legaltimes.typepad.com: Department of Justice Challenges Sex Offender’s Effort to Renounce Citizenship.
James Kaufman has been trying for six years to renounce his citizenship, pressing Justice Department officials and other government agencies to let him cut his ties to the United States.
Kaufman, a 36-year registered sex offender who is locked up in state prison in Wisconsin, says in court papers in Washington that he is entitled to renounce his citizenship inside the United States during a state of war. Typically, a person can only renounce citizenship outside of the United States.
Ever since Kaufman filed a pro se suit (.pdf) in August 2005 in the U.S. District Court for the District of Columbia, the Justice Department has fought Kaufman’s effort to shed his citizenship while still in the country. And now that fight has gone to the U.S. Court of Appeals for the D.C. Circuit, where DOJ is challenging a ruling that favored Kaufman.
DOJ lawyers make one main point: that the United States is not in a “state of war,” as it is used in the Immigration and Nationality Act (1952), and therefore Kaufman fails to meet the requirements of the federal law.
Earlier this year, Judge Richard Roberts of Washington federal court rejected the government’s argument, saying the Justice Department’s position in the case is “contrary to both law and common sense.” He granted summary judgment in favor of Kaufman. Click here for the ruling.
The “precise question here is whether the United States was in a state of war in 2004 or 2008 when Kaufman made his renunciation requests,” Roberts wrote. “There can be no genuine debate about that.”
The appeal, filed April 21, marks the second time that Kaufman’s suit—which names Attorney General Eric Holder Jr. and Secretary of State Hillary Clinton, among other defendants—has reached the D.C. Circuit.
The appeals court ruled in Kaufman’s favor in late 2008—after his suit was dismissed—remanding the case back to the trial court for further review. (In the D.C. Circuit, Kaufman got help from the Georgetown University Law Center, which filed an amicus brief on Kaufman’s behalf. A Georgetown 3L, Brendan Quigley, who now clerks for a federal judge in the Eastern District of New York, argued for Kaufman.)
The appeals court noted in the opinion (.pdf) that Kaufman had written numerous letters, starting in 2004, to government officials requesting that he be allowed to renounce his citizenship. At least several letters were ignored. In other letters, Kaufman was directed by one government agency to another.
“[W]e do not understand the government to suggest that a congressionally created right can be nullified by government inaction,” Judge Judith Rogers wrote in the panel opinion, joined by Judges A. Raymond Randolph and Harry Edwards. (Randolph and Edwards are both now senior judges.)
On remand, DOJ attorneys continued the fight to get the suit dismissed. The government attorneys in the case say in court papers that the term “state of war” in the statute is ambiguous and that the Department of Homeland Security, which has jurisdiction, was right to reject Kaufman’s request to renounce his citizenship.
A trial attorney in the Office of Immigration Litigation, Derek Julius, said the statute at issue uses another term in a different subsection—“engaged in hostilities”—to describe armed conflict short of a Congressionally declared war. Julius urged Roberts, the presiding trial judge, to allow DHS to interpret the statute in order to administer it.
DOJ attorneys also point to a ruling in October 2008 in federal district court in West Virginia where a judge rejected a prisoner’s request to renounce his citizenship.
Senior Judge James Turk said in a four-page ruling that the wartime exception is “not currently applicable.” Turk noted that government officials told Duncan that the country is not at war. Turk dismissed the complaint about two weeks after it was filed. Duncan did not appeal.
Roberts rejected the government’s argument that the term “state of war” is ambiguous. The government’s “conclusion would require that every term in every statute be specially defined or else be deemed ambiguous,” Roberts wrote in the opinion. “That is not the law.”
Kaufman said in court papers that he has no intention to remain in the United States. Kaufman was imprisoned in 1998 for sex crimes and released in 2008. But he was returned to prison after a parole violation last April, according to a Wisconsin prison official. Kaufman is eligible for parole in July 2011.
1.) What interest does the federal government have in forcing a convicted sex offender to remain in the country as a citizen? Surely, sex offender laws across this nation are doing all they can to banish them from society.
2.) If he prevails in this challenge, to what country can be move? Which nations allow sex offenders to immigrate? The U.S. denies any sex offender from immigrating into USA.
Constitutionalfights.org spoke to the Ohio Supreme Court Clerk of Courts again today to ask when decisions will be released for the four pending challenges which were heard by the Court on Nov. 4, 2009. Decisions are normally published within six months of the oral arguments, but we are now 7 months out and still waiting.
We were told that “no one knows” when these decisions will be released and that “there is no time limit” for releasing the decisions. Further, we were told that it is not known if the rulings have been made yet, or if arguments might be re-heard following the death of the Chief Justice in April 2010.
All readers who have an interest in the outcome of these crucial cases before the Ohio Supreme Court are asked to call the Ohio Supreme Court Clerk of Courts to inquire when these rulings will be made. The hope is that with increasing pressure on the Court to issue their decisions, we may see movement sooner than political elections might allow. It would be quite unfortunate and unethical if they are awaiting the November Elections before they release these rulings.
Call (or write) the Court from any state – not just Ohio – to demonstrate to them that there are tens of thousands of citizens across the nation whose lives and families are adversely affected by their delays. They will not ask where you are calling from. But if hundreds of calls come to the Clerk’s office, it is likely that the Justices will hear about it.
Office of the Clerk
Supreme Court of Ohio
65 South Front Street, 8th Floor
Columbus, Ohio 43215-3431
E-mail: Office of the Clerk
Refer to: Senate Bill 10 Sex Offender Law challenges
Or you can use case names and numbers:
08-0991/ 08-0992 – Roman Chojnacki v. Ohio Atty. General
08-1624 Darian J. Smith, Alleged Delinquent Child
08-2502 State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E. Phillips
09-0189 In re: Adrian R., Delinquent Child – Licking County