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Case number 16-5010, L. Shaw at L. Appellants versus Rex W. Tillerson, Secretary of the United States Department of State and Official Capacity at L. Mr. Yee for the appellants, Mr. Rossman for the amicus cari, and Ms.

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Perez for the appellees.

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Thank you so much.

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I deeply appreciate.

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This honorable court offers me with such a precious opportunity to present the apparent grievance to this honorable panel.

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Your Honor, I'm also thankful to my colleagues on the opponent's side for their precious time to accompany me with this journey leading to this glorious courtroom.

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And Your Honor, first of all, I want to read a few words in the letter to the judge by my client.

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by my client, Li Hongxiao.

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Let me ask you, is it Mr. Ye or Mr. Yi?

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Mr. Yi or Ye, whatever.

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What do you say?

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And my client said, in 2011, my mother's suffering stroke

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In his dying bed, my former New Jersey immigration attorney prayed to the immigration authorities for humanitarian advance parole and it was rejected.

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My mother died without me being on his dying bed.

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In 2014, my father was again suffering a dying disease and cannot see me.

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I lost opportunity to attend the funeral on the bureau ceremony.

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Everything.

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This humanitarian disaster

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was caused by the incident in 2009, October 26, and my client Li Hongxia's U.S.

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passport properly issued by the Department of State and was confiscated at her entry.

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And then in 2011 and he filed application for the passport with Department of State and it was rejected because the Department of State in 2012 and replied your passport had been revoked.

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because the CRS has canceled your naturalization certificate.

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And we, this case was, you know, one of the group of, a group of Chinese ethnicity, U.S.

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citizen, and who received the passport.

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And then, all of a sudden, these passports were deemed, you know, illegally procured.

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without any proceedings, without any evidentiary hearing.

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It was because one tinted witness, Mr. Robert Schofield, pinpointed, tipped off the government in his guilty plea, and 200 Chinese ethnic

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of Chinese ethnicities who claim to be United States as co-conspirators in his alleged procurement of U.S.

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citizenship.

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However, my clients are among those 200.

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And the allegation, without any cross-examination, without any due process, without any proceedings, was built upon a bland type of erroneous and misrepresentation.

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in government's funding.

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In terms of process, Mr. Yeh, two of your clients did take advantage of the opportunity to prefer the review of the preliminary determinations, and then I gather three of them did not take that opportunity.

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Is that right?

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When their passport was revoked, they're told that they have 60 days they can raise a question.

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Yes.

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Yes, but Your Honor, in the case law of this jurisdiction, this circuit, said if the so-called proceedings are in its practice and in its pattern,

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has demonstrated it's completely useless.

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And because of government's mindset, strongly mindset, and those we cannot take, you know, such kind of exhaustion of perceived process should be waived.

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And that's the case, Ronald Vandals versus Weinberg.

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And also, let me – can I read to that?

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Exhaustion would be clearly useless, such as where the agency has evidenced a strong stand on the issue in question and unwillingness to reconsider the issue.

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Vandals versus Weinbergs, 795F2VDC circuit, 1986.

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Can you also tell me, it wasn't clear to me in the record where each of your, what the residence is of each of your clients?

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Because as you know, the district judge said that the 1503 claim has to be brought, for example, for Li Hongxia in New Jersey.

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Do we know where each of these clients lives?

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I think Hua Chen, I don't have information.

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Was that Los Angeles?

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Yeah, Your Honor, their residents are varied.

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And Li Hongxia's current residence is in New Jersey.

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And when she filed this case, it's alleged in the complaint that she was in New Jersey.

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Yes, yes.

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And when the case was filed, Huelo Li was living in Los Angeles?

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Yes, in Los Angeles and in Great Washington DC.

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Wei Liu was living in Los Angeles?

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Yes.

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And also Hua Chen in Los Angeles?

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Yes.

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And how about Jin Song Chen?

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Where was Jin Song Chen living?

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Where was Jin Songchun living when the case was filed?

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My understanding, he is now stuck in China.

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Right.

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But when the case was filed, where was he living?

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In China.

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In China.

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So he doesn't have a US residence?

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No.

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He is a US citizen.

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But residence?

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Residence in Los Angeles as well.

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OK.

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I think if you want another minute after the government has spoken, we'll give you a minute to respond, but I think.

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Yeah, can I just add one word, one sentence?

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And what Mr. Schofield, the tainted witness, pinpointed is completely wrong.

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And he alleged, without cross-examination, that Mr. Li Hongxia's parents

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father and the mother were among those 200, you know, tainted suspects.

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Actually, in her affidavit, she, you know, stated in the oath neither her parents had ever been to the United States, much less to have chance to meet Mr. Scofield.

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Be assured we read her declarations and her affidavits and the record.

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Thank you so much.

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Yeah.

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Thank you.

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Mr. Rossman.

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May it please the court?

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I'm Michael Rossman.

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I'm representing the Amicus Center for Individual Rights.

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I'd like to discuss two issues with the court today from our Amicus brief.

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First, whether the 1991 Civil Rights Act

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restricted the application of Section 1981 so that it no longer applied to acts of discrimination by the federal government, and second, whether the allegations in the complaint of race discrimination state a claim under the equal protection component of the due process clause of the Fifth Amendment.

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First, with respect to Section 1980.

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I thought the equal protection claim had been abandoned on appeal.

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I don't see that being briefed.

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I thought Mr. Yee did brief it on appeal, and that he referred actually to various parts of the amicus brief that I mistakenly put in on summary affirmance, but I could be wrong.

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Go ahead and address the arguments.

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With respect to Section 1981, the question is, what weight should the interpretive tool of expressio unius have in comparison to the interpretive tool of presuming against implied repeals?

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So Section 1 of the 1866 Act had been held by the Supreme Court to apply to acts of the federal government prior to 1991.

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In 1991, Congress amended section 1981 and added 1981c, which says that the rights under section 1981 are protected against impairment by nongovernmental discrimination and impairment under color of state law.

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And the question is, did that implicitly repeal those prior interpretations of the Supreme Court?

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The legislative history gives us no indication of that.

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What the legislative history suggests is that Congress was trying to emphasize where Section 1981 does apply, that they were trying to confirm the holdings that the Supreme Court made in Patterson and Runyon.

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It does apply to private discrimination.

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It does apply to state discrimination.

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There is nothing in the legislative history that suggests that Congress wanted to say that it no longer applies to the federal government, or for that matter that it no longer applies to territorial governments like, for example, the District of Columbia government.

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I recognize, Mr. Rossman, that your principal interest is in the broad question, but do you have a position on the pleadings?

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I thought you said you did, whether these pleadings state a claim under Section 1981, and it's a little bit difficult to

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to see what the factual allegations are of racial or ethnic discrimination, given that we simply don't know the race of other people similarly situated whose certificates of naturalization and or passports have been revoked or suspended based on allegations of fraud by a member of the State Department.

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And what's the impaired contractual relationship?

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Your honor, let me say that I think in answering these both of these questions, you really need to look at the rather peculiar procedural history of this suit in the district court.

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So the government.

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What's the impaired contractual relationship?

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I don't know that there is one clearly stated in the complaint at this point, but what I think is that the

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Is that the end of it?

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I mean, you're advancing an interesting notion about the reach of 1981, but we can't get there if you don't have an alleged impaired contract, as you know.

[00:13:05] Speaker 01:
That's right, Your Honor.

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But what happened here is that the government moved under Section 12B1.

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The district court denied that motion, and then Sue Espante dismissed the case, or dismissed the claim, I should say, under 12b6.

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The court below never suggested that there was any other defect or flaw in the section 1981 allegations.

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And so the plaintiff was given- If you look at that backward, it's not a matter of a flaw in the allegations, it's a matter of an inadequacy of the allegations.

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He didn't hold that this is a good claim that's

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missing a piece, you don't get in court unless you've stated the claim and you didn't state the impairment.

[00:13:48] Speaker 01:
Well, he didn't.

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What the court below held is that you did the plaintiff didn't plead impairment under color of state law.

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We believe that's just a legal error.

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The other elements of Section 1981, the court didn't mention at all depends on how you read that focus on impairment.

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um... impairment of state law but the impairment is a contractual relationship there isn't any assertive right your honor but my point i think is that the court below's basis for stating that was that whatever happened was not under color of state law right and the question i think that we're asking is is there an alternative ground

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on which this complaint is defective, because it does strike us that there are some candidates.

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One, Judge Edwards, has pointed out that Section 91 is generally applied in cases of rights to make and enforce contracts.

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Do you have a position on the scope of the rest of Section 1981?

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to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens?

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Is that what the plaintiff here is relying on?

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Because I didn't see that argument.

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I'm a position, Your Honor, but it all applies.

[00:15:07] Speaker 01:
I guess what we would say is, given that the court below focused on this one element, state law, the appropriate thing to do here at this stage would be to, if one were inclined to dismiss on a different ground, to give the plaintiff an opportunity to replede.

[00:15:24] Speaker 01:
The court below gave him an opportunity to replede, but never mentioned any kind of defect in any other element of section 1981.

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So the plaintiff had absolutely no reason to believe that he

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It would be at all useful to do that.

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You're aware that we can affirm on a different ground than that stated by the district court.

[00:15:41] Speaker 01:
I am aware of that, Your Honor, but what I'm suggesting is that affirmance would be inappropriate because

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What the court did is did not give the, he denied the motion to amend the complaint.

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But it's been well established that Section 81 applies to racial discrimination.

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So there does need to be a plausible allegation of that.

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And it's the plaintiff's burden in pleading to know the law and to plead the claim in accordance with it.

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And I recognize that this is a challenging area.

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It does allege race discrimination.

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It alleges it in paragraph 37 of the complaint.

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It doesn't allege any facts that would support that conclusion.

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Well, if you look in the appendix, around pages 161 or so, there's a whole chart that the plaintiff tried to put into the record that I think was an effort by them to demonstrate that there was

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racial discrimination behind us course like it didn't need to please show anything this treatment person well again your honor I think at the complaint stage the complaint only needs to allege that it doesn't mean it's still more than we're here in the post-pandemic post eight ball here when it's been made claim claim that the plane statement because of that claim to relief

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requires actual factual allegations and not just clearly to read, legally.

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And Your Honor, if the District Court had said that, and it said, you need to go back and replede and state something that meets the requirements of the Expo, and so far as your racial discrimination allegations are concerned, I would agree with you.

[00:17:29] Speaker 01:
It would be appropriate for this Court to affirm the judgment of the court below, but that's not what happened.

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What thing did the record J.A.

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into that shard on?

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What page is the J.A.?

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161?

[00:17:43] Speaker 01:
I believe that's right.

[00:17:45] Speaker 01:
But I've gone over my time, Your Honor, but I appreciate the Court giving me the opportunity.

[00:17:51] Speaker 05:
I'm sorry, do you have any other questions?

[00:17:53] Speaker 01:
No, thank you, Mr. Austin.

[00:18:10] Speaker 06:
Good morning.

[00:18:11] Speaker 06:
May you please support.

[00:18:12] Speaker 06:
My name is Eliani Spedis on behalf of the government in this case.

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This court should uphold the well-reasoned decision of the district court denying subpoena's motion for leave to file an amended complaint as futile because the amended complaint is deficient and would not survive a motion to dismiss under federal rule of civil procedure 12b6.

[00:18:35] Speaker 06:
Similar to the original complaint, the amended complaint recites general conclusory statements and accusations against the government and fails to articulate how United States USCIS and the Department of State violated any of the listed statutes.

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It's not the clearest complaint, but some things one can easily discern from it.

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And it was an artful in using Section 93, but surely under ex parte young, one can bring an adjunctive action against the United States for a denial of due process, right?

[00:19:03] Speaker 06:
Your Honor, yes.

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However, the complaint cites several causes of action.

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One of the causes of action is a due process violation against USCIS.

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However, the complaint fails to state how USCIS

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violated due process in this case.

[00:19:19] Speaker 05:
Well, it's actually quite clear.

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I mean, the complaint says, and the consistent position in the administrative proceedings and in the complaint has been, you can only denaturalize someone in court.

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And I think that's well supported in the law from the Supreme Court on down.

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So it's not your position that these individuals are, in fact, non-citizens, right?

[00:19:38] Speaker 05:
Your position is that they're citizens.

[00:19:40] Speaker 06:
No, Your Honor.

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Our position is that these individuals are not United States citizens and what USCIS did here was legal because it canceled their legally procured certificates of naturalization.

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How can they be not citizens if the only lawful way to remove someone's nationality is through judicial determination?

[00:20:02] Speaker 06:
Yes, Your Honor.

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The key difference in this case is that these individuals didn't procure, illegally procure naturalizations.

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What they procure illegally was a certificate of naturalization.

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They never went through the process of becoming a United States citizen.

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And that process requires the individual to demonstrate that they meet all of the statutory and regulatory elements to become a United States citizen.

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go through the facts with you to make sure I understand.

[00:20:31] Speaker 04:
As I understand your procedural due process argument, you're saying that their claim on the passport with respect to procedural due process fails because they clearly had procedural due process with respect to the revocation of the certification for naturalization.

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and that that should carry over and that should be sufficient because the passport denial or revocation was based on the revocation of the certification of naturalization, right?

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Right?

[00:21:05] Speaker 04:
Yes.

[00:21:06] Speaker 04:
Okay.

[00:21:07] Speaker 04:
With respect to Shia, the record indicates your information and the record indicates that the passport was revoked in September of 2012, but the certification of naturalization was revoked

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in August of 2013, so your theory doesn't follow.

[00:21:27] Speaker 06:
Well, Your Honor, with respect to plaintiff Shia, although the complaint does not state these facts, the procedure history regarding her appeals through USCIS was a little bit lengthy, and that is the reason why there's a discrepancy between the dates.

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However, to the extent that she does have a 1503, that she's claiming that the revocation of her passport was illegal,

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or that she's entitled to a U.S.

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passport, Ms.

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Sia has the ability to bring a 1503 action in district court in the district where she resides pursuant to 8 USC 1503.

[00:22:01] Speaker 04:
Well, there's a question as to whether that satisfies the requirements of procedural due process.

[00:22:08] Speaker 04:
That alone.

[00:22:09] Speaker 04:
You can't rest on the revocation of the certificate of naturalization because it didn't occur until after her passport had been revoked.

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So your argument is that the statutory, the right to come to court is all the process that she's due.

[00:22:26] Speaker 04:
That is the post-action process in court, as opposed to pre.

[00:22:31] Speaker 06:
Yes, Your Honor.

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That is the due process that she's due.

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And the courts have repeatedly stated that to the extended individual,

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is challenging the revocation, for example, of the U.S.

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Passports because that individual is clear does not have the ability to bring an administrative procedure in within the Department of State.

[00:22:49] Speaker 06:
That individual has to process because that individual is able to bring a 1503 action in District 4.

[00:22:55] Speaker 04:
Except there is some procedural process law that you're supposed to get processed pre-termination.

[00:23:02] Speaker 05:
especially when you're talking about citizenship.

[00:23:03] Speaker 05:
I mean, these are individuals who have prima facie evidence of citizenship.

[00:23:07] Speaker 05:
And I understand it's your position that it was invalid and procured by fraud.

[00:23:11] Speaker 05:
But in Schneiderman, the United States Supreme Court said even where the claim is that the

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citizenship has been procured by fraud, the burden is on the government by clearing convincing evidence to show that fraud.

[00:23:25] Speaker 05:
And the evidence of fraud is certainly not in the district court record in this case.

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There's nothing that we can look at in the district court record to trace the actions of Mr. Schofield to any of these individual plaintiffs.

[00:23:39] Speaker 05:
So the notion that this could be dismissed on the pleadings based on

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The fait accompli of the United States government is a little bit surprising.

[00:23:48] Speaker 06:
Your Honor, what the court did here, it gave the, it gave the plaintiffs an opportunity, two opportunities through state claims.

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factual allegations to substantiate their claims.

[00:23:59] Speaker 05:
They've shown prima facie evidence of citizenship.

[00:24:02] Speaker 05:
The government's burden then, if the government chooses to denaturalize them or show that their naturalization was never valid, non protunque due to fraud, is to show that by clear and convincing evidence.

[00:24:15] Speaker 05:
And I haven't seen that evidence.

[00:24:16] Speaker 05:
Is that available in the public record anywhere?

[00:24:19] Speaker 06:
Your Honor, again, in this case, these individuals did not procure citizenship illegally.

[00:24:28] Speaker 06:
What they procure was a certificate of naturalization.

[00:24:30] Speaker 06:
And what USCIS did, and the relief that they're seeking, is for USCIS to reissue them their certificate of naturalization and for the Department of State to reissue their U.S.

[00:24:41] Speaker 06:
passports.

[00:24:42] Speaker 06:
Again, USCIS was within its authority to cancel the Certificate of Naturalization and gave these individuals the ability to challenge the cancellation of the certificates within the administrative process.

[00:24:59] Speaker 06:
Appellant Sia did so.

[00:25:01] Speaker 06:
She challenged it within USCIS and then she challenged it again within the Administrative Appeals Office.

[00:25:07] Speaker 06:
Defendant Appellant Wei Liu only challenged the cancellation of his naturalization certificate through USCIS and failed to appeal the decision to the AAO and the complaint is deficient of any facts concerning any sort of exhaustions from the remaining plaintiff appellants in this case.

[00:25:26] Speaker 04:
If you have to have pre-termination process

[00:25:31] Speaker 04:
you didn't show it or you don't show it on these facts with respect to Shia because the passport was revoked before the certificate of naturalization was revoked.

[00:25:41] Speaker 04:
And so therefore, there was no process.

[00:25:44] Speaker 04:
And you're saying, well, she can get it in court.

[00:25:45] Speaker 04:
But that misses the point.

[00:25:47] Speaker 04:
The point is, before you come to court, the government's supposed to be able to show that she had access to pre-termination process.

[00:25:54] Speaker 04:
Well, she couldn't have had it if you terminated the passport before the certificate of naturalization was revoked.

[00:26:01] Speaker 06:
Again, even if the appellant had the ability to go before USCIS to challenge the cancellation of her naturalization certificate.

[00:26:13] Speaker 06:
The complaint is deficient in showing.

[00:26:15] Speaker 04:
That didn't occur until after the passport.

[00:26:18] Speaker 04:
I'm talking about the passport.

[00:26:20] Speaker 04:
They're making a claim on due process with respect to both.

[00:26:23] Speaker 04:
So she's making a claim that my passport was revoked without procedural due process.

[00:26:28] Speaker 04:
Well, facially, that looks correct because you had not taken action yet with respect to the certificate of naturalization, but you went ahead with the passport.

[00:26:37] Speaker 06:
Your Honor, I understand the court's concern.

[00:26:41] Speaker 06:
However, in this particular, in this case, Defendant Zia had the ability to bring a 1503 action before federal termination process.

[00:26:50] Speaker 04:
I'm sorry, go ahead.

[00:26:52] Speaker 03:
Your question, behind the question, there certainly are circumstances in which post-deprivation

[00:27:04] Speaker 03:
one of the circumstances in which it is not necessary to have a pre-deprivation process, but due process post deprivation is sufficient.

[00:27:14] Speaker 06:
I'm sorry, can you please repeat that question?

[00:27:16] Speaker 03:
I doubt it.

[00:27:18] Speaker 03:
It is not the case that there always has to be due process before the deprivation of rights.

[00:27:26] Speaker 03:
There are certain circumstances in which post deprivation due process

[00:27:32] Speaker 03:
is the government's position that this is one of those cases in which post deprivation you process is sufficient to meet the constitutional requirement?

[00:27:40] Speaker 06:
Yes, Your Honor, it is.

[00:27:43] Speaker 06:
Your Honor, because again, the Department of State has the ability to revoke, to revoke U.S.

[00:27:51] Speaker 06:
passports if it has evidence that USCIS

[00:27:53] Speaker 06:
has revoked the naturalization certificates.

[00:27:57] Speaker 06:
And here, again, the complaint is very unclear as to exactly how Ms.

[00:28:03] Speaker 06:
Silla went through the administrative appeals.

[00:28:05] Speaker 04:
No, that's not the question.

[00:28:06] Speaker 04:
Judge Santel is asking you, why do you think in this category of cases, same thing I'm trying to ask you, post deprivation process is enough?

[00:28:14] Speaker 04:
Your Honor, because- We know what the facts are, but why do you think it's enough as a matter of law?

[00:28:19] Speaker 06:
Your Honor, cases have established over and over again

[00:28:23] Speaker 06:
that because the appellant in this case would have an ability to go in federal court and challenge that revocation, that is sufficient.

[00:28:31] Speaker 03:
What's your closest case that it is sufficient to have post deprivation process?

[00:28:37] Speaker 06:
If I may, Your Honor, look at my notes.

[00:28:57] Speaker 06:
Yeah, I can't find the case right now, but if I may submit, submit some of the mental briefing on the issue, but it is in part of my, my appellate brief.

[00:29:14] Speaker 05:
would also have an opportunity to respond to that.

[00:29:17] Speaker 05:
I mean, I'm just looking at a recent decision of our court, United States versus Straker, in 2015, that's 800 F3RD 570, in which we were reciting what the district court did.

[00:29:31] Speaker 05:
And we said, citing a long and unbroken line of Supreme Court precedent,

[00:29:35] Speaker 05:
C, United States v. Zucca, C also, Binziak v. Finucane.

[00:29:40] Speaker 05:
The district court held that AUSC 1451, which is judicial proceeding, permits the United States attorney to institute denaturalization proceedings in a federal district court.

[00:29:52] Speaker 05:
It's the exclusive procedure for voiding the citizenship of a person naturalized due to fraud.

[00:29:59] Speaker 05:
Now you take the position that these people were not naturalized and therefore that this doesn't apply, but I don't understand how that could be distinguished from this line of cases.

[00:30:11] Speaker 05:
I mean, if somebody is naturalized due to fraud, one position is they were never naturalized.

[00:30:16] Speaker 05:
But from the perspective of the plaintiffs in this case, they had all the indicia of citizenship, they went through the process, and nothing in the pleadings shows that

[00:30:27] Speaker 05:
That was no protunk invalid.

[00:30:29] Speaker 05:
I mean, you have to go through a process to make the case.

[00:30:32] Speaker 05:
And I don't have any doubt that the United States may have a very strong case here.

[00:30:36] Speaker 05:
But the question is, has it laid it out?

[00:30:38] Speaker 05:
And when does it need to lay that case out?

[00:30:40] Speaker 05:
When does it need to connect the dots between Mr. Schofield and each individual who they claim was somehow involved in Mr. Schofield's fraudulent issuance of naturalization?

[00:30:52] Speaker 05:
It's really hard to tell that from this record.

[00:30:54] Speaker 06:
Your Honor, again, what the district court did here was to deny a motion to amend the complaint as futile because the factual allegations in the complaint just didn't support a cause of action.

[00:31:06] Speaker 06:
In this case, there's nothing in the complaint to show that these individuals actually went through the process of naturalization.

[00:31:13] Speaker 06:
What they're asking, they're challenging is the cancellation of their naturalization certificate.

[00:31:18] Speaker 06:
To the extent that the complaint fails to state a cost of action, USCIS under 8 U.S.A.

[00:31:24] Speaker 06:
1453 has the ability to cancel an illegally procured naturalization certificate and the actual statute itself states

[00:31:32] Speaker 06:
that the cancellation of that certificate only cancels the document itself and not the citizenship status of the person.

[00:31:42] Speaker 05:
Exactly and therefore you have not shown these people not to be citizens and therefore that remains an open question but you're taking the position and in fact I understand in the

[00:31:53] Speaker 05:
documents saying why people's passports were taken away, you know, entering alien.

[00:31:59] Speaker 05:
So the government is taking, you know, speaking out of both sides of its mouth, is taking the position that these people are aliens, even though you can't accomplish that merely through 1453.

[00:32:10] Speaker 06:
Your honor, if the government

[00:32:15] Speaker 06:
Assuming for the sake of argument, were to bring a 1451A action, it would not be able to do so because in this case, these individuals didn't go through the process of naturalization.

[00:32:27] Speaker 06:
They just simply obtained a certificate of naturalization.

[00:32:30] Speaker 06:
There's nothing in the document.

[00:32:32] Speaker 04:
Well, we're talking about different things, unfortunately.

[00:32:36] Speaker 04:
I understand the point you're making now.

[00:32:37] Speaker 04:
That wasn't the point I was reading.

[00:32:39] Speaker 04:
The one case you do have, and I don't know whether it's enough, I don't know that we've

[00:32:43] Speaker 04:
we've addressed is an 11th surrogate case, a 2016 case, Martinez v. Secretary of State

[00:32:51] Speaker 04:
which says we can find no merit to the claim that the government's revocation of his passport without first holding a hearing denied him due process.

[00:32:59] Speaker 04:
1503 affords individuals like Wharton as robust means for challenging their administrative denials.

[00:33:06] Speaker 04:
That's your authority.

[00:33:07] Speaker 04:
I don't know if there's anything else, but that's the authority.

[00:33:09] Speaker 04:
That's answering the question I've been trying to raise for you and that my colleagues have.

[00:33:14] Speaker 04:
What process was given to Ziyar with respect to the passport?

[00:33:19] Speaker 04:
And you're saying you can rest on 1503, and that's enough.

[00:33:24] Speaker 04:
You've got the 11th Circuit with you on that.

[00:33:28] Speaker 04:
That's your point?

[00:33:28] Speaker 06:
Yes, Your Honor, that is correct.

[00:33:30] Speaker 06:
And I believe that also my brief states there are other cases specifically out of the Southern District of Texas.

[00:33:42] Speaker 04:
any other Court of Appeals.

[00:33:44] Speaker 04:
It's not that we disfavor district court.

[00:33:46] Speaker 04:
We like Court of Appeals cases.

[00:33:48] Speaker 06:
Of course, Your Honor.

[00:33:49] Speaker 06:
I'm looking right now at my brief and I don't even think you cited the 11th Circuit.

[00:33:56] Speaker 04:
I don't remember you citing any other Court of Appeals cases.

[00:34:00] Speaker 06:
Your Honor, again, if Your Honor would like, I am more than happy to... We've got the authority.

[00:34:04] Speaker 04:
If that's all you're talking about, then we know what you're talking about.

[00:34:07] Speaker 04:
If you have any other Court of Appeals authority,

[00:34:10] Speaker 04:
be interesting, but that's your answer, I guess, on the revocation of the passport strategy.

[00:34:17] Speaker 04:
You don't have to rest on a preceding revocation of the certificate of naturalization, which does allow for administrative process, you're saying, because 1503 is enough.

[00:34:30] Speaker 04:
And you have one case that supports that.

[00:34:32] Speaker 04:
Yes, sir.

[00:34:38] Speaker 06:
All right.

[00:34:38] Speaker 06:
Your Honor, furthermore,

[00:34:39] Speaker 06:
With regard to the Civil Rights Act, the District Court, again, there are so many different claims and causes of action in this case.

[00:34:48] Speaker 06:
I'm just going to go down through sort of the remaining... Let me just ask you again on the statutes and on the process.

[00:34:57] Speaker 05:
Is it correct that the State Department refused to grant the plaintiffs a post-cancellation hearing under 1504?

[00:35:07] Speaker 06:
The State Department

[00:35:08] Speaker 06:
The State Department, Your Honor?

[00:35:10] Speaker 05:
Yeah.

[00:35:11] Speaker 06:
The State Department, there's no administrative way in which the State Department can actually have a hearing on the cancelation of the revocation of the passport.

[00:35:20] Speaker 06:
Again, in our position remains is that to the extent that they do have a, they want to challenge the revocation of the passport, the process that's due to the plaintiffs or to the opponents is for them to file a 1503 cause of action.

[00:35:38] Speaker 06:
and follow the procedures under USC 1503.

[00:35:43] Speaker 05:
I think you're really talking past each other because the plaintiff's position here is that they are citizens.

[00:35:48] Speaker 05:
They had evidence of citizenship, the prima facie evidence of citizenship, and your position is know that you can assume that away without having established the premise of your position, which is that these were people who were

[00:36:03] Speaker 05:
affected by Mr. Schofield's fraud, and they say we filed the applications, we were legal permanent residents, we went through, you know, we paid the fee, we got the evidence of it, you know, went and did the whole nine yards.

[00:36:20] Speaker 06:
Your Honor, I see that I'm out of time.

[00:36:22] Speaker 06:
If I can just respond to your question.

[00:36:23] Speaker 06:
Please.

[00:36:24] Speaker 06:
Your Honor, again, to the extent that they're claiming that there are U.S.

[00:36:28] Speaker 06:
citizens, 8 U.S.C.

[00:36:29] Speaker 06:
1503 allows them the opportunity to show that in court.

[00:36:33] Speaker 06:
They want, these plaintiffs are saying that they're U.S.

[00:36:36] Speaker 06:
citizens, that they went through the process.

[00:36:37] Speaker 06:
and that they're entitled to their naturalization certificates.

[00:36:42] Speaker 06:
Here, AUSC 1453 allows USCIS to cancel illegally obtained naturalization certificates, and that's exactly what USCIS did.

[00:36:54] Speaker 06:
Now, to the extent that they're saying that they're entitled to that or that they're entitled to a U.S.

[00:37:00] Speaker 06:
passport, 8 U.S.C.

[00:37:01] Speaker 06:
1503 allows them to specifically address those allegations in federal court and allows as an overdetermination of whether these individuals actually went through the process and naturalized as they say that they did.

[00:37:15] Speaker 05:
Right, but the burden is on the government in denaturalization under 1451.

[00:37:21] Speaker 05:
And that's the difference.

[00:37:23] Speaker 05:
And I think that's the nature of their due process claim.

[00:37:26] Speaker 05:
And that's ex parte young and responding about section 1983 being unavailable is just not really meeting that, you know, joining issue with the gravamen of the complaint.

[00:37:36] Speaker 05:
But it's been helpful to hear from you today.

[00:37:38] Speaker 05:
Thank you.

[00:37:39] Speaker 05:
Thank you, Your Honor.

[00:37:42] Speaker 05:
And Mr. Yeh, we'll give you one minute to respond.

[00:37:54] Speaker 02:
Your Honor, thank you so much for your – to raise the issue of the government's burden of proof.

[00:38:02] Speaker 02:
And yes, in Gorbachev versus Reno, and the circuit is clear that the burden has been shifted to the government to prove

[00:38:15] Speaker 02:
that fraud had been committed.

[00:38:18] Speaker 02:
That's not an – we have already long passed the, you know, the stage of application stage.

[00:38:27] Speaker 02:
And so burden has been shifted.

[00:38:29] Speaker 02:
So the government has argued that none of those appellants have proven they have been gone through

[00:38:38] Speaker 02:
the application procedures have, you know, deliberately shifted the burden upon the appellants.

[00:38:47] Speaker 02:
Additionally, we do have the proof that these appellants does and did go through the application procedures.

[00:39:01] Speaker 04:
The government is not arguing

[00:39:06] Speaker 04:
that they denaturalized or purported to denaturalize your clients.

[00:39:12] Speaker 04:
That's where there's confusion here.

[00:39:13] Speaker 04:
The government is simply saying that they could properly revoke a certificate of naturalization and indeed the regulation makes it clear that doesn't go to the question of citizenship.

[00:39:25] Speaker 04:
which is a court question.

[00:39:27] Speaker 04:
They're saying they could revoke a certificate of naturalization, and then you have a procedure that you can invoke.

[00:39:37] Speaker 02:
Your Honor, even this, you know, the section 14

[00:39:45] Speaker 02:
1453, you know, empowered the Attorney General to cancel the naturalization certificate.

[00:39:54] Speaker 02:
There is no proof on the government's side that those procedures were properly handled, not even on the surface mistake.

[00:40:05] Speaker 04:
But there's no question there are procedures available.

[00:40:09] Speaker 04:
to your clients.

[00:40:11] Speaker 04:
It's a different question as to whether you think they're inadequate.

[00:40:14] Speaker 04:
There are procedures available to your clients when there is a problem or the government purports or is about to

[00:40:22] Speaker 04:
revoke a certificate of naturalization.

[00:40:26] Speaker 02:
Your Honor.

[00:40:27] Speaker 04:
Certificate.

[00:40:27] Speaker 04:
This is not a denaturalization case.

[00:40:29] Speaker 02:
Thank you so much.

[00:40:30] Speaker 02:
Your question is quite crystal clear.

[00:40:34] Speaker 02:
And yes, Your Honor.

[00:40:36] Speaker 02:
And the government did, you know, or at least intended to offer those administrative proceedings.

[00:40:44] Speaker 02:
Even though those proceedings didn't make sense, it is said

[00:40:48] Speaker 02:
strongly mindset and become useless.

[00:40:53] Speaker 02:
And these proceedings, they even refused to correct the mistake that Barbara Schofield said, my client's parents committed a fraud to procure those passports leading to the apparentness for fraudulent procurement.

[00:41:13] Speaker 02:
Even if this kind of

[00:41:15] Speaker 02:
clear-cut mistake, they refuse to correct.

[00:41:18] Speaker 02:
And, Your Honor, another aspect is Section 1503 gives a passage, the avenue for the parent to challenge the government's mishandling in fearless nature in this aspect.

[00:41:42] Speaker 02:
So we, and also the Britain Action and the APA Act also provided the certain procedural avenues.

[00:41:56] Speaker 02:
None of those were followed by the government.

[00:42:00] Speaker 02:
Also, Your Honour, this

[00:42:03] Speaker 02:
for the totality of this case and refueling the denaturalization proceedings to those clients and make the case in very absurd nature.

[00:42:21] Speaker 02:
Also I want to answer.

[00:42:23] Speaker 04:
It's not a denaturalization case.

[00:42:26] Speaker 04:
It's a revocation of a denaturalization certificate.

[00:42:30] Speaker 04:
That's different.

[00:42:32] Speaker 04:
This is not a denaturalization case.

[00:42:36] Speaker 02:
For pragmatic sense, that caused a humanitarian crisis.

[00:42:43] Speaker 02:
in the consolation of certificate without denial the U.S.

[00:42:50] Speaker 02:
citizenship.

[00:42:51] Speaker 02:
That bipolar pathetic position has caused all kinds of humanitarian, you know, the People's Republic is such a peculiar country that its nationality law said if you

[00:43:08] Speaker 02:
once received a third-country citizenship, you automatically lost your PRC citizenship.

[00:43:18] Speaker 02:
Under these circumstances, the appellants were our sandwich.

[00:43:24] Speaker 02:
The government didn't give them boarding pass to go back to China.

[00:43:29] Speaker 02:
And the U.S.

[00:43:30] Speaker 02:
government, as a matter of law, they are still U.S.

[00:43:34] Speaker 02:
citizens.

[00:43:35] Speaker 02:
That's a very awkward situation, our clients.

[00:43:41] Speaker 02:
So the solution, we have once had a successful solution.

[00:43:46] Speaker 02:
In a similar case, once were filed in this court and my attorneyship.

[00:43:54] Speaker 02:
and it was transferred to New Jersey and it was settled in July 2016.

[00:44:02] Speaker 02:
The settlement is, you know, they are not allowed to, you know, get back the citizenship.

[00:44:11] Speaker 02:
and the better they were given, you know, a permanent resident status.

[00:44:15] Speaker 02:
That's the set.

[00:44:17] Speaker 02:
We were so humble, we humbly proposed, what if I created, I creatively give you a kind of avenue which would be reasonable, not even green card, give them, you know, youth status, non-immigrant youth status,

[00:44:35] Speaker 02:
The new status means the victim of crimes, and we get rejected.

[00:44:41] Speaker 05:
This is something that is obviously beyond our consideration, what you might work out with the government.

[00:44:49] Speaker 05:
But the 1503 appears to be if, for example, your clients had copies of the documentation that they submitted in support of their original naturalization application.

[00:45:04] Speaker 05:
Yes.

[00:45:05] Speaker 05:
It doesn't answer the question whether the process comports with due process, but they do have an opportunity to take that packet of documentation under 1503 and go to the district court where they live.

[00:45:20] Speaker 04:
Where they live.

[00:45:21] Speaker 05:
And bring that and say, we're being treated as if we're not citizens.

[00:45:26] Speaker 05:
We are citizens.

[00:45:28] Speaker 05:
We were naturalized.

[00:45:30] Speaker 05:
Here is the proof that we submitted and went through everything.

[00:45:34] Speaker 05:
Schofield may have been extorting money.

[00:45:36] Speaker 05:
He may have been doing fraudulent things.

[00:45:39] Speaker 05:
We still qualify, here's our proof.

[00:45:41] Speaker 05:
That's what 1503 allows you to do.

[00:45:43] Speaker 05:
And that is still available to you.

[00:45:46] Speaker 05:
It may or may not answer this case.

[00:45:48] Speaker 05:
But it's in your client's interest to pursue that, is my understanding, and the government could... In the correct venue.

[00:45:57] Speaker 04:
This is not the correct venue.

[00:45:59] Speaker 02:
Your Honor, can I give a very brief footnote?

[00:46:04] Speaker 02:
And I heard.

[00:46:07] Speaker 02:
But this case is not just one issue, single issue case.

[00:46:15] Speaker 02:
And this case also concerning property rights that were taken without due process.

[00:46:22] Speaker 02:
The State Department, so if the other issue were brought into the picture, then the US

[00:46:35] Speaker 02:
should be kicked in.

[00:46:38] Speaker 02:
1391 provided that defendants place the foreign, you know, place of foreign should be the proper venue.

[00:46:47] Speaker 02:
So, and the U.S.

[00:46:49] Speaker 02:
Department of Correspondence status and your passport has become the proper

[00:46:59] Speaker 02:
of the government of the United States, there is no hearings, no proceedings provided according to Section 51-70 and 51-74 and Title 22 of CFR.

[00:47:21] Speaker 02:
This is typical, you know, taken without a due process.

[00:47:25] Speaker 05:
No, I understand that it is frustrating, but there is that one process that it would be advisable to consider.

[00:47:34] Speaker 05:
And with this case, we will take under advisement.

[00:47:37] Speaker 02:
Thank you.