393 F.Supp.3d 172
E.D.N.Y2019Background
- Plaintiff Arafat Ali Saleh, born in Yemen in 1983, claimed U.S. citizenship based on his father’s status under former INA § 301(g); initial passport applications were denied for insufficient proof of the father’s U.S. physical presence.
- In August 2010 the U.S. embassy in Yemen issued Saleh a U.S. passport; he used it and traveled to the U.S. without incident until October 2015, when CBP confiscated the passport abroad and it was never returned.
- After applying for a replacement, the State Department revoked Saleh’s passport by letter dated Sept. 27, 2017, citing 22 C.F.R. § 51.62(a)(2) and stating the passport had been "erroneously issued" due to insufficient evidence that his father met the physical-presence requirement. The letter offered an administrative hearing.
- Saleh sued under the Administrative Procedure Act (APA), alleging the revocation was arbitrary and capricious. Defendants moved to dismiss for lack of subject-matter jurisdiction, arguing Saleh’s exclusive remedy was an action under 8 U.S.C. § 1503(a) to declare U.S. nationality.
- Magistrate Judge Pollak recommended denying the motion to dismiss and ordering production of the full administrative record; the district court adopted the R&R in full, denied defendants’ motions to dismiss and to strike, and ordered production of the full administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA review is barred because an adequate remedy exists under 8 U.S.C. § 1503(a) | Saleh contends the revocation was not based on a final finding that he is "not a national" and thus § 1503(a) is not available | Defendants contend § 1503(a) provides an adequate judicial remedy, barring APA review | The court held § 1503(a) is not an adequate remedy here because the revocation was under 22 C.F.R. § 51.62(a)(2) as an erroneous issuance based on insufficient evidence, not a final determination of non‑nationality; APA review is available |
| Proper characterization of the revocation: non‑nationality vs. erroneous issuance | Saleh argues the Department revoked for erroneous issuance (lack of evidence) and offered an administrative hearing | Defendants argue the practical effect is a denial of nationality and point to adjudicatory remedies | The court found the Department’s letter and offer of hearing indicate revocation for erroneous issuance (insufficient evidence), not a conclusive finding of non‑citizenship |
| Whether denial of passport under § 51.62(a)(2) can be reviewed under the APA | Saleh asserts APA review applies because no other adequate judicial remedy exists | Defendants assert courts should require § 1503(a) suits when nationality is disputed | Court concluded APA review is available where revocation is for erroneous issuance and § 1503(a) is not applicable |
| Whether the magistrate’s denial of motion to strike counsel declaration and order to produce administrative record were proper | Saleh sought the full administrative record and submitted counsel declaration; magistrate denied strike and ordered full record production | Defendants moved to strike the declaration and opposed production beyond submitted materials | Court adopted magistrate’s rulings: denied motion to strike and ordered production of the full administrative record within two weeks |
Key Cases Cited
- Bowen v. Massachusetts, 487 U.S. 879 (1988) (APA review should not duplicate existing statutory review schemes)
- Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) (strong presumption favoring judicial review of agency action)
- Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014) (passport revocation pursuant to § 51.62(b) following a finding of non‑nationality is subject to § 1503(a) remedy)
- National Resources Defense Council v. Johnson, 461 F.3d 164 (2d Cir. 2006) (APA review limited to final agency action with no other adequate remedy)
- Elliott v. U.S. Dep’t of State, 122 F. Supp. 3d 39 (S.D.N.Y. 2015) (distinguishing denials for insufficient evidence from determinations of non‑citizenship; permitting APA review for erroneous issuance)