No. 99-259
In the Supreme Court of the United States
ALBERTO O. LOZADA COLON, PETITIONER
v.
DEPARTMENT OF STATE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
DONALD E. KEENER
MARK C. WALTERS
LINDA A. WERNERY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether petitioner is entitled to a writ of mandamus directing the Secretary
of State to issue him a Certificate of Loss of Nationality under 8 U.S.C.
1501.
In the Supreme Court of the United States
No. 99-259
ALBERTO O. LOZADA COLON, PETITIONER
v.
DEPARTMENT OF STATE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-3) is reported at 170 F.3d
191. The opinion of the district court (Pet. App. 4-10) is reported at 2
F. Supp. 2d 43.
JURISDICTION
The judgment of the court of appeals was entered on March 23, 1999. A petition
for rehearing was denied on May 20, 1999 (Pet. App. 11). The petition for
a writ of certiorari was filed on August 12, 1999. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner was born in Puerto Rico on November 2, 1952, thereby becoming
a citizen of the United States under the terms of the Immigration and Nationality
Act (INA), 8 U.S.C. 1101 et seq. See Pet. 9; Pet. App. 5; 8 U.S.C. 1101(a)(38),
1401(a). Petitioner is a lawyer, and in 1996 he ran for Mayor of the city
of Mayaguez as a member of the Puerto Rican Independence Party. Pet. 9.
On September 23, 1996, petitioner appeared at a United States Consulate
in the Dominican Republic and stated that he desired to renounce his United
States nationality, as permitted by Section 349(a)(5) of the INA, 8 U.S.C.
1481(a)(5). See Pet. App. 5. After speaking with a consular officer, and
in conformity with procedures prescribed by the Secretary of State, petitioner
executed a written "Oath of Renunciation of the Nationality of the
United States" and a separate "Statement of Understanding."
C.A. App. 23-24; Pet. App. 5; see 22 C.F.R. 50.50(a).1 He also submitted
a separate written statement explaining his reasons for seeking to renounce
United States citizenship, as permitted by the Secretary's procedures. C.A.
App. 25. In his supplemental statement, petitioner asserted that he is a
"Puerto Rican citizen" with an "inalienable right" to
live in Puerto Rico, even after renouncing his United States citizenship.
Id. at 25 (original statement in Spanish), 32-33 (quoting portions of statement
as translated into English).
Section 358 of the INA, 8 U.S.C. 1501, provides that when a consular officer
has reason to believe that an individual who is outside the United States
has lost United States nationality under the terms of the Act, he or she
shall certify the facts upon which such belief is based to the Department
of State, in writing, under regulations prescribed by the Secretary of State.
If the report of the diplomatic or consular officer is approved by the Secretary
of State, a copy of the certificate shall be forwarded to the Attorney General,
for [her] information, and the diplomatic or consular office in which the
report was made shall be directed to forward a copy of the certificate to
the person to whom it relates. Approval by the Secretary of State of a certificate
under this section shall constitute a final administrative determination
of loss of United States nationality under this chapter, subject to such
procedures for administrative appeal as the Secretary may prescribe by regulation,
and also shall constitute a denial of a right or privilege of United States
nationality for purposes of section 1503 of this title.
See also 22 C.F.R. 50.50(b).2 In accordance with these provisions, the consular
officer who received petitioner's renunciation papers forwarded them to
the Department of State in Washington, together with a draft Certificate
of Loss of Nationality (CLN). See Pet. App. 5. The Secretary of State took
no immediate action with respect to petitioner's case. On August 13, 1997,
petitioner filed this action in the United States District Court for the
District of Columbia, seeking a writ of mandamus "compelling the Department
of State to enter a decision" with respect to his renunciation and
"ordering [the Department] to issue forthwith to [petitioner] a certificate
of loss of nationality." C.A. App. 17, 20; Pet. App. 5-6.
2. On January 27, 1998, the Department of State informed petitioner that
it would not issue him a CLN. Pet. App. 6; C.A. App. 32-33. The Department
explained that it was "unable to reconcile" petitioner's asserted
intention to relinquish United States citizenship with his statements concerning
his "Puerto Rican" citizenship and his right to continue to live
in Puerto Rico, or with its understanding that since the time of his "renunciation"
petitioner had been "living in Puerto Rico and ha[d] made no effort
to be documented as an alien under the [INA]." Id. at 32. To the contrary,
the Department determined that "the intention to relinquish U.S. nationality"
for purposes of 8 U.S.C. 1481(a) "does not exist where a renunciant
plans or claims a right to reside in the United States, a right that is
inherent in U.S. nationality, unless the renunciant demonstrates that residence
will be as an alien properly documented under U.S. law." C.A. App.
33. Because it considered petitioner's "statements and actions to be
inconsistent with an intent to relinquish U.S. citizenship with all the
rights and privileges pertaining thereto," the Department concluded
that petitioner had "not met the burden, established by Section 349(b)
of the INA [8 U.S.C. 1481(b)], of showing by a preponderance of the evidence
that [he] intended to relinquish U.S. citizenship when [he] executed the
Oath of Renunciation." C.A. App. 32.
3. On April 23, 1998, the district court granted respondents' motion to
dismiss petitioner's mandamus action. Pet. App. 4-10. Although the court
noted that petitioner had sought an order compelling the Secretary not only
to take some action in petitioner's case, but to issue a CLN, the court
concluded that the Secretary's refusal to issue a certificate amounted to
final agency action on petitioner's request, and that there were means of
challenging that decision other than a petition for a writ of mandamus.
Id. at 6-7. In any event, the court held that the language of 8 U.S.C. 1501
"makes clear that the issuance of a certificate depends upon the Secretary's
approval of the consular officer's report." Pet. App. 8. Thus, "[t]he
approval, or disapproval, of the issuance of certification is committed
by statute to the discretion of the Secretary," and accordingly that
decision was "not subject to th[e] Court's mandamus jurisdiction."
Ibid.
Finally, the district court rejected petitioner's "quasi-constitutional
argument that the Secretary must approve his [CLN] because of his inherent,
natural right to expatriate." Pet. App. 8. The court reasoned that
expatriation depends in part on a finding of the requisite intent to relinquish
all the benefits of United States citizenship, so that even if there is
a "fundamental right" to expatriate, the Secretary "still
would have the discretion to determine whether an individual has adequately
renounced affiliation with the United States so as to trigger that right."
Ibid. The court noted that, as the Secretary had determined, petitioner
asserted a continuing right to remain a resident of Puerto Rico, without
complying with the alien admission or documentation requirements of the
INA, and thus had "demonstrated no intention of renouncing all ties
to the United States" or rights and benefits of United States citizenship.
Id. at 9. The court concluded that while petitioner might have "strong
political views with regard to Puerto Rican independence," his objection
to the Secretary's decision not to issue a CLN turned on "the much
debated political question as to the status of Puerto Rico and its nationals
in relation to the United States," which was "not an issue for
[the] Court to decide." Id. at 9-10.
4. The court of appeals affirmed. Pet. App. 1-3. In a brief per curiam order,
the court observed that a writ of mandamus may be granted only to enforce
a "clear and indisputable" duty to perform a "ministerial,"
non-discretionary act. Id. at 2. The court agreed that such a writ could
not be granted in this case because Section 1501 "clearly affords the
Secretary discretion to determine whether a Certificate of Loss of Nationality
should be issued." Ibid. The court also found "no merit"
in petitioner's equal protection claims, which had been raised for the first
time on appeal. Ibid. The court noted that it had no need to address "any
issues concerning the availability of judicial review for persons denied
a [CLN]," and it reserved judgment on those issues. Id. at 2-3.
ARGUMENT
Petitioner in this case originally sought "an order compelling the
Department of State to enter a decision on the approval of his petition
for loss of nationality and declaring that the challenged agency inaction
is unlawful." C.A. App. 17 (emphasis added). That claim became moot
in January 1998, when the Department advised petitioner that it would not
approve the issuance of a Certificate of Loss of Nationality in his case.
See id. at 32-33; Pet. App. 6. To the extent that petitioner now seeks judicial
review of the substance of the Department's determination, the courts below
correctly held that such review may not be obtained by way of a petition
for a writ of mandamus. That decision does not conflict with any decision
of this Court or of another court of appeals, and there is no reason for
review by this Court.
1. A writ of mandamus may issue only to compel the performance of a "clear
nondiscretionary duty," Your Home Visiting Nurse Servs. v. Shalala,
525 U.S. 449 (1999) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)),
and only where the petitioner can show that his right to relief is "clear
and indisputable," Bankers Life & Cas. Co. v. Holland, 346 U.S.
379, 384 (1953) (quoting United States v. Duell, 172 U.S. 576, 582 (1899)).
Moreover, "[w]here a matter is committed to discretion, it cannot be
said that a litigant's right to a particular result is 'clear and indisputable.'"
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (quoting Will
v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978) (plurality opinion));
see also United States v. Wilbur, 283 U.S. 414, 420 (1931) (Mandamus "will
issue only where the duty to be performed is ministerial and the obligation
to act peremptory, and plainly defined. The law must not only authorize
the demanded action, but require it; the duty must be clear and indisputable.").
The courts below correctly recognized that the INA authorizes, but does
not require, the Secretary of State to approve a diplomatic or consular
officer's report of facts giving "reason to believe" that an individual
may have lost his or her United States citizenship. See 8 U.S.C. 1501 ("If
the report * * * is approved by the Secretary of State, a copy of the certificate
shall be forwarded," etc.) (emphasis added); see also 22 C.F.R. 50.40(e),
50.50(b). Loss of citizenship is an extremely serious matter, and the Secretary
does not approve the issuance of a CLN unless she is satisfied, after due
consideration, that all the requirements for expatriation have been met.
Under the Constitution and the INA, those requirements include not only
that an individual perform specific acts (such as the taking of an oath
of renunciation, or becoming an officer in a foreign army), but also that
he or she perform them both voluntarily and "with the intention of
relinquishing United States nationality." 8 U.S.C. 1481(a); Vance v.
Terrazas, 444 U.S. 252, 258-263 (1980); Afroyim v. Rusk, 387 U.S. 253 (1967).
The Secretary's obligation to consider each case of possible loss of nationality
reported to her and to make appropriate factual and legal determinations
cannot be fairly described as "ministerial," and the statute plainly
imposes no duty on her to issue a CLN in any given case. See Heuer v. Secretary
of State, 20 F.3d 424, 427 (11th Cir.) (approval of a CLN requires "more
than a mere ministerial 'rubber stamp'"), cert. denied, 513 U.S. 1014
(1994); compare Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S.
221, 235 n.5 (1986) (statements in committee report describing Secretary
of Commerce's statutory duty to certify to the President that foreign nationals
are fishing in a certain manner "whenever he determines the existence
of such operations" are "not the words of a ministerial duty,
but [of] the imposition of duty to make an informed judgment"); but
see Whitehead v. Haig, 794 F.2d 115, 118 (3d Cir. 1986) (characterizing
Department's functions under Section 1501 as "ministerial" and
issuance of CLN in a renunciation case as "automatic").3
Petitioner concedes that the Secretary must exercise discretion in the issuance
of some CLNs, but he contends that there is no such discretion in express
renunciation cases. Pet. 14. The terms of 8 U.S.C. 1481 and 1501 provide
no basis for the distinction that petitioner suggests. Moreover, while it
is true that 22 C.F.R. 50.40(a) provides for a general "administrative
presumption" that "[a] person who affirmatively asserts to a consular
officer, after he or she has committed a potentially expatriating act, that
it was his or her intent to relinquish U.S. citizenship will lose his or
her U.S. citizenship," no similar language appears in 22 C.F.R. 50.50,
which deals more specifically with express renunciations under Section 1481(a)(5).
If the two situations were to be distinguished, the more logical construction
of the regulations, read together, would be that the presumption set out
in Section 50.40(a) applies in cases in which the affirmation of intent
follows one of the separate expatriating acts specified in Section 1481(a)
(which would itself provide strong, independent evidence of the relevant
intent), but not in cases in which a written renunciation, and any contemporaneous
supporting statements, are the only evidence before the Department as it
seeks to determine whether the putative renunciant understands the consequences
of loss of citizenship and in fact intends to incur them. In any event,
nothing in the INA or the regulations relieves the Secretary of the responsibility
for making an independent judgment, before she issues a CLN, that any potentially
expatriating act (including renunciation) was committed voluntarily and
with the requisite intent to relinquish all the benefits of citizenship.
Concomitantly, nothing disables the Secretary from taking all relevant facts
and circumstances-including a putative renunciant's expressed intention
to continue living in the United States without being documented as an alien-into
account in making the necessary determinations in each case.
2. Petitioner argues (Pet. 15-17) that a writ of mandamus should issue in
this case because he is entitled to a determination that he has lost his
United States citizenship, and because there is no other judicial mechanism
available for him to litigate that claim. As the court of appeals recognized
(Pet. App. 2-3), however, mandamus is unavailable in this case in any event,
because petitioner has no "clear and indisputable" right to compel
the Secretary of State to conclude that petitioner has met the statutory
and constitutional requirements for expatriation, or to issue any document
purporting to certify that she has reached such a conclusion when in fact
she has not. The court of appeals accordingly found it unnecessary to consider
whether petitioner might have other means of seeking a judicial determination
concerning his citizenship, and there is no more reason to pursue that question
here.4
Similarly, there is no reason for this Court to entertain petitioner's unsupported
(and barely elaborated) claim that the Secretary of State's determination
not to issue a CLN in his case represents "discriminat[ion] against
[petitioner] based on his Puerto Rican nationality" (Pet. 17). As the
court of appeals observed (Pet. App. 2), petitioner waived that meritless
allegation by failing to raise it in the district court.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
DONALD E. KEENER
MARK C. WALTERS
LINDA A. WERNERY
Attorneys
OCTOBER 1999
1 The form of oath states in substance that the declarant "absolutely
and entirely renounces his U.S. nationality together with all rights and
privileges and all duties of allegiance and fidelity thereunto pertaining."
22 C.F.R. 50.50(a). The form of "Statement of Understanding" signed
by petitioner recites, among other things, the declarant's understanding
that "Upon renouncing my citizenship I will become an alien with respect
to the United States, subject to all the laws and procedures of the United
States regarding entry and control of aliens," and that "If I
do not possess the nationality of any country other than the United States,
upon my renunciation I will become a stateless person and may face extreme
difficulties in traveling internationally and entering most countries."
C.A. App. 24.
2 Although 8 U.S.C. 1481(a)(5) provides for formal and explicit renunciations
of citizenship, Section 1481(a) sets out a number of other acts, such as
taking an oath of allegiance to a foreign state or serving as an officer
in a foreign army, that will result in loss of citizenship if performed
"with the intention of relinquishing United States nationality."
An individual who objects to the Secretary of State's initial conclusion,
on the basis of facts reported by a diplomatic or consular officer, that
he or she has performed an expatriating act with the requisite intent may
appeal that determination to the State Department's Board of Appellate Review,
and may challenge a final adverse determination by the Department under
procedures set out in 8 U.S.C. 1503 (1994 & Supp. IV 1998). In any proceeding
concerning loss of nationality, "the burden shall be upon the person
or party claiming that such loss occurred, to establish such claim by a
preponderance of the evidence." 8 U.S.C. 1481(b).
3 As petitioner notes (Pet. 15), Heuer and Whitehead expressed different
understandings of the nature of the administrative process involved in determining
whether or not to issue a CLN, at least in express renunciation cases. Compare
Heuer, 20 F.3d at 427-428, with Whitehead, 794 F.2d at 118. The issue in
both cases was whether the issuance of a CLN constituted a "denial"
of a "right or privilege as a national of the United States" for
purposes of the limitation provision applicable to actions to establish
nationality under 8 U.S.C. 1503(a) (1994 & Supp. IV 1998). Whitehead
characterized the administrative function in express renunciation cases
as merely ministerial, and concluded that the issuance of a CLN in such
a case did not start the running of the limitation period. Heuer characterized
the administrative process as a substantive one, and held that the period
of limitation did begin to run when a CLN was issued. Congress ultimately
resolved that conflict by amending Section 1501 to specify that approval
of a CLN by the Secretary of State "shall constitute a final administrative
determination of loss of United States nationality * * * and also shall
constitute a denial of a right or privilege of United States nationality
for purposes of section 1503." 8 U.S.C. 1501, as amended by the Immigration
and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416,
Tit. I, § 106, 108 Stat. 4309; see also Br. for the Resp. in Opp. at
6-7, Heuer v. United States Secretary of State, supra (No. 94-161). (We
will provide petitioner with a copy of our brief in opposition in Heuer.)
4 We note that there is no obvious reason why a judicial forum would be
available to consider petitioner's contentions so long as the Secretary's
determination to continue regarding him as a citizen has only consequences
that would normally be regarded as benefits, rather than burdens, to petitioner
(such as recognition of his right to vote in national elections, or to live
and work in Puerto Rico without having been documented as a resident alien
under the INA). Should the United States seek to compel petitioner's performance
of some affirmative duty to which only citizens are liable, such as serving
on a jury, then presumably petitioner could seek to establish, as an affirmative
defense to enforcement of that duty, that his 1996 renunciation of citizenship
was effective under the Constitution and the INA, notwithstanding the Secretary's
determination to the contrary. Cf. 8 U.S.C. 1481(b) (imposing burden of
proof on any loss-of-nationality claim on the party who claims that loss
took place).