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Acosta v. United States

United States District Court, W.D. Washington, Seattle

May 29, 2014

UNITED STATES OF AMERICA; JOHN F. KERRY, Secretary of State; TERESA BOBOTEK, Director, Seattle Passport Agency; JEH JOHNSON, Secretary of the Department of Homeland Security, Defendants.


RICARDO S. MARTINEZ, District Judge.


This matter comes before the Court on Plaintiff Carlos Acosta's motion seeking a temporary restraining order ("TRO"). Dkt. #12. The Court heard oral argument on the motion on May 27, 2014, and conducted an additional telephonic conference with counsel on May 29, 2014. Because the Court finds that it lacks authority to grant the relief sought by Mr. Acosta, namely the return of his U.S. passport or a court order allowing him to re-enter the U.S. after traveling abroad, the motion will be denied.


Mr. Acosta filed this action against the named Defendants seeking a court issued declaration of U.S. citizenship under 8 U.S.C. 1503(a), and an order compelling the U.S. Department of State to either return Mr. Acosta's U.S. passport or, in the alternative, to order the U.S. Passport Office to issue a new U.S. passport. Dkt. #1, ¶¶ A-C.

Although Mr. Acosta applied for and received a U.S. passport in August 2006, United States Customs and Border Patrol ("CBP") confiscated his passport at Phoenix International Airport on August 11, 2013, after he returned to the U.S. from a business trip to Mexico. Id. at ¶ 23. Mr. Acosta alleges that he is a U.S. citizen by birth. The Complaint details the circumstances surrounding Mr. Acosta's U.S. birth in Center, Colorado and his U.S. birth certificate. Mr. Acosta also has a Mexican birth registration and believes that CBP confiscated his passport on the basis that he was determined to be a non-national by the Department of State. See id. at ¶¶ 12-23.

Mr. Acosta filed the instant motion for a TRO on May 13, 2014, to secure the return of his passport so that he may freely travel during the pendency of the litigation. Defendants contend that the Court lacks authority to compel the Department of State to reinstate or re-issue Mr. Acosta's U.S. passport because the Department has revoked the passport after concluding that Mr. Acosta is a non-national.


"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390 (1981); see also McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012). As such, a preliminary injunction is "not intended as a substitute for relief on the merits of the case." Roark v. Individuals of Federal Bureau of Prisons, 2013 WL 2153944, *4 (E.D. Tex. May 16, 2013). "Otherwise, the normal procedures of litigation would be short-circuited by the simple vehicle of trying a case by way of a motion for injunctive relief." Id .; see also Schrier v. University of Co., 427 F.3d 1253, 1258-59 (10th Cir. 2005). Here, as discussed above, Mr. Acosta seeks a declaration of nationality and the return of his U.S. passport. The relief sought in the instant motion for a TRO is coextensive with a merits determination because Mr. Acosta effectively asks the Court to compel the Department of State to re-issue his passport.

Acosta provided documentary evidence to demonstrate that after his passport was confiscated, he requested an explanation from the Department of State. Acosta Decl., Ex. C., p.

5. He received a letter stating that the reason for the revocation was a Mexican birth registration in his name. Id., Ex. D, p. 7. Acosta states that he was not provided an opportunity to contest the adverse evidence. Id., Ex. A, p. 2, ¶ 13.

The Department of State's letter stated that revocation was pursuant to Section 51.62(b) of Title 22 of the U.S. Code of Federal Regulations, which provides that a U.S. passport may be revoked when it has been determined that the bearer is not a U.S. national. It also stated that an investigation revealed a Mexican birth registration from Cuauhtemoc, Mexico that was issued before the Colorado birth certificate as well as immunization records from Mexico. The letter then noted that "you are not entitled to a hearing under Sections 51.70 through 51.74 of the passport regulations in Title 22 of the Code of Federal Regulations. Title 22 Section 51.70 (b)(1)... states that a hearing is not provided in a case of an adverse passport action taken on grounds of non-citizenship, such as in this case." Dkt. #12-1, pp. 8-9.

The Secretary of State is charged with "the administration and the enforcement of [the Immigration and Nationality Act] and all other immigration and nationality laws relating to... the determination of nationality of a person not in the United States." 8 U.S.C. § 1104(a). The State Department has the authority to issue passports to United States citizens. 22 U.S.C. §§ 211a, 212; 22 C.F.R. § 51.2(a). Passports "have the same force and effect as proof of United States citizenship as certificates of ...

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