Gerald Farrell v. Antony Blinken

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 1, 2020 Decided July 13, 2021

No. 19-5357

GERALD LEE FARRELL,
APPELLANT

v.

ANTONY BLINKEN, SECRETARY OF STATE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00490)

Bradley Banias argued the cause and filed the briefs for
appellant.

P. Angel Martinez, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, William C.
Peachey, Director, and Yamileth Davila, Assistant Director.

Before: KATSAS, RAO and WALKER, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge KATSAS.
 2

RAO, Circuit Judge: While United States citizenship is one
of the most sought after in the world, American citizens
sometimes choose to relinquish this privilege and place their
allegiance elsewhere. Congress has specified the actions that
will result in expatriation and also vested authority in the
Secretary of State to recognize the loss of nationality. Before
recognizing a person’s expatriation, the Department of State
(the “Department”) requires citizens to comply with various
procedures. If it is satisfied that expatriation has occurred, the
Department will issue a certificate of loss of nationality
(“CLN”). This case involves a challenge to the procedures for
obtaining a CLN. Gerald Farrell claims that he has performed
an expatriating act by naturalizing as a Swiss citizen with the
intent to relinquish his United States citizenship. The
Department denied Farrell’s request for a CLN because he has
not appeared at a consulate abroad to fill out forms that,
according to the Department, must be completed in person to
obtain a CLN. Farrell challenges this “in-person requirement,”
arguing that it is contrary to law, ultra vires, and arbitrary and
capricious. The district court upheld the in-person requirement.
We first explain the basis of Farrell’s standing and our
jurisdiction to decide this case. On the merits, we agree with
the district court that the Department has statutory authority to
impose an in-person requirement; however, we hold the
Department acted arbitrarily and capriciously in denying
Farrell a CLN. In a series of letter responses to Farrell’s request
for a CLN, the Department offered conflicting and ever-
evolving reasons for denying the CLN and failed to explain
what tasks Farrell was required to complete in person. We thus
reverse and remand to the district court with instructions to
remand to the Department to reconsider Farrell’s request for a
CLN.
 3

I.
Farrell enjoyed U.S. citizenship by virtue of his birth in
Santa Clara, California. In 1994 he moved to Switzerland,
where he married a Swiss citizen and had a child. In 2004, he
naturalized as a Swiss citizen, allegedly with the intent of
relinquishing his United States nationality pursuant to 8 U.S.C.
§ 1481(a)(1). Section 1481(a) lists various acts by which a
United States national can expatriate. One such expatriating act
is “voluntarily … with the intention of relinquishing United
States nationality … obtaining naturalization in a foreign
state.” Id. § 1481(a)–(a)(1). Farrell claims that he possessed the
requisite intent and cites as evidence that for almost ten years
following his naturalization in Switzerland, he made no use of
his U.S. citizenship and did not step foot in the United States.
In 2013, however, Farrell was arrested in Spain while on
vacation with his family and extradited to stand trial in the
United States for the crimes of interstate travel with intent to
engage in sex with a minor and possession of child
pornography, which he committed ten years earlier in the
United States. He pleaded guilty and was sentenced to ninety-
six months’ imprisonment in the United States. See Judgment
at 1–2, United States v. Farrell, No. 1:04-cr-00180 (D. Idaho
June 25, 2014), ECF No. 48.
While imprisoned, Farrell corresponded with the State
Department, requesting a certificate of loss of nationality to
recognize that he had lost his U.S. nationality when he
naturalized in Switzerland. First, Farrell sent a letter to the U.S.
Ambassador in Switzerland, asking that she review Farrell’s
citizenship and issue him a CLN. Farrell explained that he
sought a CLN under Section 1481(a)(1) because he naturalized
in Switzerland with the intent to relinquish U.S. nationality.
The Embassy replied with information about a loss of
nationality under Section 1481(a)(5). But Farrell was not
 4

pursuing loss of nationality under that section, which permits
expatriation by “making a formal renunciation of nationality
before a diplomatic or consular officer of the United States in
a foreign state.” 8 U.S.C. § 1481(a)(5).
Farrell again wrote to the Ambassador, reiterating that his
request fell under Section 1481(a)(1). The Embassy responded
and explained the process for obtaining a CLN under
Section 1481(a)(1): It advised that if Farrell wished to obtain a
CLN, “he would have to come to the Embassy in Bern to sign
form DS-4081 ‘Statement of Understanding’ in person in front
of a consular officer.” J.A. 131. Before it issues a CLN, the
Department requires CLN applicants to complete Form DS-
4081, which attests to an understanding of the irrevocable
consequences of losing U.S. citizenship. See U.S. Dep’t of
State, 7 Foreign Affairs Manual § 1212(a)(4); id. § 1227(a)(4).
The Department also requires the completion of Form DS-
4079, which asks questions about the nature of the CLN
applicant’s expatriating act. See id. § 1212(a)(1), (b)(1); id.
§ 1224.3(a)(2). These procedural requirements, the
Department explained, are designed so the consular officer
may “determine whether the expatriating act was performed
voluntarily and with the intent to relinquish U.S. citizenship.”
J.A. 175.
In a third round of correspondence, Farrell argued that he
had already committed the expatriating act in 2004, when he
naturalized in Switzerland, and was now attesting that he did
so voluntarily with the intent to lose his nationality, so the
Department should simply issue the CLN recognizing as much.
The Embassy responded and explained that pursuant to 8
U.S.C. § 1483, Farrell could not lose his citizenship while he
was in the United States, so the Department could not issue him
a CLN while he was imprisoned in the United States. Farrell
replied, repeating his now-familiar arguments that he had
 5

already expatriated when he naturalized in Switzerland and
thus was entitled to a CLN.
Farrell next contacted the Bureau of Consular Affairs in
Washington, D.C. In response, the Bureau explained that loss
of citizenship becomes effective when a CLN is issued, not
upon commission of the expatriating act, and that Farrell had
not signed “the required Department of State forms before a
consular officer” to obtain a CLN. J.A. 152. In response to
another letter from Farrell, the Bureau again rebuffed his CLN
request, but provided more specific directions that “[t]he
process for obtaining a CLN … includes the individual signing
the DS-4079 before a consular officer at post abroad, and
completing an interview with a consular officer to determine
whether the expatriating act was performed voluntarily and
with the intent to relinquish U.S. citizenship.” J.A. 175.
After this back and forth that ranged from May 2016 to
February 2017, Farrell sued the Department in the U.S. District
Court for the District of Columbia. He claimed that the
Department was unlawfully denying him a CLN because the
in-person requirement is contrary to statute, ultra vires, and
arbitrary and capricious. He sought, among other requested
relief, an order that the Department issue him a CLN. The
district court granted summary judgment to the Department,
holding that the Department’s denial of a CLN based on
Farrell’s failure to appear in person was valid. Farrell v.
Pompeo, 424 F. Supp. 3d 1 (D.D.C. 2019). The district court
concluded that the Secretary of State’s authority to create
procedural rules regarding CLNs provided statutory
authorization for an in-person requirement. See id. at 17–18
(relying on 8 U.S.C. § 1104(a)). Although the Department had
offered scant explanation for its in-person requirement, the
district court found its rationale reasonably discernible: The
“in-person appearance requirement seeks to ensure that an
 6

applicant understands the consequences of loss of nationality,”
and thus that the applicant performed the expatriating act with
the requisite intent. Id. at 19. The district court held that the
requirement is not arbitrary and capricious. Id. at 21.
This timely appeal followed. While this case was on
appeal, Farrell was released from prison and returned to
Switzerland.
II.
Although no party disputes Farrell’s standing, the absence
of standing is a defect in this court’s subject matter jurisdiction
that we have an obligation to consider at the outset. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88–89 (1998).
“[T]he irreducible constitutional minimum of standing”
consists of three familiar elements. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). The plaintiff must have suffered an
injury in fact that is concrete, particularized, and actual or
imminent; the injury must be causally connected to the conduct
that the plaintiff is complaining of; and it must be likely that a
favorable decision of the court will redress the injury. Id. at
560–61; see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548
(2016) (“Particularization is necessary to establish injury in
fact, but it is not sufficient. An injury in fact must also be
‘concrete.’”).
Farrell asserts that his Swiss naturalization, taken with the
intent to expatriate, caused him to lose his citizenship. The
State Department, however, maintains that “an
individual … remains a U.S. national until the Department’s
approval of a CLN.” State Dep’t Br. 18. The question of injury
here is whether the government’s insistence that Farrell
remains a citizen injures Farrell after he has taken the
expatriating act of becoming a Swiss citizen and relinquishing
his American citizenship. We conclude that we have
 7

jurisdiction to decide this appeal because the Department’s
failure to recognize Farrell’s alleged expatriation inflicts a
concrete injury on his statutory right to expatriate. The
government continues to claim Farrell as a citizen, which
prevents him from disassociating from the United States until
the Secretary of State recognizes his loss of nationality.
To begin with, Farrell has a statutory right to expatriate. In
1868, Congress recognized that “the right of expatriation is a
natural and inherent right of all people, indispensable to the
enjoyment of the rights of life, liberty, and the pursuit of
happiness.” Act of July 27, 1868, ch. 249, 15 Stat. 223, 223. As
a consequence of this right, Congress provided “[t]hat any
declaration, instruction, opinion, order, or decision of any
officers of this government which denies, restricts, impairs, or
questions the right of expatriation, is … inconsistent with the
fundamental principles of this government.” Id. at 224. The
Supreme Court has also recognized a citizen’s statutory right
to expatriate. See Mandoli v. Acheson, 344 U.S. 133, 135–37
(1952) (discussing statutes Congress enacted to effectuate “the
individual’s right to expatriate,” of which the United States
“became champion … [and] for which it contended in
diplomacy and fought by land and by sea”).
Consistent with this right, the Immigration and Nationality
Act specifies several mechanisms for individuals to expatriate.
Performance of any of the listed acts will cause a person to
“lose his nationality.” 8 U.S.C. § 1481(a); see also id. § 1488
(“The loss of nationality under this part shall result solely from
the performance by a national of the acts … specified in this
part.”). Moreover, the statute instructs consular officers to
begin the CLN process “whenever” they “ha[ve] reason to
believe that a person while in a foreign state has lost his United
States nationality.” Id. § 1501 (emphasis added). We have
previously noted “Congress’s determination that United States
 8

citizenship may be lost automatically, without any
administrative or judicial determination.” United States v.
Yakou, 428 F.3d 241, 249 (D.C. Cir. 2005). Congress has also,
however, created a mechanism whereby the government will
recognize when a citizen has expatriated. 8 U.S.C. § 1501
(“Approval [of a CLN] shall constitute a final administrative
determination of loss of United States nationality.”).
Here, Farrell has exercised his right to expatriate by taking
an expatriating action. But the government maintains that
because it has not recognized Farrell’s expatriation, he
officially remains a U.S. citizen, a forced association that
constitutes a concrete and particularized injury sufficient to
maintain Article III standing.
Under our precedent, the government’s failure to
recognize expatriation constitutes an injury in fact. In
Schnitzler v. United States, a South Dakota prisoner sought to
renounce his citizenship. 761 F.3d 33, 39 (D.C. Cir. 2014). We
explained that Schnitzler sought “official acknowledgement of
his renunciation.” Id. at 35; see also id. at 37 (noting that
Schnitzler was pursuing “an effective or practical way to
renounce his citizenship, as well as the government’s
recognition of that renunciation”) (cleaned up). Importantly,
we held that “being required to continue his association with
the United States against his wishes” constituted an injury in
fact for the purposes of standing. Id. at 40.
Schnitzler governs the standing inquiry in this case. Like
Farrell, Schnitzler also claimed to have already expatriated. Id.
at 36. In his complaint, Schnitzler requested the following
relief: “Simply – I want the United States of America to
recognize that I am not a United States citizen”; and he pled
that he had acquired a “new status” as a noncitizen. Compl.,
Schnitzler v. United States, No. 1:11-cv-01318-RBW, at 5
(D.D.C. July 20, 2011), ECF No. 1 (emphasis added). We
 9

explicitly held Schnitzler had standing, reversing a district
court decision that, like the dissent, would have required
Schnitzler to allege harms in addition to “still [being]
considered a United States citizen” against his wishes.1
Schnitzler, 761 F.3d at 40 (citing 863 F. Supp. 2d 1, 4 (D.D.C.
2012)); see also Fox v. Clinton, 684 F.3d 67 (D.C. Cir. 2012);
Weber v. U.S. Dep’t of State, 885 F. Supp. 2d 46 (D.D.C. 2012).
In this case, Farrell similarly suffers a cognizable injury
because the government is withholding official recognition of
his claimed expatriation. The State Department plainly
represents in these proceedings that it considers Farrell a U.S.
citizen because he has not obtained a CLN. See State Dep’t Br.
18 (“[A]n individual effectively remains a U.S. national until
the Department’s approval of a CLN.”); Oral Arg. Tr. 25 (“It’s
incorrect for Mr. Farrell to say that he’s no longer a citizen. We
do not acknowledge that.”).2

1
Schnitzler is binding precedent that the dissent is unable to
distinguish. Contrary to the dissent’s assertions, both Schnitzler and
Farrell challenged the government’s refusal to recognize a past
expatriation. Dissenting Op. 15–16. And our decision in Schnitzler
repeatedly cited the recognition element of Schnitzler’s allegations.
761 F.3d at 36, 37, 38.
2
The government has taken the position that a CLN is necessary for
“effective” expatriation in other cases as well. See Duncan v. U.S.
Dep’t of State, 2008 WL 4821323, at *1 (W.D. Va. Oct. 30, 2008)
(recounting the Department’s position that a CLN is necessary “to
achieve effective renunciation of citizenship”); see also U.S. Dep’t
of State, 7 Foreign Affairs Manual § 1200 app. A at § 1290(d) (“The
principle that a country shall determine who is a national of that
country for purposes of their domestic law is a concept universally
recognized under international law.”). That the government has
sometimes formally recognized expatriation through mechanisms
other than CLNs, Dissenting Op. 12–13, does not lessen Farrell’s
 10

Even if Farrell has already completed an expatriating act,
he remains a citizen until the government recognizes that he
has expatriated. In other words, if a man renounces his
citizenship alone in the forest, and the government is not
around to hear it, he remains a citizen. Because citizenship is a
reciprocal relationship between a person and the state,
recognition of expatriation is inextricably bound with
expatriation.3
Farrell has standing because he has suffered “‘an invasion
of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504
U.S. at 560). Farrell has a legally protected interest in
expatriation. He has been effectively denied his statutory right

interest in completing his expatriation with some official recognition,
which he is pursuing here via obtaining a CLN. In any event, the
government has represented that obtaining a CLN is the only
mechanism by which Farrell can have his expatriation recognized.
3
See, e.g., William Thomas Worster, Human Rights Law and the
Taxation Consequences for Renouncing Citizenship, 62 St. Louis U.
L.J. 85, 97 (2017) (listing regimes such as Iran, North Korea, and
Syria as those that “mak[e] the approval process [for expatriation]
almost impossible,” thereby casting doubt on the existence of the
right to expatriate in those countries); see also Patrick Weil &
Nicholas Handler, Revocation of Citizenship & Rule of Law: How
Judicial Review Defeated Britain’s First Denaturalization Regime,
36 L. & Hist. 295, 300 (2018) (“Dual nationality developed in part
because many countries refused to recognize the right to renounce
one’s native-born citizenship.”); Annual Message of President
Ulysses S. Grant (Dec. 7, 1874), in 3 JOHN BASSETT MOORE, A
DIGEST OF INTERNATIONAL LAW 713 (1906) (“The importance of
such definition” as to “when a citizen shall be deemed to have
renounced or to have lost his citizenship … is obvious.”) (emphasis
added).
 11

to expatriate because the government has not agreed to sever
the citizenship relationship.
The dissent focuses on whether Farrell has a right to a
CLN, but the central issue is the right to expatriate, which the
government has determined Farrell may not exercise without
recognition through a CLN. The dissent protests that the
government’s failure to recognize Farrell’s expatriation is
insufficient “absent any threat that the government will seek to
enforce some law against Farrell.” Dissenting Op. 14. Such an
argument is untenable in light of Schnitzler. The dissent also
maintains that under the INA an individual has the right to
expatriate without the government’s approval or official
recognition. Dissenting Op. 9, 12–14. That is true, but does not
undermine the harm suffered when the Executive Branch
refuses to allow the expatriation to occur on the terms provided
by Congress. Farrell does not seek an abstract declaration of
his status, but rather the effectuation of his statutory right to
expatriate.
The injury here is unquestionably particular to Farrell—it
is his citizenship status. The injury is also concrete—Farrell
remains a de facto U.S. citizen. Like most U.S. citizens, we
consider American citizenship a blessing, not a harm. Farrell,
however, seeks to relinquish his nationality. Remaining a
citizen is an injury that “actually exist[s]” because the
government steadfastly maintains that, irrespective of his
expatriating actions, Farrell is still a U.S. citizen. Spokeo, 136
S. Ct. at 1548. Farrell seeks to vindicate his right to give up his
U.S. citizenship and asserts the violation of a private statutory
right, a type of harm ordinarily presumed to constitute an injury
in fact. Cf. id. at 1551 (Thomas, J., concurring) (“In a suit for
the violation of a private right, courts historically presumed that
the plaintiff suffered a de facto injury merely from having his
personal, legal rights invaded.”). As the Supreme Court has
 12

recognized, a concrete injury may be “intangible,” and “the risk
of real harm” can satisfy the requirement of concreteness. Id.
at 1549 (majority opinion). The reasoning in Spokeo is entirely
consistent with our conclusion in Schnitzler that “being
required to remain in citizenship status” against one’s will
constitutes an injury in fact. 761 F.3d at 40.
If there were any doubt about the concrete consequences
of the government’s position, one need look no further than the
fact that, years after Farrell claims to have expatriated, the
government issued him a passport, had him extradited to the
United States, and convicted him of a criminal offense.
Farrell’s claimed expatriation was no barrier to the U.S.
government’s asserting sovereignty over him, which
demonstrates just one way in which official recognition is a
legal and practical necessity to exercise the right to expatriate.
Without the government’s recognition of loss of
nationality, the full force of the United States government may
be brought to bear upon a citizen.4 The citizenship relationship
is not completely severed until the government recognizes
Farrell’s expatriation. Withholding recognition of expatriation

4
When the government hangs on to a citizen, that frustrates the right
to expatriate and imposes the ongoing control of the U.S.
government. See Talbot v. Janson, 3 U.S. (3 Dall.) 133, 162 (1795)
(opinion of Iredell, J.) (Expatriation is not a matter “in which the
individual is to be considered as alone concerned. As every man is
entitled to claim rights in society … he, in his turn, is under a solemn
obligation to discharge all those duties faithfully, which he owes, as
a citizen, to the society of which he is a member.”); Collins v.
Weinberger, 707 F.2d 1518, 1522–23 (D.C. Cir. 1983) (“The
benefits and burdens of being a U.S. citizen … constitute a complex
package.”).
 13

denies Farrell his statutory right to expatriate in a concrete,
personal way. See Spokeo, 136 S. Ct. at 1547–50.
The dissent contends that Farrell lacks a sufficiently
concrete interest in recognition of his expatriation and looks to
history to suggest that this claim lacks a basis in Anglo-
American law. See Dissenting Op. 5–8. While Congress has no
power to erase Article III requirements by statute, here it has
codified a private right to expatriate and created mechanisms
for exercising that right. The statutory right to expatriate in the
1868 Act as well as in the INA reflects a longstanding
recognition that such a right is rooted in natural law and the
principle of consensual government at the heart of our
constitutional republic.
Courts in the late eighteenth century identified a right to
expatriate. As Justice Iredell explained, “the writers on the law
of nations … plainly mean … that [expatriation] is a reasonable
and moral right which every man ought to be allowed to
exercise.” Talbot v. Janson, 3 U.S. (3 Dall.) 133, 163 (1795)
(opinion of Iredell, J.); see also id. at 169 (opinion of Cushing,
J.) (describing “the important right of expatriation”). The right
to expatriate was also recognized by some state courts, one of
which expressly held that the consent of the sovereign was
unnecessary. See Alsberry v. Hawkins, 39 Ky. (9 Dana) 177,
178 (1839) (“[A]llegiance, in these United States, whether
local or national, is, in our judgment, altogether conventional,
and may be repudiated by the native as well as adopted citizen,
with the presumed concurrence of the government, without its
formal or express sanction.”) (cleaned up); see also Delacroix
v. Boisblanc, 4 Mart. (o.s.) 715, 716 (La. 1817) (“That all men
have a right to expatriate, at least when by such removal they
cause no prejudice to the community of which they were
members, is not questionable in a free country.”).
 14

The Supreme Court has recognized a similar “right to
election,” which allowed those living in the nascent United
States after the Revolution to determine where to place their
allegiance. M’Ilvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209,
213 (1808); see also Inglis v. Trustees of Sailor’s Snug
Harbour, 28 U.S. (3 Pet.) 99, 124 (1830) (M’Ilvaine
“recognized fully the right of election.”). And the United States
has repeatedly recognized a right of election when acquiring
new territory.5 Importantly, where “no special laws [governing
election] were passed,” that left “each case … to be decided
upon its own circumstances.” Inglis, 28 U.S. at 160 (opinion of
Story, J.). In other words, common law courts not only decided
cases raising the right to election, they formulated rules to
effectuate that right. See id. (citing cases). Exercising the right
of election also sometimes involved following formal
processes to ensure the government knew of the election.6 This
offers “a close historical or common-law analogue” for the

5
See Treaty Concerning the Cession of the Russian Possessions in
North America by his Majesty the Emperor of all the Russias to the
United States of America, U.S.-Russ., Mar. 30, 1867, art. 3, 15 Stat.
539, 542 (permitting inhabitants of Alaska to elect U.S. or Russian
nationality); Treaty of Peace, Friendship, Limits, and Settlement,
U.S.-Mex., Feb. 2, 1848, art. 8, 9 Stat. 922, 929 (similar for residents
of territory Mexico ceded to the United States); see also People ex
rel. Kimberly v. De La Guerra, 40 Cal. 311, 339–44 (1870)
(discussing the right to elect between Mexican and U.S. citizenship).
6
See, e.g., Treaty of Peace Between the United States of America
and the Kingdom of Spain, U.S.-Spain, Dec. 10, 1898, art. 9, 30 Stat.
1754, 1759 (providing that an election must be made “before a court
of record” within a year of the Treaty’s ratification); see also
Alexander Porter Morse, The Civil and Political Status of Inhabitants
of Ceded Territories, 14 Harv. L. Rev. 262, 263 (1900) (recognizing
“the right of election … provided it be exercised and publicly
recorded within a period of time indicated”).
 15

right to expatriate now recognized by Congress.7 TransUnion
LLC v. Ramirez, No. 20-297, slip op. at 9 (U.S. June 25, 2021).
Many of the Founding Fathers recognized the right to
expatriate and disavowed the British conception of perpetual
allegiance to the Crown.8 Thomas Jefferson wrote, “I hold the
right of expatriation to be inherent in every man by the laws of
nature, and incapable of being rightly taken from him even by
the united will of every other person in the nation.” Letter from
Thomas Jefferson to Albert Gallatin, June 26, 1806, in SAMUEL
EAGLE FORMAN, THE LIFE AND WRITINGS OF THOMAS
JEFFERSON 213 (1900); see also id. (“Congress … cannot take
from the citizen his natural right of divesting himself of the
character of citizen by expatriation.”); Letter from Thomas
Jefferson to the U.S. Minister to France (Aug. 16, 1793), in 6
THE WRITINGS OF THOMAS JEFFERSON 381 (Paul L. Ford ed.,
1895) (“Our citizens are certainly free to divest themselves of
that character by emigration, & other acts manifesting their
intention, & may then become the subjects of another power.”).
James Madison similarly noted “[t]here can be no doubt that,

7
The right of election following the Revolution is not identical to the
right to expatriate. But our jurisdiction under the Constitution “does
not require an exact duplicate [common law injury] in American
history and tradition.” TransUnion, No. 20-297, slip op. at 9.
8
The dissent relies on Blackstone, a venerable authority for various
common law principles. Dissenting Op. 5. Yet in the context of
expatriation, the question of whether the “subject” of a “prince” can
cast off his “natural allegiance,” 1 W. Blackstone, Commentaries
*358, seems to have little relevance to citizenship under the republic
established by the United States Constitution, which created a
government by and for the people. Cf. TransUnion, No. 20-297, slip
op. at 9 (identifying “American history and tradition” as the source
of rights Congress can by statute render actionable in court)
(emphasis added).
 16

on the same principle which admits of aliens being naturalized
in the United States, they may afterwards cast off the character
of American citizen.” Letter from James Madison to Mr.
Murray (June 16, 1803), in 3 JOHN BASSETT MOORE, A DIGEST
OF INTERNATIONAL LAW 735 (1906); see also Leon M. Liddell,
The U.S. Position in Regard to the Right of Expatriation, 23
Temp. L.Q. 325, 326 (1950) (explaining that “[b]oth Madison
and Monroe denounced the English doctrine of perpetual
allegiance”).
To the extent some founding era history suggests that
common law and British practice did not recognize a right to
expatriate, see Dissenting Op. 5–6, such conception was
disavowed by the time of the adoption of the Fourteenth
Amendment, which altered the structure and conception of
national citizenship and ushered in a “policy favoring freedom
of expatriation which stands unrepealed.” Savorgnan v. United
States, 338 U.S. 491, 498–99 (1950). In 1859, for instance, the
Executive Branch supported “[t]he natural right of every free
person … to leave the country of his birth,” finding it
“incontestable” that a person possesses “the privilege of
throwing off his natural allegiance and substituting another
allegiance in its place.” Right of Expatriation, 9 Op. Att’y Gen.
356, 357–58 (1859); see also id. at 358 (“The municipal code
of England is not one of the sources from which we derive our
knowledge of international law. We take it from natural reason
and justice … and from the practice of civilized nations. All
these are opposed to the doctrine of perpetual allegiance.”). In
1868, the year the Fourteenth Amendment was ratified, the
United States and China entered into the Burlingame Treaty,
which recognized “the inherent and inalienable right of man to
change his home and allegiance.” U.S.-China, art. 5, July 28,
1868, 16 Stat. 739, 740.
 17

The dissent’s reading of history conflicts with numerous
decisions of the Supreme Court and the Executive Branch,
which have concluded that “[b]y 1818, … almost no one
doubted the existence of the right of voluntary expatriation.”
Afroyim v. Rusk, 387 U.S. 253, 258 (1967); see also Right of
Expatriation, 9 Op. Att’y Gen. at 359 (“[E]ver since our
independence, we have upheld and maintained [the right of
expatriation] by every form of words and acts.”). The Court has
also acknowledged that “[t]raditionally the United States has
supported the right of expatriation as a natural and inherent
right of all people.” Savorgnan, 338 U.S. at 497 (citing, inter
alia, The Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822);
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64
(1804); Talbot, 3 U.S. 133).9
Consistent with a longstanding recognition by all three
branches of the right to expatriate, Congress codified a
statutory right to expatriate and specified a series of actions that
effectuate loss of nationality. To satisfy the constitutional
minimum for standing, an alleged injury must either have “‘a
close relationship to a harm that has traditionally been regarded
as providing a basis for a lawsuit in English or American
courts,’ or a statute must make the injury ‘legally cognizable.’”

9
The dissent relies on Joseph Story’s commentaries, Dissenting Op.
6, but the fragment the dissent quotes is nested between important
qualifiers: “It is beside the purpose of these Commentaries to enter
into any consideration of [expatriation], as it does not properly
belong to any constitutional inquiry. It may be stated, however, that
there is no authority, which has affirmatively maintained the right,
(unless provided for by the laws of the particular country[]).” 3 J.
Story, Commentaries on the Constitution of the United States § 1099
at 3 n.2 (1833). Even on Justice Story’s view, a country may provide
by law for a right to expatriate, which Congress has done in the 1868
Act as well as the INA.
 18

Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 616 (D.C. Cir.
2019) (quoting Spokeo, 136 S. Ct. at 1549) (emphasis added).
Here the 1868 Act and the INA identify an individual, private
right to expatriate, which Farrell seeks to vindicate through his
lawsuit.
Farrell properly alleges that the Department has frustrated
his statutory right to expatriate. As in Schnitzler, we may
redress this harm through a determination of the lawfulness of
the Department’s policy and actions. See 761 F.3d at 41. Farrell
thus has standing and we have jurisdiction to decide his claims.
III.
We proceed to the substance of Farrell’s challenge,
reviewing de novo the district court’s grant of summary
judgment to the Department. See Baylor v. Mitchell Rubenstein
& Assocs., 857 F.3d 939, 944 (D.C. Cir. 2017). We conclude
that the Department may impose an in-person requirement to
seek a CLN; however, the Department’s application of this
requirement to Farrell was arbitrary and capricious.
A.
Farrell contends that the in-person requirement is not
authorized by statute. We disagree.
While Farrell has a statutory right to expatriate, Congress
has conferred substantial authority on the Secretary of State to
administer naturalization laws, including laws governing the
expatriation of U.S. citizens. For instance, the Secretary must
approve any certificate of loss of nationality. His approval
“constitute[s] a final administrative determination of loss of
United States nationality under this chapter, subject to such
procedures for administrative appeal as the Secretary may
prescribe by regulation, and also shall constitute a denial of a
right or privilege of United States nationality.” 8 U.S.C.
 19

§ 1501. The Secretary is further “charged with the
administration and the enforcement of … laws relating
to … the determination of nationality of a person not in the
United States.” Id. § 1104(a). The Secretary also has the
authority to prescribe regulations to govern these
determinations. See id. (The Secretary “shall establish such
regulations; prescribe such forms of reports, entries and other
papers; issue such instructions; and perform such other acts as
he deems necessary for carrying out [these] provisions.”).
These grants of statutory authority include discretion to
determine the forms and requirements for individuals seeking
loss of nationality. A requirement that citizens attest to their
loss of nationality in person lies within the wide-ranging
discretion granted to the Secretary.
Moreover, the in-person requirement serves as a protection
against involuntary expatriation, which the Constitution
generally prohibits. Cf. U.S. CONST. amend. XIV. As the
Supreme Court has explained, a “citizen keeps [his citizenship]
unless he voluntarily relinquishes it.” Afroyim, 387 U.S. at 262.
And a voluntary act results in expatriation only with the further
showing that the expatriating national “inten[ded] to terminate
United States citizenship.” Vance v. Terrazas, 444 U.S. 252,
263 (1980). Thus, citizenship cannot be lost involuntarily or
accidentally. Uncertainty about whether expatriation occurred
must “be resolved in favor of citizenship,” Bruni v. Dulles, 235
F.2d 855, 856 (D.C. Cir. 1956) (per curiam), because “[r]ights
of citizenship are not to be destroyed by an ambiguity,”
Nishikawa v. Dulles, 356 U.S. 129, 136 (1958) (citation
omitted). See also 8 U.S.C. § 1481(b) (“[T]he burden shall be
upon the person or party claiming that … loss occurred, to
establish such claim by a preponderance of the evidence.”).
The in-person requirement fits comfortably within the
constitutional and statutory protections against involuntary or
unintentional loss of citizenship.
 20

To resist this conclusion, Farrell argues that a consular
officer has no discretion regarding whether to issue a CLN and
in fact must issue a CLN “whenever” he thinks a citizen has
committed an expatriating act. He relies on statutory language
providing that “[w]henever a diplomatic or consular officer of
the United States has reason to believe that a person … has lost
his United States nationality … he shall certify the facts upon
which such belief is based to the Department of State, in
writing, under regulations prescribed by the Secretary of
State.” 8 U.S.C. § 1501. The meaning of “whenever” cannot
bear the weight Farrell would place on it. If “whenever” truly
meant that a CLN had to issue at any time that an officer merely
“has reason to believe” that a person had lost his nationality,
the CLN process could entail no procedural requirements at all.
In fact, Farrell frankly argues that the statute “allows no
limitation by procedure.” Farrell Br. 16. But this reading runs
headlong into other statutory provisions, including the
requirement that a consular officer’s certification of loss of
nationality will take place “under regulations prescribed by the
Secretary of State.” 8 U.S.C. § 1501 (emphasis added). Farrell
would have a single word, “whenever,” trump the statute’s
specific grant of regulatory authority to the Secretary. But we
interpret statutes as a whole, not in convenient slices. See Util.
Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014) (It is a
“fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to their
place in the overall statutory scheme.”) (quoting FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
Farrell has a statutory right to expatriate, but to obtain the
government’s recognition of his expatriation with a CLN, he
must follow lawful regulatory procedures established by the
Department.
Farrell next suggests that even if some procedural
regulations are permissible, the in-person requirement is
 21

beyond the Secretary’s statutory authority. Farrell argues that
because numerous other provisions in the Immigration and
Nationality Act refer to an in-person appearance, the absence
of such a reference in the section regarding loss of nationality
means that the Department cannot impose one. Farrell Br. 19–
20 (citing, among others, 8 U.S.C. § 1433(b), § 1435(c)(2)).
The fact that Congress in some instances imposed an in-person
requirement does not mean that the Secretary lacks discretion
to impose this procedural requirement in other contexts. See
Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (“[I]n
an administrative setting … Congress is presumed to have left
to reasonable agency discretion questions that it has not
directly resolved.”). The negative implication Farrell presses
cannot carry the day over the text and structure of the statute,
which confers specific and broad regulatory authority upon the
Secretary. As already discussed, the Secretary has substantial
authority to administer recognition of a citizen’s loss of
nationality. See 8 U.S.C. § 1104(a); id. § 1501. An in-person
requirement is consistent with these statutory grants of
authority.
Farrell also argues that even if the Secretary has authority
to impose the in-person requirement, such requirement is
nonetheless ultra vires because it does not exist in any
Department source. This is not so. The DS-4081, the State
Department form entitled “Statement of Understanding
Concerning the Consequences and Ramifications of
Renunciation or Relinquishment of U.S. Nationality,”
contemplates this requirement. See Form DS-4081,
https://eforms.state.gov/Forms/ds4081.pdf. A consular officer
must sign the completed form, and the consular officer’s
signature attests that the CLN applicant “appeared personally”
before the officer. Id. at 2. Farrell objects that this is not
presented as a requirement for the CLN applicant because the
“appeared personally” language appears only in the signature
 22

block for the consular officer. Farrell’s distinction makes no
legal difference here—the form is required to obtain
recognition of loss of nationality, and the form plainly directs
the consular officer to sign only if Farrell has appeared in
person. Thus, Farrell must appear in person to obtain a CLN,
and the requirement that he do so is not ultra vires.
B.
Because the Secretary may impose an in-person
requirement, we next consider whether the Department’s
actions with respect to Farrell are arbitrary and capricious
within the meaning of 5 U.S.C. § 706(2)(A). The Department’s
letters to Farrell refusing to issue a CLN constitute an “informal
adjudication” of Farrell’s claims. See Fox, 684 F.3d at 75
(noting that a State Department letter denying a CLN was “the
agency’s final judgment in its informal adjudication”). Under
the APA, such agency action must be the product of reasoned
decisionmaking. See generally Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). An
agency’s action must be within its lawful authority, and “the
process by which it reaches that result must be logical and
rational.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522
U.S. 359, 374 (1998); see also N.Y. Stock Exch. LLC v. SEC,
962 F.3d 541, 554 (D.C. Cir. 2020) (same). Moreover, we
cannot “supply a reasoned basis for the agency’s action that the
agency itself has not given.” State Farm, 463 U.S. at 43 (citing
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). The basis
for the agency’s action “must be set forth with such clarity as
to be understandable. It will not do for a court to be compelled
to guess at the theory underlying the agency’s action.”
Chenery, 332 U.S. at 196–97.
Here the Department communicated multiple inconsistent
requirements that Farrell must satisfy in order to obtain his
certificate of loss of nationality. In its first letter, the consulate
 23

in Switzerland advised Farrell that “he would have to come to
the Embassy in Bern to sign form DS-4081 ‘Statement of
Understanding’ in person in front of a consular officer.” J.A.
131. The Department’s second formulation of this requirement
refers, more generically, to a “signature on the required
Department of State forms before a consular officer.” J.A. 152.
The Department’s final letter, however, represents that the
process for obtaining a CLN “includes the individual signing
the DS-4079 before a consular officer at post abroad, and
completing an interview with a consular officer to determine
whether the expatriating act was performed voluntarily and
with the intent to relinquish U.S. citizenship.”10 J.A. 175. But
the DS-4079 contains nothing that can be read as requiring an
in-person signature; only the DS-4081, with its consular
attestation block that uses the phrase “appeared personally,”
imposes such a requirement.11

10
Courts may review only final agency action, so “inconsistent
statements by agencies’ regional offices during [the] early stages of
review do not [necessarily] render [the] decisionmaking process
arbitrary and capricious.” WildEarth Guardians v. Jewell, 738 F.3d
298, 312 (D.C. Cir. 2013) (citation omitted). The district court,
however, treated both the November 2016 letter to Farrell and the
February 2017 letter to Farrell as constituting final agency action.
See Farrell v. Tillerson, 315 F. Supp. 3d 47, 59–64 (D.D.C. 2018).
The parties do not challenge that holding here, and finality is not a
jurisdictional matter under the APA that we must decide sua sponte.
See Zhang v. U.S. Citizenship & Immigr. Servs., 978 F.3d 1314,
1322–23 (D.C. Cir. 2020). Therefore, both letters are properly before
us.
11
The Department unpersuasively argues that the DS-4079 also
imposes an in-person requirement by advising that applicants “may
sign … this statement before a Consular Officer at a U.S. Embassy
or Consulate.” J.A. 210. Regardless of whether the word “may”
 24

On appeal, the Department now describes the issue as “the
requirement of an in-person appearance to sign Forms DS-4079
and DS-4081,” without mentioning any requirement of an
interview. State Dep’t Br. 14 (emphasis added). After pushing
Farrell from pillar to post, the Department has the temerity to
fault him for “conflat[ing] an in-person interview with the in-
person appearance requirement.” State Dep’t Br. 50 (cleaned
up).
While the Department has statutory discretion to impose
procedural requirements such as an appearance in person, the
Department has failed to adequately explain the requirements
as they apply to Farrell. Nor can we supply the missing
reasoning for the Department’s action. See Chenery, 332 U.S.
at 197 (“[A] court [cannot] be expected to chisel that which
must be precise from what the agency has left vague and
indecisive.”); Ethyl Corp. v. EPA, 541 F.2d 1, 34 n.73 (D.C.
Cir. 1976) (“Of course, [the agency’s] basis must be expressed
by the agency itself and not supplied by the court.”).
The government’s correspondence makes it impossible for
Farrell to ascertain what actions he must take to obtain the
certificate that the Department maintains is necessary for him
to complete his expatriation.12 The imposition of such
haphazard and shape-shifting administrative requirements is
the very definition of arbitrary and capricious agency action.

confers on the Department discretion to permit in-person signature,
it certainly does not indicate an obligation to sign the form in person.
12
This is not the first time we have found the Department’s
application of its expatriation standards wanting. See Fox, 684 F.3d
at 78–79; see also Schnitzler, 761 F.3d at 35 (observing that the
government denied Schnitzler a chance to renounce his citizenship
“[f]or reasons [it] has failed to explain—or rather, for a host of ever-
changing reasons”).
 25

See Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757
F.3d 308, 314 (D.C. Cir. 2014) (remanding, despite “hav[ing]
no reason to doubt the Secretary’s authority,” because even
after the agency’s “decision, the district court’s opinion, the
Government’s briefs on appeal, and oral argument, we still
cannot discern precisely what the [agency’s] decisional
standard was”); Fox, 684 F.3d at 75 (“[N]o deference is owed
to an agency action … where the agency’s explanation for its
action lacks any coherence.”) (cleaned up).
Because we find the Department’s decision arbitrary and
capricious, we remand to the Department to reconsider
Farrell’s request for a CLN. See Fox, 684 F.3d at 80 (finding
denial of a CLN to be arbitrary and capricious, but explaining
that “[t]he Department, not the court, has the authority … to act
in the first instance to address [expatriation] matters …. We
will therefore pursue a course of prudence … and remand the
case”). Nothing in this decision should be interpreted to
foreclose the Department from denying Farrell’s request upon
reconsideration; however, if it follows that path, it must explain
why it is denying the request and what precise steps Farrell
must take to obtain recognition of his loss of nationality.
***
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the Department and remand to
the district court with instructions to remand to the Department
to reconsider Farrell’s request for a certificate of loss of
nationality.
So ordered.
 KATSAS, Circuit Judge, dissenting: By his own account,
Gerald Farrell gave up his United States citizenship nearly two
decades ago. Farrell is now a Swiss citizen living in
Switzerland. In this appeal, he seeks to compel the Department
of State to certify that he is no longer a citizen. Farrell claims
a statutory right to this certification, but he does not explain
why the government’s refusal to issue it threatens him with any
concrete injury. Accordingly, I would dismiss the appeal for
lack of a case or controversy.

I

The Immigration and Nationality Act provides that a
United States national “shall lose his nationality by voluntarily
performing” any of eight enumerated acts “with the intention
of relinquishing United States nationality.” 8 U.S.C. § 1481(a).
One of these acts is “obtaining naturalization in a foreign
state.” Id. § 1481(a)(1). Others include declaring allegiance to
a foreign state, renouncing nationality before a consular officer,
and committing treason against the United States. Id.
§ 1481(a).

The INA establishes an administrative process for the
Secretary of State to certify that a person “has lost his United
States nationality.” 8 U.S.C. § 1501. If a consular officer has
“reason to believe” that someone has done so, the officer “shall
certify the facts upon which such belief is based to the
Department of State.” Id. If the Secretary of State approves
the certification, the Department then must issue a certificate
of loss of nationality (CLN), which is a “final administrative
determination of loss of United States nationality.” Id. A
person inside the United States may obtain judicial review of a
CLN by filing an action “for a judgment declaring him to be a
national of the United States.” Id. § 1503(a). A person outside
the United States may seek judicial review by applying for a
certificate of identity to enter the United States, id. § 1503(b),
and then filing a declaratory-judgment action, id. § 1503(a).
 2
The INA authorizes the Secretary of State to establish
regulations, prescribe forms, and issue instructions to carry out
his responsibilities under the statute. 8 U.S.C. § 1104(a).
Under this authority, the State Department’s Foreign Affairs
Manual prohibits the issuance of a CLN unless the affected
individual appears personally at an embassy or consulate to fill
out various forms documenting how he lost his citizenship.

II

Farrell currently has no ties with the United States. In
1994, he moved from the United States to Switzerland. In
2004, he obtained Swiss naturalization with the intent of
relinquishing his United States nationality, and he thereby gave
up the latter. His wife and daughter are Swiss. According to
Farrell’s complaint, his “personal and cultural identity are
Swiss,” and his “friends, immediate family, work history, and
future are all in Switzerland.” J.A. 17.

Since he obtained Swiss naturalization, Farrell’s only
contact with the United States has been involuntary. In 2013,
Farrell was arrested in Spain and extradited to the United States
for crimes committed before 2004. Farrell pleaded guilty and
was sentenced to 96 months of imprisonment in the United
States. While incarcerated, he sought to complete his sentence
in Switzerland. To facilitate a transfer of custody to
Switzerland, Farrell requested a CLN from the State
Department, which declined to provide it unless Farrell
appeared at an embassy to complete the necessary paperwork.

Farrell then sued to compel the Department to recognize
his loss of nationality. He sought to set aside its denials of a
CLN, as well as a declaratory judgment that he is no longer a
citizen. On summary judgment, the district court held that the
Department had permissibly refused to issue a CLN and that
declaratory relief was inappropriate. While this appeal was
 3
pending, Farrell completed his sentence and returned to
Switzerland.

At oral argument, we probed whether these recent events
had mooted Farrell’s appeal. We specifically asked whether
Farrell feared any future entanglement with the United States.
Through counsel, Farrell declined to identify any tangible
consequence stemming from the denial of a CLN. Instead,
Farrell argued that because the INA required the State
Department to process and issue him a CLN, its refusal to do
so inflicted an Article III injury.

III

Article III of the Constitution restricts the federal judicial
power to live “Cases” or “Controversies.” U.S. Const. art. III,
§ 2. “No principle is more fundamental to the judiciary’s
proper role in our system of government” than this limit on our
jurisdiction, Raines v. Byrd, 521 U.S. 811, 818 (1997) (cleaned
up), which includes the related doctrines of standing and
mootness, Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91
(2013). To establish standing, the plaintiff must prove an
injury in fact that was caused by the defendant and would likely
be redressed by a favorable decision. Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). The injury must be concrete,
particularized, and actual or imminent. Id. at 1548. The case-
or-controversy requirement “subsists through all stages of
federal judicial proceedings,” Spencer v. Kemna, 523 U.S. 1, 7
(1998) (cleaned up), so a dispute “becomes moot—and
therefore no longer a Case or Controversy for purposes of
Article III—when the issues presented are no longer live,”
Already, 568 U.S. at 91 (cleaned up).

In this case, Farrell alleges no ongoing injury from the
State Department’s refusal to issue him a CLN. His desire to
serve the remainder of his prison sentence in Switzerland no
 4
longer establishes a live controversy, as he has completed the
sentence and now lives freely in Switzerland. Nor does Farrell
allege any other actual or imminent injury from not having a
CLN in-hand. In particular, he alleges no further criminal
exposure and no other United States law that might apply to
him as a putative citizen living abroad, much less any
possibility that the government will attempt to enforce any such
law against him in the future. Similarly, Farrell does not allege
that Switzerland will treat him any differently depending on
whether he can procure a CLN from his former country.

Instead, Farrell alleges only one theory of Article III
standing: The INA gives him statutory rights to have the State
Department process and issue a CLN, so its refusal to do so
concretely injures him. But Congress “cannot erase Article
III’s standing requirements” by authorizing suits to redress
injuries that are abstract as opposed to concrete. Spokeo, 136
S. Ct. at 1548 (quoting Raines, 521 U.S. at 820 n.3); see
Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)
(“deprivation of a procedural right without some concrete
interest that is affected by the deprivation … is insufficient to
create Article III standing”). Rather, “Article III standing
requires a concrete injury even in the context of a statutory
violation,” Spokeo, 136 S. Ct. at 1549, and “[t]he concreteness
component of injury in fact sharply limits when a plaintiff can
establish standing based solely on a violation of his statutory
rights,” Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059,
1063 (D.C. Cir. 2019). “Congress’s creation of a statutory
prohibition or obligation and a cause of action does not relieve
courts of their responsibility to independently decide whether
a plaintiff has suffered a concrete harm.” TransUnion LLC v.
Ramirez, No. 20-297, slip op. at 10 (U.S. June 25, 2021); see
also Frank v. Autovest, LLC, 961 F.3d 1185, 1187–90 (D.C.
Cir. 2020); Owner-Operator Indep. Drivers Ass’n v. DOT, 879
F.3d 339, 342–47 (D.C. Cir. 2018).
 5
In determining which intangible harms qualify as concrete
injuries, we consider both history and the judgment of
Congress. History matters because the case-or-controversy
requirement “is grounded in historical practice,” Spokeo, 136
S. Ct. at 1549, so we ask whether an alleged injury “has a close
relationship to a harm traditionally recognized as providing a
basis for a lawsuit in American courts,” TransUnion, slip op.
at 9 (cleaned up). Congress matters because it is “well
positioned” to make factual judgments bearing on our
assessment of concreteness. Spokeo, 136 S. Ct. at 1549. Yet
the requirement of a concrete injury remains part of “the
irreducible constitutional minimum of standing.” Lujan v.
Def’s of Wildlife, 504 U.S. 555, 560 (1992). Article III courts
therefore “must ultimately decide what injuries qualify as
concrete,” and “Congress’s judgment may inform that
assessment but cannot control it.” Trichell v. Midland Credit
Mgmt., 964 F.3d 990, 999 (11th Cir. 2020); see TransUnion,
slip op. at 10. So in this case, Farrell cannot satisfy Article III
simply by proving that the State Department erroneously
denied him a CLN. Instead, he must show that the denial
threatens him with an injury that meets Article III standards of
concreteness, as informed by history and the judgment of
Congress.

History cuts strongly against Farrell’s standing. At
common law, there was nothing resembling a cause of action
to compel sovereign recognition of expatriation, because there
was no common-law right to expatriate. Before the American
Revolution, it was “a principle of universal law that the natural-
born subject of one prince [could not], by any act of his own,
. . . put off or discharge his natural allegiance to the former.” 1
W. Blackstone, Commentaries *358; see also Calvin’s Case
(1608) 77 Eng. Rep. 377, 407; 7 Co. Rep. 1a, 25a (Lord Coke
CJ). The traditional view became controversial in the wake of
the Revolution, see Morrow, The Early American Attitude
 6
Toward the Doctrine of Expatriation, 26 Am. J. Int’l L. 552
(1932), but “[t]he courts, and most authoritative jurists,
repeatedly expressed the opinion that the United States had
inherited, as part of the common law, the English doctrine with
regard to the change of allegiance,” J.B. Moore, Principles of
American Diplomacy 273–74 (1918). As Justice Story
explained, the Supreme Court adhered to the view that “no
persons can by any act of their own, without the consent of the
government, put off their allegiance, and become aliens.”
Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 246 (1830); see also,
e.g., 3 J. Story, Commentaries on the Constitution of the United
States § 1099 at 3 n.2 (1833) (“there is no authority, which has
affirmatively maintained the right” to expatriate absent
Congress’s consent, “and there is a very strong current of
reasoning on the other side”); 2 J. Kent, Commentaries on
American Law 42 (1st ed. 1827) (“a citizen cannot renounce
his allegiance to the United States without the permission of
government, to be declared by law”). When Congress finally
“gave its consent” to expatriation in the Citizenship Act of
1907, courts began to recognize it “upon the specific terms
stated” by Congress, consistent with the “common-law
prohibition of expatriation without the consent of the
sovereign.” Savorgnan v. United States, 338 U.S. 491, 498
(1950). In sum, a common-law suit to expatriate would have
been antithetical to traditional principles of sovereignty and
citizenship, which conditioned the right on congressional
consent. Unsurprisingly, then, there is no common-law analog
to a suit compelling the sovereign to recognize an expatriation.

My colleagues note that some of the Framers supported
the right to expatriate, which Congress, the Executive Branch,
and one post-Shanks state court later embraced. Ante at 13–17.
These points do not bear on the historical inquiry under Spokeo
and TransUnion, which considers not whether plaintiffs had a
private or natural right, but whether the alleged injury “has a
 7
close relationship to a harm traditionally recognized as
providing a basis for a lawsuit in American courts.”
TransUnion, slip op. at 9 (emphasis added) (cleaned up); see
id. at 11 (“under Article III, an injury in law is not an injury in
fact”). Early in our history, the Supreme Court held that there
was no cause of action to expatriate without the consent of
Congress, Shanks, 28 U.S. (3 Pet.) at 246, a view that led
federal courts to abstain from adjudicating expatriations until
Congress provided for it by statute, see Savorgnan, 338 U.S. at
497–98.

The only common-law analog that my colleagues offer to
support standing is the “right of election,” a doctrine that gave
British subjects a limited time to choose between “the
American cause” and continued allegiance to Great Britain.
M’Ilvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209, 212 (1808).
Quoting from a solo dissent, my colleagues say that courts
expounded on the right of election even without statutory
authorization. Ante at 13–14 (quoting Inglis v. Trustees of
Sailor’s Snug Harbour, 28 U.S. (3 Pet.) 99, 124 (1830) (Story,
J., dissenting)). But no court ever treated election, much less
recognition of election, as itself the “basis for a lawsuit.”
TransUnion, slip op. at 9 (cleaned up). Like expatriation under
the INA, election happened automatically—without any need
to sue for permission or executive recognition. Courts involved
themselves only after-the-fact, if a suit under a traditional cause
of action happened to turn on whether an individual had elected
to remain a British subject—as, for example, in adjudicating
property claims under the Jay Treaty, M’Ilvaine, 8 U.S. (4
Cranch) at 215, or a will, Inglis, 28 U.S. (3 Pet.) at 126.
Moreover, an election doctrine was necessary precisely
because individuals had no common-law right to expatriate at
any time without sovereign consent, which would have
obviated the need for a special transitional rule to govern in the
wake of a Revolution. Not surprisingly, then, the very election
 8
decisions cited by my colleagues confirm that there was no
common-law right to expatriate. Inglis, 28 U.S. (3 Pet.) at 125
(majority) (“The government may release the governed from
their allegiance.”); M’Ilvaine, 8 U.S. (4 Cranch) at 212–13
(individual who did not timely exercise the right of election
was “bound to [his] government” and could not renounce
citizenship); see also Inglis, 28 U.S. (3 Pet.) at 156 (Story, J.,
dissenting) (“The general principle of the common law also is,
that the allegiance thus due by birth, cannot be dissolved by
any act of the subject.”).

In sum, my colleagues have identified no historical
evidence to question the “common-law prohibition of
expatriation without the consent of the sovereign.” Savorgnan,
338 U.S. at 498. And there is no evidence that compelling
executive recognition of expatriation was a traditional “basis
for a lawsuit.” TransUnion, slip op. at 9 (cleaned up).

More broadly, there is no historical pedigree for courts to
declare legal rights or status in the abstract. To the contrary,
“the oldest and most consistent thread in the federal law of
justiciability is that the federal courts will not give advisory
opinions.” Pub. Serv. Elec. & Gas Co. v. FERC, 783 F.3d
1270, 1274 (D.C. Cir. 2015) (cleaned up); see, e.g., Muskrat v.
United States, 219 U.S. 346, 362 (1911). Accordingly, the
Supreme Court has long held that a plaintiff seeking
declaratory relief must have “a real, not a hypothetical,
controversy” to satisfy Article III. Nashville, Chattanooga &
St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 264 (1933). In other
words, a declaratory-judgment plaintiff cannot rest on an
abstract desire to know his rights or status. See, e.g., Ashcroft
v. Mattis, 431 U.S. 171, 172 (1977); Golden v. Zwickler, 394
U.S. 103, 109 (1969). Instead, he must connect the declaration
to a concrete injury, such as the threatened enforcement of an
allegedly unconstitutional statute, Steffel v. Thompson, 415
 9
U.S. 452, 459 (1974), or an allegedly invalid patent,
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 137 (2007);
see also California v. Texas, 141 S. Ct. 2104, 2114 (2021) (“our
cases have consistently spoken of the need to assert an injury
that is the result of a statute’s actual or threatened enforcement,
whether today or in the future”).

The judgment of Congress also cuts against Farrell.
Although the INA confers a statutory right to expatriate, it
establishes no process for individuals to request CLNs.
Instead, it imposes reporting requirements on consular officers
“[w]henever” they suspect that a person “has lost his United
States nationality” while abroad, regardless of whether that
person wishes to receive a CLN. 8 U.S.C. § 1501. The
Secretary of State then has the “discretion,” but not the duty, to
approve the CLN. Lozada Colon v. U.S. Dep’t of State, 170
F.3d 191, 191 (D.C. Cir. 1999) (per curiam). At most, an
individual wishing to obtain a CLN can seek to jump-start the
process by committing an expatriating act and bringing it to the
attention of a consular officer. But the INA provides neither a
substantive entitlement to a CLN nor even a process entitling
individuals to seek one. Instead, the CLN process is only a
discretionary administrative mechanism for the State
Department to declare a past expatriation. And absent any
“legal rights” to a CLN, the denial of a CLN cannot be an
“invasion” of legal rights for standing purposes. Owner-
Operator Indep. Drivers, 879 F.3d at 345 (cleaned up).

Furthermore, the INA treats a CLN’s issuance, but not its
denial, as an injury to the affected individual. The INA
provides that the approval of a CLN constitutes “a denial of a
right or privilege of United States nationality,” 8 U.S.C.
§ 1501, and it allows CLN recipients in the United States to
seek a declaration of United States nationality, id. § 1503(a).
Likewise, it allows CLN recipients outside the United States to
 10
seek admission into the United States, id. § 1503(b), and then
to seek a declaratory judgment, id. § 1503(a). Congress thus
viewed the approval of a CLN as an injury concrete enough to
confer Article III standing. But the INA contains no provisions
affording review for the denial of a CLN, which strongly
suggests that Congress did not seek to “identify” and “elevate”
CLN denials as comparable injuries. Spokeo, 136 S. Ct. at
1549 (cleaned up).

The availability of judicial review under the
Administrative Procedure Act does not change this analysis.
When considering congressional judgments about which
intangible harms satisfy Article III, we focus on findings
targeted to specific harms. See, e.g., Trichell, 964 F.3d at 998–
99; Jeffries, 928 F.3d at 1065. On the other hand, the mere
existence of a cause of action, even in the specific substantive
statute at issue, “does not affect the Article III standing
analysis.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1620
(2020). In affording judicial review to any person “aggrieved
by agency action,” 5 U.S.C. § 702, the APA simply provides
redress for harms that qualify as injury in fact, see Air Courier
Conf. of Am. v. Am. Postal Workers Union, 498 U.S. 517, 523
(1991). It reflects no congressional judgment about which
harms qualify, much less about whether the denial of a CLN
qualifies.

Farrell also invoked the Declaratory Judgment Act, 28
U.S.C. § 2201. It is unclear whether that Act even applies here.
As noted above, the INA provides that a person receiving a
CLN “may institute an action under the provisions of section
2201 . . . for a judgment declaring him to be a national of the
United States,” 8 U.S.C. § 1503(a), but it makes no similar
provision for a person denied a CLN to seek a declaration of
non-citizenship. In any event, the Declaratory Judgment Act
affords an omnibus cause of action comparably general to that
 11
in the APA. In permitting courts to declare the rights of parties
“[i]n a case of actual controversy,” 28 U.S.C. § 2201(a), the
Act does not, and could not, relax the case-or-controversy
requirement. See, e.g., MedImmune, 549 U.S. at 127; Aetna
Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240 (1937).
Nor does it reflect any congressional judgment about whether
any specific injuries are concrete for Article III purposes, much
less about whether the denial of a CLN is such an injury.

In sum, there is no historical, statutory, or other basis to
treat the denial of a CLN as a concrete Article III injury.

IV

My colleagues view this case as involving harm to
Farrell’s “statutory right to expatriate.” Ante at 6. At one point,
they maintain that Farrell “remains a citizen until the
government recognizes that he has expatriated.” Id. at 10. At
various other points, they contend that Farrell suffers a concrete
injury merely because the government has taken the position
that he remains a citizen. They therefore assert that “the central
issue is the right to expatriate,” not “whether Farrell has a right
to a CLN.” Id. at 11. And they characterize a CLN as
“inextricably bound with expatriation.” Id. at 10.

To begin, my colleagues press theories that Farrell himself
has disclaimed. Farrell asserts that “[h]is expatriation took
place long ago” and that he therefore “is no longer a U.S.
citizen.” Blue Br. 35. He claims that “[t]he dispute is whether
the Department can arbitrarily refuse to consider his request for
a CLN.” Id. And he sees a CLN not as a necessary step to
expatriate but as a government “benefit,” the denial of which is
enough to establish standing. Oral Arg. Tr. at 9. In short,
Farrell’s position is that “the injury is the refusal to process the
Certificate of Loss of Nationality, period.” Id. at 6. My
colleagues thus press a theory of standing that Farrell does not,
 12
despite the settled rule that arguments supporting jurisdiction
may be forfeited. See Int’l Longshore & Warehouse Union v.
NLRB, 971 F.3d 356, 363 (D.C. Cir. 2020). Likewise, they
assume the defendant’s theory of the case for purposes of
standing, despite the settled rule that we must assume the
plaintiff’s merits theory. See Parker v. District of Columbia,
478 F.3d 370, 377 (D.C. Cir. 2007).

In any event, executive recognition is neither legally nor
practically necessary to expatriate. By its terms, the INA
provides that a United States national “shall lose his nationality
by voluntarily performing” an expatriating act “with the
intention of relinquishing United States nationality.” 8 U.S.C.
§ 1481(a). And the specific expatriating act that Farrell insists
he performed in 2004—applying for and obtaining Swiss
naturalization in Switzerland as an adult—requires no action
by the federal executive at all, much less advance recognition
to make it effective. See id. § 1481(a)(1). For such expatriating
acts, citizenship is “lost automatically, without any
administrative or judicial determination.” United States v.
Yakou, 428 F.3d 241, 249 (D.C. Cir. 2005).

The INA also sharply distinguishes between expatriation
and recognition. As explained above, it establishes the CLN
process as an administrative mechanism for the State
Department to determine after-the-fact whether a person “has
lost” his United States nationality. 8 U.S.C. § 1501. The INA
also makes clear that a past expatriation may be adjudicated
and thus recognized after-the-fact whenever the question is
“put in issue in any action or proceeding” under the INA “or
any other Act.” 8 U.S.C. § 1481(b). In various contexts, courts
and agencies adjudicate whether alleged expatriations have
occurred. See, e.g., Breyer v. Ashcroft, 350 F.3d 327, 333 (3d
Cir. 2003) (removal); Action S.A. v. Marc Rich & Co., 951 F.2d
504, 506–07 (2d Cir. 1991) (diversity-of-citizenship
 13
jurisdiction); In re Davis, 16 I. & N. Dec. 514, 526 (BIA 1978)
(removal). The INA thus makes clear that expatriation and
recognition are distinct; that the right to expatriate does not
include a right to executive or judicial recognition; and that the
CLN process is only one among many possible mechanisms for
adjudicating a past expatriation as necessary.

Statutory history confirms these points. In the 45 years
from 1907 to 1952, federal law permitted expatriation but
afforded no CLN or other formal administrative mechanism for
its adjudication. See Act of Mar. 2, 1907, ch. 2534, 34 Stat.
1228; Nationality Act of 1940, ch. 876, 54 Stat. 1137. Yet
individuals nonetheless expatriated without government
recognition. See Lapides v. Clark, 176 F.2d 619, 621 (D.C.
Cir. 1949) (“No judicial proceedings were necessary to bring
about [expatriation]. It followed by virtue of the statute which
took effect merely through residence abroad and lapse of time.”
(cleaned up)). And recognition occurred only when the
question of a past expatriation was placed at issue in a judicial
or executive adjudication. See, e.g., Perkins v. Elg, 307 U.S.
325, 343–44 (1939) (deportation); Mackenzie v. Hare, 239 U.S.
299, 306, 311–12 (1915) (voter registration); Citizenship of
Ingrid Therese Tobiassen, 36 Op. Atty’s Gen. 535, 540 (1932)
(passport application).

My colleagues reason that recognition is “inextricably
bound” to expatriation because “citizenship is a reciprocal
relationship between a person and the state.” Ante at 10. I
agree that citizenship is a reciprocal relationship, which is why
“the consent of the government” is necessary to expatriate. See
Shanks, 28 U.S. (3 Pet.) at 246. But for centuries, that consent
has turned on legislative recognition. See, e.g., Savorgnan, 338
U.S. at 498; Inglis, 28 U.S. (3 Pet.) at 125; M’Ilvaine, 8 U.S. (4
Cranch) at 212 (Cushing, J.); Talbot v. Janson, 3 U.S. (3 Dall.)
133, 162–64 (1795) (opinion of Iredell, J.); Expatriation, 14
 14
Op. Atty’s Gen. 295, 296 (1873); 3 J. Story, Commentaries,
supra, § 1099 at 3 n.2. And rather than categorically delegating
that authority to the Executive Branch, Congress has given its
consent through the INA, which permits expatriation without
executive approval.

My colleagues fall back to the position that even if
expatriation and recognition are distinct, the State Department
has linked them through its litigating position that Farrell
“remains a citizen” unless and until it issues him a CLN. Ante
at 6. But as explained above, Farrell has taken the opposite
position, which we must accept in assessing his standing. In
any event, the INA makes clear that expatriation does not
require executive recognition, as the State Department’s own
official manual confirms. See 7 Foreign Affairs Manual
§ 1228.5 (2014) (“The effective date of loss of nationality is
the date of the expatriating act, not the date the CLN is
approved.”). Because Farrell has already expatriated, I cannot
agree that the Department’s position amounts to the “refusal to
allow the expatriation to occur on the terms provided by
Congress.” Ante at 11. Moreover, the government’s mistaken
view of Farrell’s legal status is not enough to confer standing
absent any threat that the government will seek to enforce some
law against Farrell. See California v. Texas, 141 S. Ct. at 2114.

My colleagues say that the Department’s position must
have tangible consequences for Farrell, but they identify none.
Their only example is that Farrell’s “claimed expatriation” did
not prevent the government from extraditing and convicting
Farrell for offenses that he committed in the United States.
Ante at 12. But none of that turned on Farrell’s citizenship
status: The governing criminal statutes apply to citizens and
aliens alike. 18 U.S.C. §§ 2423(a), 2252(a)(4). So too does the
treaty under which Farrell was extradited. Treaty on
Extradition, U.S.-Spain, May 29, 1970, 22 U.S.T. 737, 738. In
 15
any event, Farrell alleges no prospective criminal exposure,
much less exposure that would turn on whether the United
States views Farrell as still a citizen. To reiterate, he contends
that “the injury is the refusal to process the Certificate of Loss
of Nationality, period.” Oral Arg. Tr. at 6.

Finally, my colleagues invoke Schnitzler v. United States,
761 F.3d 33 (D.C. Cir. 2014), which seems to me inapposite.
Schnitzler involved an American citizen who could not
expatriate because of his incarceration. Id. at 35. Although
Schnitzler sought both expatriation and its official recognition,
we never suggested that the absence of recognition is what
injured him concretely. Instead, we construed his alleged
injury as the inability to expatriate, and we held that injury
sufficient to confer Article III standing. See, e.g., id.
(“Schnitzler has standing because he remains a citizen against
his wishes and allegedly in violation of his constitutional
rights.” (emphasis added)); id. at 40 (“Schnitzler has
sufficiently alleged an injury in fact: to wit, being required to
continue his association with the United States against his
wishes . . . . Schnitzler regards himself as ‘injured’ by his
inability to renounce [citizenship].” (emphases added)).
Schnitzler thus has little to say about Farrell, who claims to
have committed his expatriating act long ago, who currently
has no association with the United States, and who has no
explanation for why official recognition of his past expatriation
matters to him going forward.

To recast Schnitzler as a case about recognition, my
colleagues point to language in Schnitzler’s pro-se complaint
that they read as suggesting a past expatriation. Ante at 8. But
we rejected that reading and instead concluded that Schnitzler
“genuinely believe[d]” that he “remained in citizenship status.”
761 F.3d at 40. Because it was undisputed that Schnitzler,
unlike Farrell, had had been unable to perform an expatriating
 16
act, we concluded that “Schnitzler is an American citizen.” Id.
at 35; see also id. (“Schnitzler remains a citizen . . . .”).1 And
although my colleagues are correct that we “repeatedly cited”
Schnitzler’s request for recognition, ante at 9 n.1, none of those
citations are in our discussion of injury-in-fact. We instead
premised our standing discussion entirely on the premise that
Schnitzler “remain[ed] a citizen against his wishes.” Id. at 35.
Schnitzler does not hint that the right to expatriate includes a
right to executive recognition, much less that the refusal of
such recognition would confer Article III standing.

In sum, my colleagues conflate the statutory right to
expatriate with executive recognition of a past expatriation.
This approach is inconsistent with the INA’s unambiguous
text, longstanding historical practice, and Farrell’s own theory
of injury, each of which treats the two as different.

V

Farrell claims to have expatriated in 2004, over a decade
and a half ago, by obtaining naturalization in Switzerland with
the intent of relinquishing his United States nationality. And
while Farrell sought recognition of his expatriation to facilitate
a transfer of custody from the United States to Switzerland, he
does not explain why a CLN would matter to him now that his
sentence has expired and he is living as a free man and a Swiss
citizen in Switzerland. Because Farrell has not shown any
ongoing concrete injury from the denial of a CLN, I would
dismiss his appeal for lack of a case or controversy.

1
Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), we could not
have credited the erroneous legal conclusion that Schnitzler had
expatriated despite having performed no expatriating act. See id. at
678; 8 U.S.C. § 1481(a).