On July 13, 2021, the U.S. District Court for the D.C. Circuit, reversed and remanded in the case of Farrell v. Blinken.
Mr. Farrell, a U.S. citizen by birth, moved to Switzerland in 1994, married, and had a child. In 2004, he became a Swiss citizen. Allegedly, he had the intent of relinquishing his U.S. nationality pursuant to 8 USC 1481(a)(1). In 2013, Mr. Farrell was arrested in Spain while on vacation and extradited to the U.S. for the crime of interstate travel with intent to engage in sex with a minor and possession of child pornography (committed 10 years earlier). He plead guilty and was sentenced to 96 months imprisonment.
While in prison, Mr. Farrell corresponded with the U.S. Department of State, where he requested a “certificate of loss of nationality” (CLN) to recognize that he had lost his U.S. nationality when he was naturalized in Switzerland. During this correspondence, he was advised that if he wished to obtain a CLN, “he would have to come to the Embassy in Bern to sign DS-4081 ‘Statement of Understanding’ in person in front of a consular officer.” This form attests to the irrevocable consequences of losing U.S. citizenship. A second form DS-4079 is also required, which asks questions about the nature of the CLN applicant’s expatriating act.
Mr. Farrell took the position that he expatriated at the time he naturalized in Switzerland in 2004, and therefore was entitled to a CLN. The State Department took the position that he needed to appear in person to complete the process, and that a loss of U.S. citizenship occurs only when a CLN is issued, and not when Mr. Farrell took his expatriating act.
Mr. Farrell, in his suit in the U.S. District Court for the D.C. Circuit, claimed that the State Department unlawfully denied him a CLN because an in-person requirement is “contrary to statute, ultra vires, and arbitrary and capricious.” He sought an order that the Department of State issue him a CLN. The District Court granted the State Department’s motion for summary judgment, holding that it could deny Mr. Farrell a CLN because he failed to appear in person.
Unquestionably, Mr. Farrell undertook an expatriating act when he acquired Swiss citizenship. But, perhaps the more vital next step is that the U.S. government officially recognizes Mr. Farrell’s desire to relinquish his citizenship. A process has been established so that the U.S. government is actually aware of Mr. Farrell’s expatriating act, so it can then recognize his loss of U.S. nationality. The D.C. Circuit concluded that the Department of State may impose an in-person requirement to seek a CLN, but, its application of this in-person requirement to Mr. Farrell was arbitrary and capricious. During Mr. Farrell’s correspondence with the Department of State, he received confusing information about what precisely he must do to obtain the CLN, what forms, and what must be signed in person. “The government’s correspondence makes it impossible for Farrell to ascertain what actions he must take to obtain the certificate… The imposition of such haphazard and shape-shifting administrative requirements is the very definition of arbitrary and capricious agency action.” “Nothing in this decision should be interpreted to foreclose the Department from denying Farrell’s request upon reconsideration; however, if it follows that path, it must explain why it is denying the request and what precise steps Farrell must take to obtain recognition of his loss of nationality.”