by Sonya Chung and Zi Lin*

Do passports and Consular Reports of Birth Abroad constitute conclusive proof of U.S. citizenship such that the State Department’s revocation of these documents is not impermissibly retroactive? Sonya Chung (’17) and Zi Lin (’17) examine this question, based on their experience as writers of the problem for the New York University School of Law 2016 Immigration Law Competition. Their Contribution discusses the state of the law surrounding passports and CRBAs as evidence of citizenship and their revocability. The Contribution argues that courts should allow individuals to use these documents as conclusive proof of citizenship and that the State Department’s power to correct its own errors should be circumscribed carefully in cases where there has been extended reliance on citizenship rights.

Imagine you have lived, studied, worked, and traveled as a U.S. citizen your entire life. Your father is a citizen and has always told you that you are a citizen, as well. You have an official Consular Report of Birth Abroad (CRBA) and U.S. passport to prove it. After decades of living in the United States, it is almost impossible for you to see yourself as anything but an American citizen.

If the State Department then questioned your citizenship, you would think the passport and CRBA you have had for decades should be proof enough of your citizenship. You would be wrong. According to the State Department and the Second Circuit, passports and CRBAs do not serve as conclusive proof of U.S. citizenship on their own.2

If the State Department then revoked your passport and CRBA because they were issued due to the Department’s own error, naturally you would believe the law will allow you to keep them. After all, it was the State Department who erred; you and your family had done nothing fraudulent or illegal in obtaining your passport or CRBA. Again, you would be wrong. According to the State Department and the Second Circuit, and despite the decades-long delay, the State Department has the authority to revoke citizenship documents issued solely due to the Department’s own error.3

For Abdo Hizam, the above hypothetical became a painful reality when the State Department revoked his passport and CRBA.4 Mr. Hizam, who was born in Yemen, was granted a U.S. passport and CRBA shortly after his birth in 1990 and has lived as a U.S. citizen ever since.5 His passport was even renewed twice without incident.6 But in 2011, the State Department realized it had incorrectly issued Mr. Hizam’s CRBA and passport due to its own error.7 While the State Department plainly admitted Mr. Hizam and his family were not at fault for this error, the agency nonetheless revoked Mr. Hizam’s citizenship documents.8

Mr. Hizam sought a declaration of his U.S. nationality and the return of his documents and won in district court.9 The Court of Appeals of the Second Circuit, however, reversed, holding that Mr. Hizam’s passport and CRBA did not constitute conclusive proof of his U.S. citizenship and that the State Department’s revocation of Mr. Hizam’s passport and CRBA was not impermissibly retroactive.10


Many regard U.S. citizenship as one of the most valued privileges an individual can obtain.11 Once citizenship is conferred upon an individual, the government may not take away this privilege so easily.12 Yet, as Mr. Hizam’s case demonstrates, the U.S. immigration system does not always protect these ideals. How can we prevent individuals in similar circumstances from suffering the same hardships that befell Mr. Hizam? There are two simple steps. First, courts should allow individuals to use passports and CRBAs as conclusive proof of citizenship. Second, the State Department’s power to correct its own errors should be circumscribed carefully in cases where there has been extended reliance on citizenship rights.

First, an individual born “outside the geographic limits of the United States and its outlying possessions” may obtain citizenship at birth through a CRBA if one parent is a citizen of the United States.13 Prior to the individual’s birth, the citizen-parent must have been physically present in the United States for a period or periods totaling at least five years, at least two of which were after the citizen parent obtained the age of fourteen.14 Prior to 1985, however, the law required that the citizen-parent must have been physically present in the United States for at least ten years prior to the individual’s birth abroad.15 Once these statutory requirements are met, the law states that both CRBAs and passports “have the same force and effect as proof of United States citizenship” as certificates of naturalization or of citizenship.16

Despite the statute’s plain language, circuits are split as to whether passports and, by extension, CRBAs provide conclusive proof of citizenship. The Supreme Court has yet to consider whether passports provide conclusive proof of citizenship, and precisely what new “force and effect” passports have under section 2705 has been disputed in the circuit courts. The status of CRBAs under section 2705, on the other hand, has received little attention in the case law by either the circuit courts or the Supreme Court. However, because Congress established the force and effect of both passports and CRBAs in the same statutory section, the ambiguity created by the circuit split extends to CRBAs’ status as conclusive proof of citizenship.

The Ninth Circuit and the District Court for the District of Columbia have held that passports are conclusive proof of citizenship.17 The Eighth Circuit and Board of Immigration Appeals (“BIA”) have found passports to be conclusive proof of citizenship only in administrative immigration proceedings.18

More recently, the Third Circuit has taken a narrower view, holding that a passport is conclusive proof of citizenship only if the passport was issued to a U.S. citizen.19 In accord with the Third Circuit’s interpretation, the Second Circuit has held that passports and CRBAs are not conclusive proof of citizenship but only reflect the bearer’s underlying citizenship status.20 The Second Circuit held that the State Department’s “[i]ssuing or revoking a CRBA does not change the underlying circumstances of an individual’s birth and does not affect an individual’s citizenship status.”21 The court separated an individual’s underlying citizenship status (either granted at birth or not under the version of 8 U.S.C. § 1401(g) in effect in 1980) from his CRBA, which merely evidenced citizenship status.22

The Second and Third Circuit’s narrow interpretation of section 2705 flies in the face of the statute’s plain language and, as Judge Smith’s dissent in United States v. Moreno aptly points out, renders the statute inoperative.23 If an individual must first establish her underlying status as a U.S. citizen before she can use either her passport or CRBA as evidence of that citizenship status, then her passport and CRBA would be deprived of the “special evidentiary value” Congress intended for the documents to have under section 2705.24

Moreover, the Third Circuit itself has acknowledged that a passport or CRBA may be conclusive evidence of citizenship in certain contexts, such as administrative proceedings, albeit in the footnote of a non-precedential case.25 This view aligns with the Eighth Circuit and BIA’s position that passports can constitute conclusive proof of citizenship in administrative immigration proceedings.26

Courts should follow the Ninth Circuit’s approach in Magnuson v. Baker, which held that section 2705 “requires the Secretary of State to treat passports [and CRBAs] in the same manner as certificates of citizenship or naturalization in all respects.”27 The court based its ruling on section 2705’s use of the words “force and effect,” finding that the plain language of the section provided “a clear instruction from Congress to treat passports in the same manner as certificates of citizenship or certificates of naturalization in all respects.”28 Certificates of naturalization and citizenship, the court noted, could be used as conclusive evidence of citizenship, because they are evidence that the Attorney General had determined a person was a citizen.29

Courts should treat CRBAs and passports as having the same “force and effect” as certificates of naturalization and citizenship, which are conclusive and undisputed evidence of citizenship. To do otherwise would be to “accord those who use their passport [or CRBA] as evidence of their citizenship less protection than those who use other documents as evidence of denoting citizenship. Such a difference in treatment would contradict the ‘same force and effect language of section 2705.’”30

Citizenship is not an innate characteristic that some may possess and others may not. Ultimately, citizenship is a status granted to individuals by the State, and the process by which the State grants proof of citizenship status must be as clear as possible for the sake of equity.


Second, 8 U.S.C. § 1504, passed in 1994, grants the State Department the power to cancel illegally, fraudulently, or erroneously issued passports and CRBAs. Prior to the passage of section 1504, no statutory authority permitted the State Department to revisit such a determination and revoke a passport or cancel a CRBA. Thus, individuals who have been issued CRBAs after 1994 must accept the possibility that the government has the power to revoke those documents. However, for the State Department to cancel a CRBA or passport issued prior to 1994, courts must apply the test established by the Supreme Court in Landgraf v. USI Film Products to determine that section 1504 does not have an impermissible retroactive effect.31

The two-part test laid out in Landgraf requires courts to ask: (1) whether Congress provides explicit authority for retroactivity in the statute; and (2) whether the new law creates an impermissible retroactive effect.32 Impermissible retroactive effects arise where a new law takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.33 Only the Second Circuit has spoken directly on the issue, stating that since CRBAs do not confer citizenship and only certify that a person was a citizen at birth, section 1504 does not change the citizenship rights or attach new legal consequences to a prior acquisition of citizenship. According to the court, section 1504 passes Landgraf’s second test, and CRBAs issued prior to section 1504 may be cancelled.34

In considering step two, courts are supposed to exercise a “commonsense, functional judgment about whether a new provision attaches new legal consequences to events completed before its enactment” and take into account “familiar considerations of fair notice, reasonable reliance, and settled expectations.”35 This analysis indicates—and the Second Circuit erred in finding otherwise36—that section 1504 would have an impermissibly retroactive effect, because people who received their CRBAs before the enactment of section 1504 would have no notice that the document could be revoked and would have missed the opportunity to take steps to secure citizenship.37

Apart from authority granted by statute, the Supreme Court has allowed agencies to correct their own errors, as long as there are no issues of notice or fairness.38 Especially when it comes to conferring citizenship, the Court has stated reluctance to allow errors in the law to go uncorrected.39 However, the Supreme Court has also recognized the value of protecting citizenship status once it is bestowed.40

Though no circuit courts have spoken directly on the State Department’s inherent authority to correct its errors in issuing CRBAs and passports, the Second, Fourth, and Tenth Circuits have held that agencies have broad inherent authority to correct their own errors.41 The Ninth Circuit, however, has held that the State Department does not have the power to revoke certificates of naturalization except on grounds of fraud or illegality.42 On this issue, the Fifth, Federal, and D.C. Circuits allow authority for agencies to reconsider its past determinations with limitations.43

All circuits recognize that the State Department needs some sort of basis, whether statutory or inherent, from which to cancel or revoke citizenship documents. The State Department must be sure to have firm grounds when stripping an individual of citizenship rights. Statutory authority would provide such grounding but cannot be found in cases resulting in impermissibly retroactive effects. The only other alternative, inherent authority, is, at best, uncertain in the context of revoking citizenship documents and cannot pass muster in Mr. Hizam’s case. Unfortunately, the State Department asserts that they do have such power, and, in Hizam, the Second Circuit agreed, allowing for the disruption of individuals’ settled understanding of their citizenship status.44

Given the importance of citizenship, courts should carefully balance the State Department’s interest in correcting its own errors and individuals’ settled expectations regarding citizenship. Courts should follow the Ninth Circuit’s approach. The Ninth Circuit states correctly that the State Department has no power to revoke certificates of naturalization, either for agency error or for mere second thoughts, because the withdrawal of proof of citizenship is limited to only the most serious grounds, such as fraud or illegality. Disagreeing with the Tenth Circuit, the Ninth Circuit states that “[t]here is no general principle that what one can do, one can undo.”45

Especially when it comes to citizenship, the State Department and the courts must remember that individuals rely upon an understanding of their citizenship status to make decisions and build their lives in particular ways. The processes for granting, proving, and revoking such a significant status must be clear and grounded in unequivocal authority, such that the government may not overstep or abuse its power to upend an individual’s life.


Mr. Abdo Hizam now lives as a lawful permanent resident of the United States.46 In five years, he will likely be naturalized and restored to his original status as a U.S. citizen. The State Department might consider this result, which places Mr. Hizam right back to where he began, with shrugged shoulders as if to say, “All’s well that ends well.” However, Mr. Hizam had to pay too high a price to be able to return to what he reasonably expected to be his. Since the revocation of his documents, Mr. Hizam had been separated from his wife and children whom he was no longer able to petition to bring to the United States.47 He was pulled from his business school program because of his change in status and is now burdened with loans for a degree he was forbidden to complete.48 His identity and stability being stripped away has caused Mr. Hizam much harm, which he has had to perform acrobatic feats to undo.49 To their great fortune, Mr. Hizam’s family has finally been reunited in the United States as of March 2016.50 Perhaps all is well that ends well. But their story makes you wonder if the law was applied reasonably and justly in such circumstances, and whether there could have been a better legal solution.

* This Contribution reflects our experience as the authors of the problem for the New York University School of Law 2016 Immigration Law Competition. A panel of judges from the United States Court of Appeals for the Ninth Circuit presided over the final round of the competition. The questions presented in the competition were modeled after those raised in Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014).

2. Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014).

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. See Schneiderman v. United States, 319 U.S. 118, 122 (1943) (“For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many, it is regarded as the highest hope of civilized men. This does not mean that, once granted to an alien, citizenship cannot be revoked or canceled on legal grounds under appropriate proof. But such a right once conferred should not be taken away without the clearest sort of justification and proof.”).

12. See id.

13. 8 U.S.C. § 1401(g) (2012).

14. Id.

15. 8 U.S.C. § 1401(g) (1978) (requiring the U.S. citizen parent to be physically present for “ten years, at least five” of which were after that parent had turned fourteen).

16. 22 U.S.C. § 2705.

17. See United States v. Clarke, 628 F. Supp. 2d 15, 21 (D.D.C. 2009); Magnuson v. Baker, 911 F.2d 330, 334 (9th Cir. 1990).

18. See Keil v. Triveline, 661 F.3d 981, 987 (8th Cir. 2011); Matter of Villanueva, 19 I. & N. Dec. 101, 103 (BIA 1984).

19. United States v. Moreno, 727 F.3d 255, 257 (3d Cir. 2013).

20. Hizam, 747 F.3d at 102.

21. Id.

22. Id. at 108.

23. See Moreno, 727 F.3d at 263 (Smith, J., dissenting).

24. Id.

25. See Edwards v. Bryson, 578 Fed. Appx. 81, 83 n.4 (3d Cir. 2014).

26. See Keil, 661 F.3d at 987; Villanueva, 19 I. & N.  Dec. at 103.

27. See Magnuson, 911 F.2d at 334.

28. Id.

29. Id. at 333, n.6.

30. Id. at 335.

31. 511 U.S. 244 (1994).

32. Id. at 280.

33. IdSee also Vartelas v. Holder, 132 S. Ct. 1479, 1486–87 (2012); INS v. St. Cyr, 533 U.S. 289, 321–24 (2001).

34. Hizam, 747 F.3d at 108–110.

35. St. Cyr, 533 U.S. at 321.

36. Hizam, 747 F.3d 102.

37. See Hizam v. Clinton, No. 11 CIV. 7693 JCF, 2012 WL 3116026, at *7 (S.D.N.Y. July 27, 2012) rev’d and remanded sub nom. Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014).

38. See Am. Trucking Ass’ns v. Frisco Transp. Co, 358 U.S. 133, 146 (1958) (allowing correction of certificate to reflect prior adjudication for which the parties had timely notice).

39. See INS v. Pangilinan, 486 U.S. 875, 884–85 (1988) (“Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means, does a court have power to confer citizenship in violation of these limitations.”).

40. See Schneiderman, 320 U.S. at 122 (finding the consequences of depriving an individual of citizenship are “more serious than a taking of one’s property, or the imposition of a fine or other penalty . . . nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country.”).

41. See The Last Best Beef, LLC v. Dudas, 506 F.3d 333, 341 (4th Cir. 2007); Dun & Bradstreet Corp. Foundation v. U.S. Postal Service, 946 F.2d 189, 193 (2d Cir. 1991); Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980).

42. Magnuson, 911 F.2d at 335.

43. See Ivy Sports Med., LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (finding Congress intends to displace an agency’s inherent reconsideration authority when it provides statutory authority to rectify the agency’s mistakes); Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360–61 (Fed. Cir. 2008) (similarly using an “arbitrary, capricious, or an abuse of discretion” limitation to agency error corrections); Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir. 2002) (“An agency’s inherent authority to reconsider its decisions is not unlimited. An agency may not reconsider its own decision if to do so would be arbitrary, capricious, or an abuse of discretion.”).

44. Hizam, 747 F.3d at 102.

45. Gorbach v. Reno, 219 F.3d 1087, 1095 (9th Cir. 2000).

46. These facts regarding Mr. Hizam’s life developments after the resolution of his Second Circuit case are from a panel discussion with Mr. Hizam’s attorney, shared with Mr. Hizam’s permission. Matthew Moffa, Associate, Ropes and Gray LLP, Panel Discussion at the New York University School of Law 2016 Immigration Law Competition: Art of Advocacy: Immigration Law (Feb. 26, 2016).

47. Id.

48. Id.

49. Id.

50. Id.