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Case number 16-5065.

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James J. Coughlin, appellant for Susan Lane C. Duke, acting secretary of the United States Department of Homeland Security and L. Mr. Borah for the amicus cari, Mr. Biela for the appellees.

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May it please the court?

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My name's Amit Bhora, and I'm here on behalf of Amicus Council, appointed to support the appellant, Mr. Kaufman.

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At issue here is whether a USCIS field office violated the APA when it held that Mr. Kaufman lacked the intention to relinquish his US nationality simply because he lacked a present physical ability to leave this country and enter another.

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And the statutory structure is key here.

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Why do you call this?

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I'm curious about that.

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Your brief talks about the APA

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And you just said the question is whether it violated the APA, but why isn't this just a straightforward question of statutory interpretation?

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I mean, as you say in your brief, I mean, the statute says, commits one of the following acts.

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with the intention of relinquishing U.S.

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nationality, intention of relinquishing U.S.

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nationality, and the agency has, according to you, has gone beyond that and imposed a per se rule, right?

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So why aren't we just asking whether that's a proper interpretation of the statute?

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We followed the analytical framework that was outlined in Fox v. Clinton.

[00:02:26] Speaker 03:
Well, that doesn't really answer my question.

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I just asked you.

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I'm looking at the statute.

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The question is, the statute says intent, and the agency says that there's more than just subjective intent, right?

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But in addition, they have to show a credible plan or ability to leave, right?

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Yes.

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So why isn't that a question of statutory interpretation?

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Yes, this is a question of statutory interpretation.

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The agency has entirely misinterpreted the statute.

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So it's not an APA case.

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It's a Chevron case.

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It would be both, Your Honor, we believe.

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OK.

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OK, we'll go ahead with your argument.

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Well, under 1481A.

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See, you're starting with the Statute, just like I am.

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Under 1481A, Congress has enumerated seven or eight expatriative acts.

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And 1483 says that if the US national performs any of those expatriative acts within the United States, then the US national will lose his or her nationality only after leaving the United States and entering another country.

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But 1483 expressly exempts A6 from that requirement.

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A6 is the domestic renunciation provision under which Mr. Coughlin is proceeding.

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So 1483, but in conjunction with A6, amounts to this rule, if you're a U.S.

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national and you wish to renounce and thereby relinquish your U.S.

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nationality, you may do so without ever leaving the United States and without ever stepping foot on foreign soil.

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So what the letter has done is grafted a condition onto A6 that directly contravenes the structure that Congress adopted.

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The letter is saying that, no, if you're a U.S.

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national, you may not leave this country and you may not renounce your nationality and thereby relinquish your nationality unless you leave this country and demonstrate a present fiscal ability for doing so.

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So the letter has imposed a condition onto ASICS that is precisely what Congress exempted ASICS from.

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So in that sense, the letter is simply at loggerheads with the statutory structure.

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And the statutory structure.

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I thought the purpose of the letter was to interpret this phrase, the intention of relinquishing US nationality, and concluding that one does not show an intention of relinquishing US nationality if one exercises a right of citizenship such as residency.

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Did I misunderstand that?

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I thought that's how we should frame the issue.

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I think the letter went beyond that and said that one may formulate an intent to relinquish US nationality only if one also demonstrates a present physical ability to depart this country and enter another country.

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And that's where the letter went too far.

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We accept the position that to intend to do something, one must fully understand the consequences of that act.

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So to intend to relinquish U.S.

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nationality, one must fully understand that one is relinquishing the right to U.S.

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residency.

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But Mr. Kaufman has repeatedly and unequivocally sworn that he understands he will lose his right to U.S.

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residency.

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He understands that he will become stateless.

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But to him, the benefit of losing... And what happens then?

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Right.

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What happens then?

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The USCS has warned him what happens then.

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And what happens then is that he loses a bundle of rights and privileges associated with being a US national.

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He will have difficulty maintaining a job.

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He will lose his right to vote.

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He will lose his right to hold elected office.

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Would he be detained?

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He may be detained.

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It's unclear under the statutes.

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Why would he be detained?

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because he would have no lawful immigration or residency status in the United States.

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I see.

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But he, in his mind, values losing his nationality.

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He places a tremendous amount of value on it.

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And the benefit of losing his US nationality outweighs those risks and those harms.

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And the lesson... Well, if he's... If the consequence of being stateless is that he's... and they find him, he's going to be excluded, then he will end up outside the country.

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Why would the agency require that he have a plan?

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to leave the country if the government is going to send him out of the country anyway.

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The government has indicated that it won't send him out of the country.

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The government has indicated that he has no means of leaving the country.

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There's no place to send him to.

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I thought you said in response to Judge Griffiths that he could be deported.

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Didn't you?

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And then I said why, and you said, well, because he's here illegally, and that made sense to me.

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I think that question is whether he could be detained.

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Oh, not deported.

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Detained.

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Yeah.

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Yes.

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Sorry, Mr. Honor.

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He could be detained.

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Detained.

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In fact, he wouldn't be able to be deported, right?

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There's no place.

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There's no country that has been willing to take him.

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He's made efforts to leave, but his efforts have been snubbed.

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Every country has turned him down, which is why he's pressing his A6 claim to domestically renounce his U.S.

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nationality without ever having to leave and without ever having to gain access to another country.

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And the lesson from this court's decision in Schnitzler is that

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If a U.S.

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national wishes to press his eighth exclaim, it's not for us to scoff at that cost-benefit analysis.

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It's an injury to be forced to retain your U.S.

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nationality against your will arbitrarily in this way.

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How does your client's or appellant's request comport with the purpose of the statute or this particular provision of the statute?

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My research indicates that the purpose of this is from an unfortunate period of time during World War II when this provision

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was promulgated or passed by Congress to make it easier to essentially allow people in Japanese internment camps to renounce their citizenship so that they could be deported and sent to Japan.

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You're right, Your Honor.

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But the legislative history contains two strands of congressional purposes.

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First, many members of Congress wanted to create an expatriate pathway whereby Japanese Americans could easily domestically renounce and thereby relinquish their U.S.

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nationality.

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But you're right, Your Honor, the motives of these members of Congress

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were sinister.

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This was a dark time in our nation's history.

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These members of Congress wanted these Japanese Americans to relinquish their U.S.

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nationalities so that the U.S.

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government could then mistreat them and even detain them.

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But there's another strand of legislative history whereby certain members of Congress wanted to write a general statute.

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And these members of Congress wanted to prioritize efficiency and ease of administration.

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That's the motivation reflected in the statutory text, because the statutory text mentions nothing about Japanese Americans.

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So through A6 and 1483, Congress appears now to be saying, during times of war when emotions are running high, if you don't appreciate your U.S.

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citizenship and you want to discard it, you may do so.

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In fact, we the government will accommodate you, will provide you an efficient and easy way to do so, will let you relinquish your nationality by renouncing it.

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And what does it mean to renounce?

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To pronounce something means to formally and simply state, I hereby no longer want this.

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So the USCIS has overcomplicated what was intended to be a simple expenditure.

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If we weren't in a time of war, what would your client be allowed to do?

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What options does he have?

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Nothing.

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The statute, if we weren't at a time of war, he'd have to go abroad, right?

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Yes, Your Honor.

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The state of war prong has to be triggered on.

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And the state of war prong has been triggered on for the purposes of this application.

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If the state of war prong were triggered off, then this pathway would be closed.

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Gotcha.

[00:11:19] Speaker ?:
Gotcha.

[00:11:21] Speaker 04:
And remind me what the district court did with that issue, the state of war issue.

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Right.

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And Your Honor, in 2010, the district court interpreted the state of war prong in this way.

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The relevant time period for determining whether the U.S.

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is at war is when the renunciant is filing her application.

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And the district court held that because the U.S.

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was at war with Iraq in 2004.

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Mr. Kaufman's, and because Mr. Kaufman had filed his application in 2004, the state of war prong had been triggered on for the purposes of Mr. Kaufman's application.

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And the district court further reasoned that once the state of war prong had been triggered on, it stays on for the duration of the application's process.

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And as you know, in the USCIS letter, they state that the district court's interpretation of the state of war prong is correct and

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That appears on page 7 of their letter.

[00:12:21] Speaker 03:
Okay, thank you.

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Thank you.

[00:12:31] Speaker 05:
Good morning.

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May it please the Court, Yamila Sabila on behalf of the Appellees, the Department of Homeland Security and United States Citizenship and Immigration Services.

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The Court should affirm the District Court's decision where Plaintiff, Petitioner, Appellate has failed to establish the statutory requirements for domestic renunciation of citizenship.

[00:12:51] Speaker 03:
Well isn't the question in this case, what is the statutory requirement as interpreted by the agency?

[00:12:57] Speaker 05:
Yes, your honor.

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This is a question of statutory interpretation, and our position is that the question is whether or not he admits that he has not.

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He does not have a least.

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I think he does that he has a plan to leave the country.

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The question is whether that's a that's whether the department has acted lawfully by imposing that requirement, right?

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Am I right about that?

[00:13:25] Speaker 05:
Your Honor, he challenges whether or not he can relinquish citizenship and yet exercise a privilege and right of citizenship.

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And what's the privilege or right of citizenship that you think he's exercising?

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He wishes to continue to exercise the seminal privilege of residing in the United States.

[00:13:42] Speaker 04:
No, I don't think he's phrasing it that way.

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He wants to stay in the United States.

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That's physical presence.

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Physical presence isn't the same as right of residency.

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A visa holder who overstays her stay is physically present in the United States, but she's not exercising a right of residency.

[00:14:01] Speaker 04:
She would be during the time of the visa, but not afterwards.

[00:14:06] Speaker 04:
How is he any different than someone who's just overstaying their visa?

[00:14:10] Speaker 05:
Because the statute has a specific intent requirement.

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And that intent requirement does not just include a subjective prong, but also an objective prong.

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Here, he has absolutely no- Is your physical presence in the United States exercising the right of residency?

[00:14:28] Speaker 05:
Your Honor,

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Our position is that, according to the D.C.

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District Court in Lozada, Colon, that is sufficient under the statute to find that there is a lack of the requisite intent.

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Because, as I stated, the statute requires that the individual relinquish all rights of citizenship, and that would include physical presence in the United States.

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In Lozada, Colon... So physical presence in the United States is sufficient to show an exercise of the right of residency?

[00:15:00] Speaker 05:
That is correct, Your Honor.

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And importantly here, not only do we have physical presence, we have absolutely no cogent or credible or probable plan to actually ever exit the United States.

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The agency's decision is not arbitrary or capricious.

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It is entitled to Chevron deference.

[00:15:16] Speaker 03:
Where does that come from the statute?

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That's what I want to know.

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Where do you get that requirement from the statute?

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An intent to give a decision?

[00:15:25] Speaker 05:
The statute requires not just an expatriating act,

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but also intent to relinquish United States citizenship.

[00:15:32] Speaker 05:
Yes, Your Honor.

[00:15:34] Speaker 05:
The Supreme Court jurisprudence further develops that in Tarasa to speak about not just voluntariness, but also the intent to relinquish not just citizenship, but the privileges appertaining to citizenship, including the right to vote, the right to remain in the United States.

[00:15:50] Speaker 03:
Correct me.

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I thought he wanted to leave eventually, just doesn't have a plan yet.

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Isn't that right?

[00:15:56] Speaker 05:
Yes, Your Honor.

[00:15:57] Speaker 03:
OK.

[00:15:57] Speaker 03:
So he does want to leave.

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He just doesn't have enough money for a ticket.

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He doesn't have any place to go yet.

[00:16:03] Speaker 03:
But he wants to leave, right?

[00:16:06] Speaker 03:
He doesn't want to stay in the United States.

[00:16:08] Speaker 05:
Your Honor, the agency does not challenge his subjective intent to want to relinquish and leave.

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However, he has no cogent plan.

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And that is significant.

[00:16:15] Speaker 03:
Well, that's my question about where does that come.

[00:16:17] Speaker 03:
OK, so here you have someone who you don't question his desire, his intention to give up his citizenship.

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You don't question his intention to leave.

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The agency says, well, yeah, but you don't have a plan to leave.

[00:16:31] Speaker 03:
And my question is, where does that come from the statute?

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Because there's no Chevron deference here at all, right?

[00:16:37] Speaker 03:
We have to find this in the statute itself.

[00:16:39] Speaker 03:
Our position is that the statute is ambiguous and actually... Yeah, but even if it's ambiguous, you've got several different agencies that interpret this, and so we don't give Chevron deference under those circumstances.

[00:16:49] Speaker 05:
The government's position is that under Chevron Step 2, the agency's interpretation is entitled to deference.

[00:16:54] Speaker 03:
No, but we have case law.

[00:16:56] Speaker 03:
Doesn't the State Department also interpret this statute?

[00:16:59] Speaker 05:
That is correct, but in an entirely different context.

[00:17:01] Speaker 03:
Correct, but we have two statutes, two agencies who interpret a statute.

[00:17:06] Speaker 03:
We have very well-developed case law here that under those circumstances, there's no Chevron deference.

[00:17:12] Speaker 03:
Right?

[00:17:13] Speaker 05:
The government's position is that's not accurate, Your Honor.

[00:17:15] Speaker 05:
Our position is that under Bernhardt, as well as the decisions of this court in Menkes and Mylar Laboratories, that the agency's decision is entitled to Chevron deference.

[00:17:25] Speaker 05:
And that is because it is well reasoned.

[00:17:27] Speaker 03:
Were those cases where there was more than one agency interpreting the statute?

[00:17:34] Speaker 05:
I do not believe so, Your Honor.

[00:17:35] Speaker 05:
But those decisions also don't state that that would be a criteria by which the agency would not be entitled to Chevron deference.

[00:17:42] Speaker 05:
Here, Your Honor, our position is that Chevron deference is appropriate because what's involved is the expertise of the agency, political questions as to international relations, as well as the Congress's ability to manage the

[00:17:58] Speaker 05:
a uniform code of naturalization and denaturalization for United States citizens, as well as longstanding case law or, I'm sorry, application by the agency, which is not inconsistent with the application of other agencies, as you mentioned, the Department of State.

[00:18:13] Speaker 03:
Well, doesn't the State Department, Emanuel, actually have a different view about this?

[00:18:17] Speaker 03:
It defines intent, the will to surrender citizenship.

[00:18:24] Speaker 05:
Your Honor,

[00:18:25] Speaker 05:
The Department of State is only adjudicating renunciation of citizenship occurring abroad.

[00:18:30] Speaker 05:
So their interests, the government interests that are at play, are manifestly different from what the Department of Homeland Security is facing.

[00:18:37] Speaker 05:
Here we have a United States citizen who would be renouncing within the United States.

[00:18:41] Speaker 05:
And there is a policy interest in not creating a population of post-citizen

[00:18:46] Speaker 05:
stateless individuals who remain in the United States.

[00:18:49] Speaker 03:
Could you say, what does happen to, suppose he's here, he renounces his citizenship and he's stateless.

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What is his situation?

[00:19:00] Speaker 03:
He can't vote, right?

[00:19:02] Speaker 03:
He can't sit on juries.

[00:19:06] Speaker 03:
What would happen?

[00:19:07] Speaker 03:
Would he be detained?

[00:19:09] Speaker 03:
Your Honor, whether or not to... I'm just asking the question, I actually just don't know.

[00:19:13] Speaker 05:
Sure, Your Honor.

[00:19:13] Speaker 05:
Whether or not an individual is placed in removal proceedings is entirely within the discretion of the attorney general.

[00:19:19] Speaker 05:
Again, it would create an administrative nightmare where this individual is now stateless.

[00:19:24] Speaker 05:
He has no connections or ties or approvals to enter any other country.

[00:19:28] Speaker 05:
And in the case of this particular applicant, he has a lengthy sexual abuse criminal history, which would require many countries not to allow him to be admitted.

[00:19:38] Speaker 04:
This doesn't happen a lot, does it?

[00:19:43] Speaker 05:
There could be a floodgate of individuals who simply want to renounce their United States citizenship and remain in the United States in a stateless situation.

[00:19:52] Speaker 05:
There are a lot of individuals who do not wish to recognize the United States as a government.

[00:19:58] Speaker 05:
The sovereign citizen movement immediately comes to mind, and the USAIS sees a fair amount of those, Your Honor.

[00:20:05] Speaker 00:
So those people, if we were to rule against you and say that Mr. Kaufman could proceed and then open the floodgates,

[00:20:17] Speaker 00:
those people like Mr Kaufman could end up essentially in some sort of, you know, I and s detention camps or something for the rest of their administratively problematic to say the very least.

[00:20:31] Speaker 04:
Put him in airports.

[00:20:33] Speaker 04:
Put him in one time about that.

[00:20:34] Speaker 05:
And we would caution that it is entirely unnecessary citizenship.

[00:20:40] Speaker 03:
Excuse us.

[00:20:41] Speaker 05:
We would caution that it's entirely unnecessary, because USCIS is not preventing Mr. Kaufman from leaving the country.

[00:20:46] Speaker 05:
He is simply elected to travel to countries that won't accept him.

[00:20:50] Speaker 05:
And that is entirely within their sovereign argument.

[00:20:52] Speaker 04:
Are there countries that would accept him with his?

[00:20:55] Speaker 05:
The countries that do not recognize the United States might accept him, because they may not have a problem with his convictions.

[00:21:01] Speaker 05:
There are also countries that may have more lenient views on his sexual abuse history.

[00:21:07] Speaker 05:
The countries he has elected.

[00:21:10] Speaker 05:
The countries, the Western European countries he has elected to seek admission to have, so as far as the record indicates, rejected his request.

[00:21:18] Speaker 03:
So from the government, just from a policy point of view, the government, we're better off keeping them as a citizen, is that right?

[00:21:27] Speaker 05:
Your Honor, our position is that Mr. Kaufman is free to leave the United States whenever he wishes.

[00:21:32] Speaker 05:
And he can always apply for renunciation within the United States.

[00:21:35] Speaker 05:
And he would be granted renunciation so long as he can meet the statutory requirements.

[00:21:39] Speaker 05:
And one of those requirements is that he actually intended to relinquish all of his rights, including the right to reside in the United States.

[00:21:47] Speaker 05:
And that's consistent with Luzada Colon, Your Honor.

[00:21:51] Speaker 00:
Let's suppose he was trying to understand this.

[00:21:54] Speaker 00:
Let's suppose he were able to somehow sneak across the border into Canada.

[00:22:01] Speaker 00:
and then go to the U.S.

[00:22:03] Speaker 00:
Embassy and renounce his citizenship there.

[00:22:08] Speaker 00:
So he wouldn't be proceeding under A-6 at that point.

[00:22:15] Speaker 00:
He would be proceeding under a different provision, and the State Department would be interpreting this.

[00:22:24] Speaker 00:
And under their interpretation, as Judge Tatel's earlier question indicates, they would say that he's

[00:22:30] Speaker 00:
He's exhibited the requisite intention, right?

[00:22:34] Speaker 05:
Yes, Your Honor.

[00:22:35] Speaker 05:
The issue of whether or not he actually intends to leave the United States would be established.

[00:22:38] Speaker 05:
He would be outside of the United States.

[00:22:40] Speaker 00:
and the State Department does not... Well, but the intention, that intention isn't in the statute.

[00:22:46] Speaker 00:
The intention that's in the statute is whether they intend to relinquish United States nationality, right?

[00:22:53] Speaker 05:
Yes, Your Honor.

[00:22:54] Speaker 05:
But the Supreme Court presidents in Rusk, as well as at Green, not just speak about relinquishing citizenship, but in actually relinquishing the rights and privileges appertaining thereto, including residency.

[00:23:09] Speaker 05:
So it's not enough to say, I don't want to be a U.S.

[00:23:11] Speaker 05:
citizen.

[00:23:12] Speaker 05:
You have to understand and be willing to surrender your right to hold the office, vote, reside in the United States.

[00:23:19] Speaker 04:
And Lozada Colon, again... Hypothetically, let's imagine that he had contacted every single nationality throughout the world, every single one, asking to move there, and they had all denied him the ability to come.

[00:23:37] Speaker 04:
And he had all the evidence to show that he had tried to get to.

[00:23:40] Speaker 04:
What would you do with that case?

[00:23:43] Speaker 04:
I recognize that's not this case, but help me understand what the law means from the government's perspective.

[00:23:48] Speaker 05:
Of course, Your Honor, those are not the facts present here.

[00:23:51] Speaker 05:
Not by far.

[00:23:52] Speaker 04:
I said that twice.

[00:23:53] Speaker 04:
That's right.

[00:23:54] Speaker 04:
Yeah.

[00:23:54] Speaker 05:
Not by far.

[00:23:55] Speaker 05:
But certainly,

[00:23:57] Speaker 05:
That statelessness is a consequence of renunciation is not a problem, and the Supreme Court has said that in a variety of cases.

[00:24:04] Speaker 05:
But here, it's not that statelessness is the consequence of renunciation that is the problem.

[00:24:09] Speaker 05:
The problem is he can't establish a statutory requirement so long as he has no plan to leave the United States.

[00:24:18] Speaker 04:
He has no means of leaving it.

[00:24:20] Speaker 04:
But I mean, the language of the statute, he has the intention of relinquishing U.S.

[00:24:23] Speaker 04:
nationality, and he's tried everything he can to leave the country.

[00:24:30] Speaker 04:
He's tried to get out of the United States, and yet the government's position is he has not shown an intention of relinquishing U.S.

[00:24:37] Speaker 04:
nationality because no one will let him go?

[00:24:40] Speaker 04:
Is that...?

[00:24:40] Speaker 05:
Your Honor, the question about whether he has any – he has no means to leave the United States is not really the issue here.

[00:24:47] Speaker 05:
At the time he made his request, he was under an order of supervision by the state of Wisconsin.

[00:24:51] Speaker 04:
I'm talking about my hypothetical, not this case.

[00:24:54] Speaker 04:
My hypothetical is someone is attempting to renounce their citizenship and has tried every country in the world to move to, and none of them will let him in because of his past and his background.

[00:25:09] Speaker 04:
What does USCIS do in that case?

[00:25:13] Speaker 05:
Your Honor, again, if he could establish the objective, the credible cogent plan to leave the United States.

[00:25:22] Speaker 04:
He's tried.

[00:25:23] Speaker 04:
He has a plan.

[00:25:24] Speaker 04:
He's tried it.

[00:25:25] Speaker 04:
And every nation in the world has denied it.

[00:25:28] Speaker 05:
But actually, as the other justice asked regarding whether the individual.

[00:25:33] Speaker 04:
It's a judge.

[00:25:33] Speaker 04:
She's not in the justice yet.

[00:25:37] Speaker ?:
Hopefully someday.

[00:25:37] Speaker 05:
He could always just leave the United States and request renunciation abroad.

[00:25:41] Speaker 05:
Now, I understand that might mean he would be illegally in another country.

[00:25:44] Speaker 04:
I see.

[00:25:45] Speaker 05:
But that's another way to accomplish his renunciation of citizenship.

[00:25:48] Speaker 04:
He would self-deport illegally to some other place.

[00:25:49] Speaker 05:
Self-deport, Your Honor, and that's certainly something we see in many contexts.

[00:25:53] Speaker 05:
And the United States government is in no way preventing him from exercising that option.

[00:25:57] Speaker 03:
Does he have a passport?

[00:25:59] Speaker 05:
Your Honor, the record doesn't indicate that he has a passport, but it also doesn't indicate that there's any reason why he can't obtain one.

[00:26:04] Speaker 05:
He has a valid birth certificate from a state of the United States.

[00:26:08] Speaker 04:
So you're saying he could sneak into Mexico, for example?

[00:26:11] Speaker 04:
He could go wherever he wants, Your Honor.

[00:26:12] Speaker 04:
I see.

[00:26:13] Speaker 05:
And request renunciation of citizenship abroad.

[00:26:15] Speaker 03:
But it doesn't sound like he'd have to sneak in.

[00:26:16] Speaker 03:
He could just get a passport and legally go to Canada, right?

[00:26:21] Speaker 05:
Or whatever country he desires, Your Honor.

[00:26:23] Speaker 05:
Now, whether or not that country will accept him is entirely within the sovereign prerogative of that foreign country.

[00:26:30] Speaker 00:
Yeah, that's why I said sneak in.

[00:26:33] Speaker 00:
So your position is that he has to manifest his intent by physically going to another country, you know, even if it's just on a tourist visa, and then renouncing.

[00:26:50] Speaker 00:
Before we'll really say that he has manifested his intent.

[00:26:54] Speaker 05:
That is one way in which it could be accomplished, but it's certainly not the only way.

[00:26:57] Speaker 05:
Even if he had presented a cogent plan, including here's my visa, or here's a relative I have in a foreign country, here are the funds that I have to travel, here's my work plan, whatever the agency in its discretion would look at and say, here's a sufficient establishment of the intent requirement.

[00:27:15] Speaker 05:
And of course, that determination is within the discretion of the agency.

[00:27:19] Speaker 05:
And the appellate has the requirement to establish that

[00:27:24] Speaker 03:
So could you go back to Judge Griffith's hypothetical?

[00:27:27] Speaker 03:
I just want to make sure I'm not sure I heard your answer.

[00:27:30] Speaker 03:
Did you say that if he had tried every country in the world and everybody said no, that that would be enough of an intent for him to renounce his citizenship?

[00:27:44] Speaker 05:
No, Your Honor, I did not say that.

[00:27:46] Speaker 05:
I said that

[00:27:47] Speaker 05:
there will be other ways for him to potentially renounce his citizenship, such as leaving and entering another country.

[00:27:53] Speaker 05:
And he has to establish, as I said, the intent requirement by a preponderance of the evidence.

[00:28:01] Speaker 03:
Thank you, Your Honor.

[00:28:05] Speaker 03:
Did Mr. Moore have any time left?

[00:28:09] Speaker 03:
You can take two minutes.

[00:28:14] Speaker 01:
Your Honor, a few quick points.

[00:28:16] Speaker 01:
First of all, the government's argument is collapsing A5 and A6.

[00:28:19] Speaker 01:
A5 is the foreign renunciation provision.

[00:28:22] Speaker 01:
A6 is the domestic renunciation provision.

[00:28:25] Speaker 01:
As I mentioned before, A6 does not require a potential renunciant to ever leave this country and ever step foot on foreign soil.

[00:28:32] Speaker 01:
So it's no answer to say that because he might have access to A5, therefore he need not access A6.

[00:28:38] Speaker 01:
He's pressing his A6 claim as a bachelor.

[00:28:42] Speaker 03:
So OK, I get your point.

[00:28:44] Speaker 03:
The government can't impose this per se rule, that they have to have an actual plan to leave the country.

[00:28:51] Speaker 03:
But under your theory, where the government is assessing his subjective intent, could it take account of that?

[00:28:58] Speaker 03:
In other words, could it look at all the factors and say, you know, here are all the factors.

[00:29:03] Speaker 03:
We don't think he has a subjective intent.

[00:29:05] Speaker 03:
And one of the things they account for is that he doesn't have a plan to leave.

[00:29:09] Speaker 03:
Could they even consider it?

[00:29:10] Speaker 03:
You see my point?

[00:29:13] Speaker 01:
The government should undertake a subjective inquiry, but that factor should not be part of the subjective inquiry, whether he has the present ability to leave.

[00:29:21] Speaker 03:
It can't even be part of it?

[00:29:22] Speaker 01:
Right.

[00:29:22] Speaker 01:
Because under A6, he could intend to stay here forever and still intend to relinquish his U.S.

[00:29:29] Speaker 01:
nationality.

[00:29:30] Speaker 01:
And so, and Your Honor is correct that the inquiry should be subjective, and that's what, after Ruyim, advanced the Supreme Court cases hold.

[00:29:38] Speaker 01:
And after Ruyim, the Supreme Court said that the touchstone of the analysis is the citizens' assent.

[00:29:43] Speaker 01:
In advance, the Court said that the touchstone of the analysis is the citizens' will.

[00:29:47] Speaker 01:
And those cases

[00:29:49] Speaker 01:
have erected an intent requirement that would effectuate and protect the citizens' free choice about whether to retain or relinquish U.S.

[00:29:56] Speaker 01:
nationality.

[00:29:57] Speaker 01:
So the agency is correct to undertake the searching inquiry into the applicant's state of mind, but where the agency went astray is in its letter when they designed this rule that has no place in the statute.

[00:30:14] Speaker 03:
Okay, thank you.

[00:30:15] Speaker 03:
Mr. Vora, we court appointed the Georgetown program as amicus, and as usual, we appreciate the program's assistance.

[00:30:22] Speaker 03:
The case is submitted.