The Volokh Conspiracy

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D.C. Circuit (Sadly) Affirms District Court in Hoda Muthana Case

Judge Rao writes an opinion rejecting all claims in equity, among other things


I blogged previously here about the case of Hoda Muthana, who was born in the United States and later joined ISIS in Syria. In a unanimous decision issued today, the Court of Appeals for the D.C. Circuit ruled against her when it upheld the district court's decision below that had denied her citizenship claim.

Judge Rao argued that because the U.S. government was not notified of the loss of diplomatic status for Muthana's father before her birth, Hoda Muthana did not attain citizenship by virtue of her birth on American soil. Even though the U.S. government treated Muthana as a citizen from at least 2005 (when it issued her first passport) until 2016 (when it cancelled her then-current passport, claiming that she had been issued a passport in error), the circuit court refused to grant equitable relief.

"The Executive has no authority to confer citizenship on Hoda outside of the naturalization rules created by Congress. Nor do the courts have an equitable power to grant citizenship," Judge Rao wrote in her opinion in a rather conclusory manner. My coauthor Cassandra Robertson and I have explained in our work, most recently in our forthcoming article Inalienable Citizenship here, why this is incorrect.

Notably, Judge Rao relies almost exclusively on citations to INS v. Pangilinan and Fedorenko v. United States to rule against equitable relief. The Pangilinan case, however, involved individuals for whom the government had never recognized citizenship claims and who wanted to be made citizens via judicial declaration. The government did, however, recognize Muthana as a citizen–for at least eleven years.

Meanwhile, the Supreme Court in Fedorenko focused on the idea that "district courts lack equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts." The government never argued that Muthana's citizenship was obtained via bad faith. Indeed, her father could have sought out naturalization for her like he did for his younger children if the government had ever flagged a problem as to Muthana's status.

Both Pangilinan and Fedorenko are thus distinguishable, and the D.C. Circuit should have engaged in more thorough analysis if it wanted to dispel Muthana's equitable claims. The judicial outcome in her case is both disappointing and unjust, and the current composition of the Supreme Court provides low odds of the case being granted certiorari.