Judges: Egan, Lynch, McCarthy, Stein
Filed Date: 7/3/2014
Status: Precedential
Modified Date: 11/1/2024
Appeal from an order of the Supreme Court (Reilly Jr., J), entered June 12, 2013 in Schenectady County, which, in a proceeding pursuant to Mental Hygiene Law article 10, among other things, denied respondent’s motion to dismiss the petition.
Respondent,
In September 2010, the DOCCS Sex Offender Management Unit gave notice of respondent’s anticipated release to the Attorney General and the Commissioner of Mental Health pursuant Mental Hygiene Law § 10.05 (b), for review by a case review team. Following a psychiatric evaluation, respondent was found to have a mental abnormality as defined in Mental Hygiene Law § 10.03 (i) and the case review team determined that he is a sex offender requiring civil management pursuant to the Sex Offender Management and Treatment Act (see Mental Hygiene Law art 10 [hereinafter SOMTA]; Mental Hygiene Law § 10.05 [g]). In April 2012, petitioner commenced this proceeding seeking a judicial determination that respondent is a detained sex offender requiring civil management pursuant to SOMTA (see Mental Hygiene Law §§ 10.03 [q]; 10.06 [a]). After a hearing, Supreme Court (Ryan, J.) determined that there was probable cause to believe that respondent is a detained sex offender requiring civil management (see Mental Hygiene Law § 10.06 [g], [k]) and directed that, upon his release from DOCCS’s custody, respondent be committed to a secure treatment facility or remain in DOCCS’s custody pending further proceedings (see Mental Hygiene Law § 10.06 [k]).
Shortly after the SOMTA proceeding was commenced, respondent sent correspondence to various federal officials, including the director of United States Citizenship and Immigration Services (hereinafter USCIS), wherein he “formally requested] renunciation of [his] citizenship in the United States . . . pursuant to ... 8 USC § 1481 (a) (6).” Before the SOMTA trial
Respondent contends that the instant SOMTA proceeding unduly obstructs his fundamental right of expatriation — which he argues includes a right to renounce his citizenship and depart the United States — and violates his right to substantive due process.
It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” (Weber v United States Dept. of State, 885 F Supp 2d 46, 53 n 10 [2012] [internal quotation marks and citation omitted]; see Koos v Holm, 204 F Supp 2d 1099, 1107 [2002]), and federal law in this area is preemptive (see Matter of Aliessa v Novello, 96 NY2d 418, 429 n 12 [2001]; US Const. art I, § 8, cl 4; Arizona v United States, 567 US —, —, 132 S Ct 2492, 2493 [2012]). In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” (8 USC § 1481 [a]; see Weber v United States Dept. of State, 885 F Supp 2d at 50]). A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so (see United States Department of State, Bureau of Consular Affairs, http:// travel.state.gov/content/ travel/english/legal-considerations/uscitizenship-laws-policies/renunciation-of-citizenship.html [accessed June 16, 2014]). To this end, respondent argues that the
We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custody.
Further, respondent asserts no persuasive legal authority for the proposition that he has a fundamental right to expatriate, including the right to emigrate to Israel. Even assuming that such a fundamental right exists, petitioner’s infringement thereof through this SOMTA proceeding is “narrowly tailored to achieve a compelling state interest” (Hernandez v Robles, 7
To the extent not specifically addressed herein, respondent’s remaining contentions have been considered and are lacking in merit.
Ordered that the order is affirmed, without costs.
. Although respondent initially requested that he be assigned a fictitious name, he subsequently withdrew that request.
. In 1983, respondent — who was then a licensed pediatric psychiatrist— was convicted in Maryland of a sexual offense against a 12-year-old patient and also offended against the victim’s eight-year-old brother.
. Respondent fled to Southeast Asia with a stolen British passport and, while there, was allegedly involved with a “stable” of young male children.
. Respondent consented to remain in DOCCS’s custody pending resolution of the proceeding.
. However, Supreme Court granted respondent’s motion for an order directing DOCCS to produce him at a USCIS office.
. Respondent also asserts that the state’s right to confine him civilly ceases as a result of his expatriation.
. Under this provision, an individual may renounce his or her citizenship by “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years” (8 USC § 1481 [a] [2]). Respondent also sought to renounce his citizenship pursuant to 8 USC § 1481 (a) (6) by sending a notarized letter to USCIS in which he expressed his desire to divest himself of his United States citizenship and swore an oath of allegiance to Israel. USCIS responded by informing respondent that a person seeking to renounce his or her citizenship while present in the United States must appear for an interview at a USCIS office and “demonstrate that all the legal requirements for renunciation of citizenship . . . have been met,” including the “ability and intention to depart the [United States] immediately upon having [his] renunciation request granted.” Although Supreme Court directed DOCCS to produce respondent at a USCIS office, USCIS has apparently not answered respondent’s request for an appointment and, thus, there has been no determination by USCIS with respect to respondent’s renunciation request under this statute.
. To the extent that respondent suggests that he would depart the United States “in accordance with a court approved plan,” we need only note that this Court has no jurisdiction over issues regarding removal of a citizen from the country. Notably, respondent’s United States and Israeli passports have been confiscated by the United States Marshall, preventing his ability to travel outside the country. Moreover — and as previously mentioned — the last time respondent was at liberty, he violated the terms of his parole.
. Inasmuch as respondent is not an alien sex offender, his equal protection claim is unavailing, as he has failed to establish selective treatment of persons similarly situated (see Matter of State of New York v Myron P., 20 NY3d 206, 211-212 [2012]; Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 492-493 [2009]).