UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
SAAD S. NOAH, )
)
Plaintiff, )
)
v. ) C.A. No.14-420 (ABJ)
)
JOHN KERRY, SECRETARY OF THE )
UNITED STATES DEPARTMENT OF STATE, )
)
)
JEH JOHNSON, SECRETARY, )
DEPARTMENT OF HOMELAND SECURITY )
)
Respondents. )
)

RESPONDENTS’ STATEMENT WHY WRIT OF MANDAMUS

SHOULD NOT BE GRANTED AND MOTION TO DISMISS THE PETITION

In conformity with this Court’s March 28, 2014 Order, Respondents John Kerry and Jeh

Johnson through the undersigned counsel file this Statement Why a Writ of Mandamus Should

Not Be Issued and Motion To Dismiss the Petition. As discussed below, this Court lacks

mandamus jurisdiction under 28 U.S.C. § 1361. Respondents have not violated any

nondiscretionary duty owed to Petitioner because they have no duty to issue a Certificate of Loss

of Nationality. Likewise, Respondents have no duty to deport Petitioner to Finland or anywhere

else because a determination whether to deport an alien is committed exclusively to the executive

branch.

STATEMENT OF FACTS

According to State Department records, Petitioner Saad Noah was born in Iraq in 1957.

In 1982, he entered the United States on a student visa and began studying Aviation Maintenance

1
Technology at Spartan College of Aeronautics in Tulsa, Oklahoma. (ECF 1 at 1) He became a

naturalized citizen of the United States in December 1988. (ECF 1 at 1) According to the

Petition, Noah lost his Iraqi citizenship when he became a naturalized United States citizen.

(ECF 1 at 1) As recently as May 17, 2009, Noah received a U.S. passport. (ECF 1 at 1).

Noah alleges that he began traveling outside the United States in June 2009, first

traveling to Canada and then to Finland. According to Petitioner, “on July 27, 2009 * * * upon

arriving in Helsinki airport in Finland, Noah voluntarily and intentionally abandoned the United

States nationality and surrendered his United States passport, along with the rights and

obligations that attach thereto.” (ECF 1 at 1) 1 Noah claims that thereby “he became a subject of

the government of Finland” and applied for permanent residency. (ECF 1 at 1) Noah also claims

that, on or about January 28, 2010, he “made an oath /affirmation of renunciation of his United

States Nationality * * * as prescribed by the Department of State in form DS-4080, and executed

and signed form DS-4080, of Department of State of the oath /affirmation of his renunciation

United States Nationality.” (ECF 1 at 2) Additionally, Noah alleges that, on March 22, 2010, he

executed and signed three copies of an oath or affirmation renouncing United States nationality

in the city of Kemi, Finland and sent copies of the declaration and of his U.S. passport to the U.S.

Embassy in Helsinki, Finland. (ECF 1 at 2)

Finland was not receptive to Noah, however. On May 25, 2010, the Finnish Immigration

Service denied his application for permanent residence. (ECF 1 at 2) Noah then traveled to

Germany where he sought permanent residence and nationality. (ECF 1 at 3) On August 2010,

1 According to State Department records, however, Noah traveled using his U.S.
passport on November 1, 2010, when Finland deported him to the United States. Exh. 1 at 2.
2
Germany deported him back to Finland. (ECF 1 at 3) Two months later, in October 2010, Finnish

authorities arrested Noah for being in Finland illegally.

While he was confined, officials from the U.S. Embassy visited Noah in order to explain

the process for renouncing his U.S. citizenship and to emphasize the gravity of doing so. Exh. 1

at 1. On that occasion, Noah was violent and aggressive and thereby prevented embassy officials

from discussing these matters with him. Exh. 1 at 1. On November 1, 2010, Finland forcibly

deported Noah to JFK Airport in the United States. Exh. 1 at 2. Noah does not claim that he has

been detained by federal authorities since his return to the United States. According to the

Petition, he “has no address in the United States.” (ECF 1 at 1) 2

Petitioner’s District Court Action

On March 8, 2014, Noah brought this proceeding “seeking declaratory and mandamus

relief requiring the State Department to recognize his expatriating acts and seeking a Certificate

of Loss of Nationality (CLN) from the State Department, and requiring Homeland Security to

deport him back to Finland where he expatriated and was forcibly deported from and unlawfully

admitted into the United States, while he is an alien excludible from entering and remaining in

the United States.” (ECF 1 at 2) In a March 28, 2014 Order, the Court directed Respondents “to

file with the Court and serve on Petitioner a statement showing why the writ of Mandamus

should not be granted” within thirty days after service of the Order. (ECF 4) The Court

subsequently granted Respondents extensions of time in which to file that statement. (ECF 7, 8).

2 The caption on the Petition for Declaratory and Mandamus Relief lists Noah’s
residence as 11-330 Will County Adult Detention Facility, 95 South Chicago Street, Joliet,
Illinois 60426. It suggests that Petitioner was confined in a state detention facility when he filed
the Petition.
3
 ARGUMENT

I. Noah Is Not Entitled to Mandamus Relief.

A. The Statutory Scheme Governing Renunciation

Of U.S. Nationality In a Foreign Country

Given the gravity of relinquishing U.S. citizenship, federal law requires the Secretary of

State to determine that a person who seeks to give up his citizenship has fully met the applicable

requirements. Thus, the Constitution and federal statutes require that a U.S. citizen perform a

defined, potentially expatriating act voluntarily and with the intention of relinquishing U.S.

citizenship. 8 U.S.C. § 1481(a). See also Vance v. Terrazas, 444 U.S. 252 (1980); Afroyim v. Rusk,

387 U.S. 253 (1967). As a predicate for a loss of nationality finding under 8 U.S.C. §§ 1481(a)

(1)-(5), a U.S. consular officer must submit a certification of facts setting forth the commission of

a potentially expatriating act. 8 U.S.C. § 1501; 22 C.F.R. § 50.40(c). For the Department of State

to approve a Certificate of Loss of Nationality (“CLN”), the officer must confirm that (1) the

individual is a U.S. citizen, (2) he has performed a potentially expatriating act, (3) he has done so

voluntarily, and (4) he has acted with the intent to relinquish U.S. citizenship. 8 U.S.C. §§ 1481(a),

1501.

B. The Petition For Mandamus Should Be Denied Because Respondents

Have Not Failed To Discharge Any Mandatory Duty Owed To Petitioner.

The Mandamus Act, 28 U.S.C. § 1361, vests district courts with “original jurisdiction over

any action in the nature of mandamus to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plaintiff.” Granting a writ of mandamus is a

drastic remedy to be used only in extraordinary situations. Kerr v. United States, 426 U.S. 394,

402 (1976). A writ of mandamus may issue only when t h e petitioner has s h o w n three

elements: (1) a clear legal right to the relief sought; (2) a clear duty on the part of the responding
4
party to do the specific act requested, and; (3) no other adequate remedy is available. Power v.

Barnhart, 292 F.3d 7 8 1 784 (D.C. Cir. 2002). See Sluss v. United States Citizenship and

Immigration Services, 837 F. Supp. 2d 37, 40 (D.D.C. 2012).

No ah asserts that the Department of State has failed to issue him a CLN and that the

Department of Homeland Security has failed to deport him to Finland. (ECF 1) As discussed

below, the Secretary of State has no duty to issue a CLN to Noah. Nor does the Department of

Homeland Security have a mandatory duty to deport Noah to Finland or anywhere else.

1. The Department of State’s Authority To Issue a CLN Is Discretionary.

First, N o a h d e m a n d s t h a t the Department of State issue him a CLN. As the D.C.

Circuit has recognized, “8 U.S.C. § 1501 clearly affords the Secretary [of State] discretion to

determine whether a Certificate of Loss of Nationality should be issued.” Colon v. U.S. Dep’t of

State, 170 F.3d 191 (D.C. Cir. 1999) (per curiam). See also Clinton v. Clinton, Civ. No. 10-1009,

2010 WL 4828990, at *1 (D.D.C. Nov. 29, 2010) (Kennedy, J.) (same); Weber v. Department of

State, 885 F. Supp. 2d 46 (D.D.C. 2012). Therefore, because Noah’s requested relief relates to a

discretionary determination, that part of his claim fails as a matter of law.

2. Noah Did Not Meet The Requirements For Issuing a CLN.

Moreover, N o a h i s n o t e n t i t l e d to this relief because he did not commit an

expatriating act as defined by 8 U.S.C. §§ 1481(a)(5). Under federal statute, a person loses his

nationality by voluntarily and intentionally relinquishing his United States nationality by

“making a formal renunciation of nationality before a diplomatic or consular officer of the

United States in a foreign state, in such form as may be prescribed by the Secretary of State.” 8

U.S.C. § 1481(a)(5). The manner and form prescribed by the State Department is set forth in the

Department’s guidance at 7 Foreign Affairs Manual (“FAM”) 1260. As the FAM states,
5
“[r]enunciation procedures should always be held at post in a setting that reminds the renunciant

of the gravity of the consequences.” 7 FAM 1262.3 That provision also requires that the U.S. flag

be present at the site of renunciation and that the renunciant should stand and raise his or her right

hand while taking the oath administered by a U.S. diplomatic or consular officer.

These are not empty formalities. They serve to reinforce the gravity and solemnity of

renouncing American citizenship. For the same reason, State Department guidance also requires

that the citizen be counseled on the serious consequences of renunciation and be given time to

reflect on his or her decision before a consular officer will accept a fee for processing a

renunciation or administer the oath. 7 FAM 1262.2. See Weber v. Department of State, 885 F.

Supp. 2d at 50.

According to Noah, he signed an affirmation of renunciation of United States nationality

before a Finnish notary and then scanned and emailed a copy of it to the U.S. Embassy in

Helsinki. He excused himself from the statutory requirement to appear in person at the U.S.

Embassy because “NOAH was too far from Helsinki.” (ECF 1 ¶ 15) Noah also claims that he

signed another DS-4080 form before a U.S. consular officer in the presence of Finnish

Immigration Service authorities. (ECF 1 at 3)

But Noah never avers that he appeared “before a diplomatic or consular officer of the

United States in the manner and form prescribed by the Department” as required by 22 C.F.R.

§ 50.50. In fact, State Department records show that Noah’s only personal interview with a

consular officer occurred while he was in police detention in Finland and awaiting deportation to

the United States. According to the consular officer’s notes of that visit, Noah was “very

aggressive, offensive towards US and its constitution and he did not give us opportunity to speak.

* * * He * * * signed form [sic] DS-4080 and threw it to us declaring that he is not anymore an
6
US citizen. We tried to tell him, that this act did not renunciate his US citizenship and that his

case rests with the Finns. We left the room as it was just impossible to communicate with Mr.

Noah.” (sic) Exh. 1 at 2.

Thus, the record demonstrates that, because Noah did not renounce his citizenship in the

manner and form prescribed by the State Department, he did not commit an expatriating act in

conformity with 8 U.S.C. § 1481(a)(5). See Weber v. Department of State, 885 F. Supp. 2d at

50-51.

Although the Complaint is unclear whether Noah also asserts that he committed an

expatriating act under 8 U.S.C. § 1481(a)(2), he did not. Under section 1481(a)(2), a U.S.

national shall lose his nationality by “taking an oath or making an affirmation or other formal

declaration of allegiance to a foreign state or a political subdivision thereof.”

Noah clearly did not do so. He asserts that he became a subject of Finland and that he

owed allegiance to it. But he presents no facts showing that he took an oath or affirmation that

was legally meaningful. Such an oath must be one that the foreign state requires and must satisfy

the four criteria set forth in 7 FAM 1252(h). These criteria include a requirement that taking the

oath alters the affiant’s legal status with respect to the foreign state.

Noah never took an oath that was accepted by Finnish authorities or changed his legal

status with respect to Finland. He only “affirmed that he is going to abide by the laws and the

Constitution of Finland and owing allegiance to Finland.” (ECF 1 at 2). Whatever this may mean,

it was plainly deemed inadequate by Finland, which deported him. Tellingly, in his Petition,

Noah describes himself as “a stateless alien” as of June 22 – six months later – when he sought

residency in Germany (ECF 1 at 3). Therefore, Noah did not commit an expatriating act under 8

U.S.C. § 1481(a)(2).
7
 3. The Failure To Deport Noah To Finland Violated No Duty.

Noah contends that the federal government had a legal duty to deport him to Finland.

But even assuming arguendo that Noah was subject to deportation, that status gave him no right

to demand to be deported.

Like other aspects affecting treatment of aliens, whether to deport an alien is a

determination subject to plenary control of the executive branch. “Our cases ‘have long

recognized the power to expel or exclude aliens as a fundamental sovereign power exercised by

the Government’s political departments largely immune from judicial control.” Fiallo v. Bell,

430 U.S. 787, 792 (1977), quoting Shaughnessy v. Mezel, 345 U.S. 206, 210 (1953). Whether to

deport is discretionary. “The power over aliens is of a political character and therefore subject

only to narrow judicial review.” Shaughnessy v. Mezel, 345 U.S. at 210, quoting Hampton v.

Mow Sun Wong, 426 U.S. 88 (1976).

That a person is an alien and subject to deportation does not give him or anyone else the

right to demand that he be deported. By statute, the Attorney General has the power and duty to

control and guard the boundaries of the United States against illegal entry of aliens. See 8 U.S.C. §

1103. The courts have rejected efforts to challenge the Attorney General’s failure to deport aliens

as an intrusion upon the exclusive authority and absolute discretion of the executive branch to

make such decisions. See Chiles v. United States, 874 F. Supp. 1334, 1340 (S.D. Fl. 1994), cert.

denied, 517 U.S. 1188 (1996). In short, although someone may be subject to deportation, no one

has the right to demand to be deported. Cf. 8 U.S.C. § 1252(g) (“no court shall have jurisdiction

to hear any cause or claim by or on behalf of any alien arising from the decision or action by the

Attorney General to commence proceedings, adjudicate cases, or execute removal orders against

any alien under this chapter.”)

8
 In making those determinations, the Executive Branch weighs many factors. Quite apart

from whether it is in the interest of the United States to deport Noah now, it is plain that Finland,

where he wants to be deported, is not receptive to his return.

C. The Petition for Mandamus Fails As a Matter of Law

Because Petitioner Has An Alternative Remedy.

Mandamus relief is not available where a party has another remedy. Power v. Barnhardt,

252 F.3d at 784. Here, Noah’s only remedy is to challenge the refusal to issue a CLN under the

Administrative Procedure Act. Other courts have discussed this remedy for similarly situated

parties. Sluss v. U.S. Citizenship And Immigration Services 899 F. Supp. 2d at 40-41; Weber v.

Department of State, 885 F. Supp. 2d at 52-53.

As discussed below, these courts have held that such an APA challenge would lack merit.

Here, the point is that, because the APA might provide recourse, mandamus relief is unavailable.

II. Because A Challenge To Refusal to Issue a CLN or Deport Petitioner To Finland

Lacks Merit As a Matter Of Law, The Proceeding Should Be Dismissed.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold

challenge to the Court's jurisdiction,” and thus “the Court is obligated to determine whether it

has subject-matter jurisdiction in the first instance.” Curran v. Holder, 626 F. Supp. 2d 30, 32

(D.D.C. 2009) (internal citation and quotation marks omitted). “[I]t is presumed that a cause lies

outside [the federal courts’] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994), unless the plaintiff can establish by a preponderance of the evidence

that the Court possesses jurisdiction. See, e.g., U.S. ex rel. Digital Healthcare, Inc. v. Affiliated

Computer, 2011 WL 1495928 at *4 (D.D.C. Apr. 20, 2011) (citing Hollingsworth v. Duff, 444

F. Supp. 2d 61, 63 (D.D.C. 2006)). Thus, the “‘plaintiff’s factual allegations in the complaint

. . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion
9
 for failure to state a claim.’” Id.(quoting Grand Lodge of Fraternal Order of Police v. Ashcroft,

185 F. Supp. 2d 9, 13-14 (D.D.C. 2001) (internal citation and quotation marks omitted)).

A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be presented as either a

facial or factual challenge. “A facial challenge attacks the factual allegations of the

complaint that are contained on the face of the complaint, while a factual challenge is addressed

to the underlying facts contained in the complaint.” Al-Owhali v. Ashcroft, 279 F.

Supp. 2d 13, 20 (D.D.C. 2003) (internal quotations and citations omitted). When a defendant

makes a facial challenge, the district court must accept the allegations contained in the complaint

as true and consider the factual allegations in the light most favorable to the non-moving party.

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993); see also Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006). With respect to a

factual challenge, the district court may consider materials outside of the pleadings to determine

whether it has subject matter jurisdiction over the claims. Jerome Stevens Pharmacy, Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005). The plaintiff bears the burden of establishing the factual

predicates of jurisdiction by a preponderance of the evidence. Erby, 424 F. Supp. 2d at 182.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests whether a complaint has

properly stated a claim upon which relief may be granted. Woodruff v. DiMario,

197 F.R.D. 191, 193 (D.D.C. 2000). A complaint m u s t contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a

complaint need not present “detailed factual allegations,” it must provide “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Ashcroft v. Iqbal, 556

U.S. 662 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). Thus, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
10
 plausible on its face.’” Iqbal, 556 U.S. at 669 (quoting Twombly, 550 U.S. at 547). A claim is

facially plausible “when the plaintiff pleads factual content that allows the court to draw [a]

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556).

In evaluating a Rule 12(b)(6) motion, a court must accept the plaintiff’s factual

allegations as true but any conclusory allegations are not entitled to an assumption of truth.

Allegations pled with factual support need be accepted only to the extent that “they plausibly

give rise to an entitlement to relief.” Iqbal, 556 U.S. at 669.

The prior discussion shows that Noah has no right to be issued a CLN and no right to

demand to be deported to Finland. In theory, Petitioner could characterize the refusal to accede

to these demands as a refusal to act in violation of the APA.

But the outcome of that suit would be a foregone conclusion. Because these are matters

committed to agency discretion, they are not subject to APA review.

A claim that the State Department unlawfully withheld a CLN

from Weber fails for much the same reason that mandamus is
not appropriate: because the State Department has discretion
in making decisions about the validity of a renunciation of
citizenship. Claims under the ‘unlawfully withheld’ provision
of the APA may proceed only where the agency ‘failed to take
* * * agency action that it is required to take,’ and ‘the limitation
to required agency action rules out judicial discretion’ of ‘agency
action * * * * not demanded by law.’ Norton v. Utah Wilderness
Alliance,, 542 U.S. 55, 64-65 (2004). Since issuance of a CLN is
not demanded by law, this Court will not compel the Department
to grant Weber a CLN under § 706(1).

Weber v. Department of State, 885 F. Supp. 2d at 54. (emphasis and ellipsis in original). See Sluss,

899 F. Supp. 2d at 41-42.

11
 The analysis of any APA challenge to the refusal to deport Noah is the same. Just as

issuance of a CLN is committed to the discretion of the Secretary of State, whether to deport an

alien is subject to the determination of the Secretary of Homeland Security.

Thus, it is evident that Noah is neither entitled to mandamus nor does he have a colorable

APA claim over which this Court has jurisdiction. Therefore, it should deny the request for

mandamus and dismiss the petition.

CONCLUSION

For these reasons, Respondents move that the Court dismiss the Petition for lack of

jurisdiction and for failure to state a claim on which relief can be granted.

Respectfully submitted,

RONALD C. MACHEN JR., D.C. BAR #447889

United States Attorney

DANIEL F. VAN HORN, D.C. Bar # 924092

Chief, Civil Division

By: /s/ Peter R. Maier

PETER R. MAIER, D.C. Bar # 966242

Special Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578
Peter.Maier2@usdoj.gov
June 13, 2014

12
 Certificate of Service

I hereby certify that I caused a copy of the foregoing Statement to be served upon the

following person by first class mail addressed to:

Saad S. Noah
1817 N. Broadway
Crest Hill, ILL 60403

on this 13th day of June, 2014.

/s/ Peter R. Maier

PETER R. MAIER, D.C. Bar # 966242
Special Assistant United States Attorney

555 4th St., N.W.

Washington, D.C. 20530
(202) 252-2578
Peter.maier2@usdoj.gov

13
14