19-3133
Alzokari v. Pompeo
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                              ______________

                                 August Term 2019

               (Argued: April 24, 2020 | Decided: August 26, 2020)

                                Docket No. 19-3133

                            AHMED ALI ALZOKARI,

                                           Plaintiff-Appellant,

                                          v.

    MICHAEL POMPEO, CARL C. RISCH, RACHEL ARNDT, UNITED STATES
                      DEPARTMENT OF STATE

                                         Defendants-Appellees. †
                                  ______________

Before:
                 CALABRESI, WESLEY, BIANCO, Circuit Judges.



      Plaintiff-Appellant Ahmed Ali Alzokari appeals the dismissal of his
Administrative Procedure Act (“APA”) action challenging the United States
Department of State’s (the “Department”) revocation of his passport. Alzokari
was born in Yemen and naturalized as a United States citizen in 1979 under the
name “Ahmed Ali Alzokari.” Since 1979, he has used that name in each of his
United States passport applications.


†The Clerk of Court is directed to amend the caption as set forth above. Under Federal
Rule of Appellate Procedure 43(c)(2), Deputy Assistant Secretary Rachel Arndt is
substituted for former Deputy Assistant Secretary Brenda Sprague.
       In 2013, Alzokari visited the United States embassy in Sana’a, Yemen, to
obtain a consular report of birth abroad for a child he claimed to be his son.
Suspecting fraud, embassy officials detained Alzokari for several hours.
Following an interrogation, Alzokari signed a statement declaring, inter alia, that
his true name was not “Ahmed Ali Alzokari.” Based only on that statement, the
Department revoked Alzokari’s passport, concluding it was fraudulently
obtained.
       Alzokari requested an administrative hearing to challenge the Department’s
decision. The Deputy Assistant Secretary for Passport Services upheld the
passport revocation and Alzokari subsequently commenced this action, arguing
that his passport revocation violated the APA and his Fifth Amendment Due
Process rights. The United States District Court for the Eastern District of New
York (Cogan, J.) dismissed Alzokari’s complaint, determining that the revocation
of Alzokari’s passport was neither arbitrary nor capricious, and did not violate
Due Process.
       Because we find that Alzokari could not have fraudulently obtained his
passport by using the name and birthdate listed on his certificate of naturalization
in his application, we REVERSE the district court’s decision, REVERSE the
Department’s final decision upholding the passport revocation, and ORDER the
Department to return Alzokari’s expired passport so that he may apply for a new
United States passport if he so chooses.
                                _________________

            JAN H. BROWN, Law Offices of Jan H. Brown, P.C., New York, NY,
                 for Plaintiff-Appellant.

            JOSEPH A. MARUTOLLO, Assistant United States Attorney (Varuni
                 Nelson, Assistant United States Attorney, on the brief), for Seth
                 D. DuCharme, Acting United States Attorney for the Eastern
                 District of New York, New York, NY, for Defendants-Appellees.
                              _________________




                                         2
WESLEY, Circuit Judge:

      Plaintiff-Appellant Ahmed Ali Alzokari challenges the United States

Department of State’s (the “Department”) revocation of his passport. Alzokari

was born in Yemen and naturalized as a United States citizen in 1979 under the

name “Ahmed Ali Alzokari.” Since 1979, he has used that name in each of his

United States passport applications.

      During a 2013 visit to the United States embassy in Sana’a, Yemen, to obtain

a consular report of birth abroad for a child he claimed to be his son, embassy

officials detained Alzokari on suspicions of fraud. Several hours later, Alzokari

signed a statement declaring, inter alia, that his true name is “Ahmed Ahmed

Mohamed Albaadani.” Based on that statement alone, the Department revoked

Alzokari’s passport, concluding it was fraudulently obtained.

      Alzokari challenged the revocation in an administrative hearing, but the

Deputy Assistant Secretary for Passport Services upheld the decision. He then

commenced this action in the United States District Court for the Eastern District

of New York (Cogan, J.), arguing that the Department’s revocation violated the

Administrative Procedure Act (“APA”) and his Fifth Amendment Due Process

rights. The district court disagreed and dismissed Alzokari’s complaint.

                                        3
       This case presents a question of first impression for this Court: can the

Department revoke a citizen’s United States passport on the ground that he

concealed his identity in applying for the passport, where the citizen makes a

statement that prior to his naturalization he was known by another name but he

applied for, and was issued, his passport using his uncontested legal name? We

hold that it cannot. Because Alzokari cannot be said to have fraudulently obtained

his passport when he used the name and birthdate denoted on his unchallenged

immigration and citizenship documents, including his certificate of naturalization,

we reverse the district court’s decision, reverse the Department’s decision to

uphold the passport revocation, and order the Department to return Alzokari’s

passport so that he may reapply for a United States passport if he so chooses.

                                     BACKGROUND

       I. Facts 1

                    Alzokari Immigrates to the United States

       Alzokari was born in Yemen on March 1, 1955. In 1972, Alzokari’s father,

Ali Ayed Zoqari (“Ali”), filed a “Petition to Classify Status of Alien Relative for


1We review de novo a grant of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41, 48–49 (2d Cir.
2018), and “constru[e] the complaint liberally, accepting all factual allegations in the

                                               4
Issuance of Immigrant Visa” with what was then the United States Immigration

and Naturalization Services. The petition identified Alzokari as Ali’s son, but

spelled Alzokari’s name as “Ahmed Ali Zoqari.” C.A.R. 402. 2 At the time of the

petition, Alzokari’s father was a permanent resident of the United States working

for Chrysler.

      In 1973, Alzokari applied for an immigrant visa under the name “Ahmed

Ali Ayedh Alzokari.” C.A.R. 414. His visa application was supported by a Yemeni

birth certificate, a police certificate, an affidavit, medical records, and

photographs. In addition, the Yemen Ministry of Justice certified that “Ahmed Ali

Aith Al Zokari” was born on March 1, 1955 to “Ali Aith Al Zokari” and “Salehah

Bint Saleh Ahmed.” Alzokari App. 68.

      On October 24, 1973, the United States issued Alzokari an immigrant visa in

the name “Ahmed Ali Ayedh Al-Zokari.” C.A.R. 408. The Yemeni passport

supporting Alzokari’s visa was issued to “Ahmed Ali Aid,” id., and a translated




complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
2Citations to “C.A.R.” refer to the “certified administrative record” filed by Defendants-
Appellees in the district court.
                                            5
certificate of characters accompanying the passport identified Alzokari as “Ahmed

Ali Aiad,” Alzokari App. 65.

                 Alzokari’s United States Citizenship

      In 1979, Alzokari naturalized as a United States citizen. Alzokari petitioned

for naturalization in the name “Ahmed Ali Alzokari,” C.A.R. 385, and the United

States issued his certificate of naturalization in the name “Ahmed Ali Alzokari,”

listing his birthdate as March 1, 1955, 3 Alzokari App. 58. Since arriving in this

country, none of Alzokari’s immigration and naturalization records have been

challenged for any reason, including his Yemeni birth certificate and his parents’

marriage certificate. There have been no allegations that Alzokari changed his

name to hide a criminal record or for any reason that might preclude

naturalization. Following Alzokari’s naturalization, the United States has issued

him other documents under the name “Ahmed Ali Alzokari,” including his Social

Security card.




3The Yemeni birth certificate Alzokari’s father provided for immigration purposes also
stated that he was born on March 1, 1955, and that his name was “Ahmed Ali Ayed
Zoqari.” Alzokari App. 61.
                                          6
                 Alzokari’s United States Passports

      Alzokari applied for his first United States passport in 1979. He used the

name and birthdate listed on his certificate of naturalization and presented the

certificate as an identifying document. He listed his father as “Ali Ayied Alzokari”

and his mother as “Salehih Ahmed.” C.A.R. 160. When Alzokari applied for

passports in 1995 and 2005, he used the same name and birthdate, and presented

his previously issued passports as evidence of his identity. The Department issued

a passport to Alzokari in each instance.

                 Alzokari’s Detainment at the United States Embassy in
                 Sana’a, Yemen, and His Passport Revocation

      On March 26, 2013, Alzokari traveled to the United States embassy in Sana’a,

Yemen, to secure a consular report of birth abroad for his “son,” Dawood Ahmed

Ali Alzokari (“Dawood”). 4 The consular official interviewing Alzokari became

suspicious of Alzokari’s relationship to Dawood given their significant age

difference and initiated a fraud investigation. The consular official referred the

matter to Special Agent David W. Howell, then Assistant Regional Security Officer



4A consular report of birth abroad documents the birth of a United States citizen born
abroad, serving as an official determination of the applicant’s United States citizenship.
22 U.S.C. § 2705(2). It “may only be issued by a consular officer,” who will “issue the
report if satisfied that the claim to nationality has been established.” 22 C.F.R. § 50.2.
                                            7
for Investigations at the United States embassy in Sana’a, Yemen, and embassy

officials confiscated Alzokari’s expired and unexpired passports, as well as his

certificate of citizenship.

         Special Agent Howell detained Alzokari and interviewed him for several

hours, assisted by United States Department of State Consular Fraud Investigator,

Mohammed, a native Arabic speaker. 5 Following the interrogation, Alzokari

signed a statement—which he claims he did not understand—stating, among

other things, that he was born “on/about 1948,” his “true and correct name” is

“Ahmed Ahmed Mohamed Albaadani,” he was “smuggled” into the United States

“on/about 1973” by Ali Ayad Alzokari (who falsely claimed him as his child), and

he naturalized “on/about 1979” under the “assumed/fraudulent name” Ahmed Ali

Alzokari. Alzokari App. 36. The statement further claimed that Dawood was

Alzokari’s grandson—not his son—and that Alzokari had previously smuggled

four other people into the United States under claims that they were his children.

Id. at 36–37. 6



5   Mohammed’s last name has been withheld for security purposes.
6We note that Special Agent Howell has obtained strikingly similar statements to the one
at issue here during his tenure at the United States embassy in Sana’a, Yemen. See, e.g.,

                                           8
       After Alzokari signed the statement—as “Ahmed Ali Alzokari,” id. at 36–

38—embassy officials returned Alzokari’s passports and his certificate of

citizenship. 7 On his return to the United States, however, these documents were

again confiscated by airport officials at John F. Kennedy International Airport, and



Omar v. Kerry (“Omar I”), No. 15-cv-01760, 2016 WL 617449 (N.D. Cal. Feb. 16, 2016); Omar
v. Tillerson (“Omar II”), No. 15-cv-01760, 2017 WL 5751314 (N.D. Cal. Nov. 28, 2017). In
Omar, plaintiff Mosed Shaye Omar was born in Yemen in 1951, immigrated to the United
States in 1972, and became a United States naturalized citizen in 1978. Omar I, 2016 WL
617449, at *1. In 2012, Omar traveled to Yemen to obtain a U.S. passport for his daughter.
Id. After attending an interview at the United States embassy in Sana’a, Omar remained
in Yemen for several months, waiting to hear from the embassy regarding his daughter’s
application. Id. Just before he was to return to the United States, Omar visited the
embassy at the request of embassy officials, who took his passport on arrival. Id. Special
Agent Howell interviewed Omar in an interrogation room for several hours, and Omar
eventually signed a statement similar to the one Alzokari signed. Id. at *2. For example,
the statement Omar signed claimed that Omar was an “assumed/fraudulent name” that
Omar used when he naturalized, that he was “smuggled to the US by a distant ‘uncle,’”
and that he smuggled others into the United States by falsely claiming they were his
children. See Voluntary Statement, Omar I, No. 15-cv-1760, (N.D. Cal. June 24, 2015), ECF
No. 14-5. Because of the statement, the Department revoked Omar’s passport, claiming
that he applied for it under a false name. Omar I, 2016 WL 617449, at *2. The district court
reversed that revocation as arbitrary and capricious and enjoined the Department “from
revoking or denying Mr. Omar’s passport on this same basis.” Omar II, 2017 WL 5751314,
at *7. However, the district court later vacated its judgment on the stipulation of the
parties, who agreed in mediation in the Ninth Circuit to settle the action if the
Department issued a new passport to Omar and the district court vacated its judgment.
Omar v. Pompeo (“Omar III”), No. 15-cv-1760, 2018 WL 4191416 (N.D. Cal. Aug. 16, 2018);
Joint Mot. To Vacate J., Omar I, No. 15-cv-1760 (N.D. Cal. Aug. 13, 2018), ECF No. 105.
7The Department subsequently denied Dawood’s consular report of birth abroad
application, claiming that Alzokari had not presented sufficient evidence of a paternal
relationship with Dawood, and citing his March 2013 statement. See Alzokari App. 77–
78.
                                             9
the Department formally revoked Alzokari’s passport on January 6, 2015. In its

revocation letter, the Department determined that Alzokari made a false statement

of material fact in his passport application because his March 2013 statement

“revealed that [he is] not Ahmed Ali Alzokari, born on March 1, 1955 to U.S. citizen

Ali Ayad Alzokari[,]” but is “Ahmed Ahmed Mohamed Albaadani, born in or

about 1948 to Ahmed Mohamed Ali Albaadani and Maydam Al-Radhaie.” C.A.R.

2. The revocation letter did not refer to any other admissions from the March 2013

statement.     The letter made no assertion that Alzokari had obtained his

naturalization through fraud or deception nor did it contend that Alzokari’s

attempt to obtain admission into the United States for his grandson presented a

national security concern.

       II. Procedural History

       Alzokari challenged his passport revocation and received an administrative

hearing on April 19, 2018.8 At the hearing, Alzokari argued, inter alia, that he did



8 An earlier hearing in May 2015 upheld the revocation. Alzokari subsequently
challenged the agency decision in the United States District Court for the Eastern District
of New York (Gershon, J.). See Alzokari v. Tillerson, et al., No. 1:17-cv-00830 (E.D.N.Y. Feb.
14, 2017). The district court entered a stipulated order of dismissal, dismissing the action
without prejudice and remanding for a de novo administrative hearing on a new
administrative record. See Stipulation and Order of Dismissal Without Prejudice, Alzokari

                                             10
not understand the March 2013 statement, that he had signed it under duress while

suffering from dementia, and that the Arabic-speaking interpreter was biased—all

of which made the statement unreliable—and that the Department had not

presented independent evidence that his passport had been issued based on fraud.

The Department countered that Alzokari failed to rebut the admissions in the

March 2013 statement, and therefore, revocation was appropriate. Alzokari’s

immigration and naturalization records were before the agency at the time it made

the revocation decision.

       The hearing officer found that Alzokari failed to meet his burden in showing

that the Department acted improperly.              He recommended upholding the

revocation because the March 2013 statement “was sufficient evidence for the

Department to reasonably rely upon when revoking [Alzokari’s] passport.”

Alzokari App. 53. He made this recommendation despite acknowledging that

Alzokari “present[ed] . . . identity and citizenship documents,” including his

certificate of naturalization, “all in the name Ahmed Ali Alzokari, bearing a date

of birth of March 1, 1955,” when he applied for his United States passports. Id. at




v. Tillerson, et al., No. 1:17-cv-00830 (E.D.N.Y. Oct. 16, 2017), ECF No. 13. We review the
results of that administrative hearing here.
                                            11
49. The Deputy Assistant Secretary for Passport Services approved the hearing

officer’s recommendation.

      In January 2019, Alzokari commenced this action in the United States

District Court for the Eastern District of New York (Cogan, J.) against Defendants.9

In his complaint, Alzokari claims that (1) Defendants violated the APA when they

revoked his passport, id. at 19–23, and (2) the passport revocation violated his Fifth

Amendment Due Process rights because “the Government should have had the

burden of persuading the hearing officer that it was proper to revoke [his]

passport,” id. at 200. Defendants moved to dismiss Alzokari’s complaint under

Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary

judgment. Alzokari cross-moved for summary judgment.

      The district court granted Defendants’ motion to dismiss. As to Alzokari’s

APA claim, the court determined that the decision to revoke Alzokari’s passport

was neither arbitrary nor capricious because it was supported by the March 2013

statement. Alzokari v. Pompeo, 394 F. Supp. 3d 250, 255 (E.D.N.Y. 2019). As to




9We refer collectively to the Department, Secretary of State Michael Pompeo, Assistant
Secretary for Consular Affairs Carl C. Risch, and Deputy Assistant Secretary for Passport
Services Rachel Arndt as “Defendants.”
                                           12
Alzokari’s Due Process argument, the district court concluded that allocating the

burden of persuasion to Alzokari did not violate his Due Process rights. Id. at 258.

      First, the district court found that although Alzokari’s interest in his

passport was “a liberty interest protected by the Due Process Clause of the Fifth

Amendment,” it was “not a fundamental right equivalent to the right to interstate

travel,” nor did it affect his citizenship. Id. at 258 (quoting Weinstein v. Albright,

261 F.3d 127, 140 (2d Cir. 2001)). Next, the court concluded that the Department

had a strong interest in preventing fraud in connection with passports.            Id.

Although the revocation letter made no mention of Alzokari’s purported

smuggling of children into the United States, the district court determined that the

Department’s interest was “particularly acute here” because of that admission,

emphasizing that the “likelihood of damage to national security or foreign policy

of the United States” is “the single most important criterion in passport decisions.”

Id. (quoting Haig v. Agee, 453 U.S. 280, 298 (1981)). Finally, the court determined

that the risk of an erroneous deprivation of Alzokari’s passport was low because

Alzokari “participated in two separate hearings; had the opportunity to present

evidence and make arguments; was represented by counsel; and received

decisions that [Alzokari] concedes were ‘comprehensive’ and ‘discussed all the

                                         13
relevant facts.’” Id. at 259. Thus, the district court found the allocation of the

burden of proof complied with Due Process.

      The district court entered judgment and Alzokari timely appealed.

                                  DISCUSSION

      I. The Department’s Passport Revocation Violated the APA

      Under the APA, we may set aside an agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). An agency action is arbitrary and capricious “if the agency has

relied on factors which Congress has not intended 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.” Natural Res. Def. Council, Inc. v. U.S. EPA, 658 F.3d 200, 215 (2d Cir.

2011) (internal quotation marks and citation omitted).

      The Department revoked Alzokari’s passport pursuant to 22 C.F.R.

§ 51.62(a)(2), which provides that the Department may revoke or limit a passport

when it was “illegally, fraudulently or erroneously obtained from the Department;

or was created through illegality or fraud practiced upon the Department.” See


                                        14
also 8 U.S.C. § 1504(a) (“The Secretary of State is authorized to cancel any United

States passport . . . if it appears that such document was illegally, fraudulently, or

erroneously obtained from, or was created through illegality or fraud practiced

upon, the Secretary.”). When a citizen applies for a United States passport, they

“must truthfully answer all questions and must state every material matter of fact

pertaining to his or her eligibility for a passport.” 22 C.F.R. § 51.20(b).

      The Department premised its revocation decision on the contention that

Alzokari “made a false statement of material fact in [his] passport application” by

representing that he is Ahmed Ali Alzokari when his “true identity” is actually

Ahmed Ahmed Mohamed Albadaani. C.A.R. 2. The question we must answer,

therefore, is whether the revocation of Alzokari’s United States passport was

arbitrary, capricious, or otherwise not in accordance with law, where the record

shows that Alzokari applied for his passport using the legal name and birthdate

denoted on his uncontested immigration documents, including his certificate of

naturalization. In our view, the revocation decision was indeed arbitrary.

      Alzokari’s certificate of naturalization lists his name as Ahmed Ali Alzokari.

The name used for passports is generally “the name recorded in the evidence of

nationality and identity.” 22 C.F.R. § 51.25(a). Where, as here, the applicant is

                                          15
born outside of the United States, “evidence of nationality” includes a certificate

of naturalization.    See 22 C.F.R. § 51.43(b)(1)(i).     Moreover, a certificate of

naturalization is “evidence of identity” that may be used to obtain a passport

because it is a “federal government officially issued identification with

photograph.” 22 C.F.R. § 51.23(b).

      Even a cursory review of Alzokari’s first United States passport application

shows that certificates of naturalization are specifically listed as acceptable

“[i]dentifying [d]ocument(s).” 10 C.A.R. 161. This makes sense since the certificate

must be issued to the applicant “in his or her true, full, and correct name as it exists

at the time of the administration of the oath of allegiance.” 8 C.F.R. § 338.1(b)

(emphasis added). Moreover, the regulations governing passport applications

specifically contemplate—and permit—that an applicant may undergo a name

change prior to naturalization, provided the new name is reflected on the

certificate of naturalization. See, e.g., 22 C.F.R. § 51.25(c)(2) (“A name change will

be recognized for purposes of issuing a passport if the name change occurs in . . .


10As discussed, Alzokari used his certificate of naturalization as his “identifying
document” for his first passport application in 1979. See C.A.R 161. He used his
previously issued passports for his 1995 and 2005 passport applications. See C.A.R. 157–
59. A previously issued passport is also an acceptable identifying document under the
regulations. See 22 C.F.R. § 51.23(b).
                                          16
[a] Certificate of naturalization issued in a new name.”). Thus, even accepting as

true the March 2013 admissions regarding Alzokari’s identity—and ignoring the

dubious circumstances surrounding his “statement” 11 —Alzokari was authorized

to use the name denoted in his citizenship papers when applying for a passport

even if he had been known by another name before he became a citizen of the

United States. Ahmed Ali Alzokari became his name at the time of his 1979

naturalization.    See 8 U.S.C. § 1449 (detailing contents of a certificate of

naturalization); 8 C.F.R. § 338.1(b) (same); see also 8 U.S.C. § 1447 (“It shall be lawful

at the time and as a part of the administration by a court of the oath of allegiance .

. . for the court . . . to make a decree changing the name of said person, and the

certificate of naturalization shall be issued in accordance therewith.”). The fact

that Alzokari may have used a different name prior to becoming a United States

citizen did not establish fraud per se. 12


11Again, this is not the first time that Special Agent Howell and Mohammed have
obtained very similar statements from visitors to the United States Embassy in Sana’a,
Yemen. See, e.g., Omar I, 2016 WL 617449, at *2; Omar II, 2017 WL 5751314, at *3; Awad v.
U.S. Dep’t of State, No. 19 C 10, 2020 WL 1182743, at *1 (N.D. Ill. Mar. 12, 2020); Awad v.
Kerry, 257 F. Supp. 1016, 1018–19 (N.D. Ill. 2016). It is also not lost on us that Alzokari
signed a statement claiming his name was “Ahmed Ahmed Mohamed Albaadani” as
“Ahmed Ali Alzokari.”
12Frankly, it would make Alzokari no different from many Americans who changed their
names when they immigrated to the United States.
                                             17
       If the Department suspects that a citizen’s certificate of naturalization was

fraudulently obtained, it can institute denaturalization proceedings. See, e.g., 8

U.S.C. § 1451 (outlining civil denaturalization proceedings); Fedorenko v. United

States, 449 U.S. 490, 506 (1981) (“[O]ur cases have . . . recognized that there must

be strict compliance with all the congressionally imposed prerequisites to the

acquisition of citizenship. Failure to comply with any of these conditions renders

the certificate of citizenship illegally procured, and naturalization that is

unlawfully procured can be set aside.” (internal quotation marks and citations

omitted)). What the Department cannot do is circumvent these proceedings by

revoking a citizen’s passport.13

       Indeed, the Department’s Foreign Affairs Manual specifically recognizes

that “Certificates of Naturalization are proof of United States citizenship,” and that

the Department is “bound by law to accept them as proof of citizenship and cannot

look behind the certificate.” 8 FAM § 301.8-3(d) (2018) (emphasis added); see also 8


13 The government bears a significantly greater burden in revoking citizenship. See
Schneiderman v. United States, 320 U.S. 118, 122 (1943) (“[O]nce conferred[,] [United States
citizenship] should not be taken away without the clearest sort of justification and
proof.”). In order to revoke an individual’s citizenship in a civil denaturalization
proceeding, the government “must prove its case by clear, unequivocal, and convincing
evidence which does not leave the issue in doubt.” United States v. Sprogis, 763 F.2d 115,
121 (2d Cir. 1985).
                                            18
U.S.C. § 1443(e). Moreover, even if the “passport agency believes that a certificate

of naturalization was issued fraudulently, the person remains eligible for a U.S.

passport until the naturalization certificate is revoked.” 8 FAM § 301.8-3(e)(4) (2018)

(emphasis added).

      Had Alzokari applied for a passport with a different name, he would be in

danger of violating the regulations. See, e.g., 22 C.F.R. §§ 51.25(a), (b) (an applicant

is required to “explain any material discrepancies between the name on the

application and the name recorded in the evidence of nationality and identity”).

Indeed, we are left wondering what name the Department would have wanted

Alzokari to use in his passport application. If the Department maintains that

Alzokari’s “true identity” is “Ahmed Ahmed Mohamed Albaadani,” as the March

2013 statement suggests, then it would presumably have him use that name in his

passport application. Yet we are aware of no government-issued documents that

would allow Alzokari to apply for a passport in that name, as required by the

regulations. If, on the other hand, the Department believes that the March 2013

statement shows that Alzokari defrauded the United States during his

naturalization, then we again emphasize that it is free to commence

denaturalization proceedings.

                                          19
      At bottom, the Department failed to consider the significance of Alzokari’s

immigration and nationalization records in accordance with the law. Its premise

for revoking Alzokari’s passport offers no support for the conclusion that Alzokari

obtained his passport fraudulently and is contrary to the Department’s own

regulations and guidance. If the Department’s revocation were to stand, Alzokari

would be left in an untenable position: His claim of citizenship is unquestioned

and yet he is forbidden from leaving the country for using the name he carries as

a U.S. citizen. If the Department believes Alzokari’s “true identity” is Ahmed

Ahmed Mohamed Albaadani and that his citizenship was fraudulently procured

(it is not enough that Alzokari was known by another name prior to his

naturalization), the proper remedy would be to revoke his citizenship. Until then,

Alzokari can use his legal name to obtain a passport.

      The Department’s passport revocation was arbitrary, capricious, and not in

accordance with law. See Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 150–51

(2d Cir. 2008). Reversal of the district court’s decision is therefore required.

      II. Remand to the Agency is Unnecessary

      Finally, because we determine, as a matter of law, that a citizen does not

commit passport fraud by applying for a passport under the name and birthdate


                                         20
appearing on his uncontested citizenship and identity documents, there is no basis

for remand to the agency. See Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423

F.3d 90, 100 n.10 (2d Cir. 2005); Karimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013);

see also Guertin v. United States, 743 F.3d 382, 388–89 (2d Cir. 2014) (declining to

remand to the agency because “there is compelling evidence in the record—a

record that would not change if remanded to the agency,” that plaintiff is entitled

to the relief sought).14

                                    CONCLUSION

      For the reasons stated above, we REVERSE the judgment of the district

court, REVERSE the Department’s decision to uphold the revocation of Alzokari’s

passport, and ORDER the Department to return Alzokari’s expired passport so

that he may apply for a new United States passport if he so chooses.



14 Finally, we note that Alzokari also made various arguments regarding the
constitutionality of the post-revocation proceedings, including the allocation of the
burden of proof. The district court’s reliance on 22 C.F.R. § 51.71(h) for the burden of
proof raises a number of unresolved issues, including whether passport revocation
hearings qualified as “formal” adjudication proceedings under the APA at the time of
Alzokari’s relevant passport revocation hearing, see 5 U.S.C. §§ 554 et. seq., and whether
the court’s reliance on that section constituted an impermissible retroactive application
because § 51.71(h) was not in effect at the time of Alzokari’s hearing. These issues remain
open; we need not address them because no matter who bore the burden of proof, the
basis for the Department’s revocation was improper as a matter of law.


                                            21
