AuthorBenavides, Natalie



The Administrative Procedure Act (APA) standardizes federal administrative agency procedures that have the ability to effect an individuals' rights in order to ensure fairness and notice. (1) Under the APA, when necessary or otherwise prompted, a [*432] court is empowered to perform judicial review over agency procedures, and may set aside any arbitrary agency action. (2) In Al [*433] [*434] zokari v. Pompeo, (3) the Second Circuit Court of Appeals (the Second Circuit or the Court), dealt with an issue of first impression, and determined whether the Department of State's (the Department) action to revoke Ahmed Ali Alzokari's (Alzokari), U.S. passport was "arbitrary, capricious, or otherwise not in accordance with the law." (4) The Court concluded that the revoking of Alzokari's passport violated the APA because the Department (1) erroneously found that Alzokari fraudulently procured U.S. naturalization and (2) neglected to take proper procedures required upon a suspicion of fraud. (5)

[*435] On March 26, 2013, Alzokari sought to obtain a Consular Report of Birth Abroad at the U.S. Embassy in Yemen for Dawood Ahmed Ali Alzokari (Dawood), who Alzokari claimed was his son. (6) However, due to the great age disparity between [*436] Alzokari and Dawood, the consular officer was skeptical of their relationship and commenced a fraud investigation regarding the request. (7) The consular officer referred the case to Special Agent David W. Howell (Special Agent Howell), who then detained and interrogated Alzokari for several hours. (8) After the interrogation, Alzokari signed a statement drafted by Special Agent Howell (the "Statement"), including information about Alzokari's "true" name, date of naturalization, and entrance into the United States. (9)

[*437] Two years later, on January 6, 2015, the Department sent a formal letter to Alzokari, stating his passport was revoked based on the Statement where allegedly he had admitted to lying about his name and date of birth on his passport application. (10) On April 19, 2018, an administrative hearing concluded that Alzokari unsuccessfully challenged the revocation, arguing that the Statement was unreliable and the Department failed to present evidence that supported their claims of fraud. (11) The hearing officer recommended to uphold the revocation on the basis that the Statement "was sufficient evidence for the Department to reasonably rely upon." (12)

[*438] In January 2019, Alzokari initiated an action in the New York Eastern District Court against the Department and Secretary of State, among others, claiming the revocation of his passport violated the APA. (13) However, the District Court found the Department's actions did not violate the APA because the revocation of Alzokari's passport was neither arbitrary nor capricious because it was reasonably based upon the alleged false [*439] statements Alzokari made on his U.S. passport application. (14) Alzokari promptly filed an appeal in the Court of Appeals for the Second Circuit, who ultimately held that the Department neglected to "consider the significance of Alzokari's immigration and naturalization records in accordance with the law." (15) Due to the Department's evasion of the proper procedures, the Second Circuit concluded that the Department's action to revoke Alzokari's passport was arbitrary, capricious, and otherwise unlawful. (16)

[*440] In 1946, Congress enacted the APA to uniformize federal government administrative agencies' procedures, especially those that have the ability to affect an individuals' rights. (17) The APA's enactment was a political compromise for conservatives, who opposed the New Deal agencies created under Roosevelt's administration, that would put an end to the arbitrary decision making that took place under the agencies' administrative absolutism. (18) The APA created three categories of administrative action [*441] that would allow agencies to: (1) "impose regulations," (2) "resolve[ ] disputes by finding facts and making conclusions of law," and (3) make discretionary decisions under their adjudication procedures. (19) Most importantly, the APA imposed substantial

[*442] judicial review over any agency action that adversely affects an individuals' rights. (20) Within their powers of judicial review, a court may examine an agency's action and set aside any action that is arbitrary, capricious, or otherwise unlawful. (21) For an action [*443] to be arbitrary, capricious or otherwise unlawful, the reviewing court must find that the agency either relied on factors unintended by Congress, failed to consider important factors of the issue, offered an explanation contrary to evidence presented, or is plainly unlikely to be credited under an agency's expertise. (22)

[*444] [*445] Generally, U.S. citizenship can be proven by a presentation of a certificate of naturalization. (23) Particularly, in situations [*446] where an individual is born outside of the U.S., a certificate of naturalization is evidence of that individual's U.S. nationality and may be used to apply for a U.S. passport. (24) In order for an individual to obtain a U.S. passport, the applicant must complete the forms prescribed by the Department, answer all questions truthfully, and present any materials relevant to their eligibility. (25) Furthermore, an applicant is subject to prosecution for lying or otherwise committing fraud on their U.S. passport application. (26)

[*447] Congress grants the Department exclusive power to revoke a citizen's U.S. passport if it is found that the passport was fraudulently obtained. (27) Courts have differed on whether to find Department's action to find passport fraud arbitrary or not, where a naturalized U.S. citizen obtained a U.S. passport using a different name from the name they used prior to their naturalization. (28) [*448] Notably, however, Congress also has granted the Department the exclusive power to initiate denaturalization [*449] proceedings in situations where it is suspected that a citizen's naturalization was fraudulently obtained. (29) Typically, courts have upheld denaturalization procedures under 8 U.S.C. [section] 1451 [*450] as the only method for the Department to properly revoke a naturalized American's citizenship, and therefore, these procedures must be followed with strict compliance. (30) Because the Department is a federal governmental agency as defined by the APA, a reviewing court may set aside their actions to revoke an individual's U.S. passport upon a conclusion that the revocation was arbitrary. (31)

[*451] In Alzokari v. Pompeo, the United States Court of Appeals for the Second Circuit considered whether the Department's revocation of Alzokari's U.S. passport was arbitrary based on the belief that he fraudulently procured it. (32) Looking at congressional intent, as well as relevant case law, the Second Circuit analyzed whether the

Department's revocation was reliant upon relevant factors that considered the alleged fraud by Alzokari. (33) The

Court concluded the Department neglected to consider relevant factors at issue, upon a finding that the Department was so dismissive of Alzokari's uncontested citizenship documents that he used in order to procure his U.S. passport. (34)

[*452] The Court further examined 8 USC [section] 1447(e) and found that an individual is authorized to receive a decree of name change at the time of naturalization. (35) The Department's failure showed that had it considered relevant statutes, they would have found that even if Alzokari was known by a different name prior to his U.S. citizenship, applying for a U.S. passport under his naturalized legal name does not establish fraud per se. (36) The Court further reasoned that by revoking Alzokari's passport, the Department circumvented the proper procedure for initiating a denaturalization process upon a suspicion that a citizen has committed naturalization fraud. (37) Therefore, the Court set aside the [*453] Department's revocation of Alzokari's passport due to the

Department's disregard of (1) relevant factors regarding Alzokari's citizenship and (2) the proper denaturalization procedure. (38)

The United States Court of Appeals for the Second Circuit properly found that the Departments action in revoking Alzokari's passport was arbitrary, since it lacked a showing that the Department's determination to revoke was reasonably reliant upon relevant factors. (39) Because the Second Circuit stayed within their narrow scope of review under arbitrariness, they were able to properly identify the issues regarding the Department's neglect of proper procedures. (40) In fact, the Court made [*454] an astute observation that if the Department was truly concerned that Alzokari was committing fraud, and therefore presented a threat to national security, revoking Alzokari's passport simply just leaves him stranded in the United States. (41) The Court's observation not only stressed the fact that the Department's revocation was arbitrary, but also demonstrated the importance of an agency's responsibility to abide by proper procedures or risk their decisions being invalidated by the courts. (42)

[*455] Furthermore, it was important for the Court to recognize the pattern undertaken by both the Department and Special Agent Howell, as there have been three confirmed cases where naturalized U.S. citizens at the U.S. Embassy in Yemen were subject to the same form of lengthy, hostile interrogations that resulted in the naturalized citizens being coerced into signing a statement supporting the Department's fraud allegations. (43) Due

[*456] to the Court's reliance on various legislation, not only were they able to determine the Department's actions were arbitrary, but the Court also showed the Department's clear evasion of proper procedures, now in three sets of cases, seems to have been based on a prejudice against naturalized U.S. citizen. (44) Therefore, even if the


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