[id] not apply in his case." AR 16. However, the representative advised that if the plaintiff "should now choose to renounce his [United States] nationality," he could do so by "renounc[ing] [ ] in the presence of a consular officer; [ ] outside [of] the United States; and [ ] in the precise form prescribed by the Secretary of State." AR 16. By letter dated July 21, 2016, the plaintiff's counsel at that time informed the Ambassador that her "denial to issue [the plaintiff] a Certificate of Loss of Nationality was solely based on a misunderstanding of the origin of the alleged 2013 [United States p]assport, which was actually solely requested and obtained by the ...