Alzokari v. Pompeo ( 2020 )

19-3133
Alzokari v. Pompeo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2019
(Argued: April 24, 2020 | Decided: August 26, 2020)
Docket No. 19-3133
AHMED ALI ALZOKARI,
Plaintiff-Appellant,
v.
MICHAEL POMPEO, CARL C. RISCH, RACHEL ARNDT, UNITED STATES
DEPARTMENT OF STATE
Defendants-Appellees. †
______________
Before:
CALABRESI, WESLEY, BIANCO, Circuit Judges.
Plaintiff-Appellant Ahmed Ali Alzokari appeals the dismissal of his
Administrative Procedure Act (“APA”) action challenging the United States
Department of State’s (the “Department”) revocation of his passport. Alzokari
was born in Yemen and naturalized as a United States citizen in 1979 under the
name “Ahmed Ali Alzokari.” Since 1979, he has used that name in each of his
United States passport applications.
†The Clerk of Court is directed to amend the caption as set forth above. Under Federal
Rule of Appellate Procedure 43(c)(2), Deputy Assistant Secretary Rachel Arndt is
substituted for former Deputy Assistant Secretary Brenda Sprague.
In 2013, Alzokari visited the United States embassy in Sana’a, Yemen, to
obtain a consular report of birth abroad for a child he claimed to be his son.
Suspecting fraud, embassy officials detained Alzokari for several hours.
Following an interrogation, Alzokari signed a statement declaring, inter alia, that
his true name was not “Ahmed Ali Alzokari.” Based only on that statement, the
Department revoked Alzokari’s passport, concluding it was fraudulently
obtained.
Alzokari requested an administrative hearing to challenge the Department’s
decision. The Deputy Assistant Secretary for Passport Services upheld the
passport revocation and Alzokari subsequently commenced this action, arguing
that his passport revocation violated the APA and his Fifth Amendment Due
Process rights. The United States District Court for the Eastern District of New
York (Cogan, J.) dismissed Alzokari’s complaint, determining that the revocation
of Alzokari’s passport was neither arbitrary nor capricious, and did not violate
Due Process.
Because we find that Alzokari could not have fraudulently obtained his
passport by using the name and birthdate listed on his certificate of naturalization
in his application, we REVERSE the district court’s decision, REVERSE the
Department’s final decision upholding the passport revocation, and ORDER the
Department to return Alzokari’s expired passport so that he may apply for a new
United States passport if he so chooses.
_________________
JAN H. BROWN, Law Offices of Jan H. Brown, P.C., New York, NY,
for Plaintiff-Appellant.
JOSEPH A. MARUTOLLO, Assistant United States Attorney (Varuni
Nelson, Assistant United States Attorney, on the brief), for Seth
D. DuCharme, Acting United States Attorney for the Eastern
District of New York, New York, NY, for Defendants-Appellees.
_________________
2
WESLEY, Circuit Judge:
Plaintiff-Appellant Ahmed Ali Alzokari challenges the United States
Department of State’s (the “Department”) revocation of his passport. Alzokari
was born in Yemen and naturalized as a United States citizen in 1979 under the
name “Ahmed Ali Alzokari.” Since 1979, he has used that name in each of his
United States passport applications.
During a 2013 visit to the United States embassy in Sana’a, Yemen, to obtain
a consular report of birth abroad for a child he claimed to be his son, embassy
officials detained Alzokari on suspicions of fraud. Several hours later, Alzokari
signed a statement declaring, inter alia, that his true name is “Ahmed Ahmed
Mohamed Albaadani.” Based on that statement alone, the Department revoked
Alzokari’s passport, concluding it was fraudulently obtained.
Alzokari challenged the revocation in an administrative hearing, but the
Deputy Assistant Secretary for Passport Services upheld the decision. He then
commenced this action in the United States District Court for the Eastern District
of New York (Cogan, J.), arguing that the Department’s revocation violated the
Administrative Procedure Act (“APA”) and his Fifth Amendment Due Process
rights. The district court disagreed and dismissed Alzokari’s complaint.
3
This case presents a question of first impression for this Court: can the
Department revoke a citizen’s United States passport on the ground that he
concealed his identity in applying for the passport, where the citizen makes a
statement that prior to his naturalization he was known by another name but he
applied for, and was issued, his passport using his uncontested legal name? We
hold that it cannot. Because Alzokari cannot be said to have fraudulently obtained
his passport when he used the name and birthdate denoted on his unchallenged
immigration and citizenship documents, including his certificate of naturalization,
we reverse the district court’s decision, reverse the Department’s decision to
uphold the passport revocation, and order the Department to return Alzokari’s
passport so that he may reapply for a United States passport if he so chooses.
BACKGROUND
I. Facts 1
Alzokari Immigrates to the United States
Alzokari was born in Yemen on March 1, 1955. In 1972, Alzokari’s father,
Ali Ayed Zoqari (“Ali”), filed a “Petition to Classify Status of Alien Relative for
1We review de novo a grant of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41, 48–49 (2d Cir.
2018), and “constru[e] the complaint liberally, accepting all factual allegations in the
4
Issuance of Immigrant Visa” with what was then the United States Immigration
and Naturalization Services. The petition identified Alzokari as Ali’s son, but
spelled Alzokari’s name as “Ahmed Ali Zoqari.” C.A.R. 402. 2 At the time of the
petition, Alzokari’s father was a permanent resident of the United States working
for Chrysler.
In 1973, Alzokari applied for an immigrant visa under the name “Ahmed
Ali Ayedh Alzokari.” C.A.R. 414. His visa application was supported by a Yemeni
birth certificate, a police certificate, an affidavit, medical records, and
photographs. In addition, the Yemen Ministry of Justice certified that “Ahmed Ali
Aith Al Zokari” was born on March 1, 1955 to “Ali Aith Al Zokari” and “Salehah
Bint Saleh Ahmed.” Alzokari App. 68.
On October 24, 1973, the United States issued Alzokari an immigrant visa in
the name “Ahmed Ali Ayedh Al-Zokari.” C.A.R. 408. The Yemeni passport
supporting Alzokari’s visa was issued to “Ahmed Ali Aid,” id., and a translated
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
2Citations to “C.A.R.” refer to the “certified administrative record” filed by Defendants-
Appellees in the district court.
5
certificate of characters accompanying the passport identified Alzokari as “Ahmed
Ali Aiad,” Alzokari App. 65.
Alzokari’s United States Citizenship
In 1979, Alzokari naturalized as a United States citizen. Alzokari petitioned
for naturalization in the name “Ahmed Ali Alzokari,” C.A.R. 385, and the United
States issued his certificate of naturalization in the name “Ahmed Ali Alzokari,”
listing his birthdate as March 1, 1955, 3 Alzokari App. 58. Since arriving in this
country, none of Alzokari’s immigration and naturalization records have been
challenged for any reason, including his Yemeni birth certificate and his parents’
marriage certificate. There have been no allegations that Alzokari changed his
name to hide a criminal record or for any reason that might preclude
naturalization. Following Alzokari’s naturalization, the United States has issued
him other documents under the name “Ahmed Ali Alzokari,” including his Social
Security card.
3The Yemeni birth certificate Alzokari’s father provided for immigration purposes also
stated that he was born on March 1, 1955, and that his name was “Ahmed Ali Ayed
Zoqari.” Alzokari App. 61.
6
Alzokari’s United States Passports
Alzokari applied for his first United States passport in 1979. He used the
name and birthdate listed on his certificate of naturalization and presented the
certificate as an identifying document. He listed his father as “Ali Ayied Alzokari”
and his mother as “Salehih Ahmed.” C.A.R. 160. When Alzokari applied for
passports in 1995 and 2005, he used the same name and birthdate, and presented
his previously issued passports as evidence of his identity. The Department issued
a passport to Alzokari in each instance.
Alzokari’s Detainment at the United States Embassy in
Sana’a, Yemen, and His Passport Revocation
On March 26, 2013, Alzokari traveled to the United States embassy in Sana’a,
Yemen, to secure a consular report of birth abroad for his “son,” Dawood Ahmed
Ali Alzokari (“Dawood”). 4 The consular official interviewing Alzokari became
suspicious of Alzokari’s relationship to Dawood given their significant age
difference and initiated a fraud investigation. The consular official referred the
matter to Special Agent David W. Howell, then Assistant Regional Security Officer
4A consular report of birth abroad documents the birth of a United States citizen born
abroad, serving as an official determination of the applicant’s United States citizenship.
22 U.S.C. § 2705(2). It “may only be issued by a consular officer,” who will “issue the
report if satisfied that the claim to nationality has been established.” 22 C.F.R. § 50.2.
7
for Investigations at the United States embassy in Sana’a, Yemen, and embassy
officials confiscated Alzokari’s expired and unexpired passports, as well as his
certificate of citizenship.
Special Agent Howell detained Alzokari and interviewed him for several
hours, assisted by United States Department of State Consular Fraud Investigator,
Mohammed, a native Arabic speaker. 5 Following the interrogation, Alzokari
signed a statement—which he claims he did not understand—stating, among
other things, that he was born “on/about 1948,” his “true and correct name” is
“Ahmed Ahmed Mohamed Albaadani,” he was “smuggled” into the United States
“on/about 1973” by Ali Ayad Alzokari (who falsely claimed him as his child), and
he naturalized “on/about 1979” under the “assumed/fraudulent name” Ahmed Ali
Alzokari. Alzokari App. 36. The statement further claimed that Dawood was
Alzokari’s grandson—not his son—and that Alzokari had previously smuggled
four other people into the United States under claims that they were his children.
Id. at 36–37. 6
5 Mohammed’s last name has been withheld for security purposes.
6We note that Special Agent Howell has obtained strikingly similar statements to the one
at issue here during his tenure at the United States embassy in Sana’a, Yemen. See, e.g.,
8
After Alzokari signed the statement—as “Ahmed Ali Alzokari,” id. at 36–
38—embassy officials returned Alzokari’s passports and his certificate of
citizenship. 7 On his return to the United States, however, these documents were
again confiscated by airport officials at John F. Kennedy International Airport, and
Omar v. Kerry (“Omar I”), No. 15-cv-01760, 2016 WL 617449 (N.D. Cal. Feb. 16, 2016); Omar
v. Tillerson (“Omar II”), No. 15-cv-01760, 2017 WL 5751314 (N.D. Cal. Nov. 28, 2017). In
Omar, plaintiff Mosed Shaye Omar was born in Yemen in 1951, immigrated to the United
States in 1972, and became a United States naturalized citizen in 1978. Omar I, 2016 WL
617449, at *1. In 2012, Omar traveled to Yemen to obtain a U.S. passport for his daughter.
Id. After attending an interview at the United States embassy in Sana’a, Omar remained
in Yemen for several months, waiting to hear from the embassy regarding his daughter’s
application. Id. Just before he was to return to the United States, Omar visited the
embassy at the request of embassy officials, who took his passport on arrival. Id. Special
Agent Howell interviewed Omar in an interrogation room for several hours, and Omar
eventually signed a statement similar to the one Alzokari signed. Id. at *2. For example,
the statement Omar signed claimed that Omar was an “assumed/fraudulent name” that
Omar used when he naturalized, that he was “smuggled to the US by a distant ‘uncle,’”
and that he smuggled others into the United States by falsely claiming they were his
children. See Voluntary Statement, Omar I, No. 15-cv-1760, (N.D. Cal. June 24, 2015), ECF
No. 14-5. Because of the statement, the Department revoked Omar’s passport, claiming
that he applied for it under a false name. Omar I, 2016 WL 617449, at *2. The district court
reversed that revocation as arbitrary and capricious and enjoined the Department “from
revoking or denying Mr. Omar’s passport on this same basis.” Omar II, 2017 WL 5751314,
at *7. However, the district court later vacated its judgment on the stipulation of the
parties, who agreed in mediation in the Ninth Circuit to settle the action if the
Department issued a new passport to Omar and the district court vacated its judgment.
Omar v. Pompeo (“Omar III”), No. 15-cv-1760, 2018 WL 4191416 (N.D. Cal. Aug. 16, 2018);
Joint Mot. To Vacate J., Omar I, No. 15-cv-1760 (N.D. Cal. Aug. 13, 2018), ECF No. 105.
7The Department subsequently denied Dawood’s consular report of birth abroad
application, claiming that Alzokari had not presented sufficient evidence of a paternal
relationship with Dawood, and citing his March 2013 statement. See Alzokari App. 77–
78.
9
the Department formally revoked Alzokari’s passport on January 6, 2015. In its
revocation letter, the Department determined that Alzokari made a false statement
of material fact in his passport application because his March 2013 statement
“revealed that [he is] not Ahmed Ali Alzokari, born on March 1, 1955 to U.S. citizen
Ali Ayad Alzokari[,]” but is “Ahmed Ahmed Mohamed Albaadani, born in or
about 1948 to Ahmed Mohamed Ali Albaadani and Maydam Al-Radhaie.” C.A.R.
2. The revocation letter did not refer to any other admissions from the March 2013
statement. The letter made no assertion that Alzokari had obtained his
naturalization through fraud or deception nor did it contend that Alzokari’s
attempt to obtain admission into the United States for his grandson presented a
national security concern.
II. Procedural History
Alzokari challenged his passport revocation and received an administrative
hearing on April 19, 2018.8 At the hearing, Alzokari argued, inter alia, that he did
8 An earlier hearing in May 2015 upheld the revocation. Alzokari subsequently
challenged the agency decision in the United States District Court for the Eastern District
of New York (Gershon, J.). See Alzokari v. Tillerson, et al., No. 1:17-cv-00830 (E.D.N.Y. Feb.
14, 2017). The district court entered a stipulated order of dismissal, dismissing the action
without prejudice and remanding for a de novo administrative hearing on a new
administrative record. See Stipulation and Order of Dismissal Without Prejudice, Alzokari
10
not understand the March 2013 statement, that he had signed it under duress while
suffering from dementia, and that the Arabic-speaking interpreter was biased—all
of which made the statement unreliable—and that the Department had not
presented independent evidence that his passport had been issued based on fraud.
The Department countered that Alzokari failed to rebut the admissions in the
March 2013 statement, and therefore, revocation was appropriate. Alzokari’s
immigration and naturalization records were before the agency at the time it made
the revocation decision.
The hearing officer found that Alzokari failed to meet his burden in showing
that the Department acted improperly. He recommended upholding the
revocation because the March 2013 statement “was sufficient evidence for the
Department to reasonably rely upon when revoking [Alzokari’s] passport.”
Alzokari App. 53. He made this recommendation despite acknowledging that
Alzokari “present[ed] . . . identity and citizenship documents,” including his
certificate of naturalization, “all in the name Ahmed Ali Alzokari, bearing a date
of birth of March 1, 1955,” when he applied for his United States passports. Id. at
v. Tillerson, et al., No. 1:17-cv-00830 (E.D.N.Y. Oct. 16, 2017), ECF No. 13. We review the
results of that administrative hearing here.
11
49. The Deputy Assistant Secretary for Passport Services approved the hearing
officer’s recommendation.
In January 2019, Alzokari commenced this action in the United States
District Court for the Eastern District of New York (Cogan, J.) against Defendants.9
In his complaint, Alzokari claims that (1) Defendants violated the APA when they
revoked his passport, id. at 19–23, and (2) the passport revocation violated his Fifth
Amendment Due Process rights because “the Government should have had the
burden of persuading the hearing officer that it was proper to revoke [his]
passport,” id. at 200. Defendants moved to dismiss Alzokari’s complaint under
Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary
judgment. Alzokari cross-moved for summary judgment.
The district court granted Defendants’ motion to dismiss. As to Alzokari’s
APA claim, the court determined that the decision to revoke Alzokari’s passport
was neither arbitrary nor capricious because it was supported by the March 2013
statement. Alzokari v. Pompeo, 394 F. Supp. 3d 250, 255 (E.D.N.Y. 2019). As to
9We refer collectively to the Department, Secretary of State Michael Pompeo, Assistant
Secretary for Consular Affairs Carl C. Risch, and Deputy Assistant Secretary for Passport
Services Rachel Arndt as “Defendants.”
12
Alzokari’s Due Process argument, the district court concluded that allocating the
burden of persuasion to Alzokari did not violate his Due Process rights. Id. at 258.
First, the district court found that although Alzokari’s interest in his
passport was “a liberty interest protected by the Due Process Clause of the Fifth
Amendment,” it was “not a fundamental right equivalent to the right to interstate
travel,” nor did it affect his citizenship. Id. at 258 (quoting Weinstein v. Albright,
261 F.3d 127, 140 (2d Cir. 2001)). Next, the court concluded that the Department
had a strong interest in preventing fraud in connection with passports. Id.Although the revocation letter made no mention of Alzokari’s purported
smuggling of children into the United States, the district court determined that the
Department’s interest was “particularly acute here” because of that admission,
emphasizing that the “likelihood of damage to national security or foreign policy
of the United States” is “the single most important criterion in passport decisions.”
Id. (quoting Haig v. Agee, 453 U.S. 280, 298 (1981)). Finally, the court determined
that the risk of an erroneous deprivation of Alzokari’s passport was low because
Alzokari “participated in two separate hearings; had the opportunity to present
evidence and make arguments; was represented by counsel; and received
decisions that [Alzokari] concedes were ‘comprehensive’ and ‘discussed all the
13
relevant facts.’” Id. at 259. Thus, the district court found the allocation of the
burden of proof complied with Due Process.
The district court entered judgment and Alzokari timely appealed.
DISCUSSION
I. The Department’s Passport Revocation Violated the APA
Under the APA, we may set aside an agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). An agency action is arbitrary and capricious “if the agency has
relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.” Natural Res. Def. Council, Inc. v. U.S. EPA, 658 F.3d 200, 215 (2d Cir.
2011) (internal quotation marks and citation omitted).
The Department revoked Alzokari’s passport pursuant to 22 C.F.R.
§ 51.62(a)(2), which provides that the Department may revoke or limit a passport
when it was “illegally, fraudulently or erroneously obtained from the Department;
or was created through illegality or fraud practiced upon the Department.” See
14
also 8 U.S.C. § 1504(a) (“The Secretary of State is authorized to cancel any United
States passport . . . if it appears that such document was illegally, fraudulently, or
erroneously obtained from, or was created through illegality or fraud practiced
upon, the Secretary.”). When a citizen applies for a United States passport, they
“must truthfully answer all questions and must state every material matter of fact
pertaining to his or her eligibility for a passport.” 22 C.F.R. § 51.20(b).
The Department premised its revocation decision on the contention that
Alzokari “made a false statement of material fact in [his] passport application” by
representing that he is Ahmed Ali Alzokari when his “true identity” is actually
Ahmed Ahmed Mohamed Albadaani. C.A.R. 2. The question we must answer,
therefore, is whether the revocation of Alzokari’s United States passport was
arbitrary, capricious, or otherwise not in accordance with law, where the record
shows that Alzokari applied for his passport using the legal name and birthdate
denoted on his uncontested immigration documents, including his certificate of
naturalization. In our view, the revocation decision was indeed arbitrary.
Alzokari’s certificate of naturalization lists his name as Ahmed Ali Alzokari.
The name used for passports is generally “the name recorded in the evidence of
nationality and identity.” 22 C.F.R. § 51.25(a). Where, as here, the applicant is
15
born outside of the United States, “evidence of nationality” includes a certificate
of naturalization. See 22 C.F.R. § 51.43(b)(1)(i). Moreover, a certificate of
naturalization is “evidence of identity” that may be used to obtain a passport
because it is a “federal government officially issued identification with
photograph.” 22 C.F.R. § 51.23(b).
Even a cursory review of Alzokari’s first United States passport application
shows that certificates of naturalization are specifically listed as acceptable
“[i]dentifying [d]ocument(s).” 10 C.A.R. 161. This makes sense since the certificate
must be issued to the applicant “in his or her true, full, and correct name as it exists
at the time of the administration of the oath of allegiance.” 8 C.F.R. § 338.1(b)
(emphasis added). Moreover, the regulations governing passport applications
specifically contemplate—and permit—that an applicant may undergo a name
change prior to naturalization, provided the new name is reflected on the
certificate of naturalization. See, e.g., 22 C.F.R. § 51.25(c)(2) (“A name change will
be recognized for purposes of issuing a passport if the name change occurs in . . .
10As discussed, Alzokari used his certificate of naturalization as his “identifying
document” for his first passport application in 1979. See C.A.R 161. He used his
previously issued passports for his 1995 and 2005 passport applications. See C.A.R. 157–
59. A previously issued passport is also an acceptable identifying document under the
regulations. See 22 C.F.R. § 51.23(b).
16
[a] Certificate of naturalization issued in a new name.”). Thus, even accepting as
true the March 2013 admissions regarding Alzokari’s identity—and ignoring the
dubious circumstances surrounding his “statement” 11 —Alzokari was authorized
to use the name denoted in his citizenship papers when applying for a passport
even if he had been known by another name before he became a citizen of the
United States. Ahmed Ali Alzokari became his name at the time of his 1979
naturalization. See 8 U.S.C. § 1449 (detailing contents of a certificate of
naturalization); 8 C.F.R. § 338.1(b) (same); see also 8 U.S.C. § 1447 (“It shall be lawful
at the time and as a part of the administration by a court of the oath of allegiance .
. . for the court . . . to make a decree changing the name of said person, and the
certificate of naturalization shall be issued in accordance therewith.”). The fact
that Alzokari may have used a different name prior to becoming a United States
citizen did not establish fraud per se. 12
11Again, this is not the first time that Special Agent Howell and Mohammed have
obtained very similar statements from visitors to the United States Embassy in Sana’a,
Yemen. See, e.g., Omar I, 2016 WL 617449, at *2; Omar II, 2017 WL 5751314, at *3; Awad v.
U.S. Dep’t of State, No. 19 C 10, 2020 WL 1182743, at *1 (N.D. Ill. Mar. 12, 2020); Awad v.
Kerry, 257 F. Supp. 1016, 1018–19 (N.D. Ill. 2016). It is also not lost on us that Alzokari
signed a statement claiming his name was “Ahmed Ahmed Mohamed Albaadani” as
“Ahmed Ali Alzokari.”
12Frankly, it would make Alzokari no different from many Americans who changed their
names when they immigrated to the United States.
17
If the Department suspects that a citizen’s certificate of naturalization was
fraudulently obtained, it can institute denaturalization proceedings. See, e.g., 8
U.S.C. § 1451 (outlining civil denaturalization proceedings); Fedorenko v. United
States, 449 U.S. 490, 506 (1981) (“[O]ur cases have . . . recognized that there must
be strict compliance with all the congressionally imposed prerequisites to the
acquisition of citizenship. Failure to comply with any of these conditions renders
the certificate of citizenship illegally procured, and naturalization that is
unlawfully procured can be set aside.” (internal quotation marks and citations
omitted)). What the Department cannot do is circumvent these proceedings by
revoking a citizen’s passport.13
Indeed, the Department’s Foreign Affairs Manual specifically recognizes
that “Certificates of Naturalization are proof of United States citizenship,” and that
the Department is “bound by law to accept them as proof of citizenship and cannot
look behind the certificate.” 8 FAM § 301.8-3(d) (2018) (emphasis added); see also 8
13 The government bears a significantly greater burden in revoking citizenship. See
Schneiderman v. United States, 320 U.S. 118, 122 (1943) (“[O]nce conferred[,] [United States
citizenship] should not be taken away without the clearest sort of justification and
proof.”). In order to revoke an individual’s citizenship in a civil denaturalization
proceeding, the government “must prove its case by clear, unequivocal, and convincing
evidence which does not leave the issue in doubt.” United States v. Sprogis, 763 F.2d 115,
121 (2d Cir. 1985).
18
U.S.C. § 1443(e). Moreover, even if the “passport agency believes that a certificate
of naturalization was issued fraudulently, the person remains eligible for a U.S.
passport until the naturalization certificate is revoked.” 8 FAM § 301.8-3(e)(4) (2018)
(emphasis added).
Had Alzokari applied for a passport with a different name, he would be in
danger of violating the regulations. See, e.g., 22 C.F.R. §§ 51.25(a), (b) (an applicant
is required to “explain any material discrepancies between the name on the
application and the name recorded in the evidence of nationality and identity”).
Indeed, we are left wondering what name the Department would have wanted
Alzokari to use in his passport application. If the Department maintains that
Alzokari’s “true identity” is “Ahmed Ahmed Mohamed Albaadani,” as the March
2013 statement suggests, then it would presumably have him use that name in his
passport application. Yet we are aware of no government-issued documents that
would allow Alzokari to apply for a passport in that name, as required by the
regulations. If, on the other hand, the Department believes that the March 2013
statement shows that Alzokari defrauded the United States during his
naturalization, then we again emphasize that it is free to commence
denaturalization proceedings.
19
At bottom, the Department failed to consider the significance of Alzokari’s
immigration and nationalization records in accordance with the law. Its premise
for revoking Alzokari’s passport offers no support for the conclusion that Alzokari
obtained his passport fraudulently and is contrary to the Department’s own
regulations and guidance. If the Department’s revocation were to stand, Alzokari
would be left in an untenable position: His claim of citizenship is unquestioned
and yet he is forbidden from leaving the country for using the name he carries as
a U.S. citizen. If the Department believes Alzokari’s “true identity” is Ahmed
Ahmed Mohamed Albaadani and that his citizenship was fraudulently procured
(it is not enough that Alzokari was known by another name prior to his
naturalization), the proper remedy would be to revoke his citizenship. Until then,
Alzokari can use his legal name to obtain a passport.
The Department’s passport revocation was arbitrary, capricious, and not in
accordance with law. See Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 150–51
(2d Cir. 2008). Reversal of the district court’s decision is therefore required.
II. Remand to the Agency is Unnecessary
Finally, because we determine, as a matter of law, that a citizen does not
commit passport fraud by applying for a passport under the name and birthdate
20
appearing on his uncontested citizenship and identity documents, there is no basis
for remand to the agency. See Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423
F.3d 90, 100 n.10 (2d Cir. 2005); Karimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013);
see also Guertin v. United States, 743 F.3d 382, 388–89 (2d Cir. 2014) (declining to
remand to the agency because “there is compelling evidence in the record—a
record that would not change if remanded to the agency,” that plaintiff is entitled
to the relief sought).14
CONCLUSION
For the reasons stated above, we REVERSE the judgment of the district
court, REVERSE the Department’s decision to uphold the revocation of Alzokari’s
passport, and ORDER the Department to return Alzokari’s expired passport so
that he may apply for a new United States passport if he so chooses.
14 Finally, we note that Alzokari also made various arguments regarding the
constitutionality of the post-revocation proceedings, including the allocation of the
burden of proof. The district court’s reliance on 22 C.F.R. § 51.71(h) for the burden of
proof raises a number of unresolved issues, including whether passport revocation
hearings qualified as “formal” adjudication proceedings under the APA at the time of
Alzokari’s relevant passport revocation hearing, see 5 U.S.C. §§ 554 et. seq., and whether
the court’s reliance on that section constituted an impermissible retroactive application
because § 51.71(h) was not in effect at the time of Alzokari’s hearing. These issues remain
open; we need not address them because no matter who bore the burden of proof, the
basis for the Department’s revocation was improper as a matter of law.
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