Kaufman v. Mukasey (D.C.Cir. 5/2/08)

ROGERS, Edwards, Randolph (partially dissenting)

The DC Cir addressed the attempts of a then-detained USC who wanted to renounce his citizenship after the US invaded Iraq.  The DC Cir remanded to the District Court to determine whether the AG still has authority over renunciations; and commented in dicta on the Govt's attempts to avoid mandamus jurisdiction based on the fact that he didn't file an official form (when DOJ has exercised its discretion not to create a form), and on the argument from national security, casting aspersions on both arguments.

Read opinion here: 

James Kaufman, while detained in a Wisconsin prison, began attempting to renounce his US citizenship.  He sent letters to the AG, as well as USCIS.  The AG never responded to the letters; USCIS said that he couldn't renounce, because he intends to remain in the US.

1.  Sets forth APA rules - where agency is compelled to act, courts can compel action even though it can't say what action to take.

   “Agency action” encompasses a “failure to act” for purposes of judicial review. Id. § 551(13). “A ‘failure to act’ is not the same thing as a ‘denial.’ The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request . . . .” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004). The APA further authorizes the court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, consistent with underlying separation of powers considerations, “a claim under [section] 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” S. Utah Wilderness Alliance, 542 U.S. at 64 (emphasis in original). Thus, contrary to the district court’s ruling, when an agency is compelled by law to act, but the manner of its action is left to the agency’s discretion, the “court can compel the agency to act, [although it] has no power to specify what th[at] action must be.” Id. at 65.

2.  Remanding to District Court to determine whether AG still has authority to let someone renounce citizenship.

   While we have found no explicit reference to section 1481(a)(6), the Homeland Security Act provides in sweeping terms that adjudication of visa petitions, naturalization petitions, and “[a]ll other adjudications performed by the [INS]” are “transferred from the Commissioner of [the INS] to the Director of the Bureau.” Id. § 271(b). Additionally, the Homeland Security Act expressly provides that the Attorney General has authority over certain immigration functions specifically relating to immigration courts, id. § 521,6 suggesting that the Attorney General may no longer retain other functions under the Act that he had delegated to the INS. Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (alteration in original)).

   There thus exists the possibility that the powers ascribed to the Attorney General by the briefs on appeal are now vested in the Bureau.

3.  Notes, but does not squarely address, the argument of USCIS that he can't renounce because he intends to remain in the US.

   In addition, neither Kaufman nor amicus have presented any argument challenging the Bureau’s position that, as a matter of law, because Kaufman intended to remain in the United States, he was ineligible for renunciation under section 1481(a)(6).7 This unrebutted legal interpretation by the Bureau and the history of the enactment of section 1481(a)(6), see Tadayasu Abo v. Clark, 77 F. Supp. 806, 809 (N.D. Cal. 1948), raise additional questions regarding section 1481(a)(6)’s availability to Kaufman.

4.  In dicta, casts doubt on the Govt's assertions that the AG could refuse to let someone renounce, because it has not created a form; and also that "national security" could support denial of the mandamus.

   As Kaufman and amicus read section 1481(a)(6), the question presented is whether the Attorney General may ignore a citizen request that Congress has authorized. See Appellant’s Br. at 10-11; Amicus Br. at 14. They contend that the Attorney General has a duty to respond and that this court should compel such a response. By contrast, the government contends in its brief that mandamus will not lie because section 1481(a)(6) vests discretion in the Attorney General to prescribe a form and designate an official, neither of which has occurred.9 Further, the government contends that the determination of “national security” involves policy judgments in which courts are not to be overly involved. Citing Koos v. Helm, 204 F. Supp. 2d 1099, 1108 (W.D. Tenn. 2002), the government offers that such discretion, in the absence of statutory or regulatory standards, precludes enforcement under the APA.

   The government’s position seems problematic given that the government has not pointed to anything to suggest that by authorizing the Attorney General to prescribe a form and designate an official to receive section 1481(a)(6) requests Congress intended to make these actions preconditions to the operability of the statute rather than matters of administrative convenience. Indeed, the Department has relied on the statute in support of a court-approved plea agreement in which the defendant was allowed to renounce his citizenship under section 1481(a)(6) in exchange for the dismissal of the pending criminal charges. United States v. Cabrera-Rojas, No. CR-06-248-SBLW, 2007 WL 778181, at *2 (D. Idaho Mar. 13, 2007). This was done even though there was nothing to indicate that the Attorney General had prescribed a form or designated an official to receive the defendant’s section 1481(a)(6) renunciation. This approach is unsurprising given that the Office of Legal Counsel has advised that “no regulation for accepting a formal renunciation within the United States pursuant to this provision . . . is necessary,” as the requisite form could be produced by the Attorney General at the time a citizen seeks to exercise that right. John C. Yoo, Survey of the Law of Expatriation, Memorandum Opinion for the Solicitor General n.9 (June 12, 2002), available at http://www.usdoj.gov/olc/ expatriation.htm (last visited Mar. 31, 2008). See generally Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Additionally, although determinations regarding national security are matters that courts acknowledge are generally beyond their ken, see, e.g., INS v. Aguirre- Aguirre, 526 U.S. 415, 424-25 (1999), a failure to make a determination can be reviewable under the APA, see S. Utah Wilderness Alliance, 542 U.S. at 63, 65. Section 1481(a)(6), on its face, is not the “typical” enforcement statute addressed by Heckler v. Chaney, 470 U.S. 821 (1985), insofar as Congress has authorized the citizen, not the government, to initiate a request for renunciation. In sum, we do not understand the government to suggest that a congressionally created right can be nullified by government inaction.

Randolph, partially dissenting

Nothing the court says [in part II.B] is essential to our judgment. The court’s “by the way” musings are thus simply dicta. Why the court includes them in an otherwise careful opinion is mystifying. They do not represent the sort of in-depth analysis that would be needed to determine the difficult question whether mandamus would lie to force the Attorney General to exercise discretionary power under 8 U.S.C. §1481(a)(6). Since we do not even know if the Attorney General still has that power, I dissent from part II.B.

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