James Kaufman has been trying for six years to renounce his citizenship, pressing Justice Department officials and other government agencies to let him cut his ties to the United States.
Kaufman, a 36-year registered sex offender who is locked up in state prison in Wisconsin, says in court papers in Washington that he is entitled to renounce his citizenship inside the United States during a state of war. Typically, a person can only renounce citizenship outside of the United States.
Ever since Kaufman filed a pro se suit (.pdf) in August 2005 in the U.S. District Court for the District of Columbia, the Justice Department has fought Kaufman’s effort to shed his citizenship while still in the country. And now that fight has gone to the U.S. Court of Appeals for the D.C. Circuit, where DOJ is challenging a ruling that favored Kaufman.
DOJ lawyers make one main point: that the United States is not in a “state of war,” as it is used in the Immigration and Nationality Act (1952), and therefore Kaufman (pictured at left) fails to meet the requirements of the federal law.
Earlier this year, Judge Richard Roberts of Washington federal court rejected the government’s argument, saying the Justice Department’s position in the case is “contrary to both law and common sense.” He granted summary judgment in favor of Kaufman. Click here for the ruling.
The “precise question here is whether the United States was in a state of war in 2004 or 2008 when Kaufman made his renunciation requests,” Roberts wrote. “There can be no genuine debate about that.”
More after the jump.
The appeal, filed April 21, marks the second time that Kaufman’s suit—which names Attorney General Eric Holder Jr. and Secretary of State Hillary Clinton, among other defendants—has reached the D.C. Circuit.
The appeals court ruled in Kaufman’s favor in late 2008—after his suit was dismissed—remanding the case back to the trial court for further review. (In the D.C. Circuit, Kaufman got help from the Georgetown University Law Center, which filed an amicus brief on Kaufman’s behalf. A Georgetown 3L, Brendan Quigley, who now clerks for a federal judge in the Eastern District of New York, argued for Kaufman.)
The appeals court noted in the opinion (.pdf) that Kaufman had written numerous letters, starting in 2004, to government officials requesting that he be allowed to renounce his citizenship. At least several letters were ignored. In other letters, Kaufman was directed by one government agency to another.
“[W]e do not understand the government to suggest that a congressionally created right can be nullified by government inaction,” Judge Judith Rogers wrote in the panel opinion, joined by Judges A. Raymond Randolph and Harry Edwards. (Randolph and Edwards are both now senior judges.)
On remand, DOJ attorneys continued the fight to get the suit dismissed. The government attorneys in the case say in court papers that the term “state of war” in the statute is ambiguous and that the Department of Homeland Security, which has jurisdiction, was right to reject Kaufman’s request to renounce his citizenship.
A trial attorney in the Office of Immigration Litigation, Derek Julius, said the statute at issue uses another term in a different subsection—“engaged in hostilities”—to describe armed conflict short of a Congressionally declared war. Julius urged Roberts, the presiding trial judge, to allow DHS to interpret the statute in order to administer it.
DOJ attorneys also point to a ruling in October 2008 in federal district court in West Virginia where a judge rejected a prisoner’s request to renounce his citizenship.
Senior Judge James Turk said in a four-page ruling that the wartime exception is “not currently applicable.” Turk noted that government officials told Duncan that the country is not at war. Turk dismissed the complaint about two weeks after it was filed. Duncan did not appeal.
Roberts rejected the government’s argument that the term “state of war” is ambiguous. The government’s “conclusion would require that every term in every statute be specially defined or else be deemed ambiguous,” Roberts wrote in the opinion. “That is not the law.”
Kaufman said in court papers that he has no intention to remain in the United States. Kaufman was imprisoned in 1998 for sex crimes and released in 2008. But he was returned to prison after a parole violation last April, according to a Wisconsin prison official. Kaufman is eligible for parole in July 2011.