Denisse Villafranca v. Mike Pompeo, Secretary, et

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
Nos. 17-40077 & 17-40134 FILED
May 8, 2018
Lyle W. Cayce
RAQUEL HINOJOSA, also known as Raquel Flores Venegas, Clerk
Plaintiff - Appellant
v.
PETRA HORN, Port Director, United States Customs and Border Protection;
MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE;
KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY; UNITED STATES OF AMERICA,
Defendants - Appellees
and
DENISSE VILLAFRANCA,
Plaintiff - Appellant
v.
MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; UNITED
STATES OF AMERICA; PETRA HORN, Customs and Border Protection Port
Director, Brownsville, Texas; JONATHAN M. ROLBIN, Director, Legal
Affairs and Law Enforcement Liaison, of the United States Department of
State,
Defendants - Appellees
Appeals from the United States District Court
for the Southern District of Texas
Nos. 17-40077 & 17-40134
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:
Due to the similarity in the factual background and legal issues in these
two cases, we resolve both in a single opinion.
Raquel Hinojosa and Denisse Villafranca (collectively, the “Plaintiffs”)
were denied passports by the Department of State (“DOS”) because they were
deemed not to be United States citizens. They separately challenged this
determination by filing complaints in the United States District Court for the
Southern District of Texas, raising similar claims under the habeas corpus
statute, 28 U.S.C. § 2241, and the Administrative Procedure Act (“APA”),
5 U.S.C. § 702 et seq. Rejecting the Plaintiffs’ various arguments, the district
court granted the Government’s motion to dismiss in each case. We AFFIRM
both dismissals.
I.
Both Hinojosa and Villafranca claim they were born in Brownsville,
Texas, and they have United States birth certificates supporting their claims.
Both also have birth certificates issued by the Mexican government, which
indicate they were born in Mexico—though Villafranca modified her Mexican
birth certificate in 2010 to list Brownsville as her birthplace. Both were raised
and spent much of their lives in Mexico, but are now seeking entry into the
United States.
Hinojosa applied for a U.S. passport in July 2015. Her application
included documents tending to prove that the Mexican birth certificate was
false. DOS was unpersuaded and denied her application in November 2015,
finding that she had presented insufficient evidence to establish that she was
born in the United States.
Hinojosa sought immediate judicial review of this determination before
the district court. In 2016, she traveled to a port of entry in Brownsville and
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filed a petition for a writ of habeas corpus, as well as a complaint for
declaratory and injunctive relief under the APA. The district court, adopting
the report and recommendations of the magistrate judge, ultimately granted
the Government’s motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), finding that it lacked jurisdiction to provide habeas relief
or to proceed under the APA. It also considered an as-applied constitutional
challenge to the statute that denies entry to U.S. citizens without passports,
8 U.S.C. § 1185(b), but found she lacked standing to assert it. Hinojosa timely
appealed.
Unlike Hinojosa, Villafranca applied for and was issued a U.S. passport
in August 2005. But in November 2014, DOS revoked Villafranca’s passport,
finding that, based on the information contained in her Mexican birth
certificate before she had modified it, she had misrepresented her U.S.
citizenship in her 2005 application. In its letter notifying Villafranca of the
revocation, DOS stated that she was not entitled to a hearing under 22 C.F.R.
§§ 51.70–51.74 because her passport had been revoked on the grounds of non-
nationality. But the letter informed her that she could still contest the decision
by “pursu[ing] an action in U.S. district court under 8 U.S.C. Section 1503.”
She was ordered to surrender her passport immediately.
Before receiving notification that her passport had been revoked,
Villafranca had traveled to Mexico. When she attempted to reenter the United
States at the port of entry in Brownsville, Texas, she was denied entry and her
passport was seized.
Villafranca filed a petition in the district court in June 2016. She
asserted similar claims for habeas relief under 28 U.S.C. § 2241 and
declaratory and injunctive relief under the APA. She also argued that she
could bring a declaratory judgment action under 8 U.S.C. § 1503(a). The
petition was heard by the same judge that heard Hinojosa’s petition. The judge
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again granted the Government’s motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1), finding that it lacked jurisdiction to hear
Villafranca’s APA and habeas claims. It rejected her argument that she could
pursue a declaratory judgment action under 8 U.S.C. § 1503(a) because she
was not “within the United States” as required by the statute. Villafranca
timely appealed.
II.
The first issue is whether the Plaintiffs may seek relief under the APA.
This court reviews a district court’s dismissal for lack of subject matter
jurisdiction de novo. Ctr. for Biological Diversity v. BP Am. Prod. Co., 704 F.3d
413, 421 (5th Cir. 2013); Musslewhite v. State Bar of Tex., 32 F.3d 942, 945 (5th
Cir. 1994).
The Plaintiffs sought similar relief under the APA: Hinojosa challenged
the denial of her application for a U.S. passport because she was a non-citizen.
Villafranca challenged the revocation of her passport because its issuance was
based on the misrepresentation that she was a U.S. citizen. The district court
rejected Villafranca’s petition because it concluded she was not appealing a
final agency action. By contrast, it rejected Hinojosa’s petition because it
concluded there was an adequate alternative means of receiving judicial review
under 8 U.S.C. § 1503. Both grounds provide independent bases to reject an
APA claim. See Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999)
(finality requirement); Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (no
other adequate remedy requirement).
Section 1503 outlines the process by which individuals can receive
judicial review of the denial of “a right or privilege as a national of the United
States” by a government official, department or independent agency “upon the
ground that he is not a national of the United States.” 8 U.S.C. §§ 1503(a), (b).
On appeal, both Villafranca and Hinojosa challenge the dismissal of their APA
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claims by arguing that the procedures under 8 U.S.C. § 1503 are inadequate. 1
We disagree. After reviewing the adequacy requirement under the APA and
the procedures afforded under § 1503, we conclude that the district court’s
denial on this basis was proper. 2
A. The Adequate Alternative Remedy Requirement
The APA provides judicial review for “[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute.” 5 U.S.C. § 702. Notwithstanding this
broad definition, the APA limits the sort of “agency action[s]” to which it
applies. Specifically, the statute requires that the challenged act be an
“[a]gency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court.” Id. § 704. Section 704 imposes
both finality and exhaustion requirements on the agency action appealed, see
2 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE §§ 15.3, 15.11 (5th ed.
2010), but it also limits the APA to the review of those agency actions which
otherwise lack an “adequate remedy in a court.” Bowen, 487 U.S. at 903 (“[T]he
provision as enacted also makes it clear that Congress did not intend the
general grant of review in the APA to duplicate existing procedures for review
of agency action.”). It is this latter requirement that is before us.
At a minimum, the alternative remedy must provide the petitioner
“specific procedures” by which the agency action can receive judicial review or
some equivalent. Id. The adequacy of the relief available need not provide an
1 In so arguing, both concede that § 1503 procedures apply to them. We note that the
decision-making process of a passport revocation is separately defined at 8 U.S.C. § 1504.
Although the statute also provides for a “prompt post-cancellation hearing” to contest the
decision, id., that procedure is expressly denied when the revocation is on the basis of “non-
nationality,” 22 C.F.R. § 51.70. Accordingly, the procedures are unavailable to Villafranca.
2 Since we affirm on this basis, we need not consider the court’s alternative ruling on
finality.
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identical review that the APA would provide, so long as the alternative remedy
offers the “same genre” of relief. Citizens for Responsibility & Ethics in Wash.
v. U.S. Dep’t of Justice, 846 F.3d 1235, 1245 (D.C. Cir. 2017) (quoting El Rio
Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human
Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005)); see also Rimmer v. Holder, 700
F.3d 246, 262 (6th Cir. 2012); Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir.
2009) (“The relevant question under the APA . . . is not whether [the
alternatives to APA relief] are as effective as an APA lawsuit against the
regulating agency, but whether the private suit remedy provided by Congress
is adequate.”).
This requirement entails a case-specific evaluation. For example, the
Supreme Court in Bowen v. Massachusetts analyzed whether review by the
Claims Court was an adequate alternative remedy, when the petitioner, the
Commonwealth of Massachusetts, sought review of an agency determination
denying Medicaid expense reimbursement. 487 U.S. at 904–08. Finding this
review inadequate, the Supreme Court noted that the Claims Court could not
grant equitable relief, which might be necessary to remedy the state’s alleged
harm, and that the Claims Court might not have jurisdiction for similar claims
brought by other states. Id. The Court’s conclusion regarding adequacy, in
other words, was based on the facts of the case—looking specifically at the
party seeking relief and its particular claim. See Consol. Edison Co. of N.Y.,
Inc. v. U.S. Dep’t of Energy, 247 F.3d 1378, 1384 (Fed. Cir. 2001) (“In Bowen,
the Supreme Court linked its judgment to a specific set of circumstances that
are not present in this case.”).
Moreover, judicial review must come via the petitioner’s direct appeal.
In Sackett v. EPA, 566 U.S. 120, 127 (2012), for example, the Supreme Court
rejected the government’s argument that the plaintiffs, who challenged the
EPA’s determination that their property violated the Clean Water Act, had
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adequate alternative remedies. The Court concluded that the first proposed
alternative, challenging an EPA enforcement action, was inadequate because
petitioners “cannot initiate that process” and risked onerous liability. Id. The
other alternative—applying to a separate agency for an unrelated permit and
then raising a claim under the APA if the application was denied—was too
indirect. Id. (“The remedy for denial of action that might be sought from one
agency does not ordinarily provide an ‘adequate remedy’ for action already
taken by another agency.”). On the other hand, the fact that judicial review is
delayed by multiple steps of intermediary administrative review does not
render the procedure inadequate so long as the agency review is not
discretionary. Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 710–11 (5th
Cir. 2010).
Last, the existence of an adequate alternative remedy also requires the
discernment of a legislative intent to create such a remedy. Garcia, 563 F.3d
at 523. The D.C. Circuit has articulated a helpful rule of thumb for this task—
namely, that strong evidence of such intention exists when Congress provides
for “[t]he creation of both agency obligations and a mechanism for judicial
enforcement in the same legislation.” Citizens for Responsibility, 846 F.3d at
1245.
B. Section 1503 Procedures
With these principles in mind, we now turn to the procedures set forth
in the statute in question. 8 U.S.C. § 1503 outlines specific procedures to appeal
the denial of “a right or privilege as a national of the United States” by a
government official, department or independent agency “upon the ground that
he is not a national of the United States.” 8 U.S.C. §§ 1503(a), (b). The statute
provides two separate procedures for individuals to vindicate such claims,
depending on whether they are within the United States.
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When the individuals are already within the United States, judicial
review is immediately available: They are authorized to “institute an action
under [the Declaratory Judgment Act] against the head of such department or
independent agency for a judgment declaring him to be a national of the United
States.” Id. § 1503(a).
When they are not already within the United States, however, the path
to judicial review is longer because such individuals must first gain admission
into the country by the procedures set forth in §§ 1503(b)–(c). These provisions
first require an application to “a diplomatic or consular officer of the United
States” for a certificate of identity, which allows petitioners to “travel[ ] to a
port of entry in the United States and apply[ ] for admission.” Id. § 1503(b). To
receive the certificate, petitioners must demonstrate good faith and a
“substantial basis” for the claim that they are, in fact, American citizens. Id.
If their applications are denied, petitioners are “entitled to an appeal to the
Secretary of State, who, if he approves the denial, must provide a written
statement of reasons.” Id. The statute does not itself provide a means of
reviewing the Secretary of State’s decision if he confirms the denial.
If the certificate of identity is issued—either by the diplomatic or
consular officer or by the Secretary of State—the individual may apply for
admission to the United States at a port of entry, subject “to all the provisions
. . . relating to the conduct of proceedings involving aliens seeking admission
to the United States.” Id. § 1503(c). If admission is denied, petitioners are
entitled to “[a] final determination by the Attorney General” that is “subject to
review by any court of competent jurisdiction in habeas corpus proceedings and
not otherwise.” Id. Conversely, if admission is granted, thereby permitting
them to travel within the United States, they can file a declaratory judgment
action under § 1503(a).
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C. The Plaintiffs’ Remedy Under § 1503 is an Adequate Alternative
to APA Relief.
We now apply this procedural framework to the present cases, looking
specifically to the wrong the Plaintiffs assert as well as the procedures
currently available to remedy that wrong. First, the wrong to be remedied is
the deprivation of U.S. passports on the allegedly erroneous conclusion that
they are not citizens. They have, in other words, been denied “a right or
privilege . . . upon the ground that [they are] not . . . national[s] of the United
States.” As noted, § 1503 is specifically designed to review such denials.
Second, we look to the procedures currently available to these Plaintiffs,
who have not taken any of the procedural steps required by § 1503. As noted,
the statute articulates two bases for reaching the courts to remedy their claims:
They are permitted to file a habeas petition if denied admission at the port of
entry, or, if granted admission, they are permitted to file a declaratory
judgment action. Notably, both forums permit the Plaintiffs to prove their
citizenship. If their petition is successful, the hearings will overturn the basis
for the deprivation of their U.S. passports.
The only instance in which the Plaintiffs might not receive judicial
review under the statute is if their petitions for certificates of identity are
denied by the Secretary State. At that moment, they would be entitled to relief
under the APA—a point which the Government concedes. But the mere chance
that the Plaintiffs might be left without a remedy in court does not mean that
the § 1503 is inadequate as a whole. In other words, the Plaintiffs are not
entitled to relief under the APA on the basis that a certificate of identity might
be denied. Otherwise, all persons living abroad claiming United States
citizenship would be able to skip §§ 1503(b)–(c) procedures by initiating a suit
under the APA.
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In light of the foregoing, we are satisfied that 8 U.S.C. § 1503 establishes
an adequate alternative remedy in court for these Plaintiffs. As noted, the
statute provides a direct and guaranteed path to judicial review. Moreover, the
provision comprises “both agency obligations and a mechanism for judicial
enforcement.” Citizens for Responsibility, 846 F.3d at 1245. In sum, § 1503
expresses a clear congressional intent to provide a specific procedure to review
the Plaintiffs’ claims. Permitting a cause of action under the APA would
provide a duplicative remedy, authorizing an end-run around that process. We
therefore affirm the district court’s determination that it lacked jurisdiction.
The Plaintiffs rely on Rusk v. Cort, 369 U.S. 367 (1962), abrogated in
part by Califano v. Sanders, 430 U.S. 99 (1977), to contest the adequacy of
§ 1503’s procedures. In Rusk, the plaintiff’s application to renew his U.S.
passport, which he made while living abroad, was denied on the grounds that
he had lost his citizenship. Id. at 369. The Supreme Court permitted the
plaintiff to jettison the procedures of § 1503 and bring an APA claim to
challenge the denial. Id. at 379–80. Though the Plaintiffs here attempt to
analogize their present position with the Rusk plaintiff, the analogy fails.
Two preliminary points are worth noting at the outset. First, it is unclear
to what degree that Rusk remains good law in light of Califano. Rusk construed
the APA as a jurisdiction-conferring statute, 369 U.S. at 370–72, an assertion
that was expressly rejected in Califano, 430 U.S. at 105. It is unclear whether
this fundamental transformation of the APA’s purpose would alter Rusk’s
analysis.
Second, the Rusk Court never explicitly discusses the adequacy
requirement of the APA, and Rusk has rarely been relied on by either the
Supreme Court or this Court when discussing it. When Rusk has been cited, it
is usually for the basic proposition that Congress must clearly express an
intent to “preclude the citizen’s right to seek judicial redress for violations of
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his rights” by agency action under the APA. E.g., Heckler v. Ringer, 466 U.S.
602, 644–45 (1984) (Stevens, J., concurring); see also Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 63–64 (1993). As noted, the Supreme Court
significantly developed and expanded the adequacy requirement since Bowen.
It is thus unclear whether and to what extent Rusk is or remains an instructive
account of the adequacy requirement.
We need not resolve these issues, however, because Rusk’s holding is
inapplicable to the present cases. Both the Rusk plaintiff and his claim for
relief differ substantially from the Plaintiffs and their claims here.
Accordingly, the Court’s case-specific application of the adequacy requirement
to § 1503 has no bearing on our current review.
Unlike the Plaintiffs here, the plaintiff in Rusk, who lived in Prague at
the time, was denied an application for a new passport on grounds that his
citizenship had been revoked. 369 U.S. at 369. He had allegedly moved to
Europe to dodge the draft. Id. As a result of his actions, he had not only lost
his citizenship, but had also been criminally indicted for draft evasion. Id.
When considering whether the plaintiff’s sole remedy was through the
procedures set forth in § 1503(b) and (c), the Court was motivated by the
particular hardship the plaintiff faced. Reviewing the statute’s language and
legislative history, the Court concluded that Congress could not have “intended
that a native of this country living abroad must travel thousands of miles, be
arrested, and go to jail in order to attack an administrative finding that he is
not a citizen of the United States.” Id. at 375 (emphasis added). Instead, the
Court was persuaded that the procedures were intended to check the entry of
illegal aliens, who try “to gain fraudulent entry to the United States by
prosecuting spurious citizenship claims.” Id. at 376–79. In light of the extreme
burden the § 1503 procedures would have placed on the plaintiff, whose claim
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and circumstance § 1503 was not specifically intended to address, the plaintiff
could proceed under the APA. Id. at 379.
Here, as outlined above, the path to judicial review for the Plaintiffs is
far less treacherous because neither has been criminally indicted and thus does
not risk incarceration upon arrival. Instead, §§ 1503(b)–(c) provide a clear path
to judicial review. Moreover, in stark contrast to the plaintiff in Rusk, both
Villafranca and Hinojosa were at the United States border at the time of this
suit. They seek entry into the country on the basis of a claim of U.S. citizenship.
In other words, they are precisely the sort of persons that Congress, according
to Rusk, was concerned to regulate under §§ 1503(b)–(c). These cases present
the exact facts that the Rusk Court held would implicate the jurisdictional
restrictions.
III.
We next consider Plaintiffs’ claims that they should have been allowed
to pursue their habeas petitions. “In an appeal from the denial of habeas relief,
this court reviews a district court’s findings of fact for clear error and issues of
law de novo.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (per
curiam). A district court’s dismissal of a habeas corpus claim for failure to
exhaust administrative remedies is reviewed for abuse of discretion. Gallegos-
Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012).
A person seeking habeas relief must first exhaust available
administrative remedies. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992)
(per curiam). Exhaustion has long been a prerequisite for habeas relief, even
where petitioners claim to be United States citizens. See United States v. Low
Hong, 261 F. 73, 74 (5th Cir. 1919) (“A mere claim of citizenship, made in a
petition for the writ of habeas corpus by one held under such process, cannot
be given the effect of arresting the progress of the administrative proceeding
provided for.”). “The exhaustion of administrative remedies doctrine requires
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not that only administrative remedies selected by the complainant be first
exhausted, but instead that all those prescribed administrative remedies
which might provide appropriate relief be pursued prior to seeking relief in the
federal courts.” Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985),
abrogated on other grounds by McCarthy v. Madigan, 503 U.S. 140 (1992),
superseded by statute on other grounds, Woodford v. Ngo, 548 U.S. 81 (2006);
see also Lee v. Gonzales, 410 F.3d 778, 786 (5th Cir. 2005) (“[A] petitioner must
exhaust available avenues of relief and turn to habeas only when no other
means of judicial review exists.”).
Conversely, “[e]xceptions to the exhaustion requirement are appropriate
where the available administrative remedies either are unavailable or wholly
inappropriate to the relief sought, or where the attempt to exhaust such
remedies would itself be a patently futile course of action.” Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994) (per curiam) (quoting Hessbrook, 777 F.2d at 1003).
The petitioner bears the burden to demonstrate an exception is warranted. Id.
(citing DCP Farms v. Yeutter, 957 F.2d 1183, 1189 (5th Cir. 1992); Gardner v.
Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th Cir. 1992)).
This court has already applied these principles to §§ 1503(b)–(c), finding
the procedures they outline must be exhausted before receiving habeas relief.
Specifically, in Samaniego v. Brownell, 212 F.2d 891, 894 (5th Cir. 1954), this
court noted that,
[w]here, as here, Congress has provided a method,
administrative or judicial, by which appellant may
challenge the legality of his detention, or exclusion,
and such method or procedure is not tantamount to a
suspension of the writ of habeas corpus, this remedy
must be exhausted before resort may be had to the
extraordinary writ.
Like the petitioner in Samaniego, Villafranca and Hinojosa have not
pursued the remedies available to them under §1503(b)–(c). Nor have they
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demonstrated that such pursuit would be futile. They argue that they are not
provided an effective remedy because the procedures do not specifically
address the deprivation of their passports. But the denials were based on a
finding that they were not citizens, which—as noted—is precisely the sort of
claim that § 1503 is designed to address. In other words, these procedures
provide a basis for the Plaintiffs to rectify the wrongful determination that they
are not citizens, which, if they are successful, will afford the Plaintiffs an
effective remedy to the wrong they suffered.
We also reject the Plaintiffs’ assertions that the position of a § 1503(b)
petitioner who appears at a port of authority with a certificate of identity is the
same as any other alien seeking admission to the United States. To the
contrary, the very fact that the petitioner has that certificate puts her in a
different position. Section 1503(b) calls on the U.S. diplomatic or consular
officer of the United States to issue the certificate of identity “upon proof . . .
that the application is made in good faith and has a substantial basis.” Thus,
when individuals are issued a certificate of identity for purposes of applying
for admission to the United States, a U.S. official has found some merit in their
claims. Obtaining a certificate of identity signals to U.S. officials charged with
evaluating applications for admission to the United States at a port of entry
that an individual’s claim may be legitimate. Accordingly, persons who have
gone through the process set forth in § 1503(b) assume a legal posture that is
distinct from persons who merely proceed to the inspection station and request
entry.
Thus, the Plaintiffs have not demonstrated that they are entitled to an
exception to the exhaustion requirement. 3
In light of this conclusion, we need not consider whether the Plaintiffs have satisfied
3
the requirement that they be “in custody” to file a habeas claim. See Zolifcoffer v. U.S. Dep’t
of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (per curiam).
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IV.
Last, we consider two arguments raised by Hinojosa and Villafranca
individually, both of which we reject.
A. Whether Villafranca may file a claim under 8 U.S.C. § 1503(a)
We first address Villafranca’s claim that she could file a declaratory
judgment action under § 1503(a). The district court concluded that the claim
relied on an interpretation of § 1503(a) that contravened its plain language.
We review the district court’s interpretation of the statute de novo, United
States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997), and affirm.
As already noted, the procedures set forth at § 1503(a) and §§ 1503(b)–
(c) apply to distinct circumstances. Section 1503(a) applies only to “person[s]
. . . within the United States,” 8 U.S.C. § 1503(a), while §§ 1503(b)–(c) refers to
“person[s] . . . not within the United States,” id. at § 1503(b). And, as discussed,
§§ 1503(b)–(c) provide additional procedures for those “not within the country”
to gain admission to the United States and thereby become “persons . . . within
the United States” under § 1503(a). As the Supreme Court in Rusk observed,
this additional procedure served Congress’s legislative purpose: to provide
extra vetting procedures for those coming into the country claiming
citizenship. 369 U.S. at 376–79.
It is undisputed that Villafranca was at a port of entry to the country at
the time the lawsuit was filed. She was not, in other words, “within the United
States.” Cf. United States v. Montoya de Hernandez, 473 U.S. 531, 539–40
(1985) (noting constitutional implications of the distinction between being “at
the border” and being “in the interior”). Accordingly, the trial court properly
dismissed her claim under § 1503(a).
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B. Hinojosa’s As-Applied Constitutional Challenge
Hinojosa brings an as-applied constitutional challenge to 8 U.S.C.
§ 1185(b), 4 which states, “it shall be unlawful for any citizen of the United
States to depart from or enter, or attempt to depart from or enter, the United
States unless he bears a valid United States passport.” We reject her
argument, affirming the district court’s ruling that Hinojosa lacked the
requisite standing to assert it.
To argue that a statute is unconstitutional as applied, one must
demonstrate that the statute actually does apply to him or her. McCullen v.
Coakley, 134 S. Ct. 2518, 2534 n.4 (2014) (“[A] plaintiff generally cannot prevail
on an as-applied challenge without showing that the law has in fact been (or is
sufficiently likely to be) unconstitutionally applied to him.”). Hinojosa never
asserts that § 1185(b) was applied to her. She never, for example, asserts that
she was denied entry to the United States as a U.S. citizen lacking a passport.
Nor could she make such an assertion: DOS concluded Hinojosa was not a
citizen. Indeed, the propriety of this legal determination is the dispute around
which this entire appeal turns. Whatever the constitutional ramifications of
§ 1185(b), they should not be reviewed here.
V.
The district court’s orders in both cases are AFFIRMED.
4 We note that Hinojosa’s discussion of this point in her brief on appeal is unclear. At
points, it seems to assert a facial constitutional challenge. She argues, for example, that 8
U.S.C. § 1185(b) is “unconstitutional[ ] to the extent it precludes the return to the United
States of a U.S. citizen, simply because she lacks a U.S. passport.” To the extent she asserts
a facial challenge, however, we decline to consider it for the first time here. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from the majority opinion’s decision to affirm the
district court’s dismissal of Hinojosa and Villafranca’s APA claims. In my view,
8 U.S.C. § 1503(b)–(c) is not an adequate remedy for persons outside of the
United States who do not seek admission to the country prior to a
determination of citizenship. Hinojosa and Villafranca fall into that category
of persons and should be entitled to APA review.
Individuals seeking APA review must establish that there is “no other
adequate remedy in a court.” 1 5 U.S.C. § 704. In evaluating the adequacy of
an alternative remedy, courts must give the APA’s “generous review provisions
. . . a ‘hospitable’ interpretation.” Bowen v. Massachusetts, 487 U.S. 879, 904
(1988) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 (1967)). “A
restrictive interpretation of § 704 would unquestionably . . . run counter to” the
APA’s purpose of “remov[ing] obstacles to judicial review of agency action.” Id.
at 904 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)). An
alternative that “carr[ies] the risk of ‘serious criminal and civil penalties,’” or
that imposes a process that is “arduous, expensive, and long” and does not aid
in the determination of the underlying legal question, is inadequate. U.S.
Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815–16 (2016) (quoting
Abbott Labs., 387 U.S. at 153).
1 The APA provides that judicial review is available for “final agency action[s] for
which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Although the majority
opinion declines to consider whether § 704’s finality requirement is met in the instant cases,
Rusk v. Cort, 369 U.S. 367, 372 (1962) abrogated in part by Califano v. Sanders, 430 U.S. 99,
105 (1977), expressly found that the denial of a passport application in that case was a “final
administrative determination by the Secretary of State.” As discussed below, Rusk’s
conclusions with respect to this issue remain good law.
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In Hawkes, three companies sought APA review to challenge a
determination by the Army Corps of Engineers that their land contained
“waters of the United States,” such that the Clean Water Act prohibited
discharging pollutants onto the land without a permit. 136 S. Ct. at 1811–12.
The Corps proposed two alternatives to seeking APA review: the first, to
discharge material without a permit and risk an enforcement action; the
second, to apply for a permit to discharge and seek judicial review in the event
a permit was denied. Id. at 1815–16. The Supreme Court held that these
alternatives were inadequate, focusing on the significant costs each imposed
on the companies. Id. The Court held that risking an enforcement action was
not an adequate remedy because of the “serious criminal and civil penalties”
the companies could incur. Id. at 1815. The Court also held that the
permitting process was not an adequate remedy because it imposed an
“arduous, expensive, and long” process that required the companies to
complete expensive land assessments that did not necessarily aid in the
determination of whether their land contained “waters of the United States.”
Id. at 1815–16.
Analogous to the proposed alternatives in Hawkes, § 1503(b)–(c) would
impose onerous requirements at a significant cost if required of individuals
seeking a declaration of citizenship from outside of the United States. See id.
Section 1503(c) requires that persons who obtain a certificate of identity under
§ 1503(b) travel to a United States port of entry and apply for admission within
two months. 2 And, as Hinojosa and Villafranca argue and the Government
2 See 22 C.F.R. § 50.11 (“A person applying abroad for a certificate of identity under
section 360(b) of the Immigration and Nationality Act shall complete the application form
prescribed by the Department.”); U.S. DEP’T OF STATE, FS-343, APPLICATION FOR
CERTIFICATE OF IDENTITY (2006) (requiring travel to a port of entry in the United States
“within two months” of the issuance of a certificate of identity).
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No. 17-40077 & 17-40134
does not dispute, persons who comply with this requirement and travel to a
port of entry still face the risk of burdensome proceedings under the
Immigration and Nationality Act (INA), including detention during the
pendency of their applications and, if their applications for admission are
ultimately denied, removal. 3 See 8 U.S.C. 1503(c) (“Any person described in
this section who is finally denied admission to the United States shall be
subject to all the provisions of this chapter relating to aliens seeking admission
to the United States”); 8 U.S.C. § 1225 (providing for the inspection, detention,
and removal of persons applying for admission).
These additional burdens would be imposed on all persons located
outside of the United States, 4 regardless of whether they wished to enter the
3 Although persons may initiate habeas corpus proceedings under § 1503(c) upon a
final determination of inadmissibility by the Attorney General, this option is not an adequate
remedy in a court to challenge the State Department’s denial of a passport. See Sackett v.
EPA, 566 U.S. 120, 127 (2012) (applying for a permit with one agency and seeking judicial
review if that permit is denied is not an “adequate remedy” that precludes APA review of an
already-existing action from another agency).
4 Justice Brennan’s concurrence in Rusk further highlights the substantial burdens
§ 1503 imposes on persons located outside of the United States:
If [§ 1503(b)–(c)] provided the sole avenue to judicial review for one who while
abroad is denied a right of citizenship, the following consequences would result:
He would have to apply for a certificate of identity, which would be granted
only if an administrative official was satisfied that the application was made
in good faith and had a substantial basis. If the certificate were initially denied,
an administrative appeal would have to be taken. If that failed, an attempt
might be made to secure judicial review. A holding that no such review is
available would mean that one who admittedly had been a citizen would have
been conclusively converted into an alien without ever having gained access to
any court. On the other hand, if review were forthcoming at this stage, and if
issuance of a certificate were ordered, the individual would have gained only
the right to travel to a United States port of entry—if he could afford the
passage—there to be “subject to all the provisions of this chapter relating to
the conduct of proceedings involving aliens seeking admission to the United
States.” He would, in other words, have to submit to detention as an alien
although it is assumed that he was once a citizen and no court had ever
determined that he had been expatriated. Should he still encounter an
administrative denial of the right to enter, he would finally get into court, but
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No. 17-40077 & 17-40134
United States prior to seeking a determination of citizenship, or at all. 5 Worse
still, it is not apparent that this process ultimately aids in a determination of
citizenship. If persons are approved at each step, seeking relief through
§ 1503(b)–(c) ultimately results in their admission into the United States,
where they can then bring an action for declaratory judgment under § 1503(a).
Thus, the process that § 1503(b)–(c) imposes leads only to a determination of
admissibility. Under § 1503, the courts still make the ultimate determination
of citizenship, but only after an “arduous, expensive, and long” process,
Hawkes, 136 S. Ct. at 1815, that does not necessarily address the underlying
legal question of citizenship. See § 1503(b) (an applicant is entitled to a
certificate of identity “[u]pon proof to the satisfaction of [a] diplomatic or
consular officer that [her] application is made in good faith and has a
substantial basis”); § 1503(c) (the Attorney General makes a final
determination of whether a person is “entitled to admission”); see also Bensky
v. Powell, 391 F.3d 894, 896 (7th Cir. 2004) (persons traveling to the United
States to comply with § 1503(c) may be entitled to remain in the United States
on a basis other than citizenship). Accordingly, persons located outside of the
United States who seek a citizenship determination before entering the
“in habeas corpus proceedings and not otherwise,” with whatever limitations
upon the scope of review such language may imply.
369 U.S. at 381–82 (Brennan, J., concurring).
5 As Hinojosa notes, a United States passport entitles the holder to benefits beyond
entry into the United States, including international travel benefits. See, e.g., U.S. DEP’T OF
STATE, Smart Traveler Enrollment Program (STEP), TRAVEL.STATE.GOV,
https://travel.state.gov/content/travel/en/international-travel/before-you-go/step.html (last
visited Apr. 10, 2018) (discussing safety information and assistance available to United
States citizens while traveling abroad); U.S. DEP’T OF STATE, Country Information,
TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/international-travel/Internati-
onal-Travel-Country-Information-Pages.html (last visited Apr. 10, 2018) (discussing visa
requirements for holders of United States passports in foreign countries).
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No. 17-40077 & 17-40134
country would risk “serious criminal and civil penalties” if required to comply
with § 1503(b)–(c), and would be forced to undertake a process that is “arduous,
expensive, and long” and that does not necessarily aid in the determination of
their citizenship. See Hawkes, 136 S. Ct. at 1815–16.
Section 1503(b)–(c) therefore appears to present precisely the sort of
“obstacles to judicial review” that the APA’s “generous review provisions” were
enacted to remove. See Bowen, 487 U.S. at 904. I therefore conclude that
§ 1503 does not provide an adequate remedy in a court whenever a person
outside the United States seeks a determination of citizenship before, or
without, seeking admission. See Hawkes, 136 S. Ct. at 1815–16; Bowen, 487
U.S. at 904. Both Hinojosa and Villafranca seek a determination of their
citizenship before entering the United States. Section 1503(b)–(c) is therefore
not an adequate remedy and thus does not preclude them from seeking APA
review. 6
I also write separately to note that, in my view, Rusk v. Cort, 369 U.S.
367 (1962), remains good law with respect to its interpretation of § 1503(b)–(c).
Nothing in Califano v. Sanders, 430 U.S. 99 (1977), or any subsequent
Supreme Court case, suggests otherwise. In Califano, the Supreme Court
considered whether the courts had jurisdiction under the APA to review a
social security benefits decision by the Secretary of Health, Education, and
Welfare. Id. at 100–01. The Califano Court held that, following Congress’s
6 The majority opinion appears to suggest that § 1503(b)–(c) would provide an
adequate remedy for any person whose path to judicial review is “less treacherous” than that
of the plaintiff in Rusk, who risked incarceration upon arrival to the United States. In my
view, the threat of incarceration, or a burden of similar magnitude, is not necessary for
§ 1503(b)–(c) to be deemed inadequate. See, e.g., Hawkes, 136 S. Ct. at 1815. But, in any
event, Hinojosa and Villafranca have demonstrated that the path to judicial review under
§ 1503(b)–(c) is as “treacherous” as that of the plaintiff in Rusk in every meaningful respect.
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No. 17-40077 & 17-40134
decision to amend 28 U.S.C. § 1331 and eliminate its amount-in-controversy
requirement in certain cases, the APA could no longer be interpreted as an
independent grant of subject matter jurisdiction. Id. at 105.
Hinojosa and Villafranca do not argue that the APA independently
confers subject matter jurisdiction. Instead, they assert jurisdiction under
§ 1331 and look to the APA to provide a cause of action and waiver of sovereign
immunity. See Bowen, 487 U.S. at 891 (considering whether review was proper
under the APA with jurisdiction asserted under § 1331). Because Califano’s
reference to Rusk was confined to the issue of whether the APA confers subject
matter jurisdiction, 7 Rusk’s construction of § 1503 remains good law.
Accordingly, § 1503 does not create an exclusive remedy for persons outside
the United States who do not seek to enter the country prior to obtaining a
declaration of citizenship. 8
7 The Court referenced Rusk within the following context:
Three decisions of this Court arguably have assumed, with little discussion,
that the APA is an independent grant of subject-matter jurisdiction. See
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott
Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Rusk v. Cort, 369 U.S. 367,
372 (1962). . . . The obvious effect of [Congress’s] modification [of § 1331],
subject only to preclusion-of-review statutes created or retained by Congress,
is to confer jurisdiction on federal courts to review agency action, regardless of
whether the APA of its own force may serve as a jurisdictional predicate. We
conclude that this amendment now largely undercuts the rationale for
interpreting the APA as an independent jurisdictional provision.
Id. at 105.
8 The majority opinion misapprehends the significance of Rusk’s discussion of the
legislative history of § 1503. In the portion of Rusk that the majority opinion cites, the Rusk
Court found that Congress enacted § 1503 to prevent non-citizens from “gain[ing] fraudulent
entry to the United States by prosecuting spurious citizenship claims.” 369 U.S. at 379.
However, the Supreme Court further explained that Congress enacted § 1503 as a
replacement for § 503 of the Nationality Act of 1940. Id. Under this predecessor statute,
individuals were permitted physical entry into the United States to prosecute their
citizenship claims, and many non-citizens entered the country and disappeared into the
general population. Id. at 375–79. In the instant cases, Hinojosa and Villafranca seek a
declaration of citizenship before attempting to gain admission to the United States. They
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No. 17-40077 & 17-40134
Hinojosa and Villafranca have demonstrated that § 1503(b)–(c) does not
provide them an adequate remedy in a court for purposes of precluding APA
review. For these reasons, I respectfully dissent from the majority’s opinion
with regard to their APA claims.
therefore do not fall into the category of persons that Congress sought to prevent from
“gain[ing] fraudulent entry to the United States.” See id. at 379.
23