certificate or passport—even if already administratively cancelled—would seem to
satisfy that prima facie requirement. The government would then be put to its
burden to establish by “clear, unequivocal, and convincing evidence” the plaintiff’s
lack of entitlement to the disputed “right or privilege” of citizenship.625
This burden-shifting approach applies in the Second, Third, Ninth, and D.C. circuits, and has
also been adopted by district courts in the Eighth Circuit.626 It is based on a footnote in Perez v.
Brownell cited in many of these decisions.627 The Second Circuit cites to Perez, for example, to
support the rule that, “where citizenship is conceded, or . . . plaintiff shows a prior governmental determination establishing his citizenship, the government must show by ‘clear,
unequivocal and convincing evidence’ . . . that the plaintiff expatriated himself or that the prior
administrative determination was erroneous.”628 The Supreme Court has never directly ruled
on the burden of proof in declaratory actions for citizenship.
Although citizenship claims arising in the context of removal proceedings are not the primary
focus of this report, it is important to note the substantial hurdles imposed in reaching a
determination of citizenship as a defense to removal. Citizenship claims in federal court
during the administrative removal process (whether based on birth or derivative citizenship)
are statutorily barred under § 1503. Such claims must be raised instead through extremely
narrow administrative and judicial review with significant deference to the decisions of
immigration judges.629 In cases arising in this posture, the government bears the burden of
proving alienage by “clear and convincing evidence.”630 Where the government provides
evidence of foreign birth, this creates a presumption of alienage that can be overcome by a
“preponderance of the evidence.” The Ninth Circuit applies a more lenient standard of proof
for respondents, however, holding that the presumption of alienage may be overcome with
“substantial credible evidence,” a lower bar.631 In 2018, the Ninth Circuit also ruled that this
burden-shifting and standard of proof applies in all alienage cases, including declaratory
judgment actions, as noted above.632
Administrative Procedure Act
The Administrative Procedure Act (APA) provides a remedy to challenge administrative
agency decisions that caused a “legal wrong” or where a person has been “adversely affected
or aggrieved” by an agency action.633 The APA does not supply jurisdiction and claims must
be brought under the federal question statute (28 U.S.C. § 1331) or the habeas statute (28
U.S.C. § 2241).634
The APA is a remedy of last resort: all administrative remedies must be exhausted before an
APA action in federal court is available, and claimants must show that there is “no other
adequate remedy in court.” 635 Because “the State Department has no formal administrative
III. Denial and revocation of documentation of U.S. citizenship
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