United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2008 Decided May 2, 2008
No. 06-5259
JAMES J. KAUFMAN
APPELLANT
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01631)
Brendan F. Quigley, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the briefs
was Steven H. Goldblatt, appointed by the court, and Jeremy M.
McLaughlin, Student Counsel.
James J. Kaufman, pro se, filed briefs.
Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: RANDOLPH and ROGERS, Circuit Judges, and
2
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Opinion concurring in part and dissenting in part by Circuit
Judge RANDOLPH.
ROGERS, Circuit Judge: James Kaufman seeks to renounce
his United States citizenship pursuant to section 349 of the
Immigration and Nationality Act, 66 Stat. 163 (1952) (“the
Act”), codified at 8 U.S.C. § 1481. The Act provides that a
citizen shall lose his nationality upon making a formal
renunciation request of the Attorney General “whenever the
United States shall be in a state of war and the Attorney General
shall approve such renunciation as not contrary to the interests
of national defense.” 8 U.S.C. § 1481(a)(6). When Kaufman
failed to receive the response he sought to his renunciation
request, he filed suit alleging the violation of his statutory and
constitutional rights. Kaufman now seeks reversal of the district
court’s dismissal of his complaint, contending that he is entitled
to a court order compelling the Attorney General to carry out his
duty under section 1481(a)(6). The government’s brief responds
that mandamus will not lie in view of the discretionary nature of
the Attorney General’s duty under the statute. At oral argument,
however, the government contended that the Attorney General’s
authority under the Act was transferred to a bureau within the
Department of Homeland Security and that Kaufman did receive
a response to his renunciation request from that bureau
indicating that he is ineligible for relief under section
1481(a)(6).
We remand the case to the district court for a determination,
in the first instance, of whether the Attorney General retains his
authority under section 1481(a)(6). If the district court
determines that the Homeland Security Act of 2002, Pub. L. No.
3
107-296, 116 Stat. 2135 (Nov. 25, 2002), codified at 6 U.S.C. §
101 et seq. (“Homeland Security Act”), divested the Attorney
General of this authority, it shall determine whether the
Department of Homeland Security’s response to Kaufman is
statutorily permissible.
I.
Beginning in July 2004, Kaufman wrote a series of letters
to various United States government entities, including the
Attorney General, the State Department, and the United States
Citizenship and Immigration Services Bureau (“Bureau” or
“USCIS”) of the Department of Homeland Security, in an
attempt “to initiate the renunciation of [his] United States
citizenship, pursuant to the Immigration and Nationality Act,
codified in 8 U.S.C. § 1481(a)(6).”1 Most of the addressees,
1
Letter from James J. Kaufman to John Ashcroft, Attorney
General (July 25, 2004). Section 1481(a)(6) provides:
A person who is a national of the United States
whether by birth or naturalization, shall lose his
nationality by voluntarily performing any of the
following acts with the intention of relinquishing
United States nationality –
...
(6) making in the United States a formal written
renunciation of nationality in such form as may be
prescribed by, and before such officer as may be
designated by, the Attorney General, whenever the
United States shall be in a state of war and the
Attorney General shall approve such renunciation as
not contrary to the interests of national defense[.]
4
including the Attorney General, either failed to respond to
Kaufman or referred him to other government entities. The
prominent exception was the Bureau, which in multiple letters
rejected his request on its merits, noting an apparent intent on
Kaufman’s part to remain in the United States and concluding
that he thus failed to comply with section 349 of the Act.2 After
some months of correspondence with government departments,
Kaufman concluded that the Bureau had “avoided answering
[his] questions, referred [him] to offices which do not have
jurisdiction, and . . . basically given [him] the ‘runaround.’”3
On August 12, 2005, Kaufman, acting pro se, filed suit,
alleging that the Attorney General and the Secretaries of State
and Homeland Security had violated his statutory and
constitutional rights by refusing to allow him to renounce his
citizenship pursuant to section 1481(a)(6). He sought a
declaration that the Attorney General has jurisdiction over
renunciation under section 1481(a)(6) and has failed to comply
with his statutory duty.4 The defendants moved to dismiss on
8 U.S.C. § 1481(a)(6).
2
See, e.g., Letter from Janice M. Jackson, Information
Program Specialist, USCIS, to James J. Kaufman (May 26, 2005).
The Bureau’s conclusion that Kaufman intended to remain in the
United States was almost certainly related to his then imprisonment in
a Wisconsin correctional facility, Amicus Br. at 2. He is currently on
parole, id. at 3, and is barred from leaving the United States until the
year 2027, Appellant’s Br. at 14.
3
Letter from James J. Kaufman to Phyllis V. Bell,
Information Liaison Specialist, USCIS (May 11, 2005).
4
In response to Kaufman’s Freedom of Information Act
request for information on renunciation under section 1481(a)(6), the
Justice Department advised that the Office of the Attorney General
5
grounds of sovereign immunity and the inapplicability of the
mandamus statute, 28 U.S.C. § 1361, and the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Kaufman
subsequently withdrew his claim for monetary damages. The
district court dismissed the complaint, ruling that the Attorney
General’s discretionary decision under section 1481(a)(6) is
judicially unreviewable. Kaufman appeals, and our review is de
novo. Tootle v. Sec’y of the Navy, 446 F.3d 167, 173 (D.C. Cir.
2006); see also Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173
(D.C. Cir. 2006).
II.
The APA provides that “[a] person suffering legal wrong
because of agency action . . . within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.5
“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
does not handle citizenship matters. Letter from Carrie Walker,
Deputy Director, Office of Information and Privacy, U.S. Department
of Justice, to James J. Kaufman (May 26, 2005).
5
The APA waives sovereign immunity for claims against
government agencies and officials, see Clark v. Library of Congress,
750 F.2d 89, 102 (D.C. Cir. 1984); see also Trudeau v. FTC, 456 F.3d
178, 186 (D.C. Cir. 2006), even when not brought pursuant to the
APA, Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir.
1996). In view of Kaufman’s withdrawal of his claims for monetary
relief, the government no longer contends that sovereign immunity
bars his complaint.
6
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.
A.
As an initial matter, we address the contention, raised by
the government during oral argument but not included in any
party’s brief, that the Attorney General’s powers under section
1481(a)(6) have been transferred to the Department of
Homeland Security. Oral Arg. Tape at 10:39 (Jan. 8, 2008). It
is prudent for the court to consider this threshold question,
especially given Kaufman’s request for a declaration that the
Attorney General retains authority under section 1481(a)(6). If
the Homeland Security Act realigned citizenship and
immigration functions among the government agencies,
transferring section 1481(a)(6) authority from the Attorney
General to another agency, then the question would become not
whether the Attorney General failed to respond but whether the
Bureau’s responses were legally sufficient.
Prior to 2002, the Attorney General had delegated his
authority under the Act to the Immigration and Naturalization
Service (“INS”). 8 C.F.R. § 100.2 (1994). In 2002 however,
Congress abolished the INS when it enacted the Homeland
Security Act, 6 U.S.C. § 291, and assigned to the Department of
Homeland Security various functions previously performed by
other government agencies. Specifically, Congress created
7
within the new department a Directorate of Border and
Transportation Security, id. § 201, and the Bureau, id. § 271,
vesting these divisions with broad authority encompassing that
previously held by the INS, see id. §§ 202(3), 271(b)(5). 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
6
The Executive Office for Immigration Review (“EOIR”)
oversees immigration courts in the United States, see 8 C.F.R. §
1003.0, and “shall be subject to the direction and regulation of the
Attorney General under section 1103 of the [Act],” 6 U.S.C. § 521(a).
The Homeland Security Act amends 8 U.S.C. § 1103(g) to provide
that the Attorney General retains the “authorities and functions under
this Act and all other laws relating to the immigration and
naturalization of aliens as were exercised by the [EOIR], or by the
Attorney General with respect to the [EOIR], on the day before the
effective date of [a bill entitled] the Immigration Reform
Accountability and Security Enhancement Act of 2002.”
8
the Bureau. 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. However, our review has been
constrained by the fact that neither the parties’ briefs nor
amicus’s brief nor the district court addressed the threshold
question of whether the Attorney General retains authority
under section 1481(a)(6) after enactment of the Homeland
Security Act. In these circumstances, it is appropriate to
remand the case to the district court to determine, in the first
instance, whether the Attorney General retains authority under
this section. Cf. Felter v. Kempthorne, 473 F.3d 1255, 1261
(D.C. Cir. 2007). If the district court concludes that the
Attorney General does not, the district court must determine
7
To support its position, the Bureau cited section 1483(a),
which provides:
Except as provided in paragraphs (6) and (7) of
section 1481(a) of this title, no national of the United
States can lose United States nationality under this
chapter while within the United States or any of its
outlying possessions, but loss of nationality shall
result from the performance within the United States
or any of its outlying possessions of any of the acts or
the fulfillment of any of the conditions specified in
this part if and when the national thereafter takes up
a residence outside the United States and its outlying
possessions.
8 U.S.C. § 1483(a).
9
whether the Bureau’s interpretation of the Act is permissible.
B.
Should the district court on remand conclude that the
authority to adjudicate renunciations of United States
citizenship was not transferred by the Homeland Security Act,
the question of the Attorney General’s authority under section
1481(a)(6) will again be at issue. The parties and amicus have
presented extensive arguments on this issue. We cannot decide
the issue at this juncture because it has yet to be determined
whether the Attorney General retains authority under section
1481(a)(6). Because the matter has been fully briefed and
argued, however, we offer several observations in the interest of
judicial economy.8
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,
8
See Delgado v Mukasey, 508 F.3d 702, 709 (2d Cir. 2007);
Mozes v. Mozes, 239 F.3d 1067, 1084-85 (9th Cir. 2001); Connors v.
Incoal, Inc. 995 F.2d 245, 253 (D.C. Cir. 1993); Nat’l Fed’n of Fed.
Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987). Cf.
James v. Mukasey, No. 06-5163-ag, 2008 WL 763158, at *7 (2d Cir.
Mar. 25, 2008).
9
Section 1481(a)(6) was added to the Act in 1944 to allow
the continued detention of U.S. citizens of Japanese ancestry during
World War II in a manner then thought would avoid “doing violence
10
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-S-
BLW, 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
to the Constitution,” Tadayasu Abo, 77 F. Supp. at 809. The INS in
the Justice Department promulgated regulations providing an
administrative process for renunciation of citizenship pursuant to the
statute. See 9 Fed. Reg. 12,241 (Oct. 10, 1944). However, those
regulations were effective only “until cessation of the present war
unless sooner determined by the Attorney General.” Id.
11
Law of Expatriation, Memorandum Opinion for the Solicitor
G e n e r a l n . 9 ( J u n e 1 2 , 2 0 0 2 ) , 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.
Reversed and remanded.
RANDOLPH, Circuit Judge, concurring in part and dissenting
in part: I cannot join part II.B of the opinion. The court there
pronounces on issues that may not be in the case. If the
Attorney General’s discretionary power to approve or reject
renunciations of citizenship has been transferred to the
Department of Homeland Security, everything the court writes
in part II.B is irrelevant. Nothing the court says there 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.