by Sonya Chung and Zi Lin 1

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 oth­er­wise 36—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.


  1. 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. Id. See 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.