isn't loses nationality solely by the performance of the picks they treating act and whenever a concert or officer has reason to believe that such an act has occurred he shall perish to the loss of nationality and process  before you get too deeply into the merits could i ask you some questions about mootness when the lawsuit begam your client had a very concrete interest in having the united states acknowledge the loss of citizenship in order to facilitate a transfer to the swiss prison he's now been released as i understand it he's in switzerland so does he still want this sir to fix it and what is his continuing concrete interest in getting it yes record here in the united states that that's not a small interest as he wants to travel freely on his swiss passport through europe and through the rest of the world mr feral but here he is not he is switzerland recognize swiss citizen correct yes your honor switch away as a spanish passport is living there he has a family there he managed to live there for a decade with seemingly no interaction with the united states why can't he just go go on with his life and not worry about some speculative future entanglement with our government while your honor a look at mr farrel history indicates not speculative you are correct that he left the united states in mid ninety's and he acquired nationality of the swiss citizen in two thousand and four on its own application and he did not use the benefit of his u s citizenship back to united states against his will and called to account for actions you've done the united states and they treated him as a united states citizen throughout his detention they refused to sure to him but that  incident the conviction everything flowing from that crime is now done and spring court has said very clearly the fact that someone has had a past interaction with law enforcement doesn't necessarily give them standing to seek forward looking relief on the ground that they might have some future interaction with law enforcement so the fact that he had a problem in the was incorrect but more fundamentally your honor he's applied st to last nationality he's been improperly rejected that and regardless of his motivations or desires for that particular document it's been improperly withheld from whether is the it's the injury to him that he has to satisfy the in person requirement because if he when he was incarcerated in the united states of course that would be an injury to have to do and he wouldn't he was unable to leave the united states in order to sign such an affidavit so d if that was the basis of his injury isn't that basis now moot now that he's able to freely travel and sign sign the certificate on the basis of the marriage he's been denied a certificate because he has failed to come in in person and so that injury seems pretty palpable when you're incarcerated the united states however is there an injury now that he can go in in person and sign such a document and then start the process of having a determination on the merits your honor the ability of his his ability to go to a conflict as this court grabbing foxy clinton is immaterial and he's not required to do it by the statutes the regulations or the foreign affairs manual and given his past with u s government he's not interested in going  stepping foot on u s soil which is what a consulate is and so i would suggest that that alternative option is is completely immaterial under this court's bresnan nd it's not required  a piece of paper from the government confirming that but he's t he isn't on your theory and it sounds factually correct he is not a citizen u s citizen at this moment and he is a citizen of switzerland and he has all of the rights and duties associated with the latter your honor he has no proof that he's not a u s citizen that's where certificate of loss of nationality and was but on wider staff matter if it matters that he wants finality he wants an administrative leave final determination that the united states does not consider him a citizen right now that's up in the air there's to this day a disagreement can you point me to some future some some consequence that might be reasonably likely and many see at risk of being drafted or being subject to some tax that applies to citizens abroad what what is the tangible harm to him yes your honor if he could be subject to foreign asset reporting requirements he could be subject to past taxation he could be subject to a lot of things that u s citizens living abroad  e i would agree with you one hundred percent if you could point me to some substantial possibility of a future problem with the united states i guess they know little general about that your honor he applied st if it was a nationality which is a benefit of the united states law he was denied that that's his interest his motivations for acquiring them were the potential legal applications or benefits of that are irrelevant to this analysis the agency is arbitrarily denied a benefit he request this is like saying sure i know how to drive but i don't have a driver's license and d m v won't give it to the that's a suggest who knows in the future what that could hold we're seeing record numbers of people renouncing their citizenship because it does have impact for people living abroad and i would just point out in addition to that what that you have statutory rulemaking authority but if you look at the text of the statute and the structure of the statute you see that congress knew how to require in person in person attendance at both a conflict as well as absolutely well if you will gripe such forms of reports entries in other papers issue instructions perform such other acts as deemed necessary that seems to include both the yes the secretary could establish regulations but could also do all of in a situation where there's no question about the intent of the foreign nationals to relinquish their citizenship of the specific intent the constitutional requirements that the government discusses in their revealing it tells the contractors be not complete form d s four thousand and eighty one dollars which is what is at issue here and it says reach out to him and get the form it does not require and in person require there's no there's no demand that they show up at a con that they're applying to to mr farrell now and i would suggest that the consular officers have discretion to do that but that takes us to the chain rebound for your honor and we look at these informal decisions and there is no explanation there is no suggestion in the letter decisions here that the agency is ok mr farrel we understand your predicament but for reasons a b and c we're going to exercise of discretion to have you come into the consulate they say no it's a requirement they considered a requirement and aside and again i do think it's important to see where this in person requirements coming from the governments kind of move the goalposts from the pro se litigation the district court to their response where even from this panel and they have boiled it this burden some even person abroad requirement can i it's it's not a interpretations that you regulation or the foreign affairs manual or the substance important reforms it's an interpretation of a boilerplate signature block and creating a new eligibility criteria out of that i would suggest is arbitrary and capricious again as applied to my client why why is the rule and why is nationals against loss of citizenship through flimsy process a lot of this scheme response to supreme court decisions which impose both substantive and procedural limits on the governments the circumstances one a citizen can be denaturalized so you know that the trigger for this process is that any consular officer anywhere in the world has reason to believe that someone might have committed a  act with the requisite intent and if can they really can they really go forward on a reason to believe standard and issue this certificate without bringing in the person and saying tell tell us what happened did you really intend to renounce your citizenship i united states on the battlefield to tie the agency's hands to require that person to come in and sign something just defies the purpose of the statute and frankly makes no sense so my st point and again i'm not this is not  require in the discretion they can exercise discretion to have someone come in a certain situation here they buy a way that their regulations and the family by demanding it to be a requirement they did not consider discretionary  they said we can't process replication without you showing up in person and so that's a legal mistake that's interesting i'm a as a must but i agree that if this decision and again we're stuck with the four corners of the decision doctrine if this was written differently in five different rationale and they said look we're going to exercise a scratch on the fam to have you come in then because we're concerned about your because we're concerned about you volunteered this would be a very different case and in the final thing last nationality so just one follow up on what you said suppose i still think that this requires a requirement for the  citizen the putative non citizen to show up in person and explain so that the secretary has a better sense of what happened suppose i think that makes sense in the abstract  arbitrary to just have a rule instead of a case by case assessment will we make this person come in but that person rules can be over inclusive but if the rule is rational in the mind run of cases we usually say that's not arbitrary and capricious your honor if the agency had actually implemented or promulgated a rule this way this different case but they haven't they haven't put it it's not the statute it's not the regs it's not in the fam the rules that we look to in the regs and in the fam indicate discretion to require in person interview not mandatory   he is saying that sixteen years ago i had specific intent and voluntarily took swift citizenship and got rid of my u s citizenship and so the question of voluntarin little odd right the fact that this case that makes your position so appealing was you know the guy stuck in a u s prison and the government saying we won't acknowledge what everyone knows to be true until you can drop by or embassy in switzerland and that just sounds kafka esque now we  rematch for the agency to re explain in circumstances where that constraint no longer applies and presumably they going forward they can say well ok we might we might make exceptions for people in prison but your client's not in prison it's perfectly easy for him to come into the consulate and  has removed himself in the united states i think we use the term self support right but at heart this is a case just like any other administrative law case he's applied for a benefit from a federal agency he has an interest in acquiring that benefit he's eligible for it and the agency is arbitrary arbitrarily and capriciously rejected the fact that in switzerland does not undermine his request and he has good reasons to not step foot on u s soil which is what a explain why you think a certificate of loss of nationality is a benefit for the person seeking to relinquish citizenship because i think there are a number of aspects of the statute that suggest the c e o and is is really an administrative determination for the government right the secretary makes the determination and if they agree to the certificate a copy is sent you know to the person who has lost their nationality right it's not really the statu is not really phrased in terms of a benefit for the expatriating citizen as opposed to kind of almost like a housekeeping measure so that the government knows who is a citizen and who is not a citizen so i'm  department against the will right of u s citizens well when a program came out and that kind of changed things right we see the administrative presumptions changing in the mid ninety's and we see more of u depends on your client fear of going to an american embassy or an american consulate because he's worried about being extradited for another crime  should give deference that case and again i think this is just the next evolution of that case law for him so just as a practical matter he would i know he said maybe the consular services office is closed but in it would seem that it's a pretty easy thing as a general matter for the x path to drop by the office and sign the form and he would you know he has the keys to his own non recognition in his pocket it would seem and yet he would rather wait now let's say it takes us six months or nine months or something to write an opinion he would rather wait for that than just go to the embassy and sign the form and be done with it document that he seeks this is about that and as your honor recognize or he has the keys to do that and does not have to wait for this court to act but i think you know do you have any knowledge of the situation on the ground in switzerland is it the case that all these offices are now closed to the cokehead i'm not aware your honor whether they're open for particular services or not but it would apply all over the world and for all people seeking not only let's let's let's assume that they're closed what to the public what is what what is he supposed to do he would have to wait like everybody else your honor during this situation there presumably thousands of people waiting to do transactions with the u decided to go into a us embassy and he no longer has that impediment to what is his continuing interest caught concrete tangible article three interest in certificate of loss of nationality and the government has not even adjudicated his request on the merits so it is the government's position as of today right now  is carol a citizen or not we do not know your honor we the government has not adjudicated his request on the merits yet it's incorrect for mr for out to say that he's no longer a citizen we do not acknowledge that and i think it's important to recognize that these are two separate issues that should not become place it assumes that when he became a swiss citizen he had the requisite intent to relinquish under and eighty one just assume that in the hypothetical is is he a citizen today we don't know your honor assuming that he he did there would still be an assessment required under the statute by the cons or officers but that one wouldn't just have some powers to market mr martinez what would it assess it would assess whether the act whether mr program is voluntarily seeking to give up a citizenship process a recommendation in a package for the secretary of state to issue a certificate of loss of nationality which is separate from the issue of laws and should not i played i i'm i'm still having trouble if it's  judge catches hypothetical with the voluntariness element added so mr mr for all voluntarily intended to relinquish his citizenship in two thousand four when he became a swiss citizen if we assume that then today is he a u s citizen perhaps but not in the eyes of the government mr kucinich i mean it's not i mean in your br you say that in cool a certificate issued a person remains a u s national that's the government's position in its brief are you saying that not your position any longer that it's that there is like maybe nationality and the secretary of state having the broad discretion to set forth procedures and warns that govern the process to obtain the certificate of loss of nationality well i do think some of these questions though go to standing and some of the other underlying questions i mean so you know you know in the in the hypothetical my colleague said right you have an intentional voluntary relinquishment at that moment the statute seems to suggest you're no longer a citizen but the government's position seems to be that they will continue to think you are a u s national until a certificate issues right around it because the search if they get is once of nationality issue after an assessment of whether there is an inten and voluntariness and that has not happened so these are two different things and they're going on right now but for the purpose of this appeal we're not talking about whether process occurred or not we're talking about what is required to process  if there were to be a certificate issued but but the government continues to treat him right now as a u s citizen or u s national but if they were to issue a certificate today that certificate would say that he lost his citizenship in two they go through the procedures to issue a certificate of loss and nationality this is particularly important in a situation where for example mr for hours saying all that i need to do is write a us piece of paper and send it to the embassy that says i became a asserts citizen in two thousand and four minute did i want to be a u s citizen anymore that is illogical that there is no way for the government to make sure that that is correct and it is illogical as applied to the facts of this case where he waited twelve years to see that certificate of loss of nationality so that's why the government in this situation and in all other situations has to assess voluntariness and intent and the procedure to do so includes and in person  voluntary and another is that the act has to be done with an intent to relinquish but both of those mental elements attached to the expatriat regardless of how you would you take a c l lands or anything else on his allegations alone yes you're on but it is important to recognize that the government has not acknowledged that because with this case is about is the administrative issuance of that acknowledgement the certificate of loss and nationality and whether the secretary has discretion to require and in person appearance and we respectfully submit that the statutory is invaluable the supreme court has even recognized and described it as the highest hope of civilized man given such the important issue at stake and in person appearance makes sense it allows for a consular officer determine whether someone really wants to give it up you look at the demeanor you look at something with your largely i would if i if i might interrupt do you think that there are some benefits that come with a painting a certificate or a loss of citizenship know i mean do you think could he not now be subject to taxes or you know other i r s requirements reporting requirements i might it might just around a few might be subject to that i cannot speak at reasonable requirement that the secretary has discretion to impose and until he does and there's a picture begin to blossom nationality cannot issue because the statute is clear that you know when it's clear that the issuance of a seal and is subject to the secretar denied that because it was a question of whether he had automatically acquired israeli citizenship or he had apply for it but more importantly the court cannot extract much if anything from fox because in two thousand and nine the for one like mr programs representation in page forty seven a card on them that says the applicant appear personally the hot before me and signed the statement before me there is no question that these forms require that there is no question that the  take the enemy combatant hypothetical that your friend posed to us so suppose there's a u s citizen who takes up arms against this country  an expatriating act and unfortunately we have seen some of those and suppose that person actually does a recruiting video propaganda recruiting video for the enemy right and it makes its way into the state department and they see the guy on the battlefield and they see the video in which he's saying how much he hates america  proud he is of himself for throwing away his horrible association with the country is it the government's position that it will continue to recognize that person unless and until he comes in and gets mirandized and signed some form your honor i think that in that hypothetical we're do we might be dealing with a different experience relating act that may or may not include an in person appearance requirement be or an embassy where we're working here right now is taken up or in citizenship we're not considering whether there's a foreign combatant or a terrorist or anything of that nature and to such a specifically allows for people to commit treason to the united states an avenue for four states relation but that is within the purview of the department of homeland security so i'm not at issue here so i'm sorry just what just walk me through the mechanics the requirement i also asked mr van yes do you think getting a c l m is a benefit for the expatriating individual or i mean is a c r one for the benefit of the individual does the state department view it as something that's purely internal to the government do you agree with the characterization of this as a benefit i don't agree with the characterization of it as a benefit and whatever requirements comes when something is a benefit  the government charges fees for for different things just part of the concert process is to support that i don't think it's tied to the fact of whether it is a benefit or not i mean they usually charge things fees for things that are a benefit to the person paying the fee otherwise no rational person would pay the fee but let me let me ask you one i think that a girl i'm trying to you described mr f as someone who just went in with one letter and now wants us to assume that's enough to demonstrate that it is two thousand and four reply question that was intentional and voluntary i'm not sure i'm on board with you in terms of your description of the facts and all the evidence that he could in front of the state department but i i do agree with you that it is the responsibility of the state department  he did in two thousand and four was intentional and voluntary now how does the state department assess that well the statute doesn't say they assess it in person the regs don't say they assess it in person the manual d say they infest it in person instead there is a form that arguably and i think probably does say the signature has to be in person and so our question i think is is that arbitrary and capricious is that reasonable for whoever wrote that form to say the signature always has to be in person or put another way whoever a it's been submitted by mr carol when they assess it is it arbitrary and capricious for them to say in this particular case there must be an impersonal signature and it's only not arbitrary capricious if the absence of the signature sufficiently informs the assessment of whether what happened in two thousand and four was voluntary and intentional so my hypothetical is a magine i'm running a computer coding shop and it's very important for everyone i hire to follow directions and so i give them a test during their job interview and i give them directions and i see how well they follow them i  give them the directions by telling them the directions by speaking the verbal directions and this particular job applicant is deaf now he didn't follow the directions i could have written the directions for him he would have probably called them if i had written them but i spoke them he didn't follow them i don't hire them because i've made in the cesspit that he can't follow directions do you think that assessment is reasonable it's not reasonably on event i don't know that it is comparing c d s the analogy here there may be many instances where an in person signature is what the department needs in order to assess accurately but there may be there may be if it's not here in some other instance at least one imaginable apple where the evidence voluntariness intent it's so overwhelming that you don't need signature in order to make an accurate assessment that the that they're related which meant sixteen years ago was voluntary intentional do you think that least imaginable that there would be that situation even if it's not the is whether that requirement is reasonable and i think that not only the point is not only about a signature your honor there is an interaction between the consular officer as part of that signature and this is clear not only in the forms themselves but in the manual doesn't have to be in person correct there all the other interactions don't have to be in person according to your correct those are only to develop the case your honor to see if the case moves forward but to actually assess an intent and volunteer and voluntary as of committing  relinquishment is in the past and i really did think that you said a few minutes ago that everything for relinquishment inquiry can be done by video or by phone except the signature i don't know your honor  i believe so i did if i did i apologize i do not represent that whatever percent is that an interview to develop the case could be done by phone or by email when a concert officer is getting the preliminary information to determine which forms to sen duress whether there isn't some to cation a lack of state of mind will apply equally and that's why we have an in person appearance requirement to make sure that that person really wants to get a us citizenship and is not being forced to do so and they really wanted to do it back then when the allegedly committed the expatriating act that requirement is not only in the forms it's in the manual and though the statute may not state explicitly the statute gifts and express broad delegation of authority for the secretary of state necessary just to set up for the in person part of what you just described and they be i think i may be was confused based on my mis understanding of what your earlier answers but there is there isn't a set there is an initial interview that doesn't have to be in person and then at some point the the applicant has to show up in person and during that time the applicant have to sign the form is there anything else the applicant has to do always have to requirements such as original documents and a u s passport the fee and that's what would happen in person that's why it's very important for somebody to appear and this is not the only instance that the department of state requires and in person appearance for example children of u s citizens born abroad at least one parent have to appear in the embassy to complete the process imagine a situation where they say well i have a kid abroad and you know and the department has had determined that in that situation and in person appearance is reasonable as well and the person appearance in this case is reasonable to because we're not only talking about obtaining us and this and ship in fact that state here is even higher giving up are citizenship it's important we want to make sure that it's done right you want to make sure that it's voluntary because we don't want an applicant to later come back and say it was not my intention to give up the essence and shit i was intoxicated i was pressured there was somebody in the other room that you couldn't see when i was in the bigio with you or on the phone things of that nature those can only be confirmed in person and that's why it's important and that's why repeatedly the the man you know not only the forms the people leave the manual supposedly issues and the person being naturalized wants to contest the d n a match rules ation what are the legal options for doing available is an administrative appeal to get something that's called a certificate of identity but that doesn't that doesn't restore citizenship or if you before a judge to argue for restoring citizenship it just lets you come to the us and seek admission as an alien i don't know your honor that this situation even arises where because of their provoke war nature of the seal latin and i'm not sure that i'm following your your honour's your question in regards to a question that judge raul was asking you about which is do we think of the c l m process as fundamentally at a due process protection for the person who's about to be denaturalized to make sure that his rights are protected or do we think of the c l and process as an investigatory process for the government more of the way judicial or other avenue for challenging the c l and after the fact that's why i'm asking i don't i don't think that that is an issue that the court needs to determine to decide this appeal in your honor because whether there is a due process protection where if if i think that the in person requirement is you know make hard to justify under the hard to justify is a bright line rule under the statutory scheme but make some intuitive sense of due process matter if it might matter whether the c l lam process is more investigatory or or more protective question for the court what i do think is that the question is narrow and whether it is and whether that requirement is reasonable in the several cases that we raised in our brief all of them involved rod delegations of authority to different department fact that were not more limited than now and this court the word the analysis that this court applies is whether it is reasonable and how is it reasonable is if it's arbitrary and capricious and how is it every tr now on what requirement the government is actually saying it relied on to deny or reject my client's application on page fifty in their brief they limited from an in person interview and in person appearance to jump in person signature and so this discussion about we don't i'm unclear but i do think at heart going to i think you put it very clearly kind of not in a statute nothing in regulation nothing in the fam if there's one piece of paper that requires a signature additional complications or issues that need to be addressed before they'll issue the seal and the government is just now confirmed double down on the fact that i still think my client's a u s citizen and so acquiring that proof that i know the term a nation that he can't be accused of treason you can't be accused of violating the foreign asset reporting requirement you can't be help for any more taxes after that but do you think it's a very real case and if i if i may just conclude i see my time is up and i know our has gone on quite a while but  we agree that u s citizenship is a valuable benefit and the reason that's valuable is that the founders determined that it was  because citizenship is a choice and recognizing that is a significant benefit is also recognizing that mr farrell has the right to choose not to be a citizen and that is an extremely important part of the valuable right of citizenship and what we see here is the administration putting up red tape to tear away and the private someone of that aspect of u s citizenship makes it so valuable not through notice and comment rule making not even bruce regulatory guidance but interpret