Abdo Hizam, right, speaks about his immigration issues. Nancy Morawetz of the Immigrant Rights Clinic, Washington Square Legal Services, and Matthew Moffa of Ropes & Gray have worked on his case. (NYLJ/Rick Kopstein)
The State Department has revoked the passport of a man who has lived here since 1989 because the agency decided it had made a mistake by recognizing his citizenship in the first place—and now an appellate court has concluded it can’t remedy the injustice.
The U.S. Court of Appeals for the Second Circuit Wednesday “reluctantly” said it was powerless to help Yemeni-born Abdo Hizam, who always believed he was a U.S. citizen until the State Department wrote him in 2011 and said it mistakenly issued a key document believing Hizam’s father had been here long enough to confer citizenship on his son.
The State Department ordered Hizam, now 33, to turn in his passport and the document, a Consular Report of Birth Abroad of a Citizen of the United States (CRBA), indicating he was the child of a naturalized American citizen who has been in the U.S. for a minimum number of years.
The circuit said in Hizam v. Kerry, 12-3810, that although the equities “overwhelmingly” favor Hizam and that “despite sympathy” the court has for his position, “Courts cannot grant citizenship through their equitable powers.”
Hizam discussed this “debacle” in an interview Thursday.
“I was in absolute shock,” he said. “This jeopardized my future as to what I wanted and where I wanted to be in life.”
Writing for the court, Judge Rosemary Pooler (See Profile) said the State Department conceded its mistake at oral argument and said it would support “lawful means” to provide relief to Hizam, who now needs either action by the executive branch or for Congress to pass so-called “private legislation” granting him citizenship (See government’s response to the court).
Hizam was born in Yemen in October 1980 to a Yemeni mother and a father who was a naturalized U.S. citizen. He moved to the U.S. at age nine and lived with his grandparents.
In 1990, his father applied to the State Department for a CRBA, and truthfully stated he had come to the U.S. in 1973 and had been physically present for over seven years.
The application was granted. Hizam grew up to graduate from college, move to the Bronx to live with his brothers, marry and father three children, who live with their mother in Yemen.
His passport was renewed twice by the State Department, and he frequently traveled back and forth to Yemen. But in 2011, when Hizam was working at Moe’s Deli, the family business in the Bronx, and pursuing a master’s degree in business administration at Mercy College, the State Department demanded he return the CRBA and surrender his passport.
In a letter to Hizam, the government said that while the law requires a parent to have a continuous physical presence in the United States for only five years, when Hizam was born, the law required 10 years.
The department said his CRBA was issued “due to Department error” and “[u]nfortunately, the Department of State lacks authority to create a remedy that would in some way confer U.S. citizenship on anyone absent a statuary basis for doing so.”
Lawyers for Hizam filed suit in the Southern District under 8 U.S.C. §1503(a) seeking a declaration of U.S. nationality and the return of both documents.
Francis said the government exceeded its authority under §1504, which authorizes the Secretary of State to “cancel any United States passport or [CRBA] … if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary.” Francis held that the application of the statute had an impermissibly retroactive effect.
The government appealed to the Second Circuit, where Judges Pooler, Jon Newman (See Profile) and Debra Ann Livingston (See Profile) heard oral argument on Sept. 30, 2013 (See Hizam’s Appellate Brief).
The circuit reversed Wednesday, saying its hands were tied.
Writing for the court, Pooler said, “we conclude that Hizam is not entitled to documentary proof of U.S. Citizenship, because he is indisputably not a U.S. Citizen” and the application of §1504(a) “does not work an impermissible retroactive effect.”
Pooler also said “we reluctantly conclude that while the equities in this matter weigh heavily in Hizam’s favor, well-settled law does not allow the courts to provide the relief Hizam seeks,” and Francis exceeded the scope of his authority granted to him by §1503(a).
“The plain language of §1503(a) authorizes a court only to issue a judgment declaring a person to be a national of the United States,” she wrote. “Hizam, by his own admission, cannot satisfy the statuary requirements necessary to have acquired citizenship at birth, and thus cannot be declared a citizen of the United States.”
Once Francis had concluded he could not declare Hizam a citizen, his “inquiry should have ended there,” but the magistrate judge went on and “attempted to distinguish between declaring Hizam a citizen and returning his citizenship documents.”
Pooler also said the lower court’s finding on retroactivity was in error.
“Because the issuance of a CRBA does not confer citizenship upon its recipient, we hold that the enactment of Section 1504 neither changed the citizenship rights provided by statute, nor attached new consequences to a prior acquisition of citizenship,” she said.
Pooler also noted that 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.”
She closed by noting that the government said it “recognizes the inequity” of the situation and would support efforts to provide relief to Hizam.
“We trust that the State Department will stand by its representations to the Court,” she said.
Hizam said several lawyers tried to help him without success. Finally, he was referred by the Arab-American Family Support Center in Brooklyn to Nancy Morawetz of the Immigrant Rights Clinic, Washington Square Legal Services, where Morawetz and a team of law students worked on his case in the district court. Meredythe Ryan, who worked at the clinic as a law student, and Matthew Moffa and Christopher Conniff of Ropes & Gray, worked on the appeal pro bono.
Morawetz said Thursday she was disappointed with the decision and planning the next step.
“To go from spending decades as a citizen to having absolutely no status in this country—his country,” she said. “This affects all aspects of his life.”
Morawetz said she welcomes the State Department’s representation that it would support executive action private legislation that would allow Hizam to stay in the country, but said the problem is “our client is caught between different agencies.”
“Everyone agrees that if the State Department had done what it was supposed to do when he came here at the age of 9, had he been processed as a lawful permanent resident, he would have become a citizen when he became an adult.”
Moffa said what happened to their client was beyond belief, but he was “optimistic the State Department will support us across the board.”
Assistant U.S. Attorneys Shane Cargo and Benjamin Torrance represent the government. Cargo and Torrance followed up oral argument by writing the Second Circuit in November to report that the State Department has written to Senator Kirsten Gillibrand, D-N.Y., to discuss private legislation.
In the letter, Acting Assistant Secretary for Legislative Affairs Thomas Gibbons tells the Senator “The Department acknowledges that neither Mr. Hizam nor his father were to blame for the initial erroneous issuance of the CRBA and U.S. passport, and recognizes the unfortunate detrimental effect such a ruling will have on Mr. Hizam, particularly with respect to his ability to lawfully remain in the United States and to legally petition” for his wife and family to emigrate.
But Gibbons said the Department was without authority to “confer citizenship itself or to disregard situations in which non-U.S. citizens hold documentary proof of U.S. citizenship that were issued in error.”
The U.S. Attorney’s office declined comment Thursday.