The U.S. State Department cannot revoke the citizenship it mistakenly granted 22 years ago to a native of Yemen, a federal magistrate judge has ruled, raising the man’s hopes that he finally will be able to bring his two children to safety in the United States from that violent corner of the Middle East.
Southern District Magistrate Judge James Francis IV (See Profile) rejected the government’s attempt to invoke the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. §1504) to challenge the citizenship of Abdo Hizam. That law allows the revocation of a passport based on fraud, misrepresentation “or some other exceptional grounds.” But Francis pointed out it was enacted four years after Hizam became a citizen.
Statutes are generally not intended for retroactive application, and Francis said in Hizam v. Clinton, 11-cv-07693, that there is no indication Congress intended to make the 1994 act apply to residents like Hizam who are in the country under a Consular Report of Birth Abroad of a Citizen of the United States (CRBA) granted before 1994.
To do so, the magistrate judge argued, would run counter to a legal principle, enumerated in INS v. St. Cyr, 533 U.S. 289 (2001), that questions of a statute’s retroactivity must be answered while keeping “familiar considerations of fair notice, reasonable reliance and settled expectations in mind.”
“The common sense judgment called for by St. Cyr indicates that retroactive application of Section 1504 would undermine any consideration of fair notice to Mr. Hizam and upset long settled expectations,” Francis wrote in his July 27 determination.
Hizam was 9 years old and living in Yemen when he was granted a CRBA and passport in 1990 upon an application of his father, a U.S. citizen.
The CRBA was approved by consular officials at the U.S. embassy in Sana’a, Yemen, even though U.S. State Department officials now say Hizam’s father, Ali Yahya Hizam, had lived in the United States for only seven years, less than the 10-year minimum for Americans seeking to gain citizen status for their foreign-born children.
Abdo Hizam entered the United States in 1990 and grew up in Dearborn, Mich., with his grandparents, who were also U.S. citizens, before moving to New York. Hizam told Francis that he has lived most of his life in the United States and considers himself an American.
His passport was renewed in 1996 and 2001.
In 2002, Hizam traveled to Yemen, where he married and had two children. He traveled back and forth between the United States and his homeland. Eventually, however, he became concerned about the safety of his children in Yemen.
“In 2009, the country of Yemen experienced episodes of violent unrest which have grown into a civil war,” he said in his court complaint. “The continued existence of violence related to the civil war threatens the safety and well-being of Plaintiff’s family.”
In March, the State Department warned U.S. citizens to stay out of Yemen, which has become infected with “terrorist activities and civil unrest.” It urged Americans remaining in the country to register their emergency contact and next-of-kin information with the department.
“The security threat level in Yemen is extremely high,” the agency warned. “While political violence in Sana’a [the capital] has calmed in recent months, violent clashes are still taking place in various parts of the country and may escalate without notice. Even demonstrations intended to be peaceful can turn confrontational and escalate into violence.”
When Hizam sought in 2009 to obtain CRBAs and passports for his two children, then aged 4 and 7, he was told to contact the State Department, which made him surrender both his own CRBA and passport.
The government has not attempted to deport Hizam, but he has not left the United States since his CRBA and passport were taken from him, and he has had difficulty remaining in regular contact with his children since, according to his attorneys.
Francis said he agreed with Hizam’s contention that protection of citizenship is of paramount concern “once it is bestowed or recognized.” Moreover, the judge said Hizam was not alone in his dilemma.
“Interpreting Section 1504 to permit its retroactive application would, as the plaintiff argues, upset the settled expectations of the entire class of persons who received CRBAs prior to the passage of the INTCA (Immigration and Nationality Technical Corrections Act); these individuals are likely to have long ago taken steps associated with established residence in the United States, including starting families and paying into various government benefits systems,” Francis wrote.
In Hizam’s case, he has lived and worked in the United States for decades, paid into Social Security and works in two small businesses he owns with his three younger brothers in the Bronx.
“Loss of his CRBA undermines the stability of all of these commitments,” the magistrate judge said.
Recognizing the government’s power to rescind Hizam’s CRBA would also run counter to the U.S. Supreme Court’s interpretation of 8 U.S.C. §2705, which states that revocation of a CRBA must be based on “fraud,” “misrepresentation” or another “exceptional ground” such as national security concerns, according to the magistrate judge.
“‘Second thoughts’ about an individual’s status as a U.S. citizen do not constitute such an exceptional ground because ‘if the Secretary [of State] could revoke a passport [or CRBA] on a whim’ then Section 2705′s command that passports and CRBAs be given ‘the same force and effect as proof of United States citizenship’ as a certificate of citizenship would be nullified,” Francis wrote.
He noted that the government conceded that an error was made in Hizam’s case, and fraud was not involved. Francis held that the State Department is prohibited from reopening an investigation of Hizam’s CRBA status and revoking his citizenship documents. Having a valid CRBA should also allow Hizam to apply for a passport to replace the one taken from him, according to Francis.
Nancy Morawetz and Alina Das along with Semuteh Freeman, a legal intern with the Washington Square Legal Services of New York University Law School, helped represent Hizam.
“We are thrilled,” Freeman said. Hizam “has been living the last couple of years with his citizenship kind of in limbo.”
Francis’ opinion did not address the status of Hizam’s children, but his attorneys said he will now renew his attempts.
“There is definitely a civil war there and a lot of instability,” said Freeman. “He is concerned about his children being in and out of school and their not being in a stable environment.”
Assistant U.S. Attorney Natasha Oeltjen represented the State Department. The complaint named Secretary of State Hillary Clinton as lead defendant. A spokeswoman for the Southern District U.S. attorney declined to comment.
Both sides in the case consented to Francis’ opinion without a review of his ruling by a U.S. district court judge.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.