Monday, March 17, 2014
Guest blogger: Stefano Abbasciano, LLM student, University of San Francisco
An American story
Mr. Abdo Hizam, a 34-year old man from Bronx, NY, was an American citizen. Then he was not. Then he was again. Now he is not. On March 12, 2014, the Second Circuit of the United States Court of Appeal reversed the July 27, 2012 order issued by Magistrate Judge James C. Francis IV. Judge Francis had ruled that the State Department had no authority to revoke Mr. Hizam's Consular Report of Birth Abroad (CRBA).
Let's go back to the events that led to this decision.
Mr. Hizam was born in 1980 in a small village in Yemen, six hours away from the capital Sanaa, to a Yemeni-American father. His father worked in Michigan at a Chrysler plant, and had naturalized before his son was born. In 1990 Mr. Hizam's father applied for his son's Consular Report of Birth Abroad (CRBA), thus transmitting citizenship to him at birth. The laws applicable to Mr. Hizam allowed a parent to transmit citizenship to a child if the parent could show at least ten years of physical presence in the United States before the child’s birth. Mr. Hizam’s father, instead, had only lived in the United States for about seven years. When he filed his paperwork, Mr. Hizam's father truthfully indicated the correct period of residence. This information should have immediately alerted the State Department officials not to grant Mr. Hizam's CRBA in the first place. Instead, the State Department approved his citizenship. The mistake probably stems from the fact that the 10-year residence requirement was reduced to 5 years in 1986. Likely the consular officer applied the law in force at the time the application was filed, rather than the one in force at the time Mr. Hizam was born. Mr. Hizam received an American passport, moved to the United States at age nine, and eventually renounced his Yemeni citizenship. Since then, he has spent his entire life in this country, except for a few trips to Yemen to visit family. He was also able to renew his U.S. passport twice.
His nightmare began after he married his Yemeni wife and applied for their two children's CRBAs with the US embassy in Sanaa, like his father had done for him almost two decades before. Only at that point the State Department officials noticed the mistake committed by their colleagues twenty years earlier; they informed Mr. Hizam that he had received his citizenship by mistake. Although Mr. Hizam and his parents were not at fault, the State Department said it could not fix the mistake: Mr. Hizam's US passport was revoked and he was stripped of his citizenship.
In 2011 Mr. Hizam filed a lawsuit in Federal District Court (Hizam v. Clinton, 11 Civ. 7693 (JCF)), demanding that the government affirm his citizenship and reissue his passport. He alleged that the State Department wrongfully denied him his rights and privileges, that agency error does not authorize cancellation of a CRBA, and that the State Department was equitably estopped from revoking his CRBA and passport. In July 2012 the United States District Court, Southern District of New York, confirmed that the State Department had no authority to revoke Mr. Hizam's CRBA, and ordered that the CRBA and the passport be returned to him.
The State Department promptly appealed the District Court's decision. On March 12, 2014, the Second Circuit Court of Appeals reversed the District Court's order and remanded with directions to dismiss the complaint. The Circuit Court ruled that Mr. Hizam is not, and never was, a U.S. citizen because his father did not meet the statutory residence requirements in force at the time of Mr. Hizam's birth.
Having renounced his Yemeni citizenship, Mr. Hizam finds himself in a state of limbo, with no nationality. Due to the U.S. government's mistake and delay in discovering it, Mr. Hizam lost other opportunities to obtain legal permanent residence through his father, and eventually U.S. citizenship, at an earlier time. Mr. Hizam's father could have petitioned his son when Mr. Hizam was under the age of 21 and unmarried, which would have allowed Mr. Hizam to obtain law permanent resident status and eventually citizenship through naturalization reasonably quickly. Now Mr. Hizam could face a wait of more than a decade before an immigrant visa number would become available to him as a married adult. The hope at this point is that a private bill will be introduced in Congress to grant him U.S. citizenship.