Opinion
17-CV-578 (VEC)
05-27-2022
MANSOOR HAMOUD HADWAN, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE and UNITED STATES EMBASSY, SANAA, YEMEN, Defendants.
OPINION AND ORDER
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE:
In this Administrative Procedure Act ("APA") case. Plaintiff seeks judicial review of the Department of State's decision to uphold the revocation of Plaintiffs U.S. passport and Consular Report of Birth Abroad ("CRBA"). Plaintiff alleges that, during the revocation process, Defendants violated the APA and Plaintiffs constitutional rights in a variety of ways. See generally Third Am. Compl., Dkt. 81. Defendants have moved for summary judgment, see Defs. Mem. of Law, Dkt. 138; Plaintiff opposes the motion, see PL Mem. of Law, Dkt. 141. For the reasons discussed below, Defendants' motion for summary judgment is GRANTED.
Citations are to the administrative record, see Dkt. 19. A"Rule56.1 statement is not required in a case seeking review of an administrative action under the APA because the case only presents a question of law." Teleami v. Koumans, 480 F. Snpp. 3d 567, 575 nil (S.D.N.Y. 2020).
Plaintiff, a man born in Yemen, alleges that he acquired U.S. citizenship at birth because his father, Hamoud Hadwan, is a naturalized U.S. citizen. See Third Am. Compl. ¶21; see also Pl. Mem. of Law at 1. On March 10, 1998, when Plaintiff was 10 years old, the Department of State issued a CRBA for Plaintiff in the name of Mansoor Hamoud Hadwan; the certificate stated that his parents were Hainoud Hadwan and Sabrah Saleh Hadwan. See Admin. Record, Dkt. 19 at 132. On September 20, 2004, Plaintiff applied for, and received, a U.S. passport using the same name and providing the same names of his parents. See id.
On June 9, 2013, however, while at the U.S. Embassy in Sana'a, Yemen, Plaintiff signed a sworn statement before Special Agent David Howell of the Diplomatic Security Service, a unit within the Department of State, in which Plaintiff stated, inter alia, that: (1)his "true and correct name is Hadwan Mansour Abbas Hadwan"; (2) his real parents, Mansour Abbas Saleh Hadwan and Nabat Mosed Aljawfi, are Yemeni citizens; (3) Hamoud Abbas Hadwan is his uncle, not his father; and (4) he was documented as his uncle's child "under the assumed/fraudulent name Mansour Hamoud Hadwan." Id. at 28-30. The statement further provides: "I asked Special Agent Howell to prepare this document for me, as I do not read or write well in English. This document was read to me in Arabic and I understood its contents completely." Id. at 30; see also Id. at 31 ("I have read this statement, . . . and it is true, accurate, and complete to the best of my knowledge and belief. This statement is made of my own free will and accord without any promise of reward and without threats, force, or coercion used against me."). As a result of Plaintiffs statement, Embassy officials confiscated his passport. See Third Am. Compl. ¶ 25.
Plaintiff attested that his father, Mansour Abbas Saleh Hadwan, is now in the United States as a lawful permanent resident, having entered recently on a petition by Plaintiffs sister. See Admin. Record at 28.
Approximately nine and a half months later, the Department of State revoked Plaintiffs passport and canceled his CRBA on the grounds that they were fraudulently obtained. Admin. Record at 2-3. The revocation notice stated, inter alia, that a "department investigation has revealed that [Plaintiffs] parents are not Hainoud Abbas Hadwan and Sabrah Saleh Hadwan," and that Plaintiff had "signed a sworn voluntary statement on June 9, 2013, at the U.S. Embassy in Sana'a, admitting to these facts." Id. at 3. The notice informed Plaintiff of his right to a hearing to contest the revocation and indicated that Plaintiff could submit a written brief in advance of the hearing. Id.
As the Court has noted before, see Order & Op., Dkt. 134 at 3 n.4, to the extent there was fraud involved in acquiring Plaintiff s CRBA, Plaintiff (who was only 10 years old at the time) was not responsible.
The notice also made clear that the hearing would address "only the evidence presented upon which the CRBA and passport were erroneously issued, not [Plaintiffs] citizenship status." Admin. Record at 3; see also Id. at 9 ("The only issue for consideration and decision will be whether or not the Department satisfied the requirements or conditions of the applicable regulations cited as a basis for its adverse action, not the citizenship status of your client") (emphasis in original). Accordingly, that is the sole focus of this Coiu1 as well.
On August 27, 2014, the Department of State held a revocation hearing in Washington D.C. See Id. at 94-114. Plaintiff could not attend the hearing because he was denied a limited validity passport to travel to the United States. See Id. at 104:3-05:9; see also Third Am. Compl. ¶ 36. Plaintiffs attorney for purposes of the administrative proceedings ("Administrative Counsel") appeared on Ms behalf and argued that Plaintiff had not voluntarily signed the sworn statement. See, e.g., Admin. Record at 103:17-20 ("That's basically the issue in this case, is a question of whether or not this so-called voluntary statement was voluntarily given and knowingly giving, and I'm putting that into question."). Plaintiffs Administrative Counsel argued that: (1) Plaintiff does not read or write well in English, so there is a "major question" whether Plaintiff knew the content of what he signed; (2) there is no evidence that Plaintiff actually understood what he signed because there is no affidavit from the Arabic translator or from Agent Howell; and (3) there may have been confusion during the interview about Plaintiffs family names or Plaintiffs description of his familial relationships. See Id. at 99:20-100:18, 102:7-03:2, 107:1-6. At the same time, Plaintiffs Administrative Counsel acknowledged that he had not actually spoken to Plaintiff about what transpired at the Embassy and had only communicated with Plaintiffs brothers. See Id. at 103:3-16, 107:9-08:5; see also Id. at 107:6-8 ("I say, allegedly, because I don't know if it was voluntary"). Plaintiffs Administrative Counsel did not submit a written brief in advance of the hearing, nor did he submit any evidence before or during the hearing. See Id. at 113:8-11. Further, although Administrative Counsel requested an opportunity to submit a DNA sample to prove that Plaintiff is the biological son of Hamoud Abbas Hadwan, see, e.g., id. at 113:11-13, he failed to submit any such evidence during or after the hearing.
On March 31, 2015, the hearing officer sent an "action memo" to the then-Deputy Assistant Secretary for Passport Services, recommending that the prior decision to revoke Plaintiffs passport and cancel his CRBA be upheld because both documents were fraudulently obtained. See Id. at 131-34. The hearing officer rejected Plaintiffs argument that he had not understood the contents of the statement he signed at the Embassy because the statement, which "bears Mr. Hadwan's signature and initials," expressly provided that it had been "read to [Plaintiff] in Arabic and [that Plaintiff] understood the contents completely." Id. at 133. The hearing officer further noted that: (1) Plaintiff did not submit any additional evidence or statement; (2) Plaintiffs Administrative Counsel did not have even basic biographical information about his client; and (3) although Plaintiffs Administrative Counsel offered to obtain a DNA sample from his client, "none was presented at the hearing." Id. Finally, the hearing officer explained that, although "the [Plaintiff] may have considered Hamoud Abbas Hadwan 'like a father' and may have made statements in his passport application without intent to commit fraud," his "passport was [nevertheless] issued based on false information." Id. Accordingly, the hearing officer concluded that the Department of State acted properly in revoking Plaintiffs passport and canceling his CRBA pursuant to 22 C.F.R. § 51.62(a)(2) and 8 U.S.C. § 1504. Id. at 134; see also Id. (noting that Plaintiff s "submission of false identity documents with his passport application is also a violation of 22 C.F.R. § 51.20").
Plaintiff argues that the decision failed to acknowledge that Plaintiff s Administrative Counsel had requested but was not given permission to submit DNA evidence, see Pl. Mem. of Law at 9; at the end of the hearing, in response to Plaintiffs request to submit DNA evidence, the hearing officer stated, "I'd like not to give you a definitive answer because I'm not sine. There may be ways for [DNA evidence] to be useful without it necessarily being part of this process," Admin. Record at 116:18-21. The heating officer's comment makes clear that she envisioned potentially resolving the case without requiring DNA evidence, as she ultimately did. That does not change or undermine the officer's finding that Plaintiff did not provide DNA evidence (or any other evidence) before or at the hearing. Further, Plaintiff, to date, still has not submitted DNA evidence, even though Defendants have made clear that they "remain[] willing to facilitate and review a properly submitted DNA sample at any time." Defs. Mem. of Law at 9 n.7.
22 C.F.R. § 51.62(a)(2) provides that a passport may be revoked when it has been "illegally, fraudulently or erroneously obtained" or "was created through illegality or fraud practiced upon the Department."
8 U.S.C. § 1504 provides that the Secretary of State may cancel a passport or CRBA "if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary."
On Apiil 7, 2015, the Deputy Assistant Secretary approved the hearing officer's recommendation to uphold the revocation of Plaintiffs passport and CRBA. See Id. at 131. On April 9, 2015, the Department of State mailed Plaintiff s Administrative Counsel a notice of the decision upholding the revocation; the notice informed Plaintiff that the decision was "the final decision of the Department." Id. at 130.
On January 25, 2017, Plaintiff, represented by new counsel, initiated this action, seeking judicial review of the agency's decision. See Compl., Dkt. 1. On October 15, 2021, Defendants filed this motion for summary judgment, see Mot. for Sumin. J., Dkt. 137, which Plaintiff has opposed, see Pl. Mem. of Law.
The Court previously dismissed Plaintiffs seventh cause of action. See generally Op. & Older, Dkt. 93. Plaintiff has also expressly abandoned his first two causes of action, regarding: (1) Defendants' interpretation and application of 8 U.S.C. § 1504; and (2) Defendants' application of the "clear and convincing" evidence standard at Plaintiff s heating. See Pl. Mem. of Law at 28 n.7; see a/so Third Am. Compl. ¶¶66-79. Accordingly, both claims are dismissed. This leaves at issue only Counts Three, Four, Five, Six, and Eight.
Under the APA, a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof." 5 U.S.C. § 702. Specifically, the APA authorizes a reviewing court to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A); see also Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007). An agency's decision is arbitrary and capricious if the agency "relied on factors which Congress [did] not intend[] it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court may also set aside an agency's decision as arbitrary and capricious if the agency failed to "set out a satisfactory explanation including a rational connection between the facts found and the choice made." Karpova, 497 F.3d at 268.
When courts review agency action under the APA, the question presented is purely a legal one, which the district court can resolve on a motion for summary judgment. See City Club of N.Y. v. U.S. Army Corps of Eng'rs, 246 F.Supp.3d 860, 864 (S.D.N.Y. 2017); Ass'n of Proprietary Colls, v. Duncan, 107 F.Supp.3d 332, 344 (S.D.N.Y. 2015) (''where ... a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal, and the entire case on review is a question of law") (internal quotation marks omitted).
Judicial review of agency action under the arbitrary and capricious standard "is necessarily narrow," and the reviewing court may not "substitute its judgment for that of the agency." Islander E. Pipeline Co., LLC, v. McCarthy, 525 F.3d 141, 150 (2d Cir. 2008); see also Fed. Power Comm 'n v. Texaco, Inc., 417 U.S. 380, 397 (1974) ("[A]n agency's order must be upheld, if at all, on the same basis articulated in the order by the agency itself.") (internal quotation marks omitted); Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 159 (2d Cir. 2004) ("[R]eview will necessarily 'be confined to the reasoning of the [agency].'") (citation omitted). The court is also "confined to the administrative record compiled by that agency when it made the decision." Natl Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Flo. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (the "focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."); Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F.Supp.2d 305, 309 (S.D.N.Y. 2012) ("It is the province of the agency to compile and submit the administrative record for review by the Court, and common sense dictates that the agency determines what constitutes the whole administrative record . . .") (internal citation omitted).
Defendants argue that: (1) most of the claims in Plaintiffs Third Amended Complaint are "beyond the scope of this case because they were not presented to the agency during the revocation hearing"; and (2) even if they were within the scope of the case, all of Plaintiff s claims are meritless. Defs. Mem. of Law at 12-13; see also Id. at 1 ("In short, the plaintiff s passport was validly revoked on the ground that it was obtained 'illegally, fraudulently, or erroneously,' because the plaintiff admitted, in a sworn statement, that the identity he used in his application, along with the identity of his biological parents, was fraudulent.").
Only Counts Three and Five, Defendants argue, were not waived or forfeited. Defs. Mem. of Law at 15 n.12.
I. Count Three: Defendants' Reliance on Plaintiff's Sworn Statement
Count Three alleges that Defendants violated the Fifth Amendment by "rel[ying] on the statement illegally obtained at the Embassy in Sana'a on or about June 9, 2013 to uphold the revocation of Plaintiff s passport, even though the administrative record established that the statement was coerced, involuntary, and not the intelligent product of a free mind or a free will." Third Am. Compl. ¶81.
Defendants argue that Plaintiffs claim fails because the administrative record does not establish that Plaintiffs statement was coerced or involuntary; instead, Defendants argue, "[t]he record plainly demonstrates that the plaintiff, through his [Administrative Counsel] submitted no evidence whatsoever" before, during, or after the revocation hearing. Defs. Mem. of Law at 19 (emphasis in original). Defendants further stress that, despite questioning the voluntariness of Plaintiff s statement, Plaintiffs Administrative Counsel admitted that he did not actually know whether the statement was voluntary. See Id. at 20 (citing Admin. Record at 107). Administrative Counsel, by his own admission, never spoke directly with Plaintiff about what happened; the only information he had was second-hand information from Plaintiffs brothers. See Id. (citing Admin. Record at 107-08). Thus, Defendants argue, "[w]ithout any evidence to support the plaintiffs [Administrative Counsel's] suggestion (of which he himself was not even certain)," the Department of State did not err in declining to credit it. Id. (citation omitted). Defendants further argue that Plaintiffs sworn statement "bears all the hallmarks of voluntariness": (1) Plaintiffs initials appear on eveiy page and his signature appears on the last page; (2) the statement includes "extensive details" about the alleged fraud at issue; (3) and the statement acknowledges that it "was read to [Plaintiff] in Arabic and [Plaintiff] understood its contents completely." Id. (citing Admin. Record at 131-34).
Plaintiff asserts that his Administrative Counsel argued that Plaintiffs statement was made involuntarily. See Pl. Mem. of Law at 7. He complains, however, that Defendants denied Mm the opportunity to obtain evidence, even though the Government was well aware of the impediments to gathering evidence in Yemen, given the ongoing conflict in that nation. See Pl. Mem. of Law at 15. Plaintiff further argues that "the Government's capacity to rely on this otherwise unconstitutional statement" was only possible because the Government "trapp[ed]" Plaintiff outside the United States - rendering him unable to attend his own hearing - by confiscating his passport ten months before notifying him that he had a right to appeal the revocation. See Id. at 15. Finally, Plaintiff argues that, "given the paucity of evidence in support of [Defendants'] case; the inherent contradictions that exist on the face of the statement itself' and "the 'strikingly similar' conduct in other cases taking place at the same time, at the same place and involving the same people, " Defendants "grossly prejudiced" Plaintiffs "capacity to meaningfully rebut the allegations t[hat] have violated [his] due process." Id. at 15-16.
Plaintiff argues that it was arbitrary and capricious for the Department of State to deny Plaintiffs Administrative Counsel's request for a continuance of the revocation hearing based on an inability to obtain information. See Pl. Mem. of Law at 19-22. The Court will not consider this argument, however, as Plaintiff has never asserted it before now, including in his Third Amended Complaint, and "it is inappropriate to raise new claims for the first time in submissions in opposition to a summary judgment motion." Thomas v. Egan, 1 F. App'x52, 54 (2d Cir. 2001); see also, e.g., Lyman v. CSX Tramp., Inc., 364 Fed.Appx. 699, 701 (2d Cir. 2010) (agreeing that claims "need not be considered" when the "plaintiff raised them for the first time in opposition to summary judgment") (citations omitted); Shah v. Helen Hayes Hosp., 2 52 Fed.Appx. 364, 366 (2d Cir. 2007) ("A party may not use his or her opposition to a dispositive motion as a means to amend the complaint.") (citation omitted). While Plaintiff claims that his Administrative Counsel did raise this argument, see Pl. Mem. of Law at 25 (citing Admin. Record at 101:12-21), it is clear from the passage Plaintiff cites that his Administrative Counsel was concerned not with the denial of his request for an adjournment but with the Department of State's failure to perform a DNA test.
Plaintiff refers inconsistently to a ten- or eleven-month delay in notice when referring to the nine-and-a-half-month period between the confiscation of Plaintiffs passport on June 9, 2013 and its revocation on March 24, 2014. Compare Pl. Mem. of Law at 15 with Third Am. Compl. ¶85.
See infra at footnote 18.
Plaintiff asserts that his sworn statement is "facially inconsisten[t]" because: (1) the name claimed in the statement and the name signed do not match; (2) the initials on each page and the name signed on the last page of the statement do not match; (3) it strains credulity that Plaintiff would state that he was born "on/about 1986" but knew his brother-in-law's full birthday; (4) the statement is "inherently contradictory" about whether it was read to Plaintiff or he read it himself; (5) there are no affidavits from the translator or the agent who conducted the interview; and (6) the statement was produced and typed, and Defendants cannot confirm who created it. See Pl. Mem. of Law at 23-27.
Plaintiff argues that the agent and translator who interrogated Plaintiff have, on multiple occasions, obtained' Very similar statements from visitors to the United States Embassy in Sana 'a, Yemen" that were then found to be involuntary. See Pl. Mem. of Law at 23 (citing Abakan v. Pompeo, 973 F.3d 65, 71 n. 11 (2d Cir. 2020) (collecting cases)). But the cases on which Plaintiff relies are inapposite, as none of them actually held that statements obtained by the agent and translator were involuntary. See, e.g., A1zokari, 973 F.3dat 71 ("even accepting as true the March 2013 admissions regarding Alzokari's identity-and ignoring the dubious circumstances surrounding his 'statement'. .."); Omar v. Tillerson, No. 15-CV-1760, 2017 WL 5751314, at *4(N.D. Cal.Nov. 28, 2017) (finding it "unnecessary" to determine the voluntariness of the plaintiff s statement because "even if the Court accepts Plaintiffs Statement and credits the contents as tine, ... the government has failed to show that there is any legal basis to revoke Plaintiff s passport"). Even if Plaintiff had established a pattern of conduct by the agent and translator, however, it still would not, without more, establish wrongdoing hi this particular case.
The problem for Plaintiff is that only one of his arguments was made during the administrative hearing. This is fatal to the arguments not previously made because the "focal point for judicial review [is] the administrative record already in existence, not some new record made initially in the reviewing court." Camp, 411 U.S. at 142; see also Constitution Pipeline Co., LLC v. N.Y. State Dep't of Env't Conservation, 868 F.3d 87, 102 (2d Cir. 2017) ("Under the arbitrary-and capricious standard, '[a] reviewing court may not itself weigh the evidence or substitute its judgment format of the agency.'") (citation omitted); Ry. Lab. Execs.' Ass'n v. United States, 791 F.2d 994, 1000 (2d Cir. 1986) ("It is beyond cavil that a petitioner's failure to assert an argument before an administrative agency bars it from asserting that argument for the first time before a reviewing court.").
The only argument that Plaintiffs Administrative Counsel made during Plaintiffs revocation hearing was that there were no affidavits from the translator or Agent Howell, thereby calling into question whether Plaintiff understood the contents of the statement he signed. See Admin. Record at 100:4-18, 107:1-08:5. While the agency decision did not address the lack of affidavits directly, it did explicitly reject the argument that Plaintiff did not understand the contents of the statement he signed, because the statement itself said that it was read to him in Arabic and Plaintiff attested that he "understood the contents completely." See Id. at 133. The decision further noted that Plaintiff did not submit any evidence or statement to support his arguments. See Id. Against this reasoning. Plaintiff has offered no evidence that the lack of affidavits, or anything else in the administrative record, renders Defendants' decision implausible or contrary to the evidence, or that the agency "failed to consider an important aspect of the problem." See Motor Vehicle Mfrs., 463 U.S. at 43; Islander E. Pipeline, 525 F.3d at 150-51. The sad truth is that Plaintiff s Administrative Counsel argued a limited number of unsupported reasons why Plaintiffs statement was involuntary, the agency rejected them, and nothing now compels a different result.
The only other grounds on which Plaintiffs Administrative Counsel questioned the validity of Plaintiffs sworn statement were that: (1) Plaintiff does not read or write well in English, so it is questionable whether he understood what he signed; and (2) there may have been confusion during the interview about Plaintiff s family names or Plaintiffs description of his familial relationships. See Admin. Record at 99:20-100:4, 102:7-03:2.
See Ali v. Pompeo, No. 16-CV-3 691, 2020 WL 2312626, at *10 (E.D.N.Y. Apr. 30, 2020) (an agency decision cannot he affirmed or denied '"based on evidence that may appear in the record but that was not relied on' because a court 'cannot know how' the hearing officer 'would have viewed evidence she did not analyze") (quoting Lin v. U.S. Dep't of Justice, 428F.3d391, 400(2dCir. 2005)).
That said, it is clearly better practice for the translator to provide his or her own sworn statement attesting that he or she read the entire signed statement to the signatory in x language and that the signatory confirmed to the translator that he or she understood the contents of the statement being signed. Without such an affidavit, the administrative judge is relying on an English language statement with no sworn assurance that the translator read the full statement to the signatory in Arabic and, when doing so, fairly and accurately translated the contents of the English language statement into Arabic.
Accordingly, Defendants are entitled to summary judgment on Plaintiffs third cause of action, as Plaintiff has not demonstrated that Defendants' reliance on Plaintiffs sworn statement was arbitrary and capricious.
II. Count Four: Defendants Provided Written Notice and a Prompt Hearing
Count Four alleges that "[b]y failing to provide Plaintiff with written notice or an opportunity to contest the deprivation in a hearing for eleven months," Defendants violated: (1) the Fifth Amendment's due process clause, "which requires the opportunity to be heard at a meaningful time and in a meaningful manner"; and (2) Plaintiffs rights under 8 U.S.C. § 1504(a), "which . . . requires Defendants and their agents to provide a written notice explaining the reasons for the revocation of a U.S. passport and offering a prompt post-revocation hearing." Third Am. Compl. ¶¶ 85-86.
Defendants argue that they are entitled to summary judgment on this claim because Defendants unquestionably provided both notice of Plaintiffs passport revocation and a prompt hearing thereafter. See Defs. Mem. of Law at 21. As Defendants summarize the timeline: (1) Defendants revoked Plaintiffs passport on March 24, 2014; (2) Plaintiff received written notice of that determination, with a statement of reasons, the same day; (3) on April 21, 2014, Plaintiff requested a hearing; (4) Defendants acknowledged receipt of Plaintiff s request on May 29, 2014, and scheduled Plaintiffs revocation hearing for July 2, 2014; and (5) at Plaintiffs Administrative Counsel's request, the hearing was rescheduled and held on August 27, 2014 Just over five months after the initial revocation. See Id. (citing Admin. Record 2-4, 9-10, 51, 58, 66, 89, 94-115). Based on this, Defendants argue, the notice and hearing Plaintiff received were sufficient to satisfy both constitutional and APA requirements. See Id. at 22. Defendants further argue that Plaintiffs attempt to premise his claim on the time between the confiscation of his passport in June 2013 and its revocation on March 24, 2014, is without merit because neither 8 U.S.C. § 1504 nor 22 C.F.R. § 51 requires that a revocation decision be made within a particular time after a passport is confiscated. See Id. at 21-22 ("These provisions require only that once the formal revocation decision is made, the individual be given written notice of it, 'together with the procedures for seeking a prompt post-cancellation hearing.'") (quoting 8U.S.C. § 1504). Finally, Defendants argue that Plaintiff's Administrative Counsel never contested the revocation on these grounds, "nor did he make any argument concerning these points at all"; accordingly. Defendants argue, "like most of the arguments in the third amended complaint, . . . the plaintiffs contention is outside the scope of this case." Id. at 22 n.17.
Plaintiff argues that, at the time his passport was confiscated, Defendants' own regulation required them to "notify in writing any person whose . . . passport has been revoked" and "set forth specific reasons for the . . . revocation, and, if applicable, the procedures for review." Pl. Mem. of Law at 13-14 (quoting 22 C.F.R. § 51.65(a)). Plaintiff alleges that Defendants failed to provide the required written notice of revocation when they confiscated Plaintiffs passport, instead waiting ten months. Id. at 16. This lack of timely notice. Plaintiff argues, prevented him from participating in his revocation hearing or providing a written affidavit as evidence. See Id. at 16-18.
Here again, however, Plaintiff is raising an argument that he did not make during the administrative process. Although Plaintiffs Administrative Counsel knew that Plaintiffs passport had been confiscated prior to its revocation (because Plaintiffs lack of a passport prevented him from attending the hearing), he did not raise this issue to the hearing officer.Instead, Administrative Counsel argued that "basically the issue in this case" is whether Plaintiffs statement was voluntary, see Admin. Record at 103:17-20, and did not present any evidence or arguments regarding other potential administrative or constitutional deficiencies. Accordingly, it is improper for Plaintiff to do so now. See, e.g., Nat'l Audubon Soc, 132 F.3d at 14 (the court is "confined to the administrative record compiled by that agency when it made the decision") (citation omitted); see also Zhang, 362 F.3d at 159 ("review will necessarily 'be confined to the reasoning of the [agency]'") (citation omitted); N.Y. v. U.S. Dep't of Health & Human Servs., 414 F.Supp.3d 475, 517 (S.D.N.Y. 2019) (the district court "determine[s] whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did") (internal quotation marks and citation omitted). Defendants are thus entitled to summary judgment on Plaintiffs fourth cause of action.
Administrative Counsel remarked simply:" [Plaintiff]'s still in Yemen; he can't come to the United States. It's interesting, I had another case, very similar, and... I noted my objections and the consulate actually issued a single-use passport to that gentleman and he came to the United States." Admin. Record at 104:11-16. Plaintiffs Administrative Counsel acknowledged that there was a "big difference", however, in that his other client, unlike Plaintiff, was a naturalized citizen. See Id. at 105:3-9. That is the closest Administrative Counsel came to contesting the delay between the confiscation and revocation of Plaintiffs passport.
III. Count Five: Support in the Record for Defendants' Conclusions
Count Five alleges that "Defendants' conclusions were arbitrary and capricious, based on a clear error of judgment and a failure to consider the relevant factors, contrary to the evidence before Defendants, based on factors that Congress did not intend Defendants to consider, and were not based on a rational connection between the facts found and the conclusions made." Third Am. Compl. ¶ 91.
Defendants argue that Plaintiff "makes no effort to articulate any cognizable theory on this claim or discuss any facts related to this claim-let alone identify the conclusions he claims to be unsupported by the record-and thus the Court should reject this count for failure to state a claim." Defs. Mem. of Law at 23 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Defs. Reply Mem. of Law, Dkt. 144 at 3 ("Count Five . . . does not actually present a distinct claim. Rather, it consists only of conclusory statements about APA review that are untethered to any specific facts.") (citation omitted).
Defendants further assert that Plaintiff has "arguably" abandoned this claim, because he failed to respond to Defendants' arguments about its conclusory nature. See Defs. Reply Mem. of Law at 3.
"Where, as here, defendants argue that they are entitled to summary judgment because a claim is insufficiently pled, courts evaluate the motion under the Rule 12(b)(6) standard." Myers v. Moore, 326 F.R.D. 50, 59 (S.D.N.Y. 2018) (citation omitted); see also Schwartz v. Compaignie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) ("Where appropriate, a trial judge may dismiss for failure to state a cause of action upon [a] motion for summary judgment."); Scafe v. Pataki, No. 06-CV-6051, 2009 WL 2707317, at *6 (E.D.N.Y. Aug. 26, 2009) ("A court may convert a motion for summary judgment into a [Rule] 12(b)(6) motion to dismiss a complaint for failure to state a claim without notice to either party.") (citing Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989)).
To survive under Rule 12(b)(6), "a complaint must allege sufficient facts, taken as tme, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (citation omitted). The Court is not required, however, "to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
Plaintiffs fifth cause of action fails to state a claim because it is nothing more than a restatement of the legal standard governing APA review. See 5 U.S.C. § 706(2)(A) (a reviewing court may set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"); see also Motor Vehicle Mfrs., 464 U.S. at 43 (an agency's decision is arbitrary and capricious, inter alia, if the agency "relied on factors which Congress [did] not intend[ ] it to consider . . . [or] offered an explanation for its decision that runs counter to the evidence before the agency"). Plaintiff does not allege a specific APA violation by Defendants, nor does he identify which of Defendants' conclusions were arbitrary and capricious. Without more, this is insufficient to state a claim. See Iqbal, 556 U.S. at 678 ("a formulaic recitation of the elements of a cause of action," or "naked assertions devoid of further factual enhancement" will not suffice) (quoting Twombly, 550 U.S. 544 at 555, 557).
Accordingly, Plaintiffs fifth cause of action is dismissed.
IV. Count Six: Defendants' Application of APA Rules of Adjudication to Plaintiffs Passport Revocation Hearing
Count Six alleges that Defendants did not follow the APA rules of adjudication applicable to passport revocation hearings. See Third Am. Compl. ¶¶ 96-97. This failure to follow APA rules of adjudication, Plaintiff argues, caused him to suffer prejudicial error. Id. ¶ 98.
Defendants argue that Plaintiff asserts this claim "in conclusory fashion" but "provides no support or authority for his conclusion that the 'APA rules of adjudication' apply to passport revocation healings." Defs. Mem. of Law at 25 (citing Third Am. Compl. ¶¶ 95-98). Defendants further argue that, "[a]bsent a requirement in the statute, the APA's formal healing requirements do not apply to all agency hearings," and passport revocation hearings "are not required to be formal agency adjudications, a[s] Congress has never made the APA adjudication requirements applicable to them." Id. (citing 8 U.S.C. § 1504; 22 C.F.R. § 51.71(e)); see also Id. (noting that the requirements at 22 C.F.R. § 51.70 et seq. are "all the process that was due to the plaintiff, under the APA or otherwise.").
Plaintiff has not opposed Defendants' arguments. See generally Pl. Mem. of Law. Accordingly, this claim has been abandoned and is, therefore, dismissed with prejudice. See Malik v. City of N.Y., 841 Fed.Appx. 281, 283-84 (2d Cir. 2021) ("'[w]hen a party fails adequately to present arguments' in a brief, a court may properly 'consider those arguments abandoned'" and, accordingly, dismissal of corresponding claims is proper) (quoting State St. Bank & Tr. Co. v. Inversions Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004)).
V. Count Eight: Declaratory Judgment Act
Finally, Plaintiff has brought a claim under the Declaratory Judgment Act, 28 U.S.C. § 2201, requesting the Court to issue a declaration that "Defendants have severally and jointly failed to lawfully discharge then mandated official duties." Third Am. Compl. ¶ 107. Defendants argue that Plaintiffs claim "does not present an actual challenge to the agency action." See Defs. Mem. of Law at 10n.8 (citing Ahmed v. Cissna, 327 F.Supp.3d 650, 672 (S.D.N.Y. 2018), aff'd sub nom. Ahmed v. Cuccinelli, 729 Fed.Appx. 908 (2d Cir. 2020)).
"While the Declaratory Judgment Act provides an additional 'remedial arrow in the district court's quiver' it is not a source of substantive rights.'" Cissna, 327 F.Supp.3d at 672 (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995); Dow Jones & Co. v. Harrods, Ltd., 237 F.Supp.2d 394, 431 (S.D.N.Y. 2002)). Nor does the statute impose any duty on the Court to grant this remedy. Id. Plaintiff has not provided any basis for the Court to issue the requested declaration, as he has not proved any substantive violation by Defendants. Accordingly, Plaintiffs claim under the Declaratory Judgment Act is dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. Plaintiff has impermissibly premised some of his claims on new arguments not raised during the administrative process and has abandoned other claims, both explicitly and by failing to respond to Defendants' arguments. In sum, Plaintiff has offered no evidence to convince the Court that Defendants' revocation of Plaintiffs passport and CRBA was arbitrary and capricious. That said, the Court takes the Government at its word that it will consider, if submitted, DNA evidence that proves Plaintiff is actually the child of Hamoud Hadwan and is, therefore, entitled to a United States passport.
The Clerk of Court is respectfully directed to close the open motion at docket entry 137 and to terminate this case.
SO ORDERED.