19 - 3133 Alzokari v. Pompeo UNITED STATES COURT OF APPEALS F OR THE SECOND CIRCUIT

______________ August Term 2 0 19 (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 Defendant s - Appellee s . †

______________ Before: CALABRESI , WESLEY , BIANCO, Circuit Judges

.

Plaintiff

- Appellant Ahmed Ali Alzokari appeals the dismissal of his Administrative Procedure Act (“APA”) action challenging the United State s 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 th at name in each of his U nited S tates 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 subs tituted for former Deputy Assistant Secretary Brenda Sprague.2 In 2013 , Alzokari visit ed the U nited S tates embassy i n 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

. F ollowing a n interrogation , Alzokari signed a statement declaring , inter alia , that his true name was not “Ahmed Ali Alzokari .” Based only on that statement, t he Department revoked Alzokari’s passport , c oncluding 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 revo cation 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 re turn 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

.

_________________3 WESLEY , Circuit Judge : Plaintiff

- Appellant Ahmed Ali Alzokari challenges the United States Department of State ’s (the “Department”) revocation of his passpor t. Alzokari
was born in Yemen and naturalized as a United States citizen in 1979 under the
name “Ahmed Ali Alzokari.” Si nce 1979, he has used that name in each of his
U nited S tates passport applications. During a 2013 visit to the U nited S tates 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 A lbaadani.” Based on that statement alone , the Department revoked
Alzo kari’s passport , concluding it was fraudulently obtained.
Alzokari challe nged 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 Di strict Court for the Eastern District of New York (Cogan, J. ), arguing that the Department ’s revocation violated the
A dministrative P rocedure A ct (“APA”) and his Fifth Amendment Due Process rights. The district court disagreed and dismissed Alzokari’s complaint

.4 This case present s a question of first impression for this Court : can the Departmen t revo ke a citizen’s U nited States passport on the ground that he
conceal ed his identity in applying for the passport, whe re the citizen makes a

state ment 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 c annot be said to have fraudulently obtained
his passport when he used the name and birthdate denoted on his unc hallenged 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 re turn 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 U nited S tates Alzokari was born in Yemen on March 1, 1955. In 1972, Alzokari’s father, Ali Ayed Z o qari (“Ali”) , filed a “Petition to Classify Status of Alien Relative for

1 We 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 the5 Issuance of Immigrant Visa” with what was then the United States Immigration
and Naturalization Services

. The petition iden tified 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, Al zokari’s father was a permanent resident of the United State s 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, t he Yemen Ministry of Justice certified tha t “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, t he United States issued Alzokari an immigrant visa in the name “Ahmed Ali Ayedh Al

- Zokari .” C.A.R. 40 8. The Yemeni passport supporting Alzokari’s visa was issued to “Ahmed A li 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)

. 2 Citations to “C.A.R.” refer to the “certified administrative record” filed by Defendants

Appellees in the district court.6 certificate of characters accompanying the passport identified Alzokari as “Ahmed
Ali Aiad , ” Alzokari App. 6 5

. Alzokari’s United States Citizenship In 1979, Alzokari naturalized as a United States citizen

. Alzokari petitioned
for naturalization in the n ame “Ahmed Ali Alzokari , ” C.A.R. 385, and t he United
States issued his certificate of naturalization in the name “A h med Ali Alzokari , ” listing his birthdate as March 1, 1955 , 3 Alzokari App. 58. Since arriving in this country, n one of Alzokari’s immigrati on and naturalization records have been challenged for an y reason , including his Yemen i birth certificate and his parents ’ marriage certificate

. T here 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 naturaliz ation , t he United States has issued
him other documents under the name “Ahmed Ali Alzokari,” including his S ocial
S ecurity card.

3 The 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 “Ah med Ali Ayed Zoqari.” Alzokari App. 61

.7 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 identi f y ing document

. He listed his father as “Ali Ayied Alzokari”
and his mother as “Salehih Ahm ed.” C.A.R. 160. When Alzokari ap plied for passport s in 1995 and 200 5 , he used the same name and birthdate , and presen ted his previously issued passports as evidence of his identity

. The Department issued a passport to Alzokari in each instance.
Alzokari ’s Detain ment at the United States Embassy in Sana’a, Yemen, and H is Passport Revo cation On March 26, 2013, Alzokari traveled to the U nited S tates embassy in Sana’a, Yemen, to secure a c onsular r eport of b irth a broad 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 referr ed the

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

4 A c onsular r eport of b irth a broad documents the birth of a United States citizen born abroad , serving as an official determination of the applicant ’ s U nited S tates 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

.8 for Investigat ions at the United States e mbassy in Sana’a , Yemen , and embassy
officials confiscated Alzokari’s expired and unexpired passports, as well as his
certificate of cit izenship

. Special Agent Howell detained Alzokari and interviewed him for several
hours , assisted by U nited S tates 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 A lbaadani,” 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 . A lzokari App

. 36. The statement further claimed that Dawood was
Alzokari’s gran dson

— 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.

6 We note that Special Agent Howell has obta ined strikingly similar statements to the one at issue here during his tenure at the United States embassy in Sana’a, Yemen. See, e.g. ,9 After Alzokari signed the s tatemen t

— as “Ahmed Ali Alzokari , ” id. at 36

– 38

— embassy officials returned Alzokari’s passport s and his certificate of citizenship

. 7 On his return to the U nited S tates , 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 , p laintiff 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. Oma r I , 2016 WL 617449 , at * 1. In 2012, Omar traveled to Yemen to obtain a U.S. p assport for his daughter

. Id. After attend ing an interview at the U nited S tates e mbassy 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 interro gation 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 U nited S tates 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, t he 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 “fro m revoking or denying Mr. Omar’s passport on this same basis.” Omar II , 2017 WL 5751314, at *7. However, t he 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), E CF No. 105.

7 The 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 A lzokari App . 77

– 78.10 the Department form ally re voked 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 hi s March 2013 s tatement
“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 int o the United States for his grandson pr esented a national security concern

. II. Procedural History Alzokari challenged his passport revocation and receiv ed an administrative hearing o n 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 t he 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, dismiss ing the action without prejudice and remand ing for a de novo administrative hearing on a new administrative record

. See Stipulation and Order of D ismissal Without Prejudice, Alzokari11 not understand th e March 2013 stateme nt , that he had signed it under duress while suffering from dementia , and that the Arabic

- speaking interpreter was biased

— all
of which ma de the statement unreliable

— and that the Department had not present ed 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 naturalizatio n 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 t he 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 U nited States passports. Id. at

v. Tillerson, et al. , No. 1:17

- cv - 00830 (E.D.N.Y. Oct. 16 , 2017 ) , ECF No. 1 3

. We review the results of that administrative hearing here.12 49

. T he Deputy Assistant Secretary for Passport Services approved th e he aring
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. ) agai nst Defendants. 9 In his complaint, Alzokari claim s that (1) D efendants violated the APA when they revoked his passport, i d. 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 prope r to revoke [his] passport , ” i d. 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 grante d 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

9 We 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.”13 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 r ight 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 , t he 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 , 45 3 U.S. 280, 298 (1981) ). Finally , the court determined
that t he risk of an erroneous deprivation of Alzokari ’s passport wa s 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 the14 relevant facts. ’ ” Id. at 2 59. T hus, the district court found t he 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 s et aside an agency action tha t is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

. ” 5 U.S.C. § 706(2)(A)

. An a gency 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).
T he Department revo ked 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 .” S ee15 also 8 U.S.C. § 1504(a) ( “ T he 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 Se cretary.” ). When a citizen applies for a U nited 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 represent ing 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 U nited 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 an d 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.
T he name used for passport s is generally “the name recorded in the evidence of nationality and identity.” 22 C.F.R. § 51.2 5(a)

. Where, as here, the applicant is16 born outside of the United States , “evidence of nationality ” includes a certificate
of naturalization. S ee 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)

. E ven a cursory review of Alzokari’s first U nited 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, t he regulations governing passport applica tions 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 f or purposes of issuing a passport if the name change occurs in . . .

10 As 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 do cument under the regulations. S ee 22 C.F.R. § 51.23(b)

.17 [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 sur rounding 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 citi z en 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 natura lization shall be issued in accordance therewith.”). T he fact
that Alzokari may have used a different name prior to becoming a United States
citizen did not establish fraud per se . 12

11 Again, this is not the first time that Special Agent Howell and Mohammed have obtained very similar statements from visitors to the U nited 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.”

12 Frankly , it would make Al z o k ari no different from many Americans who changed their names when they immigrated to the United States.18 If the Department suspects that a citizen’s certificate of naturalizati on 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 i s unlawfully procured can be set aside. ” (internal quotation marks and citations omitted) )

. What the Department cannot do is circumvent th e s e proceeding s by

revo k ing 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 t hat 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 co nferred [,] [ 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, u nequivocal, and convincing evidence which does not leave the issue in doubt.” United States v. Sprogis , 763 F.2d 115, 121 (2d Cir. 1985)

.19 U.S.C. § 1443(e)

. Moreover, e ven 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 certifi cate is revoked

. ” 8 FAM § 301.8

- 3 (e)(4) (2018) (emphasis added)

. H ad Alzokari applied for a passport with a different name , he would be in danger of violat ing 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, w e are left wondering what name the Department would have wanted
Alzokari to use in his passport application

. I f the Department maintains that Alzokari’s “true identity” is “Ahmed Ahmed Mohamed Albaadani , ” as the March
2013 statement suggests, then it would presum ably have him use that name in his passport application. Yet we are aware of no governm ent

- 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

na turalization, then we again emphasize that it is free to commence denaturalization proceedings.20 At bottom , t he Department failed to consider the significance of Alzokari’s immigration and nationali zation records in accordance with the law

. I ts premise
fo r revo k i ng 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 a n untenable position : H is 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 A lbaadani an d 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.
T he 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)

. R evers al of the district court’s de cision is therefore required

. II. Remand to the Agency is Unnecessary Finally , b ecause we determine, as a matter of law, that a citizen does not commit passport fraud by applying for a passport under the name and birthdate21 appear ing on his uncontested citizen ship 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, w e REVERSE the judgment of the district

court , REVERSE the Department’s decision to uphold the revo cation of Alzokari’s passport, and ORDER the Department to re turn 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 p roceedings, 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” adjudicat ion 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.