February 24, 2013

CLN Issued After Naturalization with Intent to Renounce

by Sven Magnussen

RE: Fox v. Clinton (2012)

Kenneth R. Fox renounced his U.S. citizenship after moving to Israel in 1996 and living there continuously. Fox claimed he expatriated himself by committing acts described under 8 U.S.C. § 1481 in 2002. Specifically, Fox claimed he was entitled to a Certificate of Loss of Nationality issued by the U.S. State Department because he naturalized in a foreign state (see 8 U.S.C. §1481(a)(1)) and took an oath or formal declaration of allegiance to a foreign state (see 8 U.S.C. §1481(a)(2)).

The U.S. State Department denied Fox a Certificate of Loss of Nationality and suggested he pursue a formal declaration of intent to renounce his citizenship and appear before a diplomatic or consular officer at the U.S. Embassy in Tel Aviv (see 8 U.S.C. § 1481(a)(5)). Fox declined and sued in U.S. District Court for the District of Columbia for a writ of mandamus and declaratory relief for a Certificate of Loss of Nationality. The Court granted defendant's motion to dismiss for failure to state a claim.

Fox appealed the Court's dismissal in U.S. Court of Appeals for the District of Columbia in 2012. In the Appeals Court decision, Edward A. Betancourt, Dir., Office of Policy Review and Interagency Liaison, Bureau of Consular Affairs, was quoted to explain the U.S. State Department's position on issuing a Certificate of Loss of Nationality:

Appellant filed suit in the District Court, effectively seeking “declaratory and mandamus relief requiring the Department of State to recognize his expatriating acts and thereby issue him a Certificate of Loss of Nationality.” Fox, 751 F. Supp. 2d at 127. The District Court exercised subject matter jurisdiction over Appellant’s complaint under 28 U.S.C. § 1331, and assumed that the complaint stated a cause of action under the APA, see Fox, 751 F. Supp. 2d at 127 & n.3 (citing 5 U.S.C. §§ 702, 704, 706(2)(A)). After reviewing the parties’ submissions, the District Court found that the Department’s “decisions were not arbitrary, capricious, an abuse of discretion, or otherwise unlawful,” held that Appellant’s “complaint fails to state a claim upon which relief can be granted,” and granted the Department’s motion to dismiss. Id. at 131. Appellant filed a timely appeal seeking to overturn the judgment of the District Court.

The Appeals Court affirmed the District Court's judgment as it upholds the U.S. State Department's decision that Fox is not eligible for a CLN under Section 2 of the INA. But, the Appeals Court reversed and remanded the District Court's judgment dismissing Fox's challenge to the U.S. State Department decision denying his request for a CLN under Section 1, obtaining citizenship while living in a foreign state.

The Appeals Court closed its decision by slammng the U.S. State Department's statutory interpretation of Section 1 of the INA as incoherent regarding the applicability of Section 1 and opined the agency’s action in the Fox case was arbitrary and capricious for want of reasoned decisionmaking.

The Appeals Court instructed the District Court to remand with instructions the Fox case to the U.S. State Deparment to reconsider Fox's request for a CLN pursuant to Section 1 of the INA.

Sec. 349. [8 U.S.C. 1481]

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-

(1) 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.

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