[00:00:01] Speaker 00: Case number 19-5357, Gerald Lee Farrell, appellant, versus Michael R. Pompeo, Secretary of State, et al. [00:00:09] Speaker 00: Mr. Martinez for the appellees. [00:00:15] Speaker 05: Good morning, Mr. Banas, whenever you're ready. [00:00:19] Speaker 02: Good morning, Your Honor, and may it please the court. [00:00:21] Speaker 02: My name is Brad Banas, and I represent the appellant, Gerald Farrell, in this case. [00:00:26] Speaker 02: Congress is clear, Your Honors, a United States citizen loses nationality solely by the performance of an expatriating act. [00:00:36] Speaker 02: And whenever a consular officer has reason to believe that such an act has occurred, he shall prepare a certificate of loss of nationality and process the application. [00:00:46] Speaker 05: Before you get too deeply into the merits, could I ask you some questions about mootness? [00:00:54] Speaker 05: When the lawsuit began, your client had a very concrete interest in having the United States acknowledge the loss of citizenship in order to facilitate a transfer to the Swiss prison. [00:01:14] Speaker 05: He's now been released. [00:01:16] Speaker 05: And as I understand it, he's in Switzerland. [00:01:18] Speaker 05: So does he still want this certificate? [00:01:23] Speaker 05: And what is his continuing concrete interest in getting it? [00:01:30] Speaker 02: Yes, Your Honor. [00:01:31] Speaker 02: Mr. Farrell does still want a certificate of Lawson nationality. [00:01:35] Speaker 02: he wants a final administrative determination that he is no longer a citizen or owes any loyalty or allegiance to the United States. [00:01:43] Speaker 02: Given his criminal record here in the United States, that's not a small interest as he wants to travel freely on his Swiss passport through Europe and through the rest of the world. [00:01:55] Speaker 05: Mr. Farrell. [00:01:57] Speaker 05: Switzerland recognizes him as a Swiss citizen, correct? [00:02:02] Speaker 05: Yes, Your Honor. [00:02:03] Speaker 05: So he has the Swiss passport. [00:02:06] Speaker 05: He's living there. [00:02:07] Speaker 05: He has a family there. [00:02:09] Speaker 05: He managed to live there for a decade with seemingly no interaction with the United States. [00:02:16] Speaker 05: Why can't he just go on with his life and not worry about some speculative future entanglement with our government? [00:02:26] Speaker 02: Well, Your Honor, a look at Mr. Farrell's history indicates it's not speculative. [00:02:31] Speaker 02: You are correct that he left the United States in the mid 90s and he acquired nationality as a Swiss citizen in 2004 upon his own application. [00:02:41] Speaker 02: And he did not use the benefit of his US citizenship at all until 2013 2013 when he was traveling on his Swiss passport again with no use of his US citizenship at all when he was detained by [00:02:57] Speaker 02: I believe the Spanish authorities and sent back to the United States against his will and called to account for actions he had done in the United States. [00:03:07] Speaker 02: And they treated him as a United States citizen throughout his detention. [00:03:11] Speaker 02: They refused to remove him. [00:03:14] Speaker 05: But that incident, the conviction, everything flowing from that crime is now done. [00:03:23] Speaker 05: And Supreme Court has said very clearly the fact that someone has had a past interaction with law enforcement doesn't necessarily give them standing to seek forward looking relief on the ground that they might have some future interaction with law enforcement. [00:03:44] Speaker 05: So the fact that he had a problem in the past doesn't [00:03:48] Speaker 05: persuade me that he's at imminent risk of future problems. [00:03:55] Speaker 02: Well, in your honor, our position hasn't been a US citizen since 2004. [00:03:58] Speaker 02: And the assumption that he was that led to all of that was incorrect. [00:04:02] Speaker 02: But more fundamentally, your honor, he's applied for certificate of loss of nationality. [00:04:07] Speaker 02: He's been improperly rejected that. [00:04:08] Speaker 02: And regardless of his motivations or desires for that particular document, it has been improperly withheld from him, whether [00:04:17] Speaker 01: Is the injury to him that he has to satisfy the in-person requirement? [00:04:24] Speaker 01: Because when he was incarcerated in the United States, of course it would be an injury to have to, he was unable to leave the United States in order to sign such an affidavit. [00:04:36] Speaker 01: So if that was the basis of his injury, [00:04:40] Speaker 01: Isn't that basis now moot now that he's able to freely travel and sign the documentation in person? [00:04:49] Speaker 02: Your honor, I believe the injury is the refusal to process a certificate of loss of nationality, period. [00:04:55] Speaker 01: But the refusal is based on the in-person requirement. [00:04:59] Speaker 01: That's correct. [00:05:00] Speaker 01: He hasn't been denied a certificate on the basis of the merits. [00:05:03] Speaker 01: He's been denied a certificate because he has failed to come in in person. [00:05:09] Speaker 01: And so that injury seems pretty palpable when you're incarcerated in the United States. [00:05:14] Speaker 01: However, is there an injury now that he can go in in person and sign such a document and then start the process of having a determination on the merits? [00:05:26] Speaker 02: Your honor, the availability of his ability to go to a consulate, as this court described in Fox v. Clinton, is immaterial. [00:05:34] Speaker 02: And he's not required to do it by the statutes, the regulations, or the foreign affairs manual. [00:05:39] Speaker 02: And given his past with US government, he's not interested in going and stepping foot on US soil, which is what a consulate is. [00:05:50] Speaker 02: And so I would suggest that that [00:05:53] Speaker 02: alternative option is completely immaterial under this course precedent. [00:05:58] Speaker 02: Second, it's not required. [00:06:00] Speaker 02: And third, in current times, the consulates are closed for the Office of Overseas Citizen Services to do this because of the COVID pandemic. [00:06:11] Speaker 02: And, you know, again, I'll cite back to the Fox v. Clinton case. [00:06:16] Speaker 02: It was very clear the Department of State wanted Mr. Fox to come into a consulate and do a different procedure under 1481A5 rather than what he'd already performed 1481A1. [00:06:30] Speaker 02: This court simply said, you can't require him to do it. [00:06:32] Speaker 02: Congress has provided alternative routes for relinquishment of citizenship and relinquishment occurs at the moment of the act done with a specific intent. [00:06:42] Speaker 02: And here I would suggest there's no question of fact [00:06:44] Speaker 02: of whether Mr. Farrell has lost his U.S. [00:06:47] Speaker 02: citizenship. [00:06:48] Speaker 02: He lost it in 2004. [00:06:50] Speaker 05: That cuts against you, though. [00:06:52] Speaker 05: That tells us he's already not a citizen. [00:06:57] Speaker 05: So now he just wants a piece of paper from the government confirming that. [00:07:05] Speaker 05: But on your theory, and it sounds factually correct, [00:07:11] Speaker 05: he is not a US citizen at this moment, and he is a citizen of Switzerland, and he has all of the rights and duties associated with the latter. [00:07:23] Speaker 02: Your Honor, he has no proof that he's not a US citizen. [00:07:26] Speaker 02: That's what a certificate of loss of nationality is. [00:07:28] Speaker 02: And why does that matter? [00:07:31] Speaker 02: It matters to him. [00:07:33] Speaker 02: He wants a finality. [00:07:34] Speaker 02: He wants an administratively final determination that the United States does not consider him a citizen. [00:07:39] Speaker 02: Right now that's up in the air. [00:07:40] Speaker 02: There's to this day a disagreement. [00:07:42] Speaker 05: Can you point me to some [00:07:46] Speaker 05: future, some consequence that might be reasonably likely? [00:07:52] Speaker 05: I mean, is he at risk of being drafted or being subject to some tax that applies to citizens abroad? [00:08:01] Speaker 05: What is the tangible harm to him? [00:08:04] Speaker 02: Yes, he could be subject to foreign asset reporting requirements. [00:08:08] Speaker 02: He could be subject to pass taxation. [00:08:10] Speaker 02: He could be subject to a lot of things that US citizens living abroad are subject to and [00:08:17] Speaker 02: having that certificate of loss in nationality, while I understand your honor's concerns that it feels like a formality here, it is significantly important in his legal life as well as his practical life. [00:08:30] Speaker 05: I would agree with you 100% if you could point me to some [00:08:37] Speaker 05: substantial possibility of a future problem with the United States. [00:08:43] Speaker 02: Your honor, I guess being a little general about that. [00:08:47] Speaker 02: Your honor, he applied for certificate of loss of nationality, which is a benefit under United States law. [00:08:53] Speaker 02: He was denied that. [00:08:54] Speaker 02: That's his interest. [00:08:56] Speaker 02: his motivations for acquiring that or the potential legal applications or benefits of that are irrelevant to this analysis. [00:09:03] Speaker 02: The agency has arbitrarily denied a benefit he requested. [00:09:07] Speaker 02: This is like saying, sure, I know how to drive, but I don't have a driver's license and DMV won't give it to me. [00:09:14] Speaker 02: That's a problem. [00:09:15] Speaker 01: Well, also, isn't it a problem for your client? [00:09:16] Speaker 01: I mean, the government maintains in its brief that a person is still a US national until a certificate of loss of nationality is issued. [00:09:27] Speaker 02: That's right, Your Honor. [00:09:28] Speaker 02: And while we are confident that Mr. Farrell has not been a citizen for over 15 years, it doesn't appear the government agrees with it. [00:09:35] Speaker 02: And so we need a final administrative determination from the Department of State so that he can go forward in his life confident of his severance of all ties to the United States. [00:09:49] Speaker 02: And this is the volitional allegiance, the volitional citizenship that our country was founded on. [00:09:55] Speaker 02: And he's seeking vindication of that right. [00:09:57] Speaker 02: And I should suggest, who knows? [00:09:59] Speaker 02: in the future what that could hold. [00:10:01] Speaker 02: We're seeing record numbers of people renouncing their citizenship because it does have impact for people living abroad. [00:10:09] Speaker 02: And I would just point out, in addition to this, what we're discussing is not a requirement in the statute, it's not a requirement in the regulation, it's not a requirement in the foreign affairs manual. [00:10:21] Speaker 02: This is the agency's interpretation of a boilerplate attestation on the back of a form [00:10:27] Speaker 02: that is creating this in-person requirement. [00:10:30] Speaker 02: If you go to the statute. [00:10:31] Speaker 01: I do not, Your Honor. [00:10:34] Speaker 01: That's correct, Your Honor. [00:10:44] Speaker 02: Your Honor, they do have statutory rulemaking authority. [00:10:48] Speaker 02: But if you look at the text of the statute and the structure of the statute, you see that Congress knew how to require in-person attendance at both a consulate as well as an immigration office here. [00:11:00] Speaker 02: If you look at 1481A5, you will see Congress requiring a U.S. [00:11:05] Speaker 02: citizen to appear in person at a consulate. [00:11:08] Speaker 02: that is not there for 1481A1, and it is not there under 8 USC 1501, which is the statute that talks about issuing a certificate of loss of nationality. [00:11:19] Speaker 01: The Secretary does have a great amount of discretion under 1104A to establish regulations, prescribe forms of reports, entries, et cetera, as deemed necessary. [00:11:31] Speaker 01: I mean, that's an incredibly broad grant of authority to the Secretary to kind of fill in the gaps. [00:11:38] Speaker 02: I agree. [00:11:39] Speaker 02: They have a broad grant of rulemaking authority. [00:11:42] Speaker 01: A broad grant of rulemaking authority? [00:11:44] Speaker 02: Of rulemaking authority, absolutely. [00:11:45] Speaker 01: Well, prescribe such forms of reports, entries in other papers, issue instructions, perform such other acts as deemed necessary. [00:11:53] Speaker 01: That seems to include both, yes, the secretary could establish regulations, but could also do all of these other things as deemed necessary. [00:12:03] Speaker 02: Again, Your Honor, we don't dispute that they can issue forms, they can issue regulations, they can have sub-regulatory guidance in the Foreign Affairs Manual. [00:12:12] Speaker 02: But assuming the agency has authority to do this, it's arbitrary and capricious here because it violates their own regulations and their own sub-regulatory guidance in the Foreign Affairs Manual. [00:12:26] Speaker 02: If you look at the Foreign Affairs Manual, let's go directly to that. [00:12:28] Speaker 02: That's what the consular offices are applying. [00:12:31] Speaker 02: in a situation where there's no question about the intent of the foreign national to relinquish their citizenship, that is the specific intent, the constitutional requirements that the government discusses in their brief at length, it tells the consular officers, be flexible in the interview, do it by phone, do it by email. [00:12:50] Speaker 02: And in fact, if you look at 12-7-FAM 1227, it has a note [00:12:56] Speaker 02: specifically if the applicant did not complete form DS 4081, which is what is an issue here. [00:13:05] Speaker 02: And it says, reach out to them and get the form. [00:13:08] Speaker 02: It does not require an in-person requirement. [00:13:11] Speaker 02: There's no demand that they show up at a consulate abroad that they're applying to Mr. Farrell. [00:13:17] Speaker 02: Now, I would suggest that the consular officers have discretion to do that, but that takes us to the chain rebound, Your Honor. [00:13:24] Speaker 02: And we look at these informal decisions [00:13:26] Speaker 02: And there is no explanation. [00:13:28] Speaker 02: There is no suggestion. [00:13:30] Speaker 02: in the letter decisions here that the agency has said, okay, Mr. Farrell, we understand your predicament, but for reasons A, B, and C, we're going to exercise our discretion to have you come into the consulate. [00:13:42] Speaker 02: They say, no, it's a requirement. [00:13:43] Speaker 02: They considered a requirement and considering it a requirement is turning a may into a must. [00:13:49] Speaker 02: And at heart, that is an arbitrary and capricious application of their own policies, regulations as applied to Mr. Farrell. [00:13:57] Speaker 02: And for that reason, the letter decisions must be set aside. [00:14:00] Speaker 02: And again, I do think it's important to see where this in-person requirements coming from. [00:14:06] Speaker 02: The government's kind of moved the goalposts from the pro se litigation and district court to their response brief in front of this panel. [00:14:14] Speaker 02: And they have boiled it down to in the record, I would point you to Joint Appendix page 212. [00:14:21] Speaker 02: It is the page two of the DS 4081. [00:14:25] Speaker 02: The only thing on there is the consular officer's attestation. [00:14:29] Speaker 02: This is the equivalent of a certificate of service that's attached to a brief. [00:14:33] Speaker 02: It's boilerplate language. [00:14:35] Speaker 02: And they're citing two words, before me, this day of, and then month and a year. [00:14:41] Speaker 02: That is where they're coming up with this burdensome in-person abroad requirement. [00:14:49] Speaker 02: And it's not an interpretation of the statute, the regulation, or the foreign affairs manual, or the substantive portions of the forms. [00:14:57] Speaker 02: It's an interpretation of a boilerplate signature block. [00:15:01] Speaker 02: And creating a new eligibility criteria out of that, I would suggest is arbitrary and capricious, again, as applied to my client. [00:15:10] Speaker 05: Why isn't an in-person requirement [00:15:19] Speaker 05: perfectly reasonable as a way of protecting US nationals against loss of citizenship through flimsy process. [00:15:37] Speaker 05: A lot of this scheme responds to Supreme Court decisions which impose [00:15:45] Speaker 05: both substantive and procedural limits on the government's, the circumstances when a citizen can be denaturalized. [00:15:53] Speaker 05: So the trigger for this process is that any consular officer anywhere in the world has reason to believe that someone might have committed a [00:16:14] Speaker 05: Denaturalizing Act with the requisite intent. [00:16:18] Speaker 05: And can they really go forward on a reason to believe standard and issue this certificate without bringing in the person and saying, tell us what happened. [00:16:38] Speaker 05: Did you really intend to renounce your citizenship? [00:16:42] Speaker 05: I'm here and I see my I'm over my time. [00:16:44] Speaker 02: We'll let you Thank you. [00:16:49] Speaker 02: Three part answer. [00:16:50] Speaker 02: The first is Demanding an in person requirement would be [00:16:58] Speaker 02: For all folks who relinquish under any of those provisions in 1481A would be terrible policy, because we're talking about 1481A1. [00:17:09] Speaker 02: But if you look at 1481A3, we're talking about a US citizen who is committing hostilities against the United States on battlefield. [00:17:16] Speaker 02: to tie the agency's hands to require that person to come in and sign something, it just defies the purpose of the statute and frankly makes no sense. [00:17:25] Speaker 02: So that was my first point. [00:17:26] Speaker 02: And again, this is not a policy case. [00:17:29] Speaker 02: I'm not arguing policy, but I do think it's important to see the full statutory paradigm. [00:17:35] Speaker 02: The second thing is I think the agency in its regs and in its foreign affairs manual has done a reasonable interpretation. [00:17:42] Speaker 02: they can require it in their discretion, right? [00:17:45] Speaker 02: They can exercise discretion to have someone come in in a certain situation. [00:17:49] Speaker 02: Here, they violated their regulations and the FAM by demanding it to be a requirement. [00:17:56] Speaker 02: They did not consider discretionary. [00:17:58] Speaker 02: They said, we can't process your application without you showing up in person. [00:18:03] Speaker 02: And so that's a legal mistake. [00:18:05] Speaker 02: That's interpreting a may as a must. [00:18:07] Speaker 02: But I agree that if this decision, and again, we're stuck with the four corners [00:18:12] Speaker 02: of the decision under the chain of your doctrine. [00:18:15] Speaker 02: If this was written differently and had different rationale and they said, look, we're going to exercise our discretion under the fam to have you come in then because we're concerned about your intent, because we're concerned about your volunteer, this would be a very different case. [00:18:27] Speaker 02: And then the final thing I'll say is your honor, again, the agency has backtracked a bit in its argument. [00:18:33] Speaker 02: And the only thing it's defending is not that this would be an in person interview, [00:18:38] Speaker 02: They are arguing that they have to have this sign in person, an in-person signature requirement. [00:18:46] Speaker 02: While I agree an interview may be reflective of and interesting to ask questions about someone's voluntariness, a signature is not that, Your Honor. [00:18:56] Speaker 02: Literally they're saying you show up at a window, sign this piece of paper, that's all it takes. [00:19:00] Speaker 02: So what they're defending is divorced from the rationale they argue at the beginning of their brief. [00:19:07] Speaker 02: And for those reasons, we would ask this court to reverse the agency's rejection of my client's certificate of loss nationality application. [00:19:14] Speaker 05: So just one follow up on what you said. [00:19:18] Speaker 05: Suppose I still think that a requirement for the citizen or the putative non-citizen to show up in person and explain [00:19:33] Speaker 05: so that the secretary has a better sense of what happened. [00:19:37] Speaker 05: Suppose I think that makes sense in the abstract and doesn't make much sense on the facts of your case, given everything you've laid out. [00:19:51] Speaker 05: Why is it [00:19:55] Speaker 05: unlawfully arbitrary to just have a rule instead of a case by case assessment. [00:20:04] Speaker 05: Will we make this person come in but not that person? [00:20:07] Speaker 05: Rules can be over inclusive, but if the rule is rational in the mind run of cases, we usually say that's not arbitrary and capricious. [00:20:18] Speaker 02: Your honor, if the agency had actually implemented or promulgated a rule this way, this would be a different case, but they haven't. [00:20:28] Speaker 02: They haven't put it, it's not in the statute, it's not in the regs, it's not in the fam. [00:20:33] Speaker 02: The rules that we look to in the regs and in the fam indicate discretion to require an in-person interview, not mandatory. [00:20:41] Speaker 02: And so I do think [00:20:44] Speaker 02: We are asking for a very narrow holding here, Your Honor. [00:20:47] Speaker 02: We're not asking to overturn the apple cart. [00:20:50] Speaker 02: Mr. Farrell falls into a subset of relinquishing US citizens, right? [00:20:57] Speaker 02: He is saying that 16 years ago, [00:21:00] Speaker 02: I had the specific intent and voluntarily took Swiss citizenship and got rid of my US citizenship. [00:21:08] Speaker 02: And so the question of voluntariness today, it's a question of voluntariness 16 years ago. [00:21:15] Speaker 02: And so that was my first point, but to your point, Your Honor, and I apologize for not answering the exact question, the agency does have discretion to use rulemaking or adjudication, right? [00:21:24] Speaker 02: But this is an informal adjudication. [00:21:26] Speaker 02: This is not how you announce a rule. [00:21:27] Speaker 02: this would be entitled to no deference under Kaiser, and this is not an affirmative statement of policy. [00:21:34] Speaker 02: This is a one-off adjudication that frankly violated their own regs and fam, and this court doesn't go any further than that. [00:21:40] Speaker 05: Yeah, I mean, it's just a little odd, right? [00:21:44] Speaker 05: The fact of this case that makes your position so appealing was [00:21:54] Speaker 05: You know, the guy's stuck in a US prison and the government's saying, we won't acknowledge what everyone knows to be true until you can drop by our embassy in Switzerland. [00:22:05] Speaker 05: And that just sounds Kafkaesque. [00:22:09] Speaker 05: Now we'd be doing a chennery remand for the agency to re-explain in circumstances where that constraint [00:22:22] Speaker 05: no longer applies. [00:22:24] Speaker 05: And presumably, going forward, they can say, well, okay, we might make exceptions for people in prison, but your client's not in prison. [00:22:37] Speaker 05: It's perfectly easy for him to come into the consulate and just dot a few I's and cross a few T's, so we keep our paperwork in order. [00:22:49] Speaker 02: And Your Honor, I do understand that the case has changed a little bit now that Mr. Farrell has removed himself from the United States. [00:23:02] Speaker 02: I think we would use the term self-deport. [00:23:04] Speaker 02: But at heart, this is a case just like any other administrative law case. [00:23:09] Speaker 02: He's applied for a benefit from a federal agency. [00:23:12] Speaker 02: He has an interest in acquiring that benefit. [00:23:14] Speaker 02: He's eligible for it. [00:23:15] Speaker 02: And the agency is arbitrarily and capriciously [00:23:18] Speaker 02: rejected it. [00:23:19] Speaker 02: The fact that he's in Switzerland does not undermine his request. [00:23:24] Speaker 02: And he has good reasons to not step foot on US soil, which is what a consulate is. [00:23:29] Speaker 02: And so while I understand the interests might have changed a little bit, the interests are still there. [00:23:34] Speaker 02: This case is not moved. [00:23:36] Speaker 02: And the agency cannot [00:23:41] Speaker 02: should not be able to get away with requiring an unlawful requirement simply because he's now in Switzerland. [00:23:47] Speaker 02: This court made it clear in Fox v. Clinton describing the State Department's position is nonsensical and saying it's immaterial to [00:23:56] Speaker 01: Can I just ask you to explain why you think a certificate of loss of nationality is a benefit for the person seeking to relinquish citizenship, because I think there are a number of aspects of the statute that suggests the CLN is [00:24:12] Speaker 01: Is really an administrative determination for the government right the Secretary makes the determination and if they agree to the certificate a copy is sent you know to the person who has lost their nationality right it's not really the statute is not really phrased in terms of a benefit. [00:24:30] Speaker 01: for the expatriating citizen as opposed to kind of almost like a housekeeping measure so that the government knows who is a citizen and who is not a citizen. [00:24:41] Speaker 01: So I'm wondering if you can clarify that because you said it was a benefit for your for your for Mr. Farrell. [00:24:48] Speaker 02: That's right, Your Honor. [00:24:48] Speaker 02: All of the statutory provisions we're talking about are in the Immigration and Nationality Act. [00:24:52] Speaker 02: In the Immigration and Nationality definitions, it defines applications as benefits applications, benefits petitions. [00:24:59] Speaker 02: And so petitioning for something under the Immigration and Nationality Act, we would call it benefits determination. [00:25:05] Speaker 02: I would also note that this is a case where he has filled out, my client has filled out the necessary applications and applied for certificate of loss of nationality. [00:25:14] Speaker 02: And I understand the point that, and I think this is probably the tension between our positions in the entire case. [00:25:23] Speaker 02: For most of the 20th century, this was done affirmatively by the State Department against the will, right, of U.S. [00:25:30] Speaker 02: citizens. [00:25:31] Speaker 02: Well, when a froyum came out, and that kind of changed things, right? [00:25:35] Speaker 02: We see the administrative presumptions changing in the mid-90s, and we see more of U.S. [00:25:42] Speaker 02: citizens affirmatively asking [00:25:44] Speaker 02: Force to be slashed now nationality rather than the State Department simply issuing them. [00:25:49] Speaker 02: And so I understand that tension, your honor, but I don't think that changed the fact that again There is a process set up for this. [00:25:56] Speaker 02: We see it in the regulations of fill out this form fill out this form and you can have this Final administrative determination and that final administrative determination means a lot to my client at this point. [00:26:07] Speaker 04: How much of your, how much of your moodness defense and I can ask depends on your client's fear of going to an American embassy or an American consulate because he's worried about being extradited for another crime. [00:26:26] Speaker 02: None of it, Your Honor. [00:26:27] Speaker 02: I think that our applicant case is not moot because he applied for a benefit and that benefit has still been rejected arbitrarily and capriciously. [00:26:36] Speaker 02: And I guess I add the facts to add atmospherics. [00:26:41] Speaker 02: And again, I guess I keep going back to Fox v. Clinton because that was this court's most recent discussion on this exact issue we're talking about. [00:26:49] Speaker 02: And in Fox v. Clinton, the court said, [00:26:51] Speaker 02: There are other options for him to acquire a CLN. [00:26:54] Speaker 02: And in that case, Dr. Fox was out of the country the entire time. [00:26:58] Speaker 02: He was in Israel. [00:26:58] Speaker 02: He could have gone to the consulate in Tel Aviv, but he didn't want to, and he didn't have to. [00:27:04] Speaker 02: And this court affirmed that, and again, described it as, quote, immaterial. [00:27:08] Speaker 02: And so I do think this panel should give deference to that case. [00:27:13] Speaker 02: And again, I think this is just the next evolution of that case law, frankly. [00:27:18] Speaker 05: So just as a practical matter, [00:27:22] Speaker 05: he would, I know you said maybe the consular services office is closed, but it would seem that it's a pretty easy thing as a general matter for the ex-pat to drop by the office and sign the form. [00:27:43] Speaker 05: And he would [00:27:46] Speaker 05: know, he has the keys to his own non recognition in his pocket, it would seem. [00:27:55] Speaker 05: And yet he would rather wait. [00:27:58] Speaker 05: Now, let's say it takes us six months or nine months or something to write an opinion, he would rather wait for that than just go to the embassy and sign the form and be done with it. [00:28:13] Speaker 02: Yes, Your Honor, and I understand that may seem absurd from where you're sitting. [00:28:17] Speaker 02: But this has been a long fought fight for him. [00:28:20] Speaker 02: You know, this has kept him it kept him detained longer in the US. [00:28:25] Speaker 02: He wants an indication that the State Department. [00:28:30] Speaker 02: should process his certificate of loss of nationality because he has fulfilled all the eligibility criteria and these informal letter decisions have raised a wall through bureaucratic processes and created significant red tape that is unlawful and he has a very serious interest in seeing that right vindicated. [00:28:51] Speaker 02: And again, but at heart, it's [00:28:53] Speaker 02: he applied for a benefit. [00:28:54] Speaker 02: It was improperly denied, and he should have that choice to wait six months or go to the consulate, and he's choosing to wait. [00:29:03] Speaker 05: Okay. [00:29:04] Speaker 05: Judge Rao, anything else? [00:29:06] Speaker 05: Judge Walker? [00:29:08] Speaker 05: Okay, thank you. [00:29:09] Speaker 05: We'll give you some time on rebuttal. [00:29:10] Speaker 05: Thank you, Your Honor. [00:29:13] Speaker 05: Mr. Martinez. [00:29:15] Speaker 05: Good morning, Your Honors. [00:29:17] Speaker 05: It's pretty apparent there's some interest in mootness, so why don't you begin there? [00:29:23] Speaker 03: Sure, Your Honor. [00:29:23] Speaker 03: May it please the Court. [00:29:27] Speaker 03: We believe that the question of MUNUS, it is important to realize, as the Court has done, that Mr. Farrell no longer has an impediment. [00:29:36] Speaker 03: to go into an embassy or consulate abroad and obtain the benefit, not the benefit, excuse me, the administrative recognition document that he seeks. [00:29:47] Speaker 03: This is about that. [00:29:48] Speaker 03: And as Your Honor recognized earlier, he has the keys to do that and does not have to wait for this court to act. [00:29:55] Speaker 05: But as the court- Do you have any knowledge of the situation on the ground in Switzerland? [00:30:02] Speaker 05: Is it the case that all these offices are now closed due to COVID? [00:30:07] Speaker 03: I'm not aware, Your Honor, whether they're open for particular services or not, but it would apply all over the world and for all people seeking not only CLNs, but all other documents or benefits or any sort of, I guess, document that will be processed through consular processing in an embassy. [00:30:29] Speaker 04: But I think it's important- Mr. Martinez, let's assume that they're closed to the public. [00:30:33] Speaker 04: What is he supposed to do? [00:30:37] Speaker 03: People have to wait like everybody else, Your Honor, during this situation. [00:30:40] Speaker 03: There are presumably thousands of people waiting to do transactions with a U.S. [00:30:44] Speaker 03: embassy or consulate that are waiting because of the situation, and not only abroad, but also within our country here. [00:30:51] Speaker 03: I think that this case is not one about moodiness, and it's one about [00:30:55] Speaker 03: as the court recognized minutes ago, the INA granted the secretary an express delegation of authority. [00:31:03] Speaker 05: Is the government's position that the case is moot or is not moot? [00:31:09] Speaker 03: The government does not support the position that the case has moved, Your Honor. [00:31:13] Speaker 03: The government rejected Mr. Farrell's application or request for a certificate of loss of nationality, and that stands. [00:31:22] Speaker 03: The government does agree with Your Honor that Mr. Farrell has the keys to solve that situation and could move his case if he decided to go into a US embassy, and he no longer has that impediment. [00:31:34] Speaker 05: What is his continuing interest [00:31:38] Speaker 05: concrete, tangible Article III interest in getting the certificate at this point. [00:31:47] Speaker 03: A certificate of loss of nationality, Your Honor, under Section 1501 is an administrative determination of loss of citizenship. [00:31:55] Speaker 03: And presumably, Mr. Farrell, that's what he wants. [00:31:58] Speaker 03: He wants a certificate of loss of nationality. [00:32:01] Speaker 03: And the government has not even adjudicated his request on the merits. [00:32:06] Speaker 05: So is the government's position as of today, right now, [00:32:13] Speaker 05: Is Farrell a citizen or not? [00:32:19] Speaker 03: We do not know, Your Honor. [00:32:20] Speaker 03: The government has not adjudicated his request on the merits yet. [00:32:24] Speaker 03: It's incorrect for Mr. Farrell to say that he's no longer a citizen. [00:32:28] Speaker 03: We do not acknowledge that. [00:32:29] Speaker 03: And I think it's important to recognize that these are two separate issues that should not be conflated. [00:32:34] Speaker 05: Assume that when he became a Swiss citizen, he had the requisite intent to relinquish under 1481. [00:32:46] Speaker 05: Just assume that in the hypothetical. [00:32:48] Speaker 05: Is he a citizen today? [00:32:49] Speaker 03: We don't know, Your Honor. [00:32:54] Speaker 03: Assuming that he did, there would still be an assessment required under the statute by the consular officers, but that's not what this case is about. [00:33:03] Speaker 04: What would it assess? [00:33:04] Speaker 04: Mr. Martinez, what would it assess? [00:33:06] Speaker 03: It would assess whether the act, whether Mr. Farrell is voluntarily seeking to give up his citizenship and had the intent when he acquires his citizenship. [00:33:17] Speaker 04: Assume both of those things. [00:33:19] Speaker 04: What else would it assess? [00:33:20] Speaker 03: Well, assuming that a consular officer has made that determination, then this consular officer would process a recommendation in a package for the secretary of state to issue a certificate of loss of nationality, which is separate from the issue of loss and should not be inflated. [00:33:38] Speaker 04: I'm still having trouble if it's assumed Judge Katsas is hypothetical with the voluntariness element added. [00:33:47] Speaker 04: So Mr. [00:33:49] Speaker 04: Mr. Farrell voluntarily intended to relinquish his citizenship in 2004 when he became a Swiss citizen. [00:34:00] Speaker 04: If we assume that, then today is he a US citizen? [00:34:07] Speaker 03: Perhaps, but not in the eyes of the government, Your Honor. [00:34:09] Speaker 01: Mr. Martinez, I mean, it's not, I mean, in your brief, you say that until a certificate issues, a person remains a US national. [00:34:18] Speaker 01: That's the government's position and it's brief. [00:34:20] Speaker 01: Are you saying that's not your position any longer that it's that there's like maybe he's a citizen category. [00:34:29] Speaker 03: Well, in our brief, Your Honor, I think [00:34:31] Speaker 03: that we intended to say that he remains a US national in the eyes of the government. [00:34:35] Speaker 03: And that is something that the district court disagreed with, but that issue is not on appeal. [00:34:39] Speaker 03: What is on appeal is whether the secretary has the discretion to require an in-person appearance to obtain a certificate of loss of nationality, not a determination of whether loss occurred or not or when did that happen, has it happened or not. [00:34:53] Speaker 03: This issue is about Mr. Farrell wanting a certificate of loss of nationality and the secretary of state having a broad discretion to [00:35:01] Speaker 03: set forth procedures and forms that govern the process to obtain that certificate of loss of nationality. [00:35:08] Speaker 01: I do think some of these questions, though, go to standing and some of the other underlying questions. [00:35:14] Speaker 01: I mean, so, you know, in the hypothetical my colleague said, right, you have an intentional voluntary relinquishment. [00:35:22] Speaker 01: At that moment, the statute seems to suggest you're no longer a citizen, but the government's position seems to be that they will continue to think you are a US national until a certificate issues. [00:35:34] Speaker 03: Right, Your Honor, because the certificate of loss of nationality will issue after an assessment of whether there is an intent and voluntariness and that has not happened. [00:35:44] Speaker 03: So these are two different things that are going on right now. [00:35:48] Speaker 03: But for the purpose of this appeal, we're not talking about whether loss has occurred or not. [00:35:53] Speaker 03: We're talking about what is required to process a certificate of loss of nationality that will determine whether that loss has occurred or not. [00:36:00] Speaker 01: It's a very peculiar situation, right? [00:36:02] Speaker 01: Because the statute seems to suggest he [00:36:05] Speaker 01: lost his citizenship say in 2004, if we assume it was voluntary and intentional. [00:36:10] Speaker 01: But then if there were to be a certificate issued, but the government continues to treat him right now as a US citizen or a US national. [00:36:19] Speaker 01: But if they were to issue a certificate today, that certificate would say that he lost his citizenship in 2004. [00:36:26] Speaker 01: So for a period of 16 years, he would both be a citizen and not a citizen. [00:36:32] Speaker 01: It's a very peculiar circumstance. [00:36:37] Speaker 03: Well, Your Honor, Your Honor is correct. [00:36:40] Speaker 03: The certificate of loss of nationality would include the date of the expatriating act as a moment that the individual lost citizenship. [00:36:48] Speaker 03: But that is inconsequential and that is not an issue, I believe respectfully, that the court needs to determine to decide whether the secretary can impose [00:36:56] Speaker 03: and in-person requirement for the processing of a certificate of loss of nationality. [00:37:02] Speaker 03: Perhaps an individual in his or her view had that intent and had that voluntariness, but the government does not know it until they go through the procedures to issue a certificate of loss of nationality. [00:37:15] Speaker 03: This is particularly important in a situation where, for example, Mr. Farrell is saying, all that I need to do is write a piece of paper and send it to the embassy that says, [00:37:26] Speaker 03: I became a Swiss citizen in 2004 and I did not want to be a US citizen anymore. [00:37:31] Speaker 03: That is illogical. [00:37:33] Speaker 03: There's no way for the government to make sure that that is correct. [00:37:36] Speaker 03: And it is illogical as applied to the facts of this case where he waited 12 years to seek that certificate of loss of nationality. [00:37:43] Speaker 03: So that's why the government in this situation and in all other situations has to assess voluntariness and intent. [00:37:51] Speaker 03: And the procedure to do so includes an in-person appearance requirement. [00:37:55] Speaker 05: And that impressed me. [00:37:56] Speaker 05: Voluntariness and intent as of when? [00:38:00] Speaker 05: As of 2004 or as of when he comes in for the interview? [00:38:07] Speaker 03: Voluntariness is overall, Your Honor. [00:38:09] Speaker 03: Is he right now want to give up his U.S. [00:38:14] Speaker 03: citizenship? [00:38:15] Speaker 03: And intent is, did he have an intent to give up U.S. [00:38:18] Speaker 03: citizenship when he committed the allegedly expatriating act? [00:38:22] Speaker 04: Why does his intent now matter? [00:38:24] Speaker 05: 1481A seems very clear. [00:38:29] Speaker 05: There are two mens rea elements. [00:38:32] Speaker 05: You have to do the expatriating act with, and there are two mental elements. [00:38:37] Speaker 05: One is that the act has to be voluntary, and another is that the act has to be done with an intent to relinquish. [00:38:46] Speaker 05: But both of those [00:38:49] Speaker 05: mental elements attached to the expatriating act. [00:38:54] Speaker 05: 1481 seems very clear on that point. [00:39:00] Speaker 03: Yes, Your Honor, but I think this goes to the merit of whether an individual lost citizenship or not. [00:39:06] Speaker 05: Just assume we think, assume we're interested in that question for whatever reason. [00:39:11] Speaker 05: I mean, isn't it still the case that he lost [00:39:17] Speaker 05: On his allegations, he lost his citizenship in 2004, regardless of how you adjudicate CLNs or anything else. [00:39:29] Speaker 03: On his allegations alone, yes, your honor. [00:39:34] Speaker 03: But it is important to recognize that the government has not acknowledged it because what this case is about is the administrative issuance of that acknowledgement, the certificate of loss of nationality. [00:39:45] Speaker 03: and whether the Secretary has discretion to require an in-person appearance. [00:39:50] Speaker 03: And we respectfully submit that the statutory framework gives the Secretary, as Judge Rao recognized earlier, broad discretion to prescribe forms that include that. [00:40:01] Speaker 03: And it serves important purposes in this case when we have issues of voluntariness and intent involved. [00:40:06] Speaker 03: For one, [00:40:07] Speaker 03: It allows a comprehensive assessment of that voluntariness and intent. [00:40:11] Speaker 03: Second, it ensures that an individual understands the irrevocable nature of expatriation. [00:40:16] Speaker 03: We're not talking about obtaining a right or giving up some sort of document. [00:40:20] Speaker 03: We're talking about U.S. [00:40:21] Speaker 03: citizenship. [00:40:22] Speaker 03: And U.S. [00:40:23] Speaker 03: citizenship is invaluable. [00:40:25] Speaker 03: The Supreme Court has even recognized and described it as the highest hope of civilized men. [00:40:30] Speaker 03: Given such the important issue at stake, an in-person appearance makes sense. [00:40:35] Speaker 03: It allows for consular officers to determine whether someone really wants to give it up. [00:40:40] Speaker 03: You look at the demeanor, you look at someone's state of mind. [00:40:42] Speaker 04: Mr. Martinez, if I might interrupt, do you think that there are some benefits that come with obtaining a certificate of loss of citizenship? [00:40:55] Speaker 03: I believe they will be the benefit that Mr. Farrell recognized earlier that he assured that the government does not see him as a US citizen anymore, but whatever benefit an individual obtains from that is subjective. [00:41:10] Speaker 01: Is it subjective though? [00:41:11] Speaker 01: I mean, do you think, could he not now be subject to taxes or other IRS requirements, reporting requirements, [00:41:21] Speaker 03: I guess, Your Honor, he might be subject to that. [00:41:24] Speaker 03: I cannot speak at length about all the specific things that an individual loses or does not have to do when they give up US citizenship. [00:41:33] Speaker 03: But I presume that that's one of the reasons why Mr. Farrell wants a certificate of loss of nationality. [00:41:39] Speaker 03: But he has not complied with that reasonable requirement that the Secretary has discretion to impose. [00:41:44] Speaker 03: And until he does, a certificate of loss of nationality cannot issue [00:41:49] Speaker 03: because the statute is clear, 1501 is clear that the issuance of a CLN is subject to the secretary's approval. [00:41:56] Speaker 03: I really do want to highlight a fallacy in Mr. Farrell's argument here, and that is his reliance on the 2009 Fox case. [00:42:06] Speaker 03: Fox is an opposite because it did not involve a situation in which this court address a procedural requirement and whether that impose an impermissible burden. [00:42:16] Speaker 03: Fox involved the denial of a CLN on the merits. [00:42:20] Speaker 03: There was an Israeli citizen that wanted to give up. [00:42:23] Speaker 03: And the Department of State denied that because it was a question of whether he had automatically acquired Israeli citizenship or he had applied for it. [00:42:33] Speaker 03: But more importantly, the court cannot extract much or if anything from Fox [00:42:38] Speaker 03: Because in 2009, the forms that contained the in-person appearance requirement right now were not operated. [00:42:44] Speaker 03: Form 4079 became operated in 2013, and Form 4081 became operated in 2015. [00:42:51] Speaker 03: So the court cannot extract much from the Fox case. [00:42:54] Speaker 03: But I think that what is fatal to Mr. Ferrell's position is that not once does he mention or analyze Section 1104 and the express grant of authority that it gives the Secretary of State to set forth [00:43:07] Speaker 03: procedures, forms, anything for the determination of nationality and the issuance of a CLN and managing consular officers. [00:43:15] Speaker 04: Mr. Martinez, go ahead with the final. [00:43:20] Speaker 03: I just wanted to make the point also that it is very important to highlight that Mr. Farrell is confusing the requirement that he's challenging on appeal. [00:43:30] Speaker 03: He repeatedly references that the FAM and any other documents, even the forms, do not require an interview, that the interview is optional. [00:43:40] Speaker 03: But the interview is a separate matter. [00:43:42] Speaker 03: An interview, if it's contained in our addendum in page 102, and yes, that interview can be done as a matter of discretion by phone or email, et cetera. [00:43:56] Speaker 03: that the forms itself require an in-person appearance requirement to sign. [00:44:00] Speaker 03: Many of these arguments challenge the interview, but not the signing of the forms. [00:44:05] Speaker 03: I mean, in form 4079 even says that the purpose is to determine whether the individual performed a potentially expatriating act voluntarily and with intention to relinquish. [00:44:16] Speaker 03: And it says in page 144 of our addendum, please sign before a consular officer. [00:44:22] Speaker 03: Similarly, form 4081, [00:44:25] Speaker 03: Like Mr. Ferrell's representation in page 47 of our addendum, it says, the applicant appeared personally before me and signed the statement before me. [00:44:35] Speaker 03: There is no question that these forms require that. [00:44:38] Speaker 03: There is no question that the secretary has the authority to prescribe this form. [00:44:43] Speaker 03: And there's no question that the statute requires this broad authority. [00:44:47] Speaker 03: As I mentioned, I want to reiterate that United States citizenship is invaluable. [00:44:53] Speaker 03: Can I ask you? [00:45:00] Speaker 03: Your honor, I think I missed a question. [00:45:03] Speaker 05: Yeah, I'm sorry. [00:45:04] Speaker 05: You're cutting in and out a little bit. [00:45:08] Speaker 05: Take the enemy combat hypothetical that your friend posed to us. [00:45:16] Speaker 05: So suppose there's a US citizen [00:45:21] Speaker 05: who takes up arms against this country, which is an expatriating act. [00:45:27] Speaker 05: And unfortunately, we have seen some of those. [00:45:31] Speaker 05: And suppose that person actually does a recruiting video, propaganda recruiting video for the enemy, right? [00:45:40] Speaker 05: And it makes its way into the State Department and they see the guy on the battlefield, [00:45:48] Speaker 05: and they see the video in which he's saying how much he hates America and how proud he is of himself for throwing away his horrible association with the country. [00:46:03] Speaker 05: Is it the government's position that it will continue to recognize that person unless and until he comes in and gets mirandized and signs some form? [00:46:18] Speaker 03: Your Honor, I think that in that hypothetical, we might be dealing with a different expatriating act that may or may not include an in-person appearance requirement for an embassy. [00:46:28] Speaker 03: What we're working here right now is taking up foreign citizenship. [00:46:31] Speaker 03: We're not considering whether there is a foreign combatant or a terrorist or anything of that nature. [00:46:36] Speaker 03: And the statute specifically allows for people that commit treason to the United States [00:46:41] Speaker 03: an avenue for expatriation, but that is within the purview of the Department of Homeland Security. [00:46:47] Speaker 03: It's not an issue here. [00:46:49] Speaker 05: So I'm sorry, just walk me through the mechanics. [00:46:52] Speaker 05: The requirement to appear in person and be forewarned and sign the form applies only to expatriating acts under [00:47:08] Speaker 05: 1481A1 as opposed to the other expatriating acts in the 1481A list. [00:47:18] Speaker 03: No, Your Honor, I'm not saying that it applies only to 4081A1, but the other expatriating acts, most of them include an in-person appearance requirement as a condition for the expatriating act itself. [00:47:31] Speaker 03: Here, 1481A1 does not include an in-person appearance requirement for the expatriating act itself, but does include it for the processing of a CLN. [00:47:41] Speaker 03: And that's what this case is about, that issue of whether when somebody seeks to renounce citizenship under 1481A1, [00:47:48] Speaker 03: can the department, is it proper and reasonable for the Secretary of State to require an in-person appearance to us as voluntariness and intent? [00:47:57] Speaker 03: And it is reasonable. [00:47:58] Speaker 03: It serves important purposes. [00:47:59] Speaker 03: It's rationally related to the statute and to the context and purpose of it. [00:48:05] Speaker 05: One more question. [00:48:06] Speaker 05: Go ahead, Naomi. [00:48:07] Speaker 01: Oh, OK. [00:48:09] Speaker 01: Let me ask you a question I also asked Mr. Banius. [00:48:12] Speaker 01: Do you think getting a CLN is a benefit for the expatriating individual? [00:48:19] Speaker 01: Or, I mean, is a CLN for the benefit of the individual? [00:48:22] Speaker 01: Does the State Department view it as something that's purely internal to the government? [00:48:29] Speaker 01: Do you agree with the characterization of this as a benefit? [00:48:32] Speaker 03: I don't agree with the characterization of it as a benefit and whatever requirements comes when something is a benefit. [00:48:38] Speaker 03: This is an administrative recognition of a laws that could have occurred if the department determines that it did. [00:48:44] Speaker 03: Whatever the applicant does to when they receive it is up to them. [00:48:48] Speaker 03: But here we're talking about an administrative process, an administrative recognition from the government. [00:48:55] Speaker 04: Mr. Martinez, if it's not a benefit to the applicant, why do you charge the applicant more than $2,000? [00:49:03] Speaker 03: I'm not sure, Your Honor. [00:49:05] Speaker 03: That is in a regulation. [00:49:06] Speaker 03: And of course, the government charges fees for different things as part of the consular processes to support that. [00:49:16] Speaker 03: I don't think it's tied to the fact of whether it is a benefit or not. [00:49:20] Speaker 04: I mean, they usually charge fees for things that are a benefit to the person paying the fee. [00:49:25] Speaker 04: Otherwise, no rational person would pay the fee. [00:49:30] Speaker 04: But let me ask you one hypothetical. [00:49:34] Speaker 04: I'm trying, you described Mr. Farrow as someone who just sent in one letter and now wants us to assume that's enough to demonstrate that his 2004 relinquishment was intentional and voluntary. [00:49:51] Speaker 04: I'm not sure I'm on board with you in terms of your description of the facts and all the evidence that he put in front of the State Department, but I do agree with you that [00:50:03] Speaker 04: it is the responsibility of the State Department to assess whether what he did in 2004 was intentional and voluntary. [00:50:12] Speaker 04: Now, how does the State Department assess that? [00:50:15] Speaker 04: Well, the statute doesn't say they assess it in person. [00:50:18] Speaker 04: The regs don't say they assess it in person. [00:50:21] Speaker 04: The manual doesn't say they assess it in person. [00:50:25] Speaker 04: Instead, there is a form that [00:50:30] Speaker 04: arguably, and I think probably does, say the signature has to be in person. [00:50:37] Speaker 04: And so our question, I think, is, is that arbitrary and capricious? [00:50:43] Speaker 04: Is that reasonable for whoever wrote that form to say the signature always has to be in person? [00:50:48] Speaker 04: Or put another way, whoever assesses that form after it's been submitted by Mr. Farrell, when they assess it, is it arbitrary and capricious for them to say in this particular case, [00:51:00] Speaker 04: there must be an in-person signature. [00:51:03] Speaker 04: And it's only not arbitrary and capricious if the absence of the signature sufficiently informs the assessment of whether what happened in 2004 was voluntary and intentional. [00:51:17] Speaker 04: So my hypothetical is, imagine I'm running a computer coding shop and it's very important for everyone I hire to follow directions. [00:51:28] Speaker 04: And so, [00:51:29] Speaker 04: I give them a test during their job interview and I give them directions and I see how well they follow them. [00:51:36] Speaker 04: I give them the directions by telling them the directions by speaking. [00:51:39] Speaker 04: It's a verbal direction. [00:51:41] Speaker 04: And this particular job applicant is deaf. [00:51:45] Speaker 04: Now, he didn't follow the directions. [00:51:48] Speaker 04: I could have written the directions for him. [00:51:51] Speaker 04: He would have probably followed them if I'd written them, but I spoke them. [00:51:54] Speaker 04: He didn't follow them. [00:51:55] Speaker 04: I don't hire them because I'd made an assessment. [00:51:58] Speaker 04: that he can't follow directions. [00:52:03] Speaker 04: Do you think that that assessment is reasonable? [00:52:08] Speaker 03: It's not reasonable, your honor, but I don't know that it is comparable to this. [00:52:10] Speaker 04: Do you see the analogy here? [00:52:12] Speaker 04: There may be many instances where an in-person signature is what the department needs in order to assess accurately. [00:52:19] Speaker 04: But there may be, if it's not here, in some other instance, at least one imaginable applicant [00:52:26] Speaker 04: Where the evidence of voluntariness and intent, it's so overwhelming that you don't need the signature in order to make an accurate assessment that the relinquishment 16 years ago was voluntary and intentional. [00:52:43] Speaker 04: Don't you think that's at least imaginable that there would be that situation, even if it's not this situation? [00:52:49] Speaker 03: Perhaps, your honor, but I think it is important. [00:52:52] Speaker 04: If perhaps is the answer, then doesn't that mean that you can't have a blanket rule that every single applicant must, no matter what, provide an in-person signature? [00:53:03] Speaker 04: And that is, as you said, the informal rule that you have. [00:53:07] Speaker 03: Well, a couple of points to respond to your honor. [00:53:10] Speaker 03: I think it is black letter administrative law that the agency's act or solution does not have to be the best one. [00:53:17] Speaker 03: And to get into hypotheticals of whether there could be one or many. [00:53:20] Speaker 04: It has to be not arbitrary and capricious. [00:53:22] Speaker 04: It has to be not arbitrary and capricious. [00:53:24] Speaker 03: Of course, but it would be substituting the court's judgment for that of the agency. [00:53:28] Speaker 03: And what we have in front of us, it's a requirement. [00:53:31] Speaker 03: And the question here is whether that requirement is reasonable. [00:53:34] Speaker 03: And I think that, [00:53:35] Speaker 03: Not the forms is not only about a signature your honor, there is an interaction between the consular officer as part of that signature. [00:53:42] Speaker 03: And this is clear, not only in the forms themselves, but in the manual doesn't have to be in person. [00:53:47] Speaker 04: Correct. [00:53:48] Speaker 04: There are all the other interactions don't have to be in person, according to your rules. [00:53:51] Speaker 04: Correct. [00:53:52] Speaker 03: Those are only to develop the case, your honor, to see if the case moves forward, but to actually assess an intent and volunteer and voluntariness of committing of expatriating Those have to be in person. [00:54:04] Speaker 03: Those are not only in the form. [00:54:05] Speaker 03: They are in the manual and several instances in pages 112 121 [00:54:11] Speaker 03: And 105 of our addendum, we include the different instances in which the matter says a consular officer must assess the demeanor, the state of mind, whether they have a pushy spouse or a pushy parent that is obligating them to renounce citizenship. [00:54:27] Speaker 04: But Mr. Martinez, that's renunciation, I think. [00:54:30] Speaker 04: We're talking about relinquishment. [00:54:32] Speaker 04: And the inquiry in terms of when is it voluntary intentional is different from renunciation. [00:54:38] Speaker 04: That inquiry is in the moment. [00:54:40] Speaker 04: the inquiry for relinquish, I may have mis-said it, but for renunciation is in the moment, relinquishment is in the past. [00:54:47] Speaker 04: And I really did think that you said a few minutes ago that everything for a relinquishment inquiry can be done by video or by phone except the signature. [00:54:59] Speaker 04: Did I mishear? [00:55:00] Speaker 03: No, Your Honor. [00:55:01] Speaker 03: I believe so. [00:55:02] Speaker 03: If I did, I apologize. [00:55:04] Speaker 03: I did not represent that. [00:55:05] Speaker 03: What I represent is that an interview to develop the case could be done by phone, [00:55:10] Speaker 03: or by email when a consular officer is getting the preliminary information to determine which forms to send to the applicant. [00:55:17] Speaker 03: Is it a relinquishment based on attaining foreign citizenship? [00:55:21] Speaker 03: Does the applicant want to come in and actually sign a note based on 1481A5, for example? [00:55:29] Speaker 03: But for relinquishment upon attaining a citizenship in another country, that assessment is the same whether it is renunciation or relinquishment. [00:55:36] Speaker 03: A consular officer is tasked [00:55:39] Speaker 03: with determinant, voluntariness, and intent. [00:55:41] Speaker 03: And it is an equal determination. [00:55:43] Speaker 03: And whether you have a pushy spouse, whether there is duress, whether there is intoxication, a lack of state of mind will apply equally. [00:55:51] Speaker 03: And that's why we have an in-person appearance requirement to make sure that that person [00:55:54] Speaker 03: really wants to give up U.S. [00:55:56] Speaker 03: citizenship and is not being forced to do so. [00:55:59] Speaker 03: And they really wanted to do it back then when they allegedly committed the expatriating act. [00:56:04] Speaker 03: That requirement is not only in the forms, it's in the manual. [00:56:07] Speaker 03: And though the statute may not say it explicitly, the statute gives an express broad delegation of authority for the Secretary of State as he deems necessary to set it forth. [00:56:18] Speaker 04: The in-person part of what you just described, and maybe I think I maybe was confused based on [00:56:24] Speaker 04: my misunderstanding of one of your earlier answers, but there's an initial interview that doesn't have to be in person, and then at some point, the applicant has to show up in person, and during that time, the applicant has to sign the form. [00:56:41] Speaker 04: Is there anything else the applicant has to do, always has to do, in person, besides sign the form? [00:56:49] Speaker 03: Your Honor, in addition to signing the form, an applicant reads or is read all of the irrevocable consequences that follow from the laws of US citizenship, and they have to confirm their understanding of that. [00:57:05] Speaker 03: In addition to that, [00:57:07] Speaker 03: in person, they would meet with a consular officer that would have a back and forth, and then submit any additional requirements such as original documents, any U.S. [00:57:18] Speaker 03: passport, the fee, and that's what would happen in person. [00:57:23] Speaker 03: That's why it's very important for somebody to appear, and this is not the only instance that the Department of State requires an in-person appearance. [00:57:29] Speaker 03: For example, [00:57:31] Speaker 03: Children of US citizens born abroad, at least one parent have to appear in the embassy to complete the process. [00:57:38] Speaker 03: Imagine a situation where they say, well, I have a kid abroad and [00:57:43] Speaker 03: You know, and the department has determined that in that situation, an in-person appearance is reasonable as well. [00:57:49] Speaker 03: And an in-person appearance in this case is reasonable, too, because we're not only talking about obtaining U.S. [00:57:55] Speaker 03: citizenship. [00:57:56] Speaker 03: In fact, that stake here is even higher, giving up U.S. [00:57:59] Speaker 03: citizenship. [00:58:00] Speaker 03: It's important. [00:58:01] Speaker 03: We want to make sure that it's done right. [00:58:03] Speaker 03: We want to make sure that it's voluntary, because we don't want an applicant to later come back and say it was not my intention to give up U.S. [00:58:10] Speaker 03: citizenship. [00:58:10] Speaker 03: I was intoxicated. [00:58:12] Speaker 03: I was pressured. [00:58:14] Speaker 03: There was somebody in the other room that you couldn't see when I was in the video with you or on the phone. [00:58:19] Speaker 03: Things of that nature, those can only be confirmed in person. [00:58:22] Speaker 03: And that's why it's important. [00:58:24] Speaker 03: And that's why repeatedly the manual, not only the forms, repeatedly the manual and the instances that I mentioned earlier and others in our brief set forth that an in-person interaction is crucial for this determination. [00:58:39] Speaker 05: Once a CLN issues, suppose it issues and the person denaturalized wants to contest the denaturalization. [00:58:55] Speaker 05: What are the legal options for doing that? [00:59:00] Speaker 05: seems like under 1503, there's a clear option to do that if the denaturalized person is in the country. [00:59:11] Speaker 05: But I couldn't figure out what options if any someone like Mr. Farrell would have if the person is outside the country when the CLN issues. [00:59:24] Speaker 03: Yes, your honor. [00:59:26] Speaker 03: Section 1503 has two subsections. [00:59:28] Speaker 03: 1503A is for people located in the United States, and 1503B is for people located outside of the United States that can file an action in district court. [00:59:37] Speaker 03: But I think that the reference 1501 to 1503 and Mr. Farrell's reliance on that is unavailing because this does not mean that the secretary cannot impose a requirement to sign the forms in person abroad. [00:59:51] Speaker 05: In fact, in our- 1503, just walk me through [00:59:55] Speaker 05: The proceeding under 1501A is to bring a court action for a judgment declaring the person to be a US national. [01:00:06] Speaker 05: Okay, so that seems clean and clear. [01:00:09] Speaker 05: The 1501B, the option made available is an administrative appeal to get something that's called a certificate of identity, but that doesn't, [01:00:25] Speaker 05: That doesn't restore citizenship or get you before a judge to argue for restoring citizenship. [01:00:36] Speaker 05: It just lets you come to the US and seek admission as an alien. [01:00:42] Speaker 03: I don't know, Your Honor, that this situation even arises because of the irrevocable nature of the CLN. [01:00:51] Speaker 03: And I'm not sure that I'm following your honors, your question in regards to how does it pertain to the secretary's discretion to issue a CLN here. [01:01:02] Speaker 03: In our brief in pages 47, 48, we actually explain and support examples of how an individual who has obtained a CLN can challenge that. [01:01:13] Speaker 03: And there's different cases in the district court here. [01:01:18] Speaker 05: Where is it, 47 to 48? [01:01:19] Speaker 05: 47 to 48, Your Honor. [01:01:23] Speaker 05: Yeah, the reason I think it might matter is it might bear on a question that Judge Rao was asking you about, which is, do we think of the CLN process as fundamentally a due process protection for [01:01:43] Speaker 05: the person who's about to be denaturalized to make sure that his rights are protected? [01:01:48] Speaker 05: Or do we think of the CLN process as an investigatory process for the government, more the way it was probably used in the 50s to denaturalize against the will of a person? [01:02:07] Speaker 05: And I'm just speaking for myself, but you know, [01:02:12] Speaker 05: degree of interest in how much protection is built into the CLN process might vary up or down depending on whether the denaturalized person has a another judicial or other avenue for challenging the CLN after the fact. [01:02:33] Speaker 05: That's why I'm asking. [01:02:35] Speaker 03: I don't think that that is an issue that the court needs to determine to decide this appeal, Your Honor, because whether there is a due process protection, whether there is a constitutional right involved here is not a question on appeal. [01:02:47] Speaker 03: The district court did not even decide it, and neither party appealed it. [01:02:52] Speaker 03: In fact, Mr. Farrell did not even raise argument on it in his opening brief. [01:02:57] Speaker 05: I mean, if I think that the in-person requirement is [01:03:04] Speaker 05: hard to justify as a bright line rule under the statutory scheme, but make some intuitive sense as a due process matter, then it might matter whether the CLN process is more investigatory or more protective. [01:03:28] Speaker 03: I respectfully disagree, Your Honor. [01:03:30] Speaker 03: I think that in the context of the Administrative Procedure Act here and the claims that remain on appeal, it's whether it's arbitrary and capricious, not whether it involves or imposes any impermissible burden under due process. [01:03:42] Speaker 03: That's not a question [01:03:43] Speaker 03: for the court, what I do think is that the question is narrow and whether that requirement is reasonable. [01:03:50] Speaker 03: In the several cases that we raised in our brief, all of them involve broad delegations of authority to different departments. [01:03:58] Speaker 03: In fact, we're not more limited than now. [01:04:00] Speaker 03: And this court, the [01:04:03] Speaker 03: framework and the analysis that this court applied is whether it is reasonable. [01:04:08] Speaker 03: And how is it reasonable is if it's arbitrary and capricious. [01:04:11] Speaker 03: And how is it arbitrary and capricious? [01:04:13] Speaker 03: Well, you make a determination if it is consistent with the context and related to the purpose of it. [01:04:17] Speaker 03: And we respectfully submit that it is. [01:04:19] Speaker 05: Judge Rao, any other questions? [01:04:21] Speaker 05: Judge Walker? [01:04:23] Speaker 05: Okay. [01:04:23] Speaker 05: Thank you, Mr. Martinez. [01:04:25] Speaker 05: Thank you, Your Honor. [01:04:27] Speaker 05: Mr. Banas, we'll give you two minutes. [01:04:31] Speaker 05: Thank you, Your Honors. [01:04:31] Speaker 02: Just three very short points. [01:04:35] Speaker 02: Judge Walker, a signature on a form in 2020 is wholly unrelated to Mr. Farrell's voluntariness and intent in 2004. [01:04:49] Speaker 02: And I think that is the crux for arbitrary and capricious argument. [01:04:56] Speaker 02: unclear now on what requirement the government is actually saying it relied on to deny or reject my client's application on page 50 of their brief, they limit it from an in person interview and in person appearance to just an in person signature. [01:05:11] Speaker 02: And so this discussion about we don't I'm unclear, but I do think at heart going to I think you put a very [01:05:19] Speaker 02: Clearly, nothing in the statute, nothing in the regulation, nothing in the fam. [01:05:24] Speaker 02: It's this one piece of paper that requires a signature. [01:05:26] Speaker 02: I think it's extremely important to note that a signature today, walking in and signing something has no value to determining Mr. Farrell's intent in 2004. [01:05:37] Speaker 02: And Judge Katz is following that point. [01:05:41] Speaker 02: The rest of the regulations indicate what happens after they process a CLN. [01:05:45] Speaker 02: And it's in 1501, the Secretary of State sends it on to the Attorney General, the Commissioner of the IRS, and I believe the Department of Homeland Security. [01:05:53] Speaker 02: And they all get a chance to look at it and see if there are any additional complications or issues that need to be addressed before they'll issue the CLN. [01:06:02] Speaker 02: The government has just now confirmed and doubled down on the fact they still think my client's a US citizen. [01:06:06] Speaker 02: And so acquiring that proof, that final determination that he is no longer a citizen and the Attorney General, the IRS, DHS do not think of him as a citizen, presents a very ongoing non-mute case. [01:06:20] Speaker 02: Um, and it got brought up that, you know, once he receives a CLN, uh, this might sound dramatic, but Mr. Farrell can't be accused of treason. [01:06:27] Speaker 02: He can't be accused of violating the foreign asset reporting requirement. [01:06:30] Speaker 02: He can't be held for any more taxes after that issue. [01:06:33] Speaker 02: So I do think it's a very real case. [01:06:35] Speaker 02: Um, and if I, if I may just conclude, I see my time is up and I know arguments gone on quite a while, but we agree that us citizenship is a valuable benefit. [01:06:45] Speaker 02: And the reason it's valuable is that the founders determined that it was volitional and that [01:06:50] Speaker 02: because citizenship is a choice and recognizing that is a significant benefit is also recognizing that Mr. Farrell has the right to choose not to be a citizen and that is an extremely important part of the valuable right of citizenship and what we see here is the prior administration putting up red tape to tear away and deprive someone of that aspect of U.S. [01:07:14] Speaker 02: citizenship that makes it so valuable [01:07:16] Speaker 02: not through notice and comment rulemaking, not even through sub-regulatory guidance, but interpreting a signature block on a form that's issued. [01:07:25] Speaker 02: For those reasons, we would ask this court to reverse the lower court's decision on this and enter an order ordering the Department of State to process Mr. Farrell's CLN application. [01:07:38] Speaker 02: Thank you, Alex. [01:07:39] Speaker 05: Thank you, Mr. Branas. [01:07:40] Speaker 05: The case is submitted.