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Phase number 22-8262.

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L'Association des Américains Accidentels et al.

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A balance versus United States Department of State et al.

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Mr. Schreiber for the A balance, Ms.

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Stapleton for the A police.

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Good morning, Mr. Schreiber.

[00:00:21] Speaker 01:
Good morning, Your Honor, and may it please the court.

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My name is Noam Schreiber, and together with Mark Zell,

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I represent the plaintiffs.

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Thank you for allowing me to participate in today's argument remotely.

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I would like to reserve three minutes for rebuttal.

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Your honor, before I discuss plaintiff's Fifth Amendment claim, I would like to briefly address the district court ruling that the challenge to the suspension policy was moot or is moot.

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This challenge is not moot because the government failed to carry its heavy burden

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of making it absolutely clear that it would not revert back to this policy of suspending or otherwise indefinitely delaying renunciation services with the simple stroke of a pen.

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This was not a rulemaking process.

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This was a simple policy that it issued and it could happen again.

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And during the- Are you saying they could just, you said with a stroke of a pen, wouldn't they have to at least wait for another pandemic?

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Well, there have to be some circumstances, Your Honor, that would... Some circumstances beyond their control?

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Like a pandemic?

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Correct, a pandemic or other global crisis.

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Right, okay.

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So usually when we invoke the voluntary cessation and we use the stroke of the pen line, that means that return to the prior policy is actually entirely within the control of the defendant here, the government.

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And you just said that they couldn't actually return to the prior policy.

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It's not within their control at all.

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It's simply if some other supervening out of their control circumstance, again, whether it's another pandemic or some other international crisis that none of us can foresee.

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What's your best case that in circumstances like that

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we still treat this as a voluntary cessation.

[00:02:32] Speaker 01:
Well, my first comment is that we didn't ever invoke the voluntary cessation exemption.

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What we did invoke is the capable of repetition yet evading review.

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But both tests or both exemptions have similar... Well, how does this evade review?

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You've got plenty of time.

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You have plenty of time.

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Well, it evades review by the fact that according to the government, the suspension is no longer in place, and therefore it's being moved.

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And evading review is judicial review.

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So that policy is, according to the government, is moved.

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However, going to the... You waited, am I correct?

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Almost two years after the pandemic, you filed your complaint at the end of 2021, correct?

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Correct.

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So you waited 20 months after the pandemic started to challenge the suspension.

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And so we don't normally consider things to be of such a short-fuse nature that they are capable of repetition, yet evading review when someone waits 19 months to file suit.

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Your honor, the issue is... You didn't have good reasons.

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I'm not saying you didn't have good reasons.

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I'm just saying usually capable of repetition is really breakneck speed emergency litigation that still, even under that case, couldn't be resolved by the courts.

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The plaintiffs did not, this was a last resort issue and there were plaintiffs did not, they're not litigators and they don't jump to litigate these issues.

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So yes, it wasn't immediately filed during the pandemic and when the suspension went into effect,

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But it also wasn't clear at that point when what was going on.

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I mean, plaintiffs had no idea whether they would receive these appointments within a year or less.

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And therefore, that explains the delay.

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But courts have ruled

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uh including the supreme court that when there is no rule making and there's no requirement for heavy rule making and it's rather just a policy decision by the agency that uh that generally suffices to uh satisfy the uh evading review requirement um but they would be different situation there would be different circumstances and the length of the suspension

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could be different.

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I mean, this is not a situation like an election or a school year where there's a standardized occurrence, the length of which is set in some kind of regular process.

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This is a fluid kind of response to an unknown, a public health crisis of unknown duration.

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So it seems like it's not an exact fit for the capable repetition, but evading review doctrine.

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Your honor, I respectfully don't exactly share the same view.

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The problem, the issue is that this is not the suspension

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as we briefed is not over.

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I mean, the government has claimed it is, but there is still an effective suspension in place.

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The back- Let's talk about that.

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That's a different policy.

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That's the more decentralized policy giving discretion to overseas posts to decide when and how to prioritize the resumption of services.

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And with respect to that, I'm just trying to get a focus on the

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the sort of statement of the right.

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The right is the right to expatriate or the right to expatriate and get a certificate from the government?

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Because an individual can expatriate without this interview, isn't that correct?

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Thank you, Your Honor.

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the individual can expatriate without an interview under 1481A1, A2, A3, and A4.

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A5 is quite unique, and the expatriation won't have any effect unless that interview is given.

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As this court pointed out in Ferrell v. Blinken, the interview, the oath,

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the in-person requirement, the actual oath, and the act of expatriation and making that oath are connected.

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You can't have one without the other.

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I think the language in feral is if somebody expatriates alone in a forest and the State Department isn't there to hear it, did he or she expatriate?

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And the answer in feral was no.

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So the suspension or temporary suspension, I'm sorry, or delay effectively

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prevents these US citizens from ridding themselves with their US citizenship.

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And that can be over a year.

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The record indicates that most of the, if not all the plaintiffs, the average wait was over a year to expatriate.

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And during that time, they were suffering real harm, whether ideological and associational harm or day-to-day harm in their financial transactions.

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And they're basically- Did you make a First Amendment claim of ideological and associational harm?

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In this case, we did not invoke the First Amendment, but in our briefing, both here and in the district court, to support the claim that the right to expatriate is a fundamental right, we linked the right to the First Amendment as well, Your Honor.

[00:08:29] Speaker 03:
Can I ask you, you used the verb what, it was a long delay and they had to,

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past tense wait a long time.

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You had 11 individual plaintiffs in this case, as well as the association.

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Can you tell me which of those 11 still has not had the opportunity to start this renunciation process, at least interviews, or actually accomplishing it?

[00:09:02] Speaker 01:
Yes, your honor.

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To the best of my knowledge, seven out of the 11 plaintiffs have either had an appointment since the litigation was commenced and or received their certificate of loss of nationality.

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As for the association.

[00:09:18] Speaker 03:
You said seven out of 11.

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So who are the other four and what's their status?

[00:09:24] Speaker 01:
The other four or three, I believe.

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One second.

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You just said seven out of 11, maybe even eight out of 11.

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Perhaps.

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Um, I'm referring to Christopher, Christopher Lazar's.

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I'm not sure of his status.

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Uh, Mark Lewis and Anne Mislin to the best of my knowledge have, uh, not yet had an appointment yet.

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Have they contacted?

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Well, the government said they haven't even contacted a post.

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I do not.

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I do not have the information on that.

[00:09:51] Speaker 03:
Well, they haven't contacted a post that delays on them.

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Would you be able to follow up?

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with a letter updating us on the status of Mr. Duvall and Mezlin and Mark Lewis.

[00:10:03] Speaker 01:
Yes, Your Honor.

[00:10:06] Speaker 03:
If I may, Your Honor.

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Before you finish, just to be clear.

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I'm sorry, I'm sorry.

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Do we know exactly what the status?

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There's also another one.

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I wasn't clear on the record, but maybe you know it was Jeremiah Bornstein, but maybe you know whether he's already.

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I will update the court on him as well, Your Honor.

[00:10:23] Speaker 03:
All right.

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But as to everyone else,

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they've either already had an interview, you know, they're already well into the process or have actually renunciated.

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Is that correct?

[00:10:31] Speaker 01:
Correct.

[00:10:31] Speaker 01:
Your honor.

[00:10:32] Speaker 03:
Okay.

[00:10:32] Speaker 01:
Have they all renunciated or there's some, or some of them still most of them, I can, when, when I spot the letter, I will give an exact detail of each one, but most of them have received their certificate.

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Some have only had an appointment.

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Okay.

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And then the other question I had, um, did you use, you asked for,

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The relief you seek in this case is an injunction, a blanket injunction, telling, ordering the government, the State Department, I guess, to direct all of its embassies and consulates to work at a reasonable pace in processing applications

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under A5 to renunciate.

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Is that correct?

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That's the relief you've asked for?

[00:11:27] Speaker 01:
Correct, Your Honor.

[00:11:28] Speaker 03:
Okay, tell me how such global relief could work in this context.

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For example, what would be a reasonable pace for the embassy in Sudan right now?

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Is there one reasonable pace or is it circumstance dependent?

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Thank you, Your Honor.

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What we try to portray in the briefs here is that there is not only a delay, but we put that in the background, how the government treats non-immigrant visa services.

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In that regard, we've seen, and I think the record indicates, and it doesn't appear that the government argues otherwise, that it processes many more non-immigrant visa applications at a much faster rate.

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That certainly was the case when this lawsuit was filed.

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And that also appears to be the case as well.

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So if the question is how to formulate relief,

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Once the government is ordered and instructed that the right to renounce US citizenship is not like any other service, routine service it provides, and especially not like non-immigrant visa services, its priorities will naturally and necessarily change.

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The government now... So you're seeking an injunction that uniformly across the entire globe orders embassies

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to reorder their priorities regardless of individualized conditions in each location?

[00:13:10] Speaker 01:
We're asking that the court declare the status of the right.

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And based on that status.

[00:13:19] Speaker 03:
Well, you have sought relief also under the APA that doesn't require anybody to declare any status of this right.

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OK, so you have sought relief on different alternative grounds here.

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And of course, we try to avoid constitutional rulings where possible.

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And you have sought this injunctive relief.

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I'm just trying to even understand how

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This is the type of place that would be appropriate for sort of a global rather than individualized or consulate by consulate or embassy by embassy form of relief, right?

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I mean, surely the same prioritization isn't going to apply for the embassy in Sudan or Ukraine as it might say Canada.

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And then we need to know if you actually have members who are seeking to renunciate in each of those places and how much delay they're encountering.

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Your complaint says that even before the pandemic, people had to wait, quote, months before they could get an interview.

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And now you say, and your complaint, after the pandemic and after there's been some return to normalized services, for the most part, it varies from consulate to consulate and embassy to embassy, people are having to wait.

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months.

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I just am really having trouble understanding how this is the type of case that would be appropriate for any form of global relief as opposed to individualized relief.

[00:14:52] Speaker 01:
Well, I have two comments.

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One response is that the

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rise in renunciation services is the global trend at this point.

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And therefore, there is no... The future will reasonably... What will happen in the future seems to indicate that the backlog will just increase.

[00:15:19] Speaker 03:
And I don't... Is that what has happened in the last...

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here because, according to the government's brief, and I didn't see any rebuttal of this in your reply brief, the backlogs have decreased in the last year because they've come out of the pandemic, for the most part, and been able to catch up.

[00:15:38] Speaker 01:
Correct, Your Honor.

[00:15:40] Speaker 01:
The government.

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Do you deny it?

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Is that sort of a factual dispute in this case?

[00:15:44] Speaker 01:
I don't know if it's a factual because we're bordering on speculative what's going to happen in the future.

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However, if the past is indicative of anything, the global trend in renunciation services is on the rise.

[00:16:00] Speaker 01:
And I'd like to just point this out in the companion case, in the renunciation fee case, which we've mentioned in the briefs here,

[00:16:08] Speaker 01:
In that case, the government has indicated that it intends to decrease the fee, which currently stands at $2,350 as a precondition to renounce, back to its 2010 value of $450.

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Once that happens, it is reasonable to assume that in all consulates and all US missions around the globe, the increase in the demand for renunciation services

[00:16:37] Speaker 03:
So you want an injunction for them to go faster globally.

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Every embassy and every consulate has to go faster and has to reprioritize because in the future you anticipate there will be more applications and an increase in backlogs.

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Is that what I understand?

[00:17:00] Speaker 01:
No, Your Honor.

[00:17:01] Speaker 01:
Our complaint and is asking for what happened is based on the record before the court, which... Okay, so that doesn't include any of the stuff you just talked about on the notes.

[00:17:12] Speaker 03:
No, but if you... I was... Okay, so on the record before the court, I'm just asked my question where backlogs have decreased and it is

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Would you dispute that there are country-by-country circumstances and maybe even regions within countries?

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If you're near the Tigray region, Ethiopia, that's going to be very different than being in the capital.

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That there are circumstances on the ground that affect timing?

[00:17:44] Speaker 01:
There are circumstances.

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That would be reasonable?

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there are circumstances and each state has its own, each country has its own circumstances.

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But the question here is- Even regions within countries have their own circumstances.

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The question here is one of how to view this right.

[00:17:58] Speaker 03:
I don't think- No, that's not how to view the right.

[00:18:00] Speaker 03:
I'm asking how to view the relief that's sought and whether really- I understand, Joanna.

[00:18:04] Speaker 03:
Excuse me.

[00:18:05] Speaker 03:
Excuse me.

[00:18:05] Speaker 03:
Whether a type of global relief that the association is seeking, the individuals want their own processing, but the association wants global

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relief and whether that's even tenable in a situation like this.

[00:18:20] Speaker 03:
That goes to standing.

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That's why I'm asking all this now.

[00:18:23] Speaker 03:
It goes to standing.

[00:18:24] Speaker 01:
The relief the association is asking, Your Honor, stems from how the government, and I apologize for repeating myself, but how the government is treating this right.

[00:18:37] Speaker 03:
And I understand.

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So that's why I mentioned priorities.

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And I'm just, again, I'm asking.

[00:18:41] Speaker 01:
I'm sorry.

[00:18:42] Speaker 01:
OK.

[00:18:43] Speaker 03:
No, no, no.

[00:18:43] Speaker 03:
I'm sorry.

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And I'll just ask one more time, and then I'll stop so my colleagues can ask questions.

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But to pin down what I'm trying to get here is because you as the association are also here as a plaintiff.

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And you need to show that individualized relief

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Is it necessary in a case like this that, in fact, a sort of global cross-cutting relief, conjunctive relief, is available?

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And that feels very hard to demonstrate to me in this case because we can take as a given.

[00:19:21] Speaker 03:
And I think that's why you said you only want everyone to go at a reasonable pace in your complaint.

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You just want an injunction for a reasonable pace.

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But I don't even know what that means.

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I don't know how the government would even know what that means if this is actually a unique situation, implicating foreign relations and foreign conditions, where any relief would have to be tailored at a bare minimum, office by office, around the world.

[00:19:53] Speaker 03:
And there's what, 200 or something, if I remember right, 200 or something or 300 or something, these embassies and consulates around the world.

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I mean, it would have to be tailored, right?

[00:20:02] Speaker 03:
You'd have to let it be different priorities in Sudan and Ukraine, in Haiti right now, then perhaps in other areas.

[00:20:17] Speaker 03:
You would agree to that, correct?

[00:20:19] Speaker 01:
I would not want to...

[00:20:24] Speaker 01:
have the government not be able to tailor or use this discretion per embassy or per US mission.

[00:20:30] Speaker 01:
But the relief being sought is not against the results.

[00:20:34] Speaker 01:
I'm sorry?

[00:20:34] Speaker 03:
I think we're on the same page there.

[00:20:37] Speaker 01:
Yes, but that may be true, Your Honor, but the relief being sought is against the State Department and how it treats this right.

[00:20:45] Speaker 01:
And again, and I apologize for repeating myself on this, but once the State Department is told that it must treat this right with the respect it deserves, it will naturally and necessarily require, need to direct its embassies to reprioritize.

[00:20:58] Speaker 01:
And if that requires allocating more services for embassy, per US mission, how the government does that, that is their

[00:21:06] Speaker 01:
That's their homework.

[00:21:07] Speaker 01:
I can't say how they do that.

[00:21:09] Speaker 01:
That's their expertise.

[00:21:10] Speaker 03:
So you want an injunction reordering the priorities and operations, staffing and funding of foreign embassies and consulates?

[00:21:20] Speaker 01:
We want a declaratory judgment declaring that this right... You want an injunction too?

[00:21:26] Speaker 01:
Correct.

[00:21:26] Speaker 01:
That injunction is not detached from the declaratory relief we're seeking.

[00:21:29] Speaker 01:
It can't be seen as a vacuum.

[00:21:31] Speaker 01:
The injunction itself relates to the declaratory relief.

[00:21:34] Speaker 01:
They're one and the same.

[00:21:35] Speaker 01:
And once declared and once recognized as a fundamental right, the injunction, the nature and the scope of the injunction will flow from there, Your Honor.

[00:21:49] Speaker 03:
Okay.

[00:21:49] Speaker 03:
You guys have questions?

[00:21:52] Speaker 03:
I'm just going to ask one follow up question.

[00:21:54] Speaker 03:
I apologize about in your complaint where you said prior to the pandemic, wait lists would normally quote, would quote normally last month and quote, do you know how many months that was?

[00:22:04] Speaker 01:
Uh, not offhand, your honor.

[00:22:07] Speaker 01:
Um, I can, I can use that in the letter as well, if that's necessary.

[00:22:12] Speaker 02:
I guess my, my only question for you is the, you know, the district court applied chucks, the conscience County of Sacramento.

[00:22:18] Speaker 02:
And I think, uh, I think your briefing reflects that Luxburg is probably the right, uh, due process analysis for a situation like this.

[00:22:27] Speaker 01:
Yes, your honor.

[00:22:31] Speaker 03:
Thank you very much.

[00:22:32] Speaker 03:
We'll give you a couple minutes.

[00:22:34] Speaker 03:
We'll hear from the government now.

[00:22:50] Speaker 04:
Good morning, Your Honor.

[00:22:51] Speaker 04:
Pardon me, may it please the court, Anna Stevenson on behalf of the government.

[00:22:55] Speaker 04:
In the face of a global pandemic, the Department of State undertook emergency measures to slow the spread of COVID-19 by temporarily suspending non-emergent in-person services at consular posts overseas.

[00:23:08] Speaker 04:
That initial suspension is no longer in place and so no longer at issue.

[00:23:12] Speaker 04:
Instead, this case is about, as Your Honor stated, State's ability to make its own decisions about how to prioritize multiple high-stakes demands.

[00:23:21] Speaker 04:
Posts around the world are actively managing wait lists of individuals seeking to irrevocably relinquish their U.S.

[00:23:27] Speaker 04:
citizenship.

[00:23:29] Speaker 04:
Those wait lists do not implicate any right protected by the Fifth Amendment due process clause and they readily satisfy the APA's demands for reasonableness under this court's case law.

[00:23:38] Speaker 04:
The district court was therefore correct to rule in the government's favor and we ask this court to affirm.

[00:23:44] Speaker 02:
There are these other ways to renounce citizenship, but I gather that everybody agrees that this subsection five is nonetheless

[00:23:55] Speaker 02:
needed by people who want to show for purposes of banking and taxation and the like that they've successfully expatriated?

[00:24:05] Speaker 04:
So if I can clarify that, Your Honor.

[00:24:07] Speaker 04:
So there are, of course, seven voluntary acts listed under 1481.

[00:24:12] Speaker 04:
That's the section of the INA that governs acts to lose citizenship.

[00:24:19] Speaker 04:
A5 is one of them.

[00:24:21] Speaker 04:
The first five are under the State Department's control.

[00:24:26] Speaker 04:
A1 actually does also require an in-person appearance.

[00:24:30] Speaker 04:
This court addressed that in Farrell, and here's why.

[00:24:35] Speaker 04:
A1 is of course relinquishing citizenship by way of naturalization to another country.

[00:24:42] Speaker 04:
It's not the case that all naturalization results in loss of U.S.

[00:24:46] Speaker 04:
citizenship.

[00:24:47] Speaker 04:
It has to be naturalization with the intent to relinquish one's citizenship.

[00:24:51] Speaker 04:
The State Department, under its authority as given to it by Congress to regulate under this act, has required an in-person appearance at a consulate for that individual to confirm that their naturalization

[00:25:05] Speaker 04:
was done with the intent to relinquish citizenship.

[00:25:08] Speaker 04:
So yes, there are multiple ways to give up one's US citizenship.

[00:25:16] Speaker 04:
Congress has provided that renunciation before a diplomatic or consulate officer is one of those options.

[00:25:22] Speaker 04:
And we understand that's the option that these plaintiffs seek to exercise.

[00:25:26] Speaker 03:
Does number two, taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state, does that also require them to come to it in person?

[00:25:35] Speaker 04:
I believe my understanding, Your Honor, and I was trying to recall conversations with our State Department colleagues.

[00:25:42] Speaker 04:
My understanding is that all five of the options that are under the State Department's control require, by means of State Department regulations, an appearance at a consulate to sort of confirm, again, that voluntariness and intent to relinquish citizenship.

[00:26:00] Speaker 04:
I would need to double-check that before I was certain, Your Honor.

[00:26:04] Speaker 03:
OK, maybe you could let us also know.

[00:26:06] Speaker 03:
I'd be happy to.

[00:26:07] Speaker 02:
And one of them is, I mean, people could come to the United States and get an appointment.

[00:26:15] Speaker 02:
Is there any backlog on that?

[00:26:17] Speaker 04:
So option six and seven, Your Honor, and it's number six that's making a formal written renunciation in the United States, those are pursuant to the control of the attorney general rather than the State Department.

[00:26:29] Speaker 04:
I'm not aware as to whether or not there is a backlog on those options.

[00:26:35] Speaker 03:
And we don't want to encourage seven.

[00:26:36] Speaker 03:
That's true.

[00:26:40] Speaker 03:
Let's not go down that road.

[00:26:42] Speaker 03:
Do you happen to have an update on the status of the individual plaintiffs?

[00:26:45] Speaker 04:
I'm glad to ask, Your Honor.

[00:26:46] Speaker 04:
So we have been actively working to get an updated status.

[00:26:50] Speaker 04:
Your Honor mentioned the ongoing crisis in Sudan.

[00:26:52] Speaker 04:
So the office at State Department headquarters, the Bureau of Consular Affairs,

[00:26:57] Speaker 04:
that we would work with to get those updates has been all hands on deck in assisting the emergency evacuation from Sudan.

[00:27:04] Speaker 04:
So we do expect to have an update for the court.

[00:27:07] Speaker 04:
And I apologize, we were not able to get that.

[00:27:18] Speaker 03:
When the complaint is all about the suspension, given the timing that the complaint was filed.

[00:27:27] Speaker 03:
But I take it you have read the complaint and as the case has evolved, is not just challenging the initial suspension, but also the subsequent policy is sort of setting a framework for returning to our new normal.

[00:27:45] Speaker 04:
Is that correct?

[00:27:46] Speaker 04:
That's correct, Your Honor.

[00:27:47] Speaker 04:
We understand them to be challenging or to be bringing two sets of challenges.

[00:27:52] Speaker 04:
And I think if you look at the complaint in those causes of action, it's listed as suspension.

[00:27:58] Speaker 04:
And then they call it effective suspension or the waitlist policy.

[00:28:01] Speaker 04:
So yes, at this stage on appeal, we are treating those as two categories of challenges.

[00:28:08] Speaker 04:
Of course, we think the challenges to the suspension are moot.

[00:28:12] Speaker 04:
The challenges to the ongoing delays

[00:28:15] Speaker 04:
we think are active.

[00:28:17] Speaker 03:
Do you have any sense of, because they say in their complaint, even before COVID, before all of the suspension, anything, there was wait lists worth four months, in their words.

[00:28:29] Speaker 03:
And now it seems to be four months in some places.

[00:28:34] Speaker 03:
Whether it's back to normal levels or just don't know at this point.

[00:28:38] Speaker 04:
I'm not aware, Your Honor.

[00:28:40] Speaker 04:
what sort of the average waitlist was prior to the pandemic.

[00:28:44] Speaker 04:
I think the second Benning Declaration gives a good bit of detail about the level of operations, at least as of June of 2022.

[00:28:50] Speaker 04:
I could point out, for example, that the consulate in Paris

[00:28:59] Speaker 04:
at that time had come up to providing an average of four appointments per week.

[00:29:03] Speaker 04:
And Mr. Benning states that prior to the pandemic, it had an average of two appointments per week.

[00:29:09] Speaker 04:
Of course, there are also changes in demand.

[00:29:11] Speaker 04:
So I couldn't speak to whether the sort of current wait list is a longer time period than before.

[00:29:17] Speaker 04:
I'd be happy to ask the State Department if they have statistics on the wait prior to the pandemic.

[00:29:25] Speaker 03:
I was going to let my colleagues jump in.

[00:29:29] Speaker 03:
You didn't challenge the association's standing in this case.

[00:29:38] Speaker 03:
And I'm curious about the third prong, which normally is readily met in injunctive cases.

[00:29:47] Speaker 03:
But reading the materials in this case at least struck me as a question, and so a standing question, whether in fact this is a situation where

[00:30:00] Speaker 03:
non-individualized injunctive relief, categorical relief is even a possibility, both as a factual matter and as a matter of difference to foreign affairs.

[00:30:11] Speaker 04:
So, Your Honor, we certainly agree that an across-the-board injunction requiring the State Department to sort of prioritize these applications sort of no matter what else is going on would not be appropriate.

[00:30:23] Speaker 04:
And so, in that sense, we agree that that relief is not available.

[00:30:28] Speaker 04:
We have, of course, treated that in our briefing as an issue of the merits rather than as of standing.

[00:30:34] Speaker 04:
Why am I wrong to think about it that way?

[00:30:36] Speaker 04:
I'm not sure that you are, Your Honor.

[00:30:37] Speaker 04:
Just out of candor, we haven't discussed it that way in our briefing.

[00:30:43] Speaker 04:
I don't think we would object in any way to a decision that said the association lacked standing.

[00:30:50] Speaker 03:
Of course you wouldn't object if you went, but I'm really trying to understand because usually that phrase means you're going to have to put individual plaintiffs on to testify about facts or something to get relief or damages relief or something like that.

[00:31:07] Speaker 03:
I mean, this is a bit of a...

[00:31:12] Speaker 03:
different problem where you really would kind of, you know, would it even be appropriate to issue an injunction for embassies for which there are no members seeking renunciation?

[00:31:27] Speaker 03:
Would it even, is it appropriate?

[00:31:29] Speaker 03:
And if each one has to be individually tailored based on whether there's a member and then the ground conditions within that region, country or maybe portion of country,

[00:31:41] Speaker 03:
then it feels to me not like the normal APA, injunctive relief, normal associational standing relief, but it's different than we normally encounter when applying that paradigm.

[00:31:59] Speaker 04:
I agree, Your Honor.

[00:32:00] Speaker 04:
It would be extraordinarily messy to try to sort out what injunctive relief would look like here, and it would require delving into

[00:32:09] Speaker 04:
the department's priorities, conditions at various locations.

[00:32:14] Speaker 04:
There is, your honor, I think is asking in part about sort of the number of posts that could potentially come within the scope of that relief.

[00:32:22] Speaker 04:
So there is a declaration from the association that's in the record, and it lists, I believe, eight individuals who sort of are specifically seeking to renounce their citizenship.

[00:32:35] Speaker 04:
That's at JA 135 and 36.

[00:32:38] Speaker 04:
To my recollection, I believe all of those individuals were seeking to renounce in France.

[00:32:47] Speaker 04:
I could be wrong about that, but it's not a wide variety of posts that they're seeking to renounce at.

[00:32:52] Speaker 04:
And so I think there is an argument that any relief to the association on the basis of the record here would, in theory, have to be restricted to the posts at which its members are seeking relief.

[00:33:05] Speaker 03:
But again,

[00:33:05] Speaker 03:
If it turns out the members that they've listed actually are all done or in process, or them for their own reasons haven't even started the process, which just would not be right.

[00:33:18] Speaker 03:
They just aren't entitled to any kind of relief.

[00:33:20] Speaker 03:
Then that's why I was asking about the association.

[00:33:23] Speaker 03:
Because it seems to me, at least from your briefing, which first raised this issue about the individual plaintiff status,

[00:33:33] Speaker 03:
But we may end up, depending on what the letter tells us, having to decide if the association alone has standing.

[00:33:40] Speaker 04:
Yes, Your Honor.

[00:33:40] Speaker 04:
So first of all, just so that I'm clear, those eight members I noted are not named plaintiffs.

[00:33:47] Speaker 04:
They are other individuals who are members of the association.

[00:33:50] Speaker 04:
As of our last update, and again, we will submit a formal update to the court as soon as we can.

[00:33:57] Speaker 04:
As of our last update, there was one of those individuals.

[00:34:01] Speaker 04:
His name is, I think, Olivier Vowrie.

[00:34:05] Speaker 04:
He has an appointment scheduled for November of this year.

[00:34:08] Speaker 04:
And so, at least as that individual, there's no mootness concern as of present.

[00:34:14] Speaker 04:
And so, of course, that would mean the association has, you know, the required one member whose thing is right, but not moot.

[00:34:21] Speaker 02:
So, I may not have been paying close enough attention, but with respect to submissions by the parties about the status, insofar as you know it,

[00:34:32] Speaker 02:
the name plaintiffs it seems for purposes of evaluating if we need to separately evaluating the standing of the association.

[00:34:39] Speaker 02:
We would also want updates with respect to the status of the persons identified as members who support the standing who

[00:34:48] Speaker 02:
are put forward as supporting the standing of the association.

[00:34:52] Speaker 04:
I think that's correct, Your Honor, and we would plan to provide that as part of our update as well.

[00:34:56] Speaker 04:
And Mr. Schreiber will too.

[00:34:58] Speaker 04:
Point out that the declaration from the association's president does assert that they're, I think,

[00:35:06] Speaker 04:
claims more than 800 individual members who he believes are seeking turnouts.

[00:35:12] Speaker 04:
And so even in the event that those eight individuals had all completed the process, which, as I said, as of this point, they had not, there would at least be a question mark of what to do with that assertion.

[00:35:22] Speaker 02:
There would be a question whether that's adequate, factually, for us to credit for purposes of cessation.

[00:35:27] Speaker 02:
Yes.

[00:35:29] Speaker 02:
Standing.

[00:35:29] Speaker 02:
I have a slightly different question about

[00:35:32] Speaker 02:
Under 1481, there are the several different, 1481A, several different grounds.

[00:35:38] Speaker 02:
And you in your brief characterize the right that they're asserting as, you know, under the Supreme Court's guidance that we should carefully describe the right at issue.

[00:35:53] Speaker 02:
And what I take you to be describing as the right at issue is the ability to complete an assessment interview and take the oath of renunciation within a particular timeframe.

[00:36:03] Speaker 02:
I'm not sure.

[00:36:04] Speaker 02:
I mean, it seems more that they're asking for the ability to renounce citizenship and that what they're saying impinges on that is the inability to get this documentation.

[00:36:21] Speaker 02:
Let me ask you, as a factual matter, if I were, for example, to take an oath or affirmation of formal declaration of allegiance to a foreign state with

[00:36:33] Speaker 02:
you know.

[00:36:34] Speaker 02:
voluntary and knowing intent to renounce my citizenship in January, but only succeed in December in getting a certification.

[00:36:46] Speaker 02:
Would the renunciation be effective as of January?

[00:36:50] Speaker 02:
Would the certification from the government as a result of the interview and all of that confirmation, would it recognize the action that I took in January or would it be effective only as of the time of the issuance?

[00:37:04] Speaker 04:
So the answer is different depending on which of those five is acted on.

[00:37:11] Speaker 04:
So for A5, which is the renunciation before Diplomatic Counselor Officer of the United States, what happens is there is the interview, the oath is sworn.

[00:37:26] Speaker 04:
Some period of time passes, the certificate of loss of nationality is issued.

[00:37:33] Speaker 04:
It's not sort of effect, the loss of nationality is effective at the time that the CLN is issued.

[00:37:40] Speaker 04:
However, it is backdated to the date of the renunciation oath.

[00:37:45] Speaker 04:
So for plaintiff's purposes, they would not be able to demonstrate or to say that they had lost their citizenship until that certificate is issued.

[00:37:57] Speaker 04:
But it's effective backdated to the date of the oath.

[00:38:00] Speaker 02:
So to the extent that it affects the United States is, for example, tax treatment of the individual?

[00:38:06] Speaker 04:
Yes.

[00:38:06] Speaker 04:
And there is actually a provision of the tax code, I believe cited in plaintiff's complaint, actually, that describes this explicitly.

[00:38:14] Speaker 04:
individuals who have completed expatriation are subject to taxation for sort of the portion of the tax year until the date that they took the oath.

[00:38:25] Speaker 04:
Yes, and let me clarify.

[00:38:27] Speaker 04:
If it's under A5, it's the date that they took the oath.

[00:38:30] Speaker 04:
I believe that under A1 through 4, it is actually the date that the CLN, excuse me, the Certificate of Loss of Nationality is issued, and that's the difference.

[00:38:40] Speaker 04:
So my understanding is that the State Department sort of recognizes the date, at which point it has confirmed that a person has voluntarily completed an act and with intent to relinquish citizenship.

[00:38:55] Speaker 03:
under a one through four.

[00:39:06] Speaker 03:
I just point out both an argument and their brief.

[00:39:11] Speaker 03:
They seem to be most troubled by what I think they would call prioritization of non-immigrant visas over their enunciation.

[00:39:21] Speaker 03:
process, which I guess then feels like maybe just favoritism of their rights.

[00:39:30] Speaker 04:
response to that?

[00:39:31] Speaker 04:
I do, Your Honor, and I think the Benning Declaration and particularly the Supplemental Benning Declaration is very helpful on this point.

[00:39:38] Speaker 04:
So particularly at the height of the pandemic, the State Department gave post-clear instructions to prioritize emergency services and mission-critical services to include services that were sort of important to humanitarian needs and to the national interest.

[00:39:56] Speaker 04:
So the bank declaration discusses the visas that were being issued were visas for humanitarian emergencies, for medical professionals, some of whom needed to come to the United States, people who were involved in food production and air and sea crew.

[00:40:14] Speaker 04:
I would also add a very important one relevant to the interest of American citizens is family reunification.

[00:40:20] Speaker 04:
So non-citizen spouses or family members of American citizens who needed to be able to travel to the United States to be reunited with their American citizen family.

[00:40:30] Speaker 04:
That was also a top priority.

[00:40:33] Speaker 04:
The other two I would add in, of course, are the evacuation from Afghanistan.

[00:40:37] Speaker 04:
There were special provisions for some individuals coming from Afghanistan to the United States.

[00:40:43] Speaker 04:
Those were congressionally directed.

[00:40:45] Speaker 03:
But is this still true?

[00:40:47] Speaker 03:
in 2022 when she did her supplement declaration is it because I'm just trying to understand what is this concern about prioritizing non-immigrant reasons of renunciation even now when they're still weightless.

[00:41:01] Speaker 04:
So under the framework that has been in place since the fall of 2021, there is an ongoing prioritization of those most important needs.

[00:41:13] Speaker 04:
And of course, the other thing is that this varies on a post-by-post basis.

[00:41:17] Speaker 04:
So some posts may have more capacity and indeed may have the staff to provide visa services, whereas others do not and would be more focused on providing American citizen services.

[00:41:32] Speaker 03:
OK, it's the volume of non-immigrant visa.

[00:41:38] Speaker 03:
I'm also trying to keep your sort of ratio.

[00:41:41] Speaker 03:
Yes.

[00:41:42] Speaker 03:
For every one renunciation, there's 200 non-immigrant visa applications in the process.

[00:41:48] Speaker 03:
And I might actually be, per capita, more equivalent or not.

[00:41:52] Speaker 03:
But I just wasn't sure.

[00:41:54] Speaker 03:
But if there are sort of equivalent amounts, then they're concerned about one seems to get processed faster than the other.

[00:42:03] Speaker 03:
would seem more on point.

[00:42:05] Speaker 04:
So I'm not aware of comprehensive statistics comparing the amount of non-immigrant visas versus those seeking to relinquish citizenship.

[00:42:16] Speaker 04:
I think I would also say it's not just the number of individuals, but the process involved in both those processes.

[00:42:27] Speaker 04:
Of course, on the side of individuals seeking to relinquish

[00:42:31] Speaker 04:
as we've emphasized in our brief, you know, there are very important constitutional concerns in making sure there are, you know, procedural protections that individuals are not being coerced or being pressured into relinquishing citizenship if they don't really want to or intend to.

[00:42:47] Speaker 04:
And so I, you know, I do think it's not just a one-to-one ratio of sort of how many appointments, it's the time, the staff capacity, the expertise involved in making sure that that procedure is done right.

[00:43:00] Speaker 03:
And when we have to appear before a consular official, is that anybody in the consulate or is that a certain level of person that might be different than the people processing visas?

[00:43:08] Speaker 04:
It is a certain status, Your Honor.

[00:43:10] Speaker 04:
I'm afraid I'm not familiar with the sort of technical details, but it's not just any member of the consular staff.

[00:43:17] Speaker 03:
Okay.

[00:43:17] Speaker 03:
The processing visa doesn't require a particular status.

[00:43:21] Speaker 04:
I'm not certain of that, Your Honor.

[00:43:23] Speaker 04:
I could ask the State Department for more information on that part.

[00:43:29] Speaker 03:
Oh, you still have any more questions?

[00:43:33] Speaker 00:
All right.

[00:43:33] Speaker 03:
Thank you very much.

[00:43:36] Speaker 03:
Mr. Schreiber, we'll give you two more minutes.

[00:43:41] Speaker 01:
Thank you, Your Honors.

[00:43:43] Speaker 01:
Just a couple of points.

[00:43:45] Speaker 01:
First, with regard to, I'm just going to follow up on John's question about nationwide injunctions and interplay with nationwide injunctions in the standing.

[00:43:56] Speaker 01:
The association has standing.

[00:44:01] Speaker 01:
And even if it's one plaintiff or one member of the association, as my colleague pointed out, I'll direct the court to JA 148.

[00:44:15] Speaker 01:
That member is still waiting, has been waiting for well over a year to receive his appointment.

[00:44:20] Speaker 01:
He has been scheduled on in November for November 15th, 2023.

[00:44:24] Speaker 01:
There are 800, at least 800 additional members who either have scheduled appointments or wish to schedule appointments.

[00:44:32] Speaker 01:
And I can try to report back to the court on that issue.

[00:44:37] Speaker 01:
But just focus on that one member.

[00:44:40] Speaker 03:
I think it would be fine just to report on the ones that you've already identified in the record.

[00:44:43] Speaker 03:
We don't need to create a new record.

[00:44:45] Speaker 01:
Just that one member, Your Honor, is sufficient for standing and for nationwide injunction.

[00:44:49] Speaker 01:
Now here, the nationwide injunction is not directed at each and every consulate.

[00:44:53] Speaker 01:
It's directed at the State Department simply to make its renunciation procedures simpler and more efficient.

[00:45:00] Speaker 01:
That does not require a case by case for every individual U.S.

[00:45:07] Speaker 01:
mission around the globe.

[00:45:09] Speaker 03:
Your complaint asks for them to process at a reasonable pace.

[00:45:12] Speaker 03:
Quote reasonable pace is where your words

[00:45:14] Speaker 03:
And now you're saying you want them to change the process to make it simpler?

[00:45:17] Speaker 01:
That's what the injunction would do?

[00:45:20] Speaker 01:
Part of our analysis in the briefing here and below was that the method for processing these services is simply not efficient.

[00:45:30] Speaker 01:
Whether it takes too long for these interviews or whether they refuse to conduct online

[00:45:43] Speaker 01:
renunciation interviews as it does perhaps with other services that it provides and the very fact that it again the record indicates that the government favors and prefers pleasure visas over renunciation services.

[00:46:00] Speaker 01:
There's no question about it.

[00:46:02] Speaker 01:
And that, your honor, cannot stand.

[00:46:05] Speaker 01:
If somebody wants to visit the United States for pleasure, he or she may try, but that should not receive preference over a US citizen wishing to renounce his US citizenship, which, and I don't have to go over this, it's in the briefs, has a historical value and its importance is unquestioned.

[00:46:30] Speaker 03:
Colleagues have any questions?

[00:46:32] Speaker 03:
Thank you both very much.

[00:46:33] Speaker 03:
The case is submitted.