L. XIA, et al., Appellants v. Rex W. TILLERSON, Secretary of the United States Department of State, In Official Capacity and John F. Kelly, Secretary of the United States Department of Homeland Security, In Official Capacity, Appellees.
No. 16-5010
United States Court of Appeals, District of Columbia Circuit.
Argued March 21, 2017. Decided August 1, 2017.
865 F.3d 643
Michael E. Rosman, Washington, argued the cause and filed the brief for amicus curiae Center for Individual Rights in support of appellants.
Elianis N. Perez, Senior Litigation Counsel, U.S. Department of Justice, argued the cause and filed the brief for appellees. Wynne P. Kelly and R. Craig Lawrence, Assistant U.S. Attorneys, entered appearances.
Before: PILLARD, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
The plaintiffs, five former Chinese nationals, received certificates of United States naturalization, on the basis of which they obtained United States passports. In 2006, government investigators discovered that Robert Schofield, an employee of the United States Customs and Immigration Services (USCIS), had illegаlly issued nearly 200 certificates of naturalization to individuals—mostly Chinese nationals—who, the government contends, had not satisfied the requirements to become U.S. citizens. After USCIS learned of Schofield‘s illegal activities, it administratively canceled plaintiffs’ certificates of naturalization without seeking a court order, and the State Department administratively revoked or refused to renew their passports.
The plaintiffs sued, claiming that the administrative processes by which the United States canceled their certificates of naturalization and revoked their passports violated their rights to constitutionally and statutorily adequate process and to be free from discrimination based on their Chinese ethnicity. The government moved to dismiss the case for lack of subject matter jurisdiction on the ground that the United States had not waived sovereign immunity. The district court rejected that ground but, after giving plaintiffs an opportunity to amend their complaint, dismissed the amended complaint for failure to state a claim on which relief can be granted. Plaintiffs appealed.
We affirm the dismissal of plaintiffs’ claims that the government‘s revocations of their certificates of naturalization and their passports violated the Immigration and Nationality Act and due process because they took place through administrative rather than judicial process. We also affirm the dismissal of their claims of ethnicity or national origin discrimination. Because the government denied plaintiffs the administrative review of their passport revocations or non-renewals that the INA and agency rules require, however, we reverse insofar as the district court held that any plaintiff is barred by failure to exhaust administrative remedies from (a) challenging under the APA the government‘s failure to afford plaintiffs the review the law requires, and (b) pursuing
I. Background
A. Factual Allegations
On review of a dismissal for failure to state a claim, our description of events relies on plaintiffs’ allegations, which we provisionally accept as true. Aware that discovery and proffers of proof might well alter our understanding of the facts, we allow untested allegations of the complaint to set the factual stage for now. The government has yet to file an answer to the complaint, and the parties have neither conducted discovery nor presented or tested evidence as they would on summary judgment motions or at trial. But under the
The plaintiffs in this litigation—Lihong Xia, Wei Liu, Hoi Lun Li, Jinsong Chen, and Hua Chen—were Chinese citizens before they obtained their certificates of nat-
After USCIS officer Robert Schofield pleaded guilty to bribery and the unlawful procurement of citizenship or naturalization,1 the United States government revoked each plaintiff‘s certificate of naturalization and either revoked or denied renewal of their passports. Plaintiffs allege that they satisfied the requirements for naturalization and therefore are U.S. citizens. Neither the complaint nor any public record the parties have identified or provided explains precisely whether or how these plaintiffs’ facially valid certificates of naturalization and passports were affected by Schofield‘s activities. No information before the court at this stage shows that plaintiffs were aware of inadequacies or fraud in the procurement of their naturalization certificates or passports.
That said, the details of plaintiffs’ situations are not entirely clear. The allegations focus primarily on the experience of plaintiff Lihong Xia. The complaint alleges that Xia was naturalized and obtained her United States passport in 2004. She resided in the United States as a citizen, and traveled back and forth without incident between the United States and China, where her parents lived, until October 2009, when an officer from U.S. Immigration and Customs Enforcement (ICE) stopped Xia at the airport as she returned to the United States. After questioning her, the officer deemed Xia an “arriving alien” and seized her passport. Am. Compl. ¶ 15. The government initiated a removal proceeding, but the immigration court dismissed the proceeding because the Department of Homeland Security (DHS) failed to prosecute. Xia repeatedly contacted DHS to demand the return of her passport, to no avail.
A year and a half later, in 2011, USCIS sent Xia a notice of its intent to cancel her certificate of naturalization, asserting that Xia was among the nearly 200 individuals who received naturalization certificates from Schofield. The notice gave Xia sixty days to refute USCIS‘s decision in writing or request a hearing. Xia opposed cancellation and requested a hearing within the time limit. While the proceeding before USCIS was pending, the State Department notified Xia that it had revoked her passport based on USCIS‘s cancellation of her certificate of naturalization. Contrary to the State Department‘s explanation, however, USCIS had not yet issued any decision canceling Xia‘s certificate of naturalization and would not do so for another year. Once USCIS notified Xia that it had canceled the certificate, she appealed to USCIS‘s Administrative Appeals Office and appeared for a hearing. She once again denied USCIS‘s charge that her naturalization certificate was not adequately supported. By that time, USCIS asserted that it was her parents who were on the list of people affected by Schofield‘s misconduct. Xia strenuously disputed that her parents could have had any contact with Schofield because they had never set foot in the United States. Her position was that
The complaint contains sparse but similar allegations about Wei Liu. He allegedly was naturalized around 2001 and traveled abroad freely as a U.S. citizen. While on a trip to China in December 2007, however, he attempted to renew his U.S. passport. The State Department denied his application and confisсated his passport. USCIS sent Liu a notice of its intent to cancel his certificate of naturalization and provided him with an administrative hearing at the U.S. Embassy in Beijing. After the hearing, USCIS canceled Liu‘s certificate of naturalization. USCIS notified Liu of his opportunity to appeal its decision administratively, but the complaint does not say whether Liu pursued an appeal.
There is less we can glean about the remaining plaintiffs from their sparse and unclear allegations. Plaintiffs claim without elaboration that
- ICE agents confiscated Hoi Lun Li‘s passport at the Los Angeles International Airport, and USCIS later canceled her certificate of naturalization “without due process proceedings,” Am. Compl. ¶ 62;
- The State Department denied Jinsong Chen‘s passport renewal application while he was in Shanghai; and
- Hua Chen‘s passport and certificate of naturalization were administratively cancelled.
In addition to making various statutory and constitutional claims that the government failed to follow the requisitе processes to revoke their passports and certificates of naturalization, plaintiffs contend that the government targeted them for that unfair treatment based on their Chinese ethnicity. In support of the discrimination claims, plaintiffs attached to their complaint a list of individuals, who they contend were not Asian, who, they say, “received full evidentiary hearings” before being denaturalized. App‘x 161-82 (list of former U.S. citizens who have been denaturalized).
B. District Court Proceedings
Plaintiffs sued the Secretary of State and Secretary of Homeland Security in their official and individual capacities. As relevant to this appeal, plaintiffs sought declaratory and injunctive relief under (1) the Due Process Clause of the
Defendants moved to dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. They principally argued that the government had not waived sovereign immunity for this type of suit. See Defs.’ Mot. to Dismiss, Xia v. Kerry, 14-cv-57 (June 13, 2014). The district court rejected that argument, Xia v. Kerry (Xia I), 73 F.Supp.3d 33, 39 (D.D.C. 2014), but sua sponte dismissed the complaint without prejudice under Rule 12(b)(6) for failure to state a claim, id. at 39-46.
The court held that рlaintiffs failed to state a due process claim because it was “impossible to discern the procedures to which plaintiffs believe they were entitled but deprived.” Id. at 42. The court dis-
Plaintiffs moved for leave to amend their complaint to address thе shortfalls the district court identified. Their proffered amended complaint added claims under
II. Analysis
The district court dismissed plaintiffs’ case in its entirety and dеnied as futile their motion for leave to amend. We affirm the dismissal of plaintiffs’ claims that the government violated the INA and due process by revoking their certificates of naturalization and their passports through administrative rather than judicial process. We also affirm the dismissal of plaintiffs’ claims of discrimination, and the determination that the District of Columbia is the wrong venue for their claims under
We ordinarily review the denial of a motion for leave to amend for abuse of discretion, but where, as here, a district court denies leave to amend because the amended complaint would not survive a motion to dismiss, our review is de novo. In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010). As on review of a dismissal under Rule 12(b)(6), “we treat the complaint‘s factual allegations as true and must grant the plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.” Abdelfattah v. U.S. Dep‘t of Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015) (alteration omitted). “To survive a motion to dismiss, a complaint must contain suffi-
A. Claims of Inadequate Procedure Under the INA and Due Process Clause
We begin with the most troubling aspect of plaintiffs’ case: Their claims that their citizenship was revoked without the process required by the Constitution and federal law. Plaintiffs allege that they were “stripp[ed] of U.S. citizenship” without “any kind of due process,” i.e. the judicial process the INA requires to effectuate denaturalization. Appellants Br. 13.
1.
Citizenship is among the most momentous elements of an individual‘s legal status. “It would be difficult to exaggerate its value and importance.” Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). Many invaluable benefits flow from United States citizenship, including rights to vote in fеderal elections, to travel internationally with a U.S. passport, to convey citizenship to one‘s own children even if they are born abroad, to be eligible for citizen-only federal jobs, and, indeed, to be free of discrimination by Congress on the basis of alienage. Before an individual may obtain U.S. citizenship through naturalization, “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship.” Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981).
The possessor of a facially valid naturalization certificate is presumptively a citizen. “Congress has vested sole naturalization authority in the Attorney General,
“[O]nce citizenship has been acquired, its loss can have severe and unsettling consequences.” Fedorenko, 449 U.S. at 505, 101 S.Ct. 737. Denaturalization “may result in the loss of both property and life; or of all that makes life worth living.” United States v. Minker, 350 U.S. 179, 187, 76 S.Ct. 281, 100 L.Ed. 185 (1956). Reflecting the gravity of that step, revocation or cancellation of citizenship may only be accomplished by a federal judicial order. See United States v. Zucca, 351 U.S. 91, 95 & n.8, 76 S.Ct. 671, 100 L.Ed. 964 (1956); Bindczyck v. Finucane, 342 U.S. 76, 79, 72 S.Ct. 130, 96 L.Ed. 100 (1951); Schneiderman, 320 U.S. at 122-23, 63 S.Ct. 1333; Gorbach v. Reno, 219 F.3d 1087, 1092-98 (9th Cir. 2000) (en banc). In other words, although citizenship may be administratively bestowed, it can only be revoked by a federal court.
If the government concludes that a naturalized citizen is not legally entitled to citizenship, it may seek to effect denaturalization either through federal criminal prosecution or a civil action in federal court. If an individual knowingly procures naturalization or a certificate or evidence of citizenship to which the puta-
If proof of the requisite mens rea is lacking or some other factor counsels against criminal prosecution, the government alternatively may denаturalize a person by obtaining a civil denaturalization order in federal court pursuant to
Here, however, the government has not gone to court to seek denaturalization of any of the plaintiffs in this case; it has administratively canceled their certificates of naturalization and revoked their passports. The Attorney General has statutory authority, without a court order, to “cancel any certificate of citizenship” where it appears “to the Attorney General‘s satisfaction” that the document was illegally or fraudulently obtained.
Similarly, if the State Department discovers that a passport was “illegally, fraudulently, or erroneously obtained,” the Secretary of State is authorized to cancel it.
Even though administrative cancellation of a certificate of naturalization or passport cannot affect an individual‘s citizenship, those actions nevertheless have consequences. Without proof of one‘s citizenship, for example, a person will be unable to travel abroad, or to establish entitlement to the many other rights and privileges of citizenship.
Subject to exceptions relating to removal proceedings not relevant here, anyone in the United States who “claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States” has a statutory right to claim the benefits of citizenship in a declaratory judgment action under
2.
Plaintiffs contend that the government violated their right to statutorily and constitutionally adequate process by failing to provide them “full, fair and meaningful De-Naturalization proceedings.” Am. Compl. ¶ 5. The district court faulted plaintiffs for failing to identify the process they claim they are due. Although admittedly far from crystalline, we find it clear enough that plaintiffs claim entitlement to pre-deprivation process in the form of an action by the Attorney General in federal court, in which the government bears the burden of proof, as contemplated by
Plaintiffs challenge the validity of the administrative cancellations as, in effect, an unauthorized and unconstitutional workaround of the requisite denaturalization process, accomplished by treating the revocation of plaintiffs’ certificates of citizenship and passports as having confirmed plaintiffs’ lack of U.S. citizenship without the requisite court order. Am. Compl. ¶ 27. Plaintiffs are now, as they put it, in “a gray limbo,” unable to travel abroad or, in the cases of Wei Liu or Jinsong Chen, to return to the United States, and lacking any proof of United States citizenship that would allow them to enjoy its benefits. Id. At the same time, viewed by China as having been naturalized here, plaintiffs are unable to live in or travel to and from China as citizens of the nation of their birth.
First, the government argues that, because plaintiffs received their certificates of naturalization through an illegal and inadequate process tainted by the criminal conduct of USCIS officer Robert Schofield, plaintiffs simply never became citizens. A person who is a non-citizen is not entitled to either a certificate of naturalization or a passport. Once the authorized administrative processes took away those unlawfully conferred documents, the government reasons, the problem was fixed and no more process was due. See Oral Arg. Audio 19:41-20:27, 24:20-25:27.
Second, even assuming plaintiffs must be treated as if they were validly naturalized until proven otherwise, and acknowledging that judicial process under
a.
The first of these arguments is fatally circular. When pressed at oral argument as to why it did not seek orders in federal court under section 1451 to declare plaintiffs denaturalized, the government asserted that it need not do so because plaintiffs were never United States citizens to begin with. In their view, plaintiffs did not receive valid certificates of naturalization, so there is no citizenship for a court to revoke in an action under section 1451.
But that argument assumes what the government must prove. We cannot begin our analysis where the government does for two reasons. First, we are reviewing the denial of leave to amend the complaint for failure to state a claim, and so must provisionally credit plaintiffs’ allegations. See Interbank, 629 F.3d at 218. Plaintiffs allege that they met the naturalization requirements, and that their applications and eligibility were not undermined by USCIS official Schofield‘s fraudulent scheme. It is not clear why plaintiffs’ naturalizations would be invalid if, for example, they were not in fact among those Schofield illegally dealt with, or were extorted by Schofield and his illegal brokers in the process of obtaining naturalization for which they were nonetheless fully eligible. The government has not disputed that plaintiffs previously had facially valid certificates of naturalization and passports; it has not in this litigation yet had the chance to prove that plaintiffs did not qualify as citizens. At this stage, we must assume, as plaintiffs allege, that their certificates and passports evidenced U.S. citizenship.
The government‘s first rebuttal to plaintiffs’ procedural claims is inadequate for another, more fundamental reason. The government‘s own administrative decision—even if well supported and ultimately vindicated—cannot relieve it of its burden to prove to a court by clear and convincing evidence that plaintiffs’ apparent naturalization is invalid. Indeed, section 1451, providing for judicial action to revoke naturalization, explicitly speaks to cases in which naturalizations “were illegally procured or were procured by concealment of a material fact or by willful misrepresentation.”
The very cases that establish the principle that denaturalization requires a court order, obtained upon the government‘s clear and convincing proof, likewise rebut the government‘s position here. In those cases, as here, the government contended that naturalization was defective from the start.
The entire denaturalization question in Schneiderman, for example, was whether Mr. Schneiderman‘s certificate of naturalization was lawfully cancelled twelve years after it was granted because he had fraudulently procured it in the first place. 320 U.S. at 120-22, 63 S.Ct. 1333. The government argued that Schneiderman had never validly qualified as someone “attached to the principles of the Constitution of the United States” because he concealed his Communist affiliation in his application. Id. at 121, 63 S.Ct. 1333. The Court did not treat Schneiderman as a non-citizen simply because the government was convinced that he fraudulently obtained his U.S. citizenship, but instead required the government to persuade the Court with “the clearest sort of justification and proof.” Id. at 122, 63 S.Ct. 1333.
In Baumgartner v. United States, too, the government sued for denaturalization of a man whom, it asserted, falsely claimed in the naturalization process his allegiance to the Constitution and laws of the United States while in fact remaining loyal to the German Reich. 322 U.S. at 666, 64 S.Ct. 1240. The Court emphasized “the importance of ‘clear, unequivocal, and convincing’ proof on which to rest the cancellation of a certificate of naturalization” and placed that “weighty proof” burden on the government notwithstanding the government‘s claim that the certificate of naturalization was never valid because fraudulently procured ab initio. Id. at 671, 675, 64 S.Ct. 1240.
So, too, the petitioner in Costello v. United States, was ostensibly naturalized 27 years before the government sought to divest him of his citizenship. 365 U.S. at 268, 81 S.Ct. 534. The Court noted that the record left no doubt that, at the time of his application, petitioner Costello willfully misrepresented his occupation as “real estate” and concealed that he was in fact an illegal bootlegger. Id. at 272, 81 S.Ct. 534. Before it treated Mr. Costello as a noncitizen, however, the government was required to file a federal denaturalization complaint under section 1451 and shoulder its “heavy burden of proof.” Id. at 269, 81 S.Ct. 534; see Fedorenko, 449 U.S. at 508-09, 101 S.Ct. 737 (underscoring government‘s burden to prove the materiality of a false statement in a visa application in a case in which it was “seeking to revoke petitioner‘s citizenship because of the alleged unlawfulness of his initial entry into the United States“); Nowak, 356 U.S. at 661, 663, 78 S.Ct. 963 (holding that the government had failed to prove by clear and convincing evidence “that Nowak had obtained his citizenship both fraudulently and illegally“).
The government‘s position here contradicts both the INA and the long line of precedent requiring the government to use federal judicial process and meet a high standard of proof to effectuate denaturalization. If the government were correct that a successful administrative challenge to a naturalization certificate or passport on the ground that it was unlawfully procured sufficed to reveal the holder‘s true status as a noncitizen, obviating any need for judicial action under section 1451 to effect denaturalization, the precedents, the process provided by section 1451, and the express preservation of citizenship status in sections 1504 and 1453 would be illuso-
b.
The second response to plaintiffs’ due process claim hits the mark: The administrative actions that the government has thus far taken are not procedurally inadequate because they have not denaturalized the plaintiffs. In fact, the statutory authority on which the government rеlied is quite explicit that it authorizes only revocation of certain evidence of citizenship, not the citizenship status itself. See Gorbach, 219 F.3d at 1093 (noting that the INA “is unambiguous in not conferring upon the Attorney General the power to denaturalize citizens administratively” (emphasis omitted)).
The logic of the administrative route is that it stops short of denaturalization, and thus comports with denaturalization‘s more robust procedural prerequisites. As discussed above, if the government wishes to revoke a naturalized person‘s status as a citizen without first criminally prosecuting her, see
Assuming, as we must, that plaintiffs were naturalized United States citizens, they retain that citizenship status until the government obtains a court order vitiating it. Administrative actions alone are inadequate to extinguish any United States citizenship plaintiffs may have. The statutory authority that permits USCIS administratively to revoke а certificate of naturalization expressly provides that such revocation “shall affect only the document and not the citizenship status of the person in whose name the document was issued.”
Denying plaintiffs’ inadequate-process claims, however, need not leave plaintiffs in limbo. If plaintiffs believe that they are United States citizens and that USCIS erroneously invalidated their certificates of naturalization and passports, they may pursue (in the correct venue, as discussed below) the section 1503 claims in their amended complaint. Section 1503 provides for judicial review of denial of any “right or privilege” of citizenship, including invalidations of passports or naturalization certificates. Of course, any such claim requires objectively reasonable factual and legal support. See
That said, while section 1503 provides plaintiffs an adequate avenue to assert their citizenship claims, it is not available to them in the District of Columbia. The district court correctly held that this is the wrong venue. Section 1503 requires a claimant to file in “the district in which such person resides or claims a residence.”
Plaintiffs object that requiring them to seek recourse under section 1503 impermissibly shifts the burden onto them to prove their citizenship, thus effectively depriving them of their procedural rights. See Am. Compl. ¶ 57. But we cannot say that the minimal initial showing the statute requires of a plaintiff to trigger the government‘s proof burden facially invalidates section 1503 as a matter of due process, or puts it in conflict with section 1451. The threshold showing required of a section 1503 plaintiff is minimal. She or he need only show prima facie evidence of citizenship. See Perez, 356 U.S. at 47 n.2, 78 S.Ct. 568. Presenting proof of a naturalization certificate or passport—even if already administratively cancelled—would seem to satisfy that prima facie requirement. The government would then be put to its burden to establish by “clear, unequivocal, and convincing evidence” the plaintiff‘s lack of entitlement to the disputed “right or privilege” of citizenship. Id.
c.
We now consider the balance of plaintiffs’ INA claims. Plaintiffs contend that the government violated sections
Section 1421 grants the Attorney General the power to naturalize individuals.
Section 1447(b) permits a person whose application for naturalization has been pending without decision to apply for a hearing before the district court “for the district in which the applicant resides.”
Plaintiffs also assert that section 1451(a) authorizes the government to seek a court order denaturalizing a citizen.
There is, however, some resonance to the section 1451 claim insofar as that provision appears not only to authorize but to obligate the government to file in court if it has information that a certificate of naturalization may have been illegally procured.
This brings us to plaintiffs’ APA claim. Under the APA, a party aggrieved by agency action may seek judicial review to set aside a final agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The complaint appears to assert an APA claim challenging as arbitrary and procedurally inadequate the administrative revocation of the both the certificates of naturalization and the passports of all plaintiffs. Am. Compl. ¶¶ 70-71. The factual allegations specific to Xia allege that the State Department informed Xia on February 11, 2012, that it had revoked her passport because Xia‘s certificate of naturalization had been canceled by USCIS, but that was untrue and thus arbitrary. Am. Compl. ¶ 19. “Actually,” the complaint alleges, at the time of the passport revocation “there was no cancellation decision in place” regarding her certificate of naturalization; USCIS did not formally cancel Xia‘s certificate of naturalization until October 2, 2012. Id. When Xia sought reconsideration, the State Department informed her that she was not entitled to a post-cancellation hearing under
The district court rejected plaintiffs’ APA claims for failure to exhaust administrative remedies. Xia II, 145 F.Supp.3d at 73. We disagree, for two reasons.
First, plaintiffs’ APA claims are plausibly alleged, given that the government took the position that no administrative remedies were open to them through which to seek return or reissuance of their passports. They had nothing to exhaust before filing their APA claims. Plaintiffs accordingly have a futility defense to any failure to exhaust administrative remedies regarding the passport deprivations.
The State Department informed Xia that she was not entitled to any post-revocation hearing after it denied her request for the return of her passport. See App‘x 201. In responding to Xia, the government cited a series of regulations,
Section 51.70(b)(1) states that a person whose passport was deniеd or revoked based on “Non-nationality” is not entitled to a post-cancellation hearing. To the extent that the government relied on plaintiffs’ putative non-nationality as a reason to deny them post-deprivation process, section 51.70(b)(1) cannot bear the weight
Second, and more importantly, the APA requires exhaustion of administrative remedies “only when expressly required by statute or an agency rule.” Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). The government argues in a footnote that plaintiffs’ APA claims are barred for failure to exhaust, Appellee Br. 27 n.8, but it points to no statute or rule requiring exhaustion in this case.
The amended complaint seeks, among other forms of relief, an injunction instructing the Department of State to reconsider its decision to revoke plaintiffs’ passports and notify them of “the procedures to be followed for the administrative or judicial appeal.” Am. Compl. ¶ 104(E). Because the relevant law does not require exhaustion and, in any event, exhaustion would have been futile with respect to the passport invalidations, we vacate the district court‘s judgment in part and remand for further consideration of the APA claims, or for transfer of those claims together with the section 1503 claims to the correct venues.
C. Civil Rights Claims
Plaintiffs contend that the government targeted them for adverse treatment based on their Chinese ethnicity and nationality in violation of
Plaintiffs, aided on these issues by amicus Center for Individual Rights, focus instead on the section 1981 claim. Section 1981 guarantees to “[a]ll persons within the jurisdiction of the United States” the “same right” as white citizens enjoy “to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings” as well as equal “punishment, pains, penalties, taxes, licenses, and exactions.”
In response to Patterson‘s reading of section 1981 not to prohibit on-the-job racial harassment, Congress added section 1981(b), specifying that “‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
The district court held that subsection (c) limits section 1981 to claims against private parties or state actоrs, excluding federal actors. Xia I, 73 F.Supp.3d at 44. Before the 1991 amendment, however, the Supreme Court had treated section 1982, which “closely parallel[s]” section 1981, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441-42 n.78, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), to apply to “federal as well as state” discrimination, District of Columbia v. Carter, 409 U.S. 418, 422, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). Plaintiffs challenge the district court‘s holding that federal discrimination is no longer covered, contending that Congress did not intend its affirmation in subsection (c) of section 1981‘s application to private and “State” actors implicitly to eliminate claims based on the exercise of federal governmental authority. The district court‘s narrower view would, anomalously, make section 1981 inapplicable to territories, a result in tension with subsection (a)‘s coverage of all persons “in every State and Territory.” The 1991 Civil Rights Act should not, plaintiffs say, be read to effect by implication such a momentous repeal. See Appellants’ Br. 39-41; Amicus Br. for Ctr. for Individual Rights 16-22.
We have not had occasion to decide whether the Civil Rights Act of 1991 affected section 1981‘s coverage of federal government discrimination, and we find no occasion to do so here because plaintiffs have “not nudged [their] claims of invidious discrimination across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680, 129 S.Ct. 1937. In pleading a claim under section 1981, the “plaintiff[s‘] initial burden is not onerous.” Nanko Shipping, U.S.A. v. Alcoa, Inc., 850 F.3d 461, 467 (D.C. Cir. 2017). They must allege only facts that, “accepted as true,” suffice to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The allegations of discrimination in the amended complaint are so threadbare, however, that they do not meet even that low burden.2
The most concrete basis plaintiffs identify for their claims of discrimination is a chart that purports to list denaturalized former U.S. citizens, many of whom were implicated in the commission of war crimes. App‘x 161-82. Plaintiffs assert without factual support that the list contains over a hundred “similarly situated persons of other” (i.e., non-Chinese) “original ethnicity” who were denaturalized via valid processes not equally offered to the plaintiffs. Am. Compl. ¶ 34. That chart (which appears to have been copied from Wikipedia)3 and plaintiffs’ associated allegations fail to identify the listed individuals’ ethnicities or the process they received before being denaturalized. “The complaint and supporting materials simply do not ‘permit the court to infer more than the mere possibility of misconduct.‘” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 688 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). We therefore affirm the district cоurt‘s dismissal of plaintiffs’ Civil Rights Act claims on the alternative ground that they are not adequately pleaded. See EEOC v. Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000) (“[B]ecause we review the district court‘s judgment, not its reasoning, we may affirm on any ground properly raised.“).
III. Conclusion
We affirm the district court‘s judgment insofar as it dismissed the due process and INA claims that plaintiffs are entitled to a judicial determination of the validity of the cancellations of their certificates of naturalization and passports. We also affirm the district court‘s dismissal of the claims under
We reverse the district court‘s dismissal of the APA claims, including the district court‘s associated conclusion that the
But assuming, as discussed above, that they were naturalized, plaintiffs have not yet been denaturalized. The government has a strong interest in promptly clarifying the plaintiffs’ status, and where grounds for denaturalization appear, the government should initiate denaturalization proceedings under
The district court should consider on remand whether it is in the interest of justice to transfer plaintiffs’ section 1503 claims to the appropriate venues rather than dismissing them. We note that it is our normal practice “to transfer the entire case,” rather than severing the claims that were properly raised in this venue—here, the APA claims. Cameron v. Thornburgh, 983 F.2d 253, 257 n.5 (D.C. Cir. 1993). Our decision today is without prejudice to plaintiffs’ ability to seek leave to file amendеd complaints in the correct venues to clarify and develop their APA and section 1503 claims.
So ordered.