*1 FOX, Appellant R. Kenneth
Hillary CLINTON, Secretary Rodham State, Appellee.
No. 11-5010. Appeals, States Court of
United
District of Columbia Circuit.
Argued March
Decided June
68
EDWARDS, Judge: Senior Circuit (“Appellant”) Fox Jew- Dr. Kenneth —a lived in by American birth who has ish national for over a Israel as an Israeli of Loss of Na- decade —seeks a Certificate (“a CLN”) tionality Department from the (“the Department” agen- or “the of State to be entitled to a CLN cy”). He claims provisions Immigration under two of the (“the Nationality Act of 1952 INA” or Act”). Pub.L. No. 66 Stat. “the (1952) (codified as amended 8 (2006)). First, seq. 1101 et § he U.S.C. 349(a)(1) (“Sec- that under Section claims 1”) INA, intentionally tion of the he sur- nationality by “obtaining rendered his U.S. state,” Israel, foreign naturalization ..., “upon application having his own after age eighteen years.” attained the 1481(a)(1). Second, § he claims U.S.C. (“Section 349(a)(2) 2”) that under Section INA, intentionally relinquished of the he nationality by “taking his U.S. an oath or making an affirmation or other formal dec- state,” allegiance foreign to a laration of Israel, having again, “after attained the 1481(a)(2). Id. age eighteen years.” By representative, first sub- request mitted a for a CLN to the State argued Jack L.B. the cause and Gohn Department Department de- appellant. filed the briefs for however, request, claiming nied the Banias, Bradley Attorney, B. Trial satisfy Appellant’s acts did not INA’s Justice, Department argued the cause respect to requirements. With appellees. him on the brief was With INA, that, noted West, Tony Attorney Assistant General. law, Appellant had under Israeli obtained Lawrence, Craig R. Assistant U.S. Attor- return,” nationality “by rather than Israeli ney, appearance. entered Law, “by naturalisation.” (1951-1952); see 6 LSI GARLAND, Judge, Before: Circuit determinative, also id. §§ 5. This was WILLIAMS, Senior EDWARDS because, in according agency, to the Judges. Circuit view, the conferral of Israeli nationality “by naturalisation” occurs Opinion for the Court filed Senior application,” as the INA re- “upon Judge Circuit EDWARDS. quires, whereas the conferral of merely by automatic Concurring opinion “by filed Senior return” occurs i.e., application. not Judge operation Circuit WILLIAMS. law— instructions to the case the with remand respect With that there was insuffi- for reconsideration of Department found had sworn a for a request pursuant cient evidence lant’s CLN to Sec- meaningful allegiance oath of Israel. tion 1 of the INA. *3 denial Appellant appealed Background I. proce-
through informal administrative avail. He then filed this suit dures to no Statutory A. The Framework final deci- challenging 1. The INA sion, on March contained a letter issued 8, from Edward A. Be- person 2010. See Letter The INA states who is a “[a] Dir., tancourt, Policy Review and Office of national of the United States whether Liaison, naturalization, Interagency Bureau of Consular birth or shall lose his na- (March 8, Affairs, Gohn, Esq. tionality by voluntarily performing” any L.B. Jack. 2010) (“Betancourt Letter”), reprinted in in- designated expatriating act “with the invoked Appellant’s complaint relinquishing tention of United States na- 1481(a). jurisdiction § tionality.” the District Court’s under 28 8 U.S.C. § performed expatri- 1331. The District Court as- claims to have two such
U.S.C. a complaint ating that the stated cause of acts: sumed
action under the Administrative Procedure (1) obtaining naturalization in a foreign (“the APA”), § seq. Act 501 et application upon state his own (2006). Clinton, F.Supp.2d See Fox v. application by duly filed a authorized (D.D.C.2010) 122, (citing 127 & n. 3 agent, having after attained age 706). §§ Department The U.S.C. eighteen years; or dismiss, which the Dis- filed motion to (2) taking making an oath or an affirma- granted. Ap- trict Court See id. at 131. tion or other formal declaration of alle- pellant appealed then the District Court’s giance foreign political to a state or a decision to this court. thereof, having subdivision after at- judgment age eighteen years.... We affirm the District Court’s tained upholds Depart- insofar as it Id. eligi- decision that is not ment’s “naturalization” INA defines as ble for a CLN under Section of the INA. nationality conferring of a state remand, however, the Dis- We reverse birth, by any after means upon person judgment dismissing Appel- trict Court’s whatsoever. challenge deci- lant’s 1101(a)(23) added). (emphasis This Id. denying request sion his for a CLN under obviously meaning controls the definition agency’s statutory Section 1. The inter- “naturalization” under 1 of the pretation of Section of the as ren- INA. Letter, dered the Betancourt is not And, Congress adopted be- the “intention of relin-
entitled to Chevron deference.
provide quishing
nationality”
re-
cause the
failed
United States
explanation
quirement
Immigration
coherent
for its decision
1986. See
1986,
1, Nationality Act Amendments of
regarding
applicability
of Section
arbitrary
ca- Pub.L. No.
100 Stat.
action was
prior
Even
to the 1986 amendments
pricious for want of reasoned decisionmak- 3658.
INA, however,
the law was clear
ing.
judgment
We reverse the
the Dis-
could
points
trict
on these
and remand
that an American citizen
not lose
Court
Nationality “by Return”
that he
showing
absent
or her
act”
“expatriating
or she committed
2 of Israel’s
Law
to terminate United
specific
with a
“intent
requirements
obtaining
describes the
Terrazas,
v.
citizenship.” Vance
States
nationality “by
Israeli
return.” The rele-
252, 263, 100 S.Ct.
444 U.S.
amended,
portions
vant
of Section
as
(1980);
Afroyim
see also
L.Ed.2d 461
read as follows:
253, 267-68,
Rusk,
87 S.Ct.
387 U.S.
(a) Every
under the Law of Re-
‘oleh
(1967).
Act also establishes a rebuttable person expatri- a who commits an tion that (4) by person who has received an voluntarily. ating act does so See id.
‘oleh’s certificate under section 3 of the Law of Return —with effect from Nationality Law and Law 2. Israel’s day of the the issue certificate. of Return (c) apply— This section does not Nationality Law forth the Israel’s sets immigrants procedures must follow to (2) person age to a of full who imme- law, nationality. That as obtain Israeli diately day aliyah before the or amended, states: immediately day before the of the is- nationality is acquired— Israel sue of his oleh’s certificate was a for- (section 2), by who, return eign national and on or before day or within three months there- (section 3), by residence Israel foreign after and while still a national (section 4)[,] by birth declares that he does not wish to be- (section come an Israel national.... by and residence Israel birth 4A)[,] Law, 5712-1952, Nationality § 2 6 LSI (footnotes omitted) (citations omitted), as (sections 8) by naturalisation 5 to or (Amendment by Nationality amended No. (section 9). by grant 2) Law, 5728-1968, 2;§ see Addendum. “ There shall be no Israel save ‘aliyah mean respectively ‘[O]leh under this Law. and the immigrating, immigration Jew Jew, Nationality into the Land of Israel.” Law, 5712-1952, 6 LSI Law, 5712-1952, 6 LSI Translator’s (Amendment by Nationality as amended Note. 2) Law, 5728-1968, 1;§ No. see Adden- Return, which, dispute dum. The in this case is focused The Law of as noted above, nationality acquired “by “by expressly incorporated by on return” or is reads, Law, Nationality Nationality part, naturalisation” under Israel’s relevant as Law. follows: may Every right apply Jew has the to come to otherwise enters Israel for an 3(a). oleh’s country
this as oleh. certificate. See id. (a) visa. Aliyah shall be oleh’s that, noteworthy It is also under the (b) granted An visa shall be Return, oleh’s Law of Israel’s Minister of the every expressed who has his de- Jew may deny applications Interior for either Israel, to settle in unless the Min- sire an oleh’s visa or an oleh’s certificate of the Interior is satisfied that “(1) ister finding applicant engaged is in an applicant activity against directed the Jewish people; (2) likely endanger public or is health or (1) engaged activity in an direct- is (3) State; security person or is a against people; or ed Jewish criminal past, likely endanger with a (2) likely endanger public 2(b), 3(b), §§ public welfare.” Id. as State; security or the health (Amendment amended Law of Return 5714-1954); see Addendum. other (3) person past, is a with a criminal words, nationality “by conferral of return” likely endanger welfare. public *5 pursuant is secured to application, not (a) A Jew who has to Israel come automatic operation of law. subsequent to his arrival ex- has his desire to in pressed settle Israel “by Nationality Naturalisation” Israel, may, still in while receive Nationality Section 5 of Israel’s Law oleh’s certificate. requirements addresses the for an individ- (b) specified The restrictions in sec- nationality ual to “by obtain naturalisa- 2(b) apply grant tion shall also to the tion.” law states: certificate, person of an oleh’s but a (a) A of full person age, being not regarded not be endangering shall as national, may Israel obtain Israel nation- public health on account of an illness ality by naturalisation if— contracted after his arrival Israel. (1) Israel; he is in Return, 5710-1950, Law LSI (2) he has been in Israel for three (1949-1950) (footnote 1-3, omitted), §§ as years years out of preceding five (Amendment amended Law of Return day of the applica- submission 5714-1954); see Addendum. tion; and plain foregoing It from the provisions (3) he is entitled to reside in Israel nationality “by return” in Israel turns permanently; and requirements on the of Israel’s Law of (4) settled, settle, he has or intends to Nationality Return. The Law and the Israel; expressly integrated Return Law of are (5) knowledge he has some of the He- Thus, point make this obvious. for exam- brew language; and 2(b)(2) ple, Nationality Law (6) prior he has renounced his nation- corresponds to section 2 of the Law of ality proved or has that he will cease Return, the latter of that a which states foreign to be a national becom- oleh, may enter Jew Israel as an on an ing an Israel national. Return, oleh’s visa. See Law of 5710- 2(a). (b) person applied LSI And section a for na- Where 2(b)(4) turalisation, Nationality corresponds require- Law and he meets the Return, (a), to section 3 of the Law of ments of subsection the Minister of Interior, so, latter of which states that a who if he thinks fit to Jew do attorney, Erin nationality by July him On grant Israel shall Green, Department request- of naturalisation. contacted the a certificate issue of ing on behalf under CLN (c) nationality, grant Prior to the 2 of the INA. Letter and/or following decla- applicant shall make Green, Dir., Esq. Erin from Office ration: Policy Interagency Review and Liaison loyal I will be a nation- “I declare letter, 8, 2009), (July App. 28. In the al of Israel.” State explained Green had ob- (d) acquired day on the Nationality is 2002; tained from Israel in the declaration. he not lived in the United States “ha[d] Law, 51, § 6 LSI 1996”; that he not in the “ha[d] since been 1997”; United States since that he “ha[d] History B. Facts and Procedural pass- not travelled on a United States [sic] by birth. He Appellant is a U.S. citizen 1999”; that cur- port since he not “[was] Cyprus from on a visi- traveled to Israel rently in possession of United States tor’s, Ap- in October 2001. non-oleh’s visa passport”; that he not voted “ha[d] 3-4, 11; Br. at 1. pellant’s Br. Gov’t’s 1992”; United States since that he “ha[d] thereafter, “Ap- submitted an Shortly he regularly voted Israel since he became [in] Permit of Permanent Resi- plication for citizen”; and that he not had “ha[d] Per- Application dence Israel.” See business ties to the United States since Israel, mit of Permanent Residence Id., App. 1996.” 29-30. Attached to the form, 113. On *6 Ap- letter was a notarized affidavit from checked off a box to indicate his intention pellant indicating by seeking Israeli ” of ‘oleh’ to seek a “Certificate under the 2002, nationality he had intended to Law of Return. See id.- The record is nationality. renounce his Fox U.S. See sequence unclear on the of somewhat Aff. Citizenship, of Renunciation of U.S. Appellant events that followed. claims 7, 2009, July App. replied 31. Kim Richter actually that he never received an oleh’s and, on behalf of the State Appellant’s certificate from Israel. See correspondence, over the course of a brief 11-12; Br. Appellant’s Reply Br. at 13- See, E- Appellant’s request. e.g., denied undisputed Appellant 14. But it is did mail Kim B. Erin from Richter to Green 30, nationality January obtain on Israeli 6, 2009), 39; (Aug. App. E-mail Kim from 2002, when Israel issued him a citizenship 5, 2009), (Aug. B. Richter to Erin Green App. (photocopy card. of Appel- See 34; App. E-mail from Kim B. Richter to citizenship card submitted lant’s to State 21, 2009), info@ktalegal.com (July App. 32. Moreover, 2010, Department). at Ap- 2009, Gohn, pellant’s request, September Israel also issued a cer- Appel- Jack attesting court, tifícate to his Israeli citizenship. lant’s counsel before this contacted Betancourt, Attesting See Certificate Israeli Citizen- Edward the Director of the (Feb. 2010) 3, ship (“Citizenship Policy of Interagency Certifi- Office Review and cate”), App. That Department. 138. certifícate indicates Liaison at the See Letter that, concerned, so far as Appel- Israel is from Jack L.B. Gohn to Edward A. Be- 2002, 8, 2009), nationality lant obtained Israeli (Sept. App. tancourt 40. Gohn 2(B)(4)” “[a]ccording paragraph conveyed of the Appellant’s appealing interest Law, provision gov- id.—the the Department’s requested decision and erning nationality “by regarding procedures the conferral of re- information for id., filing turn” via an oleh’s certificate. such an appeal. App. See 4, 2009, replied on December had eliminated Betancourt previously information Appellate requesting suba- relevant to of Review—the the Board for responsible that had claim under Section 1 of the INA. body been lant’s gency “al- favor of Betancourt cer- reviewing Specifically, “[a] CLN decisions—in asked ternative, application of loss of the for Israeli copy less cumbersome review tified Bu- by the that Dr. Fox on Oc- nationality citizenship determinations submitted of Department of ... of Mr. copy [a] Affairs.” tober certified reau of Consular Review; State, Appellate Review citizenship Board of Fox’s Israeli certificate^] Rule, Nationality, copies 73 Fed. pages Final of all the of Loss [and certified (Oct. 2008). 62,196, 62,196 And passport.” Letter from Ed- Reg. U.S.] [Fox’s that, replied under the new A. Betancourt L.B. Gohn Betancourt ward Jack (Dec. 2009), possessed final system, App. reply, his office discretion 109. In Gohn following denial of materials: to review submitted See Letter from Edward A. request. requested application, page first CLN (Nov. 2, to Jack L.B. card copy Appellant’s Betancourt Gohn Israeli (Gohn 2009), subsequently copy App. 58. also submitted Certificate), a Appellant’s Citizenship appeal filed informal Gohn and a copy Appellant’s passport, Israeli on denial November See passport. copy to Ed- from Jack L.B. Gohn Letter L.B. from Jack to Edward A. Letter Gohn (Nov. 2009), App. Betancourt ward A. (Dec. 15, 2009), App. 110-27. Betancourt respect to Gohn 65-69. With requested then that Gohn sub- nation- had obtained stated copy of oath of signed mit a “certified submitting for citi- ality by application the state that Mr. allegiance to of Israel the Law of zenship “under Section 3 of Letter alleged Fox is have taken.” Id., argued that Return.” 65. Gohn A. L.B. from Edward Betancourt to Jack to a accordingly was entitled (Jan. 21, 2010), App. 128. Gohn Gohn CLN, loss of “the elements for because *7 part in relevant that Betancourt replied 1 are all citizenship under INA Section not requesting document “that does was (c) (a) naturalization; intent; (b) present: exist, taking of required. and is not The Id., App. 66. (d) age.” and application; act, oral a written the oath was an not respect to 2 of the And with Ed- Letter from Jack L.B. Gohn to one.” that had recited explained Gohn (Feb. 2010), App. A. Betancourt ward allegiance oath of that Israel precise 130. seeking Israeli na- requires persons from issued On March Betancourt Na- tionality “by under the naturalisation” parties agree is the what both id., App. Law. 68. Gohn tionality in decision this case. The Betancourt final had not obtained admitted states: Letter But provision. under of form of The cannot issue explained only that “as the State Gohn on the basis of Section contemplated by [CLN] Israeli natu- Mr. Fox declaration 349(a)(1) law,” simply none- due [INA] oath was ralization fact that he has heretofore not demon- appropriate approved “the and theless he has as a citi- allegiance to naturalized of oath or declaration of strated form foreign “upon his own Israel, form of zen of a state appropriate and hence present- INA meaning of evidence application____” within the declaration Id., that Mr. Fox to date establishes ed 2.” 74 in permanent timely appeal seeking residence Isra-
applied
overturn
of
judgment
the District
unambiguous in re-
Court.
The statute is
el.
apply
citizen to
for nat-
quiring
U.S.
Analysis
II.
within the
uralization in order to fall
of this section of the law.
purview
A.
of Review
Standard
you
asserting
in
While
are correct
one,
“In a
like the
which
case
instant
in
349(a)(2)
the INA does
that Section
of
agency
the District Court reviewed an
ac
require
allegiance
the oath of
to be
not
APA,
tion under the
we review
admin
writing,
require
we do
evidence that
directly,
par
istrative action
no
according
objective
both
independent
judgment
ticular deference to the
meaningful
allegiance
oath of
has been District
Mining
Court.’’ Holland v. Nat’l
you allege
taken. The oath that
that Ass’n,
(D.C.Cir.2002)
F.3d
814
orally
Fox has
Mr.
taken is administered
(citations omitted).
words,
we
other
to individuals who naturalize as Israeli
“do not defer to a district
of
court’s review
pursuant
paragraph
citizens
five of
adjudication
agency
more than
Israeli
of
Citizenship
Law
1952. Supreme
ap
Court defers to a
of
court
citizenship
The Israeli
issued
certificate
of
peals’ review such a decision.” Novicki
your
clearly
client
indicates that he
Cook,
(D.C.Cir.1991)
946 F.2d
acquired
(citation
citizenship
omitted).
in accordance with
paragraph
acquired
Citizenship
potentially overlapping
Two distinct but
accordance with this
of the law
section
standards
APA review
the in-
govern
not appear
require
taking
does
First,
dispute.
stant
requires
the APA
allegiance.
an oath of
agency
“arbitrary,
actions not be
ca-
(third
Letter, App.
pricious,
discretion,
an abuse of
other-
altera-
wise
original).
tion
not
accordance with law.” U.S.C.
706(2)(A).
The Supreme
ampli-
Court
Court,
Appellant filed suit in the District
fied the
for arbitrary
capri-
standard
effectively seeking “declaratory and man-
cious review Motor Vehicle Manufactur-
damus relief requiring the
Farm,
U.S.,
ers
Ass’n
Inc. v. State
recognize
State to
expatriating
acts
Co.,
Mutual Automobile Insurance
thereby
issue him a
Certificate Loss
103 S.Ct.
75
See,
involving judicial
agency
tions
review of
decisionmaking.
of reasoned
product
924,
See,
679 F.3d
McHugh,
adjudicatory
e.g.,
v.
actions.
Allentown
e.g., Cobum
(D.C.Cir.2012);
Siegel
Serv., Inc.,
375,
v.
933-35
522
at
Mack Sales &
(D.C.Cir.2010);
SEC,
147,
592 F.3d
158-64
(noting that
deci-
reviewing such an
follows 332 F.3d
659
omitted).
steps:
Supreme
two familiar
The
Court has clari
“[djeference
that
fied
accordance with
One, if
Step
Pursuant
to Chevron
clear,
...
it
Chevron
is warranted
is
‘when
Congress
intent of
review-
authority
appears
Congress delegated
give effect to that unam-
ing court must
agency
to
Congress
generally
intent.
If
make rules car
biguously expressed
law,
directly
rying
agency
the force of
and that the
precise
has not
addressed the
issue,
interpretation claiming
question
reviewing
pro
court
deference was
at
proceeds
Step
mulgated
to Chevron
Two.
Under
the exercise of
authori
”
Two,
Gonzales,
Congress
255-56,
Step
explicitly ty.’
has
546 U.S. at
“[i]f
126
fill,
agency
gap
left a
for the
to
there is
(quoting
S.Ct. 904
United States v. Mead
authority
218,
an
express delegation
226-27, 121
2164,
to the Corp., 533 U.S.
S.Ct.
specific
(2001)).
agency
provision
to elucidate
However,
77
CLN,
“the fact
Agency
because the INA that
request
[an]
[reach-
lant’s
for
requiring
interpretation through
in
the
citi-
its
means
unambiguous
es]
“is
U.S.
less
to formal
than
and comment’
zen to
naturalization
order
‘notice
rule-
apply for
making,
553,
5
of
the
see
does not
purview [Section 1]
fall within the
of
U.S.C.
auto-
added).
matically deprive
interpretation
On
rec-
of
(emphasis
law.” Id.
the
the
us,
judicial
its
Department’s position
ord
the
deference otherwise
due.”
before
Walton,
Barnhart v.
difficult to fathom.
535 U.S.
122
(2002) (cita-
1265,
S.Ct.
the instant case.
The
Betancourt Letter Is
Barnhart,
In
the Court deferred to an
Not
to Chevron Deference
Entitled
agency’s published interpretations of an
ambiguous,
v. Harris
interstitial
statute and
County,
Christensen
regulations
regula-
120 S.Ct.
L.Ed.2d 621
own
—which
(2000),
Supreme
promulgated pursuant
Court warned that
tions had been
to an
express
rulemaking
agency “[i]nterpretations
delegation
such as those
authori-
217, 218-19, 222,
ty.
opinion
interpretations
con-
See 535 U.S. at
letters —like
Menkes,
statements, agency
tained
manu- S.Ct. 1265. In
we deferred to an
policy
als,
guidelines,
agency’s interpretation
all of
was offered in
and enforcement
decision,”
[adjudicative]
which lack the force of law—do not war-
“exhaustive
deference,”
Chevron-style
rant
which the
“addressed
issues
id.
(citations omitted).
remanding
raised
this court
[in
S.Ct. 1655
clarified, however,
in'his
and Menkes’s counsel
sub-
Supreme
case]
Court
later
*11
Christensen,
least,
at
challenged
F.3d at
the
remand.”
letter
mission on
Moreover,
agency
general
noted that the
“was
issuing agency’s
policy
we
offered the
delegation
to an
acting pursuant
express
position
respect
provision
with
to a
agency
that the
Congress”;
Act,
from
was ad- Fair
with supporting
Labor Standards
complex,
the sort of
dressing “precisely
regulations.
to corresponding
references
[agency]
that the
questions
interstitial
de-
Opinion
See
Letter from Karen R. Kees-
address”; and
that the
Adm’r,
serves deference
ling, Acting
of Labor
Dep’t
(Sept.
judgment
long-
“reflect[ed]
14, 1992),
Here, by
[agency] operate[d],”
“exper-
tise,” the “careful craft of the scheme it
Entirely
The Betancourt
Is
Letter
Unpersuasive
devised to reconcile the various statutory
provisions,” and the fact that the agency’s
The Betancourt Letter states that
great
legal leap
“decision made no
but Appellant’s
did not satisfy
naturalization
large part
previous
relied in
on its
deter-
requirements
of
But this
mination
same
similar issues and
appears
conclusion
on an
be based
un
(cita-
regulations.”
on its own
at
Id.
persuasive
requirements
view the
omitted).
tions
INA,
seemingly faulty
some
assumptions
short, Barnhart, Menkes,
In
My-
requirements
law,
about the
of Israeli
Laboratories,
reviewing
lan
courts de- possible
misunderstandings
the material
agency interpretations
ferred to
of statutes
facts in
case.
this
delegated
within their domains of
authori-
There can be no
doubt
ty,
interpretations
because the challenged
Israel,
naturalization” in
“obtain[ed]
as re-
Barnhart;
satisfied the factors
laid out
INA,
quired
by Section
U.S.C.
agency
and the
interpretations were clear-
1481(a)(1).
§
Citizenship Certificate,
ly
general
to have
applicability
intended
138;
App.
(photocopy
and the
of law.
resulting
force
actions
card).
citizenship
lant’s Israeli
And the
easily subject meaningful ju-
were thus
Department does not
that Appel-
doubt
scrutiny,
dicial
because the
deci-
lant performed this act
with
neces-
sions
thoroughly explained.
were
sary
of relinquishing
“intention
United
1481(a).
cannot say
nationality,”
We
the same of the States
8 U.S.C.
Letter,
Instead,
particularly
rejec-
because
based its
nothing
give
there is
in it to
tion
supposedly “unambiguous”
deference to.
on the
Indeed,
ways,
it
even
meaning
phrase “upon
some
less de
his own ap-
serving
plication”
of Chevron deference than
was the
1481(a)(1).
opinion
Letter,
letter
issue in
Christensen.
See Betancourt
*12
Department’s statutory argument
According
Department,
The
App. 189.
na-
was
nationality “by
Appellant
obliged
that
to obtain citi-
the
of Israeli
conferral
“upon
applica-
zenship
“by
...
in Israel
naturalisation”
occurs
and
turalisation”
tion,”
“by
perplexing given
the
return” is
requires,
INA
whereas
not
as the
nationality
express, expansive
occurs
definition
“by return”
INA’s
conferral of
law,
noted,
not
As
merely
operation of
“naturalization” noted above.
by automatic
“
Therefore,
says
De-
in the
the statute
‘naturalization’
upon application.
view,
nationality
Appellant
conferring
did not obtain means
partment’s
birth,
person
by
application,
upon
state
after
upon
naturalization
because
by
merely
means
whatsoever.”
U.S.C.
citizenship
he obtained Israeli
added).
1101(a)(23) (emphasis
§
his oleh’s
How
operation
receiving
of law after
matter
Appellant ap-
a non se-
then can it
whether
This conclusion is
certificate.
nationality “by
for Israeli
plied
naturalisa-
quitur.
“by
Department’s
tion” or
return”? The
not,
Department
as
The INA is
interpretation would make some sense
claims,
on
matters in
unambiguous
right
only
person
if it were
that a
obtains
the Be-
dispute. The first obvious flaw in
nationality “by
without
Israeli
return”
sub-
it
compre-
is that
fails to
tancourt Letter
mitting
application.
an
But that
is not
the INA defines “naturalization”
hend that
Indeed,
happened
this case.
what
a state
conferring
nationality
as
“the
Appellant
Department
conceded
birth,
any means
after
person
nationality only
Israeli
after
obtained
he
(em-
1101(a)(23)
whatsoever.”
an oleh’s certificate.
applied
His
for
added).
noted,
we
there is
phasis
As
have
certificate —which led to Israeli citi-
oleh’s
to how
obtained
dispute
Appellant
some
as
his
zenship
only
appli-
obtained
after
—was
nationality.
The
his Israeli
Likewise,
accepted.
cation was
Israeli
agree,
are
contends—and we
inclined
citizenship
card was issued to
Ap-
in the
given
evidence
record —that
applied
Appel-
after he had
for it.
for an oleh’s certificate
pellant applied
not
presence
lant’s mere
Israel was
how
shortly
certifi-
a citizen
after that
became
citizenship.
he obtained
cate’s issuance.
counters
argument,
for the
At oral
counsel
De
he
received an oleh’s certificate
never
argued
partment
that the
inter
practice
in Israel is to
the common
reasonable,
it pre
because
pretation
permanent
treat
for
resi-
application
losing
Israeli citizens from
vents dual-U.S.
application
citizenship.
dence
as
citizenship inadvertently.
American
their
But
is immaterial: The INA
the difference
not offer
But
did
this
unambiguously
Appel-
does not
foreclose
in the
Letter.
explanation
Nor
lant’s
inter-
loss of
under either
why
Department’s
explain
counsel
this
did
case, Appel-
pretation of events.
either
exists,
the INA’s
alleged
given
risk
re
“application”
lant filed an
that resulted
“obtaining
that the
quirement
act of
natu
naturalization”;
“obtaining
his
the Israeli
... upon
application”
ralization
must
the Interior had discretion
Minister of
expatriating
in
specific
be made with
Return,
see
deny
application,
Law of
in a
citizenship.
tent to result
loss of U.S.
2(b), 3(b),
§§
as
LSI
Vance,
1481(a)(1);
444 U.S. at
U.S.C.
(Amendment
amended
Law Return
258-63,
Second,
part
on the
the State must
explained
the
Department
be made in accordance with the laws of
Betancourt
that it
accept
Letter
could not
(citation omitted) (internal
that State.” Id.
Appellant’s
request,
CLN
because his oath
omitted).
quotation marks
sufficiently “meaningful,”
was not
insofar
as it had
required by
not been
Israel.
Appellant
that the
claims
Letter, App.
Appellant
139.
law,
policy is contrary to
because it impos-
does not claim that his oath
required.
was
es a burden on
right
the fundamental
Instead,
objects
he
policy expatriation.
Savorgnan
v. United
of granting
pursuant
a CLN
to Section 2 States,
338 U.S.
70 S.Ct.
to
who
individual
makes an oath
(1950) (“[T]he
obtain CLN State, Foreign Af- *16 diplomatic or ciation of before Affairs fairs Manual —Consular 1250-54 States.” 8 officer of United consular (Last 2012) May 29, visited (“Section 5”). 1481(a)(5) Given U.S.C. (cid:127) http://www.state.gov/documents/ unnecessary to we find it disposition, our organization/120544.pdf claims that he cannot address WILLIAMS, Judge, Senior Circuit 5 or to request a CLN under Section concurring: why as to he did not seek CLN speculate place. provision
under this the first finding that I do not understand us to be however, note, that it is immate- doWe Department’s Di- decisions of the State Appellant could receive a rial here whether rector, Policy Review and Inter- Office of nothing in under 5. There is CLN Af- agency Liaison Bureau of Consular that an individual who suggest the INA to fairs, ambiguous provisions of interpreting to a CLN under one might be entitled 1481(a) in order to decide entitled to a CLN provision cannot be for a Certificate of applicant whether an another. The fact under to such a Loss of is entitled receive, received, or still could could have certificate, qualify can never for Chevron cannot, without a CLN under Section (in parlance academic the “Chev- deference more, justify denial of issue). Step enough Zero” It is ron request for a CLN under Sec- qual- offered here does not explanation 1 or of the INA. tion Thus a ify decisionmaking. as reasoned See, e.g., is essential. Northern remand
Conclusion Service, Cargo v. Postal 674 F.3d Air (D.C.Cir.2012) (where judgment of the District Court attempt parse “no ... part part. affirmed in and reversed has made We statutory lan- ambiguous the case to the District Court with reconcile remand ... course is to re- guage,” “proper the case to the instructions to remand careful gain authoritative and to reconsider mand Department of State interpretations provi- disputed
sions”). Palmlund, LTD., Tax David Partner, Appellant
Matters
COMMISSIONER OF INTERNAL SERVICE,
REVENUE
Appellee.
No. 11-1242. Appeals,
United States Court of
District of Columbia Circuit.
Argued April
Decided June