U.S. Court of Appeals upholds ruling for State Department in passport dispute

By Charmaine Little | Jul 17, 2018

Circuit Judge James Dennis offered the opinion.   Louisiana State University Law

On May 8, two women who were denied and revoked passports couldn’t prove to an appeals court they were entitled to certain relief.

The United States Court of Appeals for the 5th Circuit agreed with the United States District Court for the Southern District of Texas that both cases should be dismissed. Circuit Judges James Dennis, Edith Brown Clement and James Graves offered the opinion. Dennis partially dissented.

Raquel Hinojosa and Denisse Villafranca filed separate but similar complaints after the Department of State denied and revoked their passports respectively when it determined they weren’t U.S. citizens. Hinojosa’s lawsuit listed Petra Horn, Brownsville, Texas Port Director for the United States Customs and Border Protection; Mike Pompeo, Secretary of the U.S. Department of State; Kirstjen Nielsen, Secretary for the U.S. Department of Homeland Security; and the United States of America as defendants. Villafranca also named Pompeo, Horn, and Jonathan Rolbin, who is the Director of Legal Affairs and Law Enforcement Liaison for the United States Department of State, as defendants in her claim.

While their cases are separate, a similarity is that both women said they have birth certificates to prove they were born in Brownsville. Still, they both also have birth certificates that say they were born in Mexico. It was noted Villafranca changed her birthplace on her certificate from Mexico to Brownsville in 2010. The court determined Villafranca and Hinojosa were born and raised in Mexico but are now hoping to get entry into the United States.

The appeals court first evaluated if the plaintiffs can even request relief under the APA. Hinojosa wanted relief after her passport application was denied because of her non-citizenship status. Villafranca sought relief after her passport was revoked because she previously falsified herself as a U.S. citizen. Her passport was taken while she was in Mexico and trying to get back into the U.S. at the Brownsville port of entry. The district court dismissed Villafranca’s argument when it determined she wasn’t challenging a final agency action. It dismissed Hinojosa’s complaint when it decided there was an adequate alternative for her to receive judicial review via 8 U.S.C. 1503. The regulation says a person can get a “review of the denial of ‘a right or privilege as a national of the United States’ by a government official, department or independent agency ‘upon the ground that he is not a national of the United States,’” according to the opinion.

Both women objected to the district court’s dismissal and argued rule 1503 isn’t a sufficient alternative. The appeals court disagreed. It stated that the only time the plaintiffs wouldn’t get a review under 1503 is if the Secretary of State denies their requests for certificates of identity. Then, they could seek relief under APA. The simple notion that the plaintiffs could be without relief or denied a certificate of identity isn’t enough to say 1503 is completely inadequate. Considering this, seeking relief under an APA at this point would only serve as a duplicate, so the appeals court agreed the lower court lacked jurisdiction.

The court then looked at the relief the plaintiffs sought under habeas corpus. “A person seeking habeas relief must first exhaust available administrative remedies,” the appeals court said. Simply put, the plaintiffs haven’t exhausted all possible remedies under 1503. While they said 1503 doesn’t address their passport issues specifically, the appeals court noted that they were denied and revoked because the plaintiffs weren’t citizens, an issue that 1503 addresses. Ultimately, the appeals court determined the plaintiffs failed to exhaust all other options.

Lastly, the appeals court said Villafranca can’t submit a complaint under 1503 (a) because that portion of the regulation only covers those who are within the country. As stated above, Villafranca was at a port of entry when the complaint against her was filed and her passport was revoked. Considering this, the appeals court decided the lower court was justified in dismissing her 1503(a) claim.

It also looked at Hinojosa’s as-applied constitutional argument to the 8 U.S.C. 1185(b) statute that says it’s illegal for a U.S. citizen to leave or enter the country without a valid passport. The appeals court plainly said that this regulation doesn’t apply to Hinojosa as the State Department determined she wasn’t a citizen.

Circuit James Dennis dissented a portion of the appeals court’s ruling. He agreed with the plaintiffs that 1503(b)-(c) isn’t a sufficient remedy for those outside of the country “who do not seek admission to the country prior to a determination of citizenship.” He pointed out both plaintiffs are within this framework and should be allowed review under APA. He added 1503 (b)-(c) would also enforce nearly impossible requirements that the plaintiffs would have to pay in hopes of getting citizenship when they are outside of the U.S. While both sections of the statute indicate one would have to go to a port of entry and apply for admission into the U.S. within two months, there’s no guarantee they would actually be granted admission and could also face serious criminal and monetary penalties.

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