Hadwan v. US Dep’t of State

22-1624
Hadwan v. US Dep’t of State
In the
United States Court of Appeals
for the Second Circuit
August Term 2023
Argued: December 12, 2023
Decided: June 3, 2025
No. 22-1624
MANSOOR H AMOUD H ADWAN,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF S TATE , U NITED S TATES E MBASSY , S ANA’A, Y EMEN,
Defendants-Appellees.*
Appeal from the United States District Court for the Southern District of New
York, Caproni, J.
Before: CALABRESI, MENASHI, and PÉREZ, Circuit Judges.
On appeal from an order and judgment of the United States District Court
for the Southern District of New York (Caproni, J.).
Plaintiff-Appellant Mansoor Hamoud Hadwan is legally a natural-born U.S.
citizen who has been stranded in Yemen for the past twelve years. Hadwan was
born in Yemen and lived some of his life in New York and California. In 2013,
Hadwan traveled to the U.S. Embassy in Sana’a, Yemen to apply for immigration
paperwork for his three children. During that visit, embassy staff retained his
Consular Report of Birth Abroad (“CRBA”) and U.S. passport. Nine months later,
the U.S. Department of State (“State Department”) notified Hadwan that it
* The Clerk of Court is respectfully directed to amend the official caption as set forth above.

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believed his CRBA and passport had been fraudulently obtained and formally
revoked both documents. That decision was arbitrary and capricious.
Additionally, for reasons not adequately explained in the record, Hadwan was not
able to attend his hearing challenging the revocation.
We hold that the State Department erred in two ways. First, the State
Department’s decision to uphold the revocation of Hadwan’s CRBA and passport
violated the Administrative Procedure Act. The decision was arbitrary and
capricious because the State Department failed to adequately consider material,
undisputed facts about Hadwan’s English language literacy. And second, the
State Department violated Hadwan’s constitutional due process rights by
revoking his documents and thus limiting his right to travel without providing
him an opportunity to be heard at a meaningful time and in a meaningful manner.
Accordingly, the judgment of the district court is REVERSED, and the decision of
the State Department to uphold the revocation of Plaintiff-Appellant’s CRBA and
passport is REVERSED. The State Department is ORDERED to return Hadwan’s
CRBA and expired passport so that he may reapply for a new passport if he so
chooses.
Judge Menashi dissents in a separate opinion.
JULIE A. GOLDBERG , Goldberg and Associates, Bronx, NY,
for Plaintiff-Appellant.
A NTHONY J. S UN (Christopher Connolly, on the brief),
Assistant United States Attorneys, for Damian Williams,
United States Attorney for the Southern District of New
York, New York, NY, for Defendants-Appellees.

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MYRNA PÉREZ , Circuit Judge:
Plaintiff-Appellant Mansoor Hamoud Hadwan is legally a natural-born
United States citizen who has been stranded in Yemen for the past twelve years.
Hadwan was born in Yemen and lived some of his life in New York and
California.1 In June 2013, Hadwan traveled to the United States Embassy in
Sana’a, Yemen (the “Sana’a Embassy”) to apply for immigration paperwork for
his three children. At some point during the several hours Hadwan spent at the
embassy that day, embassy staff retained his Consular Report of Birth Abroad
(“CRBA”) and U.S. passport. Approximately nine months later, on March 24,
2014, Hadwan received notice that the U.S. Department of State (“State
Department”) had formally revoked both his CRBA and passport because of
material, false statements on his applications for each document.2
It has been nearly twelve years since Hadwan first visited the Sana’a
Embassy. In that time, Hadwan has challenged the revocation of his CRBA and
passport, first through a State Department agency adjudication, and then through
1 See infra, pp. 5–6, for a discussion of the distinction between natural-born and naturalized citizens.
2 We refer to revocation of Hadwan’s CRBA, as we did in Hizam v. Kerry, 747 F.3d 102, 104 (2d Cir. 2014),
as an interchangeable concept to the regulatory text’s reference to “cancel[lation]” of a CRBA, see 22 C.F.R.
§ 51.62(c).

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this petition for review pursuant to the Administrative Procedure Act, 5 U.S.C. §
551, et seq. And throughout these twelve years, Hadwan has remained in Yemen.
While this case encompasses a complicated factual background and legal
framework, the actual question at issue before this Court is narrow: whether the
State Department erred in upholding the revocation of Hadwan’s CRBA and
passport. What is not at issue is any question regarding Hadwan’s citizenship.3
We hold that the State Department erred in upholding the revocation of
Hadwan’s documents in two ways. First, the State Department’s decision was
arbitrary and capricious in violation of the Administrative Procedure Act because
it failed to adequately consider material, undisputed facts about Hadwan’s
English language literacy that raised doubts as to the reliability of his alleged
confession statement. And second, the State Department violated Hadwan’s
constitutional due process rights by revoking his CRBA and passport and thus
limiting his right to travel without providing him an opportunity to be heard at a
meaningful time and in a meaningful manner. Accordingly, the judgment of the
3 See J. App’x 14 (formal revocation letter informing Hadwan that his revocation hearing “would address
only the evidence presented upon which the CRBA and passport were erroneously issued, not your
citizenship status”); id. at 20 (letter to Hadwan’s attorney informing him that the “only issue for
consideration and decision will be whether or not the Department satisfied the requirements or conditions
of the applicable passport regulations cited as the basis for its adverse action, not the citizenship status of your
client” (emphasis in original)).

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District Court is REVERSED, and the decision of the State Department to uphold
the revocation of Plaintiff-Appellant’s passport is REVERSED. The State
Department is ORDERED to return Hadwan’s CRBA and expired passport to him
so that he may reapply for a new passport if he so chooses.4
BACKGROUND
We begin with a brief discussion of Hadwan’s citizenship status, the
retention and revocation of Hadwan’s CRBA and passport, the procedural history
of this case, and important context regarding passport revocations at the Sana’a
Embassy.
I. Factual Background
According to his CRBA, Hadwan was born in Yemen in 1988 to a Yemeni
mother, Sabrah Saleh Hadwan, and U.S. citizen father, Hamoud Abbas Hadwan.
Our Constitution and statutes recognize “two sources of citizenship, and
two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649,
4 Nothing in the administrative record specifically notes that Hadwan’s passport is expired. However, a
“passport shall be valid for a period of ten years from the date of issue, except that the Secretary of State
may limit the validity of a passport to a period of less than ten years in an individual case or on a general
basis pursuant to regulation.” 22 U.S.C. § 217a. The administrative record establishes that Hadwan applied
for a passport in 2004 and does not indicate anywhere that he successfully renewed that passport before it
was revoked in 2014. See J. App’x 3. But even if Hadwan did renew his passport at some point before it
was revoked, it has been more than ten years since the formal revocation—there is no plausible reading of
the timeline where Hadwan’s passport has not expired.

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702 (1898).5 Someone in Hadwan’s situation, who is born outside of the United
States to a U.S. citizen parent, “becomes a citizen at birth only if the circumstances
of birth satisfy the statutory requirements in effect at the time of application.”
Hizam v. Kerry, 747 F.3d 102, 107 (2d Cir. 2014). Because Hadwan’s father had been
present in the United States for at least five years before his son’s birth, Hadwan
acquired U.S. citizenship at birth. See 8 U.S.C. § 1401(g).
Natural-born citizens who are born outside of the United States may obtain
a CRBA as documentation of their citizenship by submitting “satisfactory proof of
birth, identity and nationality” to a U.S. consular officer. 22 C.F.R. § 50.7(a);6 see
also 22 U.S.C. § 2705. The issuance of a CRBA “does not grant citizenship—it
simply certifies that a person was a citizen at birth,” and “[i]ssuing or revoking a
CRBA does not change the underlying circumstances of an individual’s birth and
does not affect an individual’s citizenship status.” Hizam, 747 F.3d at 107. Hadwan
obtained his CRBA from the Sana’a Embassy in 1998, when he was ten years old.
He subsequently obtained a U.S. passport in 2004.
5 A person may be a natural-born citizen constitutionally, U.S. Const. amend. XIV, § 1, or by statute, 8 U.S.C.
§ 1401(c)–(h). Not all citizenship acquired by statute is naturalization. And not all citizenship acquired at
birth comes from the Constitution and from being born within the territorial boundaries of the United
States. A person born a citizen pursuant to a statute, like Hadwan, is a natural-born citizen.
6 This opinion cites to the version of Title 22 of the Code of Federal Regulations in effect at the time of
publication, except where otherwise specified because of relevant differences from the language of the
regulations applicable at the time of Hadwan’s hearing.

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After obtaining his CRBA, Hadwan spent some of his life in the United
States. In 2013, he returned to Yemen, and on June 9, 2013, he visited the Sana’a
Embassy to apply for immigration paperwork for his three children.
The parties dispute what happened during Hadwan’s visit to the Sana’a
Embassy. The government asserts that during an interview with Diplomatic
Security Service Special Agent David W. Howell, Hadwan admitted that most of
the details on his CRBA and passport applications were false, and that Hamoud
Hadwan was not his father, but a relative who had illegally smuggled him into the
United States as a child. The government produced a statement signed by
Hadwan, Howell, and a witness identified as “Mohammed” reflecting the details
of the alleged confession. See J. App’x 39–42. Hadwan alleges that Howell
deceived him into signing this statement. It is undisputed that Hadwan left the
Sana’a Embassy on June 9, 2013, without a CRBA or passport and has been without
these documents for nearly twelve years now.
On March 24, 2014, nine months after Hadwan left the embassy, the State
Department formally notified Hadwan that his CRBA and passport had been
revoked. The State Department’s revocation letter stated that a “Department
investigation has revealed that your parents are not Hamoud Abbas Hadwan and

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Sabrah Saleh Hadwan” and that “[b]ecause there are false statements of material
fact on your application for a CRBA and because you do not have an established
claim to U.S. citizenship, your CRBA and passport are revoked pursuant to Section
361 of the Immigration and Nationality Act.” Id. at 14. The revocation letter
properly informed Hadwan of his right to request a hearing, pursuant to 22 C.F.R.
§ 51.70, et seq., and informed him that “[t]his hearing would address only the
evidence presented upon which the CRBA and passport were erroneously issued,
not your citizenship status.” Id. (emphases added).
II. Procedural History
Hadwan’s family in the United States retained an attorney, who timely
requested a hearing to challenge the revocation of his CRBA and passport. See id.
at 15.
A. Agency Proceedings
The State Department initially scheduled the hearing to occur on July 2,
2014, at the Office of Passport Services in Washington, D.C. The State
Department’s scheduling notification letter made two important legal points: that
“[t]he only issue for consideration and decision will be whether or not the
Department satisfied the requirements or conditions of the applicable passport

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regulations cited as the basis for its adverse action, not the citizenship status of your
client,” and that “22 C.F.R. § 51.71(b) permits your client to appear at the hearing
in person.” Id. at 20–21 (emphasis in original).
Hadwan’s attorney requested an adjournment until August or September,
stating that he was “attempting to obtain evidence from Yemen which has been
problematic, and may conclusively resolve the entire matter.” Id. at 62. The State
Department’s attorney did not object, and the Hearing Officer granted this request
and rescheduled the hearing for August 27, 2014. On August 7, 2014, before the
rescheduled hearing, Hadwan’s attorney requested another adjournment, noting
his continued difficulties in obtaining evidence from Yemen. The State
Department’s attorney refused to consent to this second request, informing the
Hearing Officer that there was a “general policy” of allowing only one thirty-day
continuance. Id. at 89. The Hearing Officer stated that she would “rather give him
opportunity to get full info, but if the policy is hard/fast, then we have to say no.”
Id. at 97. The State Department’s attorney responded that this was a “hard policy.”
Id.7 The Hearing Officer then denied the second request.
7 The State Department has never identified the source of this “hard policy.”

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Before discussing the August 27, 2014, hearing, it is important to explain
why Hadwan himself was unable to attend. When the State Department revokes
a citizen’s passport while the citizen is abroad, federal regulations allow it to issue
the citizen a limited validity passport in order to return to the United States. See
22 C.F.R. § 51.60(a) (explaining under what circumstances denial of a passport is
mandatory, but carving out an exception for “a passport for direct return to the
United States”); id. § 51.62(a)(2) (authorizing the State Department to “limit”
passports obtained illegally). Hadwan states that he filed three separate
applications for a limited validity passport to return to the United States to attend
his hearing, all of which were denied. Appellant’s Br. 3. It is unclear from the
record why Hadwan was unable to obtain a limited validity passport.8
8 In a Rule 28(j) letter filed shortly after oral argument in this appeal, Hadwan’s attorney attested that she
had intended to attach an affidavit from Hadwan to the original complaint in this matter that, among other
things, would have identified the specific dates of the three applications for a limited validity passport, but
had failed to include the affidavit. Such a critical oversight and the failure to correct it for more than six
years is inexcusable and potentially sanctionable conduct from a member of the bar of this Court—
especially an attorney taking responsibility for protecting client interests as important as the constitutional
and statutory rights at stake in this case. To the extent counsel’s letter can be construed as a motion to
supplement the record to include the affidavit, this motion is denied.
Nevertheless, the State Department presented no evidence to the agency or the district court
suggesting that Hadwan had not submitted such applications. Because we “view[] the evidence in the light
most favorable to the nonmoving party” on appeal from a grant of summary judgment, Murphy v. Hughson,
82 F.4th 177, 183 (2d Cir. 2023), in the absence of any countervailing evidence from the government, we
may accept Hadwan’s allegations regarding these applications as true. See also Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (“If the evidence submitted in support of the summary
judgment motion does not meet the movant’s burden of production, then summary judgment must be
denied even if no opposing evidentiary matter is presented.” (emphasis omitted) (internal quotation marks

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The hearing thus took place on August 27, 2014, without Hadwan present.
Hadwan’s attorney was never able to meet with Hadwan, communicate directly
with him, or secure evidence from Yemen, which could have included a DNA test
establishing Hadwan’s biological relationship to his U.S. citizen father or a signed
affidavit from Hadwan himself. The only evidence in the record was Hadwan’s
CRBA, Hadwan’s passport application, and the confession statement that Hadwan
alleges he was deceived into signing. See J. App’x 45.
At the hearing, Hadwan’s attorney argued that the State Department had
not met its burden to provide factual support for the revocation because the
confession statement was unreliable. Specifically, Hadwan’s attorney pointed to
the fact that the confession statement “clearly states that he does not read or write
well in English,” but nevertheless lacked “an affidavit from Mr. Howell . . . that he
and citation omitted)). We also note that the State Department’s Office of the Inspector General has found
that record-keeping related to passport issues was exceptionally poor at the Sana’a Embassy during the
events in question. Off. Evaluations & Special Projects, Off. Inspector Gen., U.S. Dep’t State, Review of
Allegations of Improper Passport Seizures at Embassy Sana’a, Yemen, ESP-19-01, at 8–9 (Oct. 2018) (the “OIG
Report”).
In addition, we note that the OIG Report found that a February 3, 2014, diplomatic cable sent from
the State Department to the Sana’a Embassy instructed embassy staff to inform citizens with revoked
passports that they could use their naturalization certificates to obtain limited validity passports in order
to travel to the United States. OIG Report 41. It is possible that the Sana’a Embassy denied Hadwan’s
requests because he did not squarely fit within this guidance owing to his status as a natural-born citizen
whose CRBA had been revoked, instead of a naturalized citizen.

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translated or somebody else translated this accurately into the Arabic language.”
Id. at 111.
The attorney went on to argue that this suggested “there’s a big question as
to whether or not this statement is accurate or whether Mr. Hadwan actually knew
what he signed.” Id. In addition to these substantive arguments, Hadwan’s
attorney also argued that it was a deprivation of Hadwan’s rights as a U.S. citizen
to revoke his CRBA and passport “without giving him the opportunity to establish
that he is a citizen and that he is the son of who he claims to be,” such as by
submitting a DNA sample. Id. at 113.
The Hearing Officer issued her findings and recommendation that the State
Department uphold the revocation of Hadwan’s CRBA and passport on March 31,
2015. She found that there was no issue of knowledge with respect to the
statement because the statement itself contains the words “[t]his document was
read to me in Arabic and I understood its contents completely,” as well as
“Hadwan’s signature and initials.”9 Id. at 144. She also noted that Hadwan had
9 The parties and the district court have treated the record imprecisely. They repeatedly frame their points
in terms of “voluntariness,” even when expressly addressing Hadwan’s arguments about knowledge. See,
e.g., Appellees’ Br. 37 (“In support of his challenge to voluntariness, [attorney] Baker [for Hadwan] argued
only that . . . there was no evidence that Hadwan understood the statement based on his limited knowledge
of English, [and] there was no affidavit from the Arabic translator.”); Hadwan v. U.S. Dep’t of State, No. 17-
CV-578, 2022 WL 1720397, at *5 (S.D.N.Y. May 27, 2022) (describing the agency’s “reject[ion of] the

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not presented any other evidence at the hearing, and that while Hadwan’s attorney
“offered to obtain a DNA sampling from his client[,] . . . none was presented at the
hearing.” Id. The Deputy Assistant Secretary for Passport Services formally
adopted this recommendation on April 7, 2015.
B. Federal Court Proceedings
Hadwan initiated this lawsuit in January 2017. After the district court
denied Hadwan’s motion to supplement the administrative record, he filed the
operative Third Amended Complaint on July 3, 2019. The Third Amended
Complaint alleges that Defendants’ interpretation of 8 U.S.C. § 1504, the statute
authorizing passport revocations, was unconstitutional and exceeded statutory
authority; that Defendants were required to apply a “clear and convincing
evidence” standard and the Administrative Procedure Act’s formal adjudication
requirements at Hadwan’s revocation hearing, and failed to do so; that Defendants
violated the Administrative Procedure Act and Hadwan’s due process rights by
relying on the allegedly coerced statement; and that Defendants’ failure to provide
argument that [Hadwan] did not understand the contents of the statement he signed” as an “unsupported
reason[] why [the] statement was involuntary”); J. App’x 210. But Appellees nowhere suggest that this
imprecision should be construed as Hadwan’s abandonment of his argument before the agency that he was
“putting . . . into question” whether the statement “was voluntarily given and knowingly [given].” J. App’x
114.

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Hadwan with written notice of his revocation or a prompt and meaningful hearing
violated his due process rights.
The district court granted the government’s motion to dismiss David
Howell as a defendant on October 3, 2019. Hadwan does not appeal this portion
of the district court’s decision.
After denying Hadwan’s motion for discovery, the district court granted
summary judgment to the government on all claims on May 27, 2022. The district
court found that Hadwan had waived most of his arguments by not presenting
them at the agency hearing—a hearing that Hadwan was not permitted to attend.
The district court also found that Hadwan had properly preserved a claim that the
government had failed to provide affidavits to establish that the statement was
properly translated. Finally, the district court found that each of Hadwan’s claims
concerning the agency hearing itself, including the claims that it should have been
conducted according to the Administrative Procedure Act’s formal adjudication
requirements and that the hearing officer should have applied a clear and
convincing evidence standard, failed on the merits.
Judgment was entered on May 31, 2022, and Hadwan filed a timely notice
of appeal.

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III. Hadwan’s Subsequent Passport Applications
As discussed supra, Hadwan has been unable to return to the United States
since his CRBA and passport were first retained in 2013. At oral argument in this
appeal, Hadwan’s attorney attested that in the nearly twelve years since then, he
has attempted to apply for a new passport at least twice—first at the Sana’a
Embassy before it closed because of the conflict in Yemen, and later at the U.S.
Embassy in Djibouti.
Because of the limited nature of the administrative record in Administrative
Procedure Act cases such as this one, and because of Hadwan’s attorney’s
aforementioned failure to attach an affidavit from Hadwan to the initial complaint,
see supra note 8, we cannot say for certain whether and how many times Hadwan
has applied for a new passport since the initial retention and revocation. However,
as the State Department’s Office of the Inspector General noted in its report
discussed infra, any such application would have been unsuccessful because
“[r]evocation is the process by which the Department invalidates the individual’s
passport; the individual cannot obtain another passport until the underlying issue
precipitating the revocation is resolved.” Off. Evaluations & Special Projects, Off.

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Inspector Gen., U.S. Dep’t State, Review of Allegations of Improper Passport Seizures
at Embassy Sana’a, Yemen, ESP-19-01, at 6 (Oct. 2018) (the “OIG Report”).
IV. Subsequent Investigations into Passport Revocations at the Sana’a
Embassy
Finally, we note that Hadwan’s case is far from the first time a federal court
has been asked to examine the actions of Howell and other State Department staff
at the Sana’a Embassy with respect to passport revocations in 2013 and 2014. See,
e.g., Alzokari v. Pompeo, 973 F.3d 65 (2d Cir. 2020); Ali v. Pompeo, No. 16-CV-3691,
2020 WL 2312626 (E.D.N.Y. Apr. 30, 2020).
The OIG Report, which is referenced in Hadwan’s operative complaint,
provides a detailed description of a pattern of wrongful passport revocations at
the Sana’a Embassy in that period. We take judicial notice of this document. See
Cangemi v. United States, 13 F.4th 115, 124 n.4 (2d Cir. 2021) (taking judicial notice
of a government report); see also Rynasko v. N.Y. Univ., 63 F.4th 186, 191 n.4 (2d Cir.
2023) (explaining that we may take judicial notice of documents from official
government websites); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002) (indicating that a court may take judicial notice of documents incorporated
by reference into a complaint).

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The OIG Report summarized an investigation conducted in response to
“allegations from relatives of affected citizens regarding ‘improper confiscation’
of U.S. passports in the spring of 2013.” OIG Report 2. Specifically, the allegations
concerned “an Assistant Regional Security Officer for Investigations” who “took
possession of [these citizens’] passports and other documents they had submitted
to embassy consular officials in support of . . . requested services.” Id. While the
OIG Report itself does not identify him by name, the documents the report cites
clearly establish that the “Assistant Regional Security Officer for Investigations” is
Howell.
The OIG Report examined 31 specific examples of passport revocations
involving individuals who spoke with Howell at the Sana’a Embassy between
2012 and 2014, and found that in 30 of the 31 examples, the State Department failed
to comply with relevant standards and regulations in retaining and ultimately
revoking the passports. The OIG Report identified a range of errors that Howell
and other State Department staff committed, including failing to track and
document revocations, retaining passports for too long before issuing formal
revocations, providing inadequate notice of formal revocations, and relying on

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incorrect legal guidance from a State Department paralegal when considering
whether to retain and confiscate passports. See id. at 8–17.
The findings in this report were not made public until long after Hadwan’s
agency hearing and thus were not relevant to the State Department’s decision to
uphold the revocation of Hadwan’s CRBA and passport. However, as we explain
infra, these findings provide important context for the due process issues that
plague Hadwan’s case. See Alzokari, 973 F.3d at 68 n.6 (noting that “during his
tenure at the United States Embassy in Sana’a, Yemen,” “Special Agent Howell
has obtained strikingly similar statements” indicating that the signatory, who later
asserted he did not understand the statement, had been smuggled into the United
States by an individual who falsely claimed the signatory was his child).
Hadwan alleges that he is individual #31 in the OIG Report. The OIG Report
specifically found that there were “no particularized national security concerns”
with respect to any of the 31 individuals. OIG Report 21.
DISCUSSION
We reverse the judgment of the district court and the State Department’s
decision to uphold the revocation of Hadwan’s CRBA and passport. In doing so,
we find that the State Department erred in two ways.

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First, the State Department’s decision to uphold the revocation was arbitrary
and capricious and violated the Administrative Procedure Act. Undisputed facts
in the agency record establish that Hadwan could not read or write English, and
that the confession statement did not include any competent certification that it
was read to Hadwan in his native language. The State Department’s decision did
not adequately address these material, undisputed facts, which undermine the
reliability of the only relevant piece of evidence in the record. The State
Department thus “entirely failed to consider an important aspect of the problem.”
Alzokari, 973 F.3d at 70 (citation omitted).
And second, the State Department violated Hadwan’s constitutional due
process rights by revoking his travel documents and abridging his right to travel
without providing him with any meaningful opportunity to be heard. Because of
an unusual and confounding interaction among statutes, regulations, and written
and unwritten State Department policies, Hadwan was unable to attend his own
revocation hearing. In holding that Hadwan’s due process rights were violated,
we do not attempt to call into question the constitutionality of any specific aspect
of the State Department’s adjudication process for CRBA and passport

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revocations—we merely find that as applied to this case, that process failed to
protect Hadwan’s rights.
I. Hadwan’s Claims under the Administrative Procedure Act
First, we conclude that the State Department’s decision to uphold the
revocation of Hadwan’s CRBA and passport was arbitrary and capricious in
violation of the Administrative Procedure Act. See 5 U.S.C. § 706(2)(A). The State
Department’s decision failed to adequately address material, undisputed facts
concerning Hadwan’s English literacy and the context surrounding the alleged
confession statement. Because the confession statement itself is the only relevant
piece of evidence in the agency record, the decision to uphold the revocations was
not adequately supported.
A. Relevant Law
As with any Administrative Procedure Act claim, two sources of law are
relevant to this analysis: the Administrative Procedure Act itself and the
substantive statutes and regulations governing State Department passport
adjudications.

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1. Standard of Review and the Administrative Procedure Act
“On appeal from a grant of summary judgment involving a claim brought
under the Administrative Procedure Act, we review the administrative record de
novo without according deference to the decision of the district court.” Karpova v.
Snow, 497 F.3d 262, 267 (2d Cir. 2007).
Under the Administrative Procedure Act, we must “hold unlawful and set
aside [any] agency action” that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When reviewing
agency decisions, “‘[t]he scope of review under the “arbitrary and capricious
standard” is narrow,’ and courts should not substitute their judgment for that of
the agency.” Karpova, 497 F.3d at 267 (alteration in original) (quoting Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).
Agency decisions under the Administrative Procedure Act must “be
reasonable and reasonably explained.” FCC v. Prometheus Radio Project, 592 U.S.
414, 423 (2021). An agency’s decision “is arbitrary and capricious if the agency has
. . . entirely failed to consider an important aspect of the problem.” Alzokari, 973
F.3d at 70 (internal quotation marks and citation omitted). And our review is
bound by “the rule that judges generally must assess the lawfulness of an agency’s

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action in light of the explanations the agency offered for it rather than any ex post
rationales a court can devise.” Kakar v. U.S. Citizenship & Immigr. Servs., 29 F.4th
129, 132 (quoting Garland v. Ming Dai, 593 U.S. 357, 369 (2021)).
2. The Regulatory Framework of Passport Revocations
Under the Immigration and Nationality Act, the “Secretary of State is
authorized to cancel any U.S. passport or Consular Report of Birth . . . if it appears
that such document was illegally, fraudulently, or erroneously obtained.” 8 U.S.C.
§ 1504(a). A “cancellation . . . of any document purporting to show the citizenship
status of a person to whom it was issued shall affect only the document and not
the citizenship status of the person in whose name the document was issued.” Id.;
see also Hizam, 747 F.3d at 107–08.
The Immigration and Nationality Act’s implementing regulations establish
that the State Department “may revoke or limit” a CRBA or passport when the
document was “illegally, fraudulently or erroneously obtained from the
Department; or was created through illegality or fraud practiced upon the
Department.” 22 C.F.R. § 51.62(a)(2), (c)(1). The State Department “will send
notice in writing to any person whose . . . passport has been revoked, or whose
Consular Report of Birth Abroad has been cancelled. The notification will set forth

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23
the specific reasons for the denial, revocation or cancellation and, if applicable, the
procedures for review available under 22 C.F.R. 51.70 through 51.74.” Id.
§ 51.65(a).
Any person whose CRBA or passport is revoked may “request a hearing to
review the basis for the denial, revocation, or cancellation.” Id. § 51.70(a). Section
51.71 governs such hearings. The State Department “will name a hearing officer”
who “will make only preliminary findings of fact and submit recommendations
. . . to the Deputy Assistant Secretary for Passport Services.” Id. § 51.71(a). The
Deputy Assistant Secretary makes the final determination based on the
recommendation from the hearing officer. See id. § 51.74. The “person requesting
the hearing may testify in person, offer evidence . . . , present witnesses, and make
arguments at the hearing.” Id. § 51.71(d). “Formal rules of evidence also do not
apply; however, the hearing officer may impose reasonable restrictions on
relevancy, materiality, and competency of evidence presented.” Id. § 51.71(e).
“The hearing officer may not consider any information that is not also made
available to the person requesting the hearing, the Department, and made a part
of the record of the proceeding.” Id. And finally, “[i]f any witness is unable to

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24
appear, the hearing officer may, in his or her discretion, accept an affidavit or
sworn deposition testimony of the witness.” Id. § 51.71(f).
In addition to formal revocations, the State Department’s Foreign Affairs
Manual in effect at the time of Hadwan’s revocation created a process allowing
consular officials to “retain” a citizen’s CRBA or passport upon a suspicion of
fraud. OIG Report 5.
B. Analysis
In ignoring several material, undisputed facts concerning Hadwan’s English
literacy and the circumstances surrounding the confession statement, the State
Department “entirely failed to consider an important aspect of the problem.”
Alzokari, 973 F.3d at 70 (citation omitted). Hadwan’s attorney pointed to the
following undisputed facts at the agency hearing: (1) Hadwan cannot read or write
in English; (2) because of his English language illiteracy, Hadwan could not have
prepared the statement himself; (3) the record contained absolutely no context,
outside of the disputed statement itself, for why and how the statement was
prepared; (4) the statement is not accompanied by any sworn testimony from
Howell explaining as such; and (5) the statement is not accompanied by any sworn

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25
testimony or certification to show that it was accurately translated to Arabic for
Hadwan. See J. App’x 110–11.
Taken together, these undisputed facts presented a compelling “big
question as to whether or not this statement is accurate or whether Mr. Hadwan
actually knew what he signed.” Id. at 111 (In re Hadwan Mansour Abbas Hadwan
Hearing Tr. 7:11–:18 (Statement of Howard L. Baker)). The hearing transcript and
the State Department’s written decision entirely fail to answer that question.
Contra Dissenting Op. 4–7.
After hearing Hadwan’s attorney’s argument, the hearing officer asked only
a few follow-up questions. In response to the suggestion that the statement could
have been coerced, she asked, “So you have no information from him on what
transpired that day or from his perspective what happened?” Id. at 118. And after
Hadwan’s attorney represented that he had spoken with Hadwan’s family about
what transpired at the Sana’a Embassy, the hearing office asked, “And I guess you
don’t know with whom . . . he communicated . . . at the Embassy?” Id. at 119.
Finally, following Hadwan’s attorney’s rebuttal focusing on the State
Department’s lack of evidence, the hearing office inquired after how many
children Hadwan has and whether he is married. Id. at 121–23. This brief

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26
questioning constitutes essentially the entire hearing record. The hearing officer
did not ask any questions of Hadwan’s attorney or the State Department regarding
the circumstances of Hadwan’s interview or the characteristics of the confession
statement itself. As Hadwan’s attorney pointed out on the record at the hearing,
the State Department presented “nothing further than this [confession]
statement.” Id. at 122 (In re Hadwan Mansour Abbas Hadwan Hearing Tr. 18:4–:7
(Statement of Howard L. Baker)).
The only answer the State Department provided to the question of whether
Hadwan “knew” what he signed stemmed, circularly, from the text of the
confession statement itself. In the written decision, the hearing officer noted that
because the statement attests that “[t]his document was read to me in Arabic and
I understood its contents completely” and “bears Mr. Hadwan’s signature and
initials,” Hadwan “did understand the content of the confession.” Id. at 144. This
reasoning is insufficient for two reasons.
To begin, an argument that a statement in a foreign language was not signed
knowingly is not disproven merely by pointing to the content of the statement
itself. Contract law does establish that as a general rule, a signatory to a document
cannot later refute the document by alleging that he did not read it. See, e.g., Upton

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27
v. Tribilcock, 91 U.S. 45, 50 (1875). But the statement in question is not a contract.
Rather than memorialize a negotiated understanding, it only purports to
memorialize information Hadwan shared orally in Arabic, which he then
supposedly relied on State Department agents to set forth in English. Testimony
or an affidavit from Howell or a translator might have solved the problem of the
confession statement’s reliability—but, as discussed supra, the State Department
submitted nothing of the kind.
Relatedly, the confession statement itself contains facial discrepancies that
the State Department has never adequately addressed. No party disputes that the
handwritten signature on the last page of the confession statement is Hadwan’s,
or that it is identical to his actual signature on other documents in the record.
However, the substance of the confession statement is contained entirely on the
first three pages, which bear only the handwritten initials “H.H.” See J. App’x 39–
41. The “H.H.” is written in handwriting that is obviously very different from
Hadwan’s actual signature on the last page of the confession statement. And more
importantly, Hadwan signed the document as “Mansoor Hadwan,” which does
not match the initials “H.H.” at all. It is unclear why Hadwan would sign a
document as “Mansoor Hadwan,” when said document purports to show that his

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28
actual name is “Hadwan Mansour Abbas Hadwan.” Id. at 39. These
inconsistencies are obvious from the face of the confession statement itself, and in
failing to address them in its decision, the State Department acted in an arbitrary
and capricious manner.
The dissenting opinion nevertheless contends that Hadwan offered “no”
affirmative “evidence” to contradict the knowing and voluntary nature of the
confession statement. Dissenting Op. 5. That view flips our task on its head. On
the arbitrary-or-capricious standard, we focus on whether the agency properly
supported its action. See J. App’x 20 (agency’s letter explaining that “[t]he only
issue for consideration and decision will be whether or not the Department satisfied
the requirements or conditions of the applicable passport regulations cited as the basis
for its adverse action” (altered emphases)). An agency’s decision is unsupported
where the evidence before it was “not enough to justify, if the trial were to a jury,
a refusal to direct a verdict.” Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of
Governors of Fed. Rsrv. Sys., 745 F.2d 677, 684 (D.C. Cir. 1984) (quoting Ill. Cent. R.R.
v. Norfolk & W. Ry., 385 U.S. 57, 66 (1966)). Just so here. The undisputed issue of
Hadwan’s English literacy, along with the discrepancies in the signature and
initials that appear in the confession statement, defeat the view that the agency’s

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29
decision was “reasonable and reasonably explained.” See Prometheus Radio Project,
592 U.S. at 423; cf. Dissenting Op. 7.10
Because of the State Department’s failure to adequately address these
significant issues in the record, we cannot “reasonably . . . discern[]” “the agency’s
path.” State Farm, 463 U.S. at 43 (citation omitted). The State Department’s
decision is unsupported by the factual record that was before it. Its decision was
thus arbitrary and capricious, and we reverse it pursuant to 5 U.S.C. § 706(2)(A).
II. Hadwan’s Claims under the Due Process Clause of the Fifth
Amendment
The State Department also violated Hadwan’s procedural due process
rights under the Fifth Amendment of the U.S. Constitution. Due process
“provides that certain substantive rights—life, liberty, and property—cannot be
deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Hadwan’s CRBA and passport
conferred upon him a constitutionally protected interest in his right to travel. By
revoking these documents without providing Hadwan with any meaningful
10 The dissenting opinion also notes that “the level of detail the statement contained suggests that it was
authentic.” Dissenting Op. 9. While an agency might take into account the specificity of evidence before
it to assess reliability, see id. (collecting cases), where the agency did not consider other material indicia that
a statement is unreliable, its detailed nature cannot, without more, suffice to conform the agency’s decision
to the Administrative Procedure Act.

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30
opportunity to be heard, the State Department deprived Hadwan of that interest
without due process of law.
A. Relevant Law
To prevail on a procedural due process claim, Hadwan “must identify a
constitutionally protected property or liberty interest and demonstrate that the
government has deprived [him] of the interest without due process of law.”
Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir. 2001).
1. Standard of Review
When a district court grants the government summary judgment on a due
process claim, “[w]e review that grant de novo, construing the facts in the light most
favorable” to the plaintiff. Karpova, 497 F.3d at 270. “Summary judgment is only
appropriate when there is no genuine issue as to any material fact, making
judgment appropriate as a matter of law.” Id.
2. The Right to Travel and Due Process
The constitutionally protected interest at issue in this case is the right to
travel, which “is a part of the ‘liberty’ of which the citizen cannot be deprived
without the due process of law under the Fifth Amendment.” Kent v. Dulles, 357
U.S. 116, 125 (1958). “The denial of a passport, given existing domestic and foreign

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31
laws, is a severe restriction upon, and in effect a prohibition against, world-wide
foreign travel.” Aptheker v. Sec’y of State, 378 U.S. 500, 507 (1964). Because the
revocation of Hadwan’s passport implicates a constitutionally protected liberty
interest, “the Due Process Clause applies.” Loudermill, 470 U.S. at 541. The only
“question [that] remains [is] what process is due.” Morrissey v. Brewer, 408 U.S.
471, 481 (1972).
a. The Mathews v. Eldridge Framework
“The fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Due process
“is not a technical conception with a fixed content unrelated to time, place and
circumstances.” Id. at 334 (quoting Cafeteria & Rest. Workers Union, Loc. 473 v.
McElroy, 367 U.S. 886, 895 (1961)). In determining what kind of protections “the
particular situation demands,” a court must consider “three distinct factors: [f]irst,
the private interest . . . ; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the Government's interest.” Id. at

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32
334–35. When an actual hearing is required, “[t]he liberty interest and legal issues
involved determine the kind of hearing necessary.” Karpova, 497 F.3d at 270.
Under the Mathews v. Eldridge due process framework, passport
adjudication requires a delicate balancing act because of the significant private and
government interests at stake. The “private interest that will be affected by the
official action,” Mathews, 424 U.S. at 335, is weighty because access to a passport is
an important “liberty interest protected by the Due Process Clause of the Fifth
Amendment.” Weinstein, 261 F.3d at 140. On the other hand, the government’s
interest in limiting or revoking passports can be high as well, and the potential for
“damage to national security or foreign policy of the United States” is “the single
most important criterion in passport decisions.” Haig v. Agee, 453 U.S. 280, 298
(1981).
b. Due Process Balancing in State Department Passport
Revocations
State Department regulations and policies establish a carefully constructed
adjudication system that, in most situations, adequately balances these significant
competing interests.
To start, in recognition of the significant national security interests at stake,
the adjudicatory process does not entitle any passport holder to the type of

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33
“pretermination evidentiary hearing” that the Due Process Clause demands in
some situations. Goldberg v. Kelly, 397 U.S. 254, 261 (1970) (citation omitted); see
also Loudermill, 470 U.S. at 542. And the Foreign Affairs Manual allows State
Department staff to temporarily retain a CRBA or passport without a hearing upon
a mere suspicion of fraud. OIG Report 5, 24. The State Department can formally
revoke CRBAs or passports before providing a hearing, and it need only provide
notice of the formal revocation. See 22 C.F.R. §§ 51.62, 51.65. Still, due process
requires an ex post hearing at which the person deprived of his passport has a
meaningful opportunity to be heard.
The regulations governing the actual hearings balance the significant
interests of both the government and the CRBA or passport holder. “[T]he person
requesting the hearing may testify in person, offer evidence in his or her own
behalf, present witnesses, and make arguments at the hearing.” Id. § 51.71(d). The
current version of the regulations establishes that at any hearing, the “burden of
production is on the [State] Department,” while the “burden of persuasion is on
the person requesting the hearing, to prove by a preponderance of the evidence
that the Department improperly revoked the passport . . . or cancelled the
Consular Report of Birth Abroad.” Id. § 51.71(h).

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34
When a passport holder is overseas at the time of the revocation, this
balancing act becomes even more complex because the private interest at stake is
even greater. If a passport holder’s travel documents are revoked while they are
outside of the United States, the passport holder may well be unable to re-enter
the country, which would constitute a much more significant incursion on the
right to travel. However, even in these situations of heightened private interest,
the State Department’s adjudication system adequately protects due process rights
in most situations through other safeguards.11 These safeguards include the
discretion to allow for multiple continuances or accept affidavits or sworn
deposition testimony in lieu of witness testimony. See id. §§ 51.70(e), 51.71(f).
But most importantly, the regulatory and policy framework creates multiple
mechanisms to facilitate a passport holder’s ability to attend their revocation
hearing in person. Under the current version of the hearing regulations, “if the
person requesting the hearing is overseas,” the hearing shall take place “at the
appropriate U.S. diplomatic or consular post.” Id. § 51.71(b). The language
11 We do not “conce[de] that Hadwan has not shown that the procedures the agency followed created an
‘unacceptably high’ risk of an erroneous deprivation” simply because we do not observe systemic issues
with the State Department’s adjudication process. See Dissenting Op. 19 (quoting Francis v. Fiacco, 942 F.3d
126, 143 (2d Cir. 2019)). We are required to examine the facts of Hadwan’s particular case. Here, the State
Department upheld the revocation of a U.S. citizen’s CRBA and passport without affording him a
meaningful opportunity to contest that revocation in violation of the Due Process Clause.

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35
allowing for hearings to take place overseas was not added until 2018. See
Passports, 83 Fed. Reg. 21872, 21875 (May 11, 2018) (codified at 22 C.F.R. § 51.71
(b)). Even before this additional language was added, though, the State
Department was able to facilitate passport holders’ ability to attend their hearings
in person by issuing limited validity passports for direct return to the United
States. As discussed supra, regulations allow the State Department to issue limited
validity passports in certain situations to allow direct return to the United States.
See 22 C.F.R. § 51.60(a) (explaining where denial of a passport is mandatory, but
carving out an exception for “a passport for direct return to the United States”); id.
§ 51.62(a)(2) (authorizing State Department to “limit” passports obtained illegally).
Indeed, in similar revocation cases arising out of the Sana’a Embassy in 2013,
the State Department did in fact issue such limited validity passports for this
purpose. See, e.g., Omar v. Kerry, No. 15-cv-01760, 2016 WL 617449, at *1 (N.D. Cal.
Feb. 16, 2016) (“Plaintiff was stranded in Yemen for 13 months before he was
provided a written notice of the basis for his passport revocation and granted a
temporary passport to return home to the United States.”), vacated sub nom. Omar
v. Pompeo, No. 15-cv-01760, 2018 WL 4191416 (N.D. Cal. Aug. 16, 2018).

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36
B. Analysis
Because of the substantial liberty interest that limiting Hadwan’s right to
travel implicates, the constitutional guardrails of the Due Process Clause require
the State Department to provide at least a post-deprivation hearing to contest the
revocations. In effectively barring Hadwan from attending this hearing, the State
Department violated Hadwan’s due process rights. It failed to provide him with
an opportunity to be heard at a meaningful time and in a meaningful manner.
1. Hadwan’s Due Process Claim Has Not Been Waived
As an initial note, while the district court correctly found that certain claims
in this case had been waived, Hadwan’s due process claim was not. First, Hadwan
was not required to raise his constitutional due process claim before the agency.
When “constitutional questions are in issue, the availability of judicial review is
presumed.” Califano v. Sanders, 430 U.S. 99, 109 (1977). Because Hadwan properly
“exhausted the full set of available administrative review procedures, failure to
have raised his constitutional claim would not bar him from asserting it later in a
district court.” Mathews, 424 U.S. at 329 n.10.
And second, we reject any suggestion that Hadwan did not preserve this
claim in his pleading to the district court. Counts One and Four of Hadwan’s Third

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37
Amended Complaint properly suggest that the State Department’s hearing
process violated his due process rights.
2. Hadwan’s Due Process Claim Succeeds on the Merits
Because he was not able to attend his own revocation hearing or even
participate meaningfully in making his arguments, Hadwan was not afforded an
“opportunity to be heard at a meaningful time and in a meaningful manner.”
Mathews, 424 U.S. at 333 (internal quotation marks and citation omitted). The State
Department thus infringed on a constitutionally protected liberty interest—his
right to travel—without due process.
For reasons not well-explained in the administrative record, Hadwan’s
three separate requests for a limited validity passport to return to the United States
for his hearing were denied. As Hadwan’s attorney suggested at his revocation
hearing, these denials may have occurred because unlike many citizens whose
passports are revoked while overseas, Hadwan is a natural-born citizen, not a
naturalized citizen. See J. App’x 115–16; see also Hizam, 747 F.3d at 107 (describing
differences between citizenship acquired at birth and citizenship acquired later
through naturalization). The State Department has acknowledged that its own
formal guidance to the Sana’a Embassy instructed staff to “notify bearers of

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38
revoked passports who held valid citizenship evidence, i.e., naturalization
certificates, that they might obtain limited validity passports in their true names.”
OIG Report 41.
Sana’a Embassy staff retained Hadwan’s CRBA and passport during the
course of the investigation. Had Hadwan been able to keep his CRBA while the
formal revocation decision was pending, he could have used the CRBA to obtain
a limited validity passport to attend the hearing. See 22 U.S.C. § 2705(2) (providing
that a CRBA “shall have the same force and effect as proof of United States
citizenship as certificates of naturalization or of citizenship”). But because the
Sana’a Embassy staff retained both documents, Hadwan was unable to present
any documents attesting to his citizenship status in an application for a limited
validity passport.
With Hadwan himself unable to attend, or even to communicate with his
attorney to effectively prepare his case, his hearing was not held at a “meaningful
time and in a meaningful manner.” Matthews, 424 U.S. at 333 (citation omitted).
The State Department had multiple tools at its disposal to afford Hadwan a
reasonable opportunity to develop the administrative record and effectively state
his case. The State Department could have granted him a limited validity

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39
passport, granted his attorney’s request for a second continuance, or made use of
any of the discovery tools from 22 C.F.R. § 51.71(f) to request a deposition or
affidavit from Howell, the purported witness “Mohammed,” or Hadwan himself.
While we prescribe no particular process that the State Department must
follow, see Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
548–49 (1978), we hold it to its obligation to conform its adjudications to the
minimum requirements of the Due Process Clause. Cf. Dissenting Op. 20–21. The
dissenting opinion asserts that the State Department satisfies this standard even
when it conducts a hearing as perfunctory as the one accorded Hadwan. See id.
12–23. But the Constitution requires not only an opportunity to challenge a
revocation, but a “meaningful” one. See Mathews, 424 U.S. at 333 (quoting
Armstrong, 380 U.S. at 552).
Hadwan’s CRBA and passport were revoked nearly twelve years ago. In
that time, he has never been given a meaningful opportunity to contest this
revocation, even though the OIG Report found “there were no particularized
national security concerns” related to Hadwan himself. OIG Report 21. We hold

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40
that the State Department’s adjudication did not accord Hadwan due process, and
accordingly, we reverse.
CONCLUSION
We hold that the State Department committed two errors in this case. First,
its decision to uphold the revocation of Hadwan’s CRBA and passport was
arbitrary and capricious because it entirely failed to consider material, undisputed
facts. And second, the State Department’s adjudication process in Hadwan’s case
was constitutionally inadequate because he was never offered a hearing at which
he could be present and plead his case in a meaningful manner.
Subsequent regulatory and policy changes may well have remedied the
constitutional deficiency in the State Department’s passport adjudication system
that we observe in this case. As noted supra, the current version of 22 C.F.R. §
51.71(b) allows revocation hearings to take place overseas “at the appropriate U.S.
diplomatic or consular post.” And in its response to the OIG Report, the State
Department committed itself to issuing updated guidance on the “circumstances
in which individuals whose passports are retained, confiscated, or revoked while
overseas are entitled to limited validity passports to return to the United States.”
OIG Report 24.

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41
These subsequent policy changes, however, are of no help to Hadwan, who
has remained in Yemen for nearly twelve years. To remedy these violations of
Hadwan’s rights under the Administrative Procedure Act and the Fifth
Amendment of the U.S. Constitution, we reverse the State Department’s decision
to uphold the revocation and order the State Department to return his CRBA and
expired passport. Hadwan is thus free to use his CRBA to apply for a new passport
if he chooses.
For the foregoing reasons, we REVERSE the judgment of the district court,
REVERSE the State Department’s decision to uphold the revocation of Hadwan’s
passport, and ORDER the State Department to return Hadwan’s CRBA and
expired passport so that he may reapply for a new United States passport without
prejudice if he so chooses.

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22-1624
Hadwan v. United States Department of State
MENASHI , Circuit Judge, dissenting:
This case is straightforward. The U.S. Department of State
obtained a signed statement from Mansoor Hamoud Hadwan that
Hadwan’s actual parents were not the parents he identified on his
applications for a passport and a Consular Report of Birth Abroad.
Based on the signed statement, the State Department determined that
Hadwan had fraudulently obtained those documents, so it
confiscated the passport and the CRBA. The State Department sent
Hadwan a letter notifying him of the revocation, providing its reasons
for doing so, and informing him that he could request a hearing to
contest the revocation. Hadwan then retained counsel who requested
the hearing. Hadwan’s counsel had four months following that
request to obtain evidence, to submit a brief in support of Hadwan,
and to prepare arguments for the hearing. The State Department even
postponed the hearing by eight weeks at the request of Hadwan’s
counsel to allow more time to obtain evidence. At the hearing,
Hadwan’s counsel raised what he saw as the central issue in the case:
whether Hadwan had knowingly and voluntarily signed the
statement.
During the hearing—and, indeed, throughout the nearly eleven
years that followed—Hadwan produced no evidence to support his
claim that he did not knowingly and voluntarily sign the statement.
He did not even offer an affidavit providing his account of why he
signed it. The record contained only one piece of evidence: the
statement itself. It is unsurprising that—based on the content and
character of the statement, and given the lack of contrary evidence
from Hadwan—the hearing officer upheld the State Department’s
revocation decision.

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2
According to today’s opinion, however, the hearing officer’s
decision was arbitrary and capricious because she “entirely failed to
consider” the issue of whether Hadwan knowingly and voluntarily
signed the statement. Ante at 24. And because Hadwan “was not able
to attend his own revocation hearing or even participate meaningfully
in making his arguments,” the State Department violated the
Constitution of the United States. Id. at 37.
Both conclusions are wrong. The hearing officer considered
Hadwan’s argument that he did not knowingly and voluntarily sign
the statement—exploring that issue throughout the hearing—and she
even identified the issue as a “major question” she answered in her
written decision. App’x 110-11, 118, 144. The hearing officer rejected
the argument because she determined that the statement was
authentic and because Hadwan “did not submit any additional
evidence or statement.” Id. at 144. Her decision was neither arbitrary
nor capricious. And far from depriving Hadwan of constitutional due
process, the State Department provided him with a clear statement of
its reasons for revoking his documents and a meaningful opportunity
to contest that decision through counsel at a hearing. The Constitution
does not demand that the State Department provide more than that
notice and opportunity to be heard.
Neither the Administrative Procedure Act nor the Due Process
Clause authorizes a federal court to micromanage the State
Department’s procedures for revoking a passport or to countermand
its decision because the court would have reached a different
conclusion. But that is what today’s opinion does—going so far as to
lecture the State Department that it should have used various
discretionary “tools at its disposal” to conduct its hearing in a way
that no law requires. Ante at 38. There is no justification for such an
intervention into State Department procedures. I dissent.

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3
I
“The scope of review under the ‘arbitrary and capricious’
standard is narrow and a court is not to substitute its judgment for
that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983); see Const. Pipeline Co., LLC v. N.Y. State
Dep’t of Env’t Conservation, 868 F.3d 87, 102 (2d Cir. 2017) (“Under the
arbitrary-and-capricious standard, [a] reviewing court may not itself
weigh the evidence or substitute its judgment for that of the agency.”)
(internal quotation marks omitted). Even when the agency’s
reasoning is of “less than ideal clarity,” we will uphold the agency’s
decision as long as “the agency’s path may reasonably be discerned.”
State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. Ark.-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)). “In other words, so long as
the agency examines the relevant data and has set out a satisfactory
explanation including a rational connection between the facts found
and the choice made, a reviewing court will uphold the agency action,
even a decision that is not perfectly clear.” Karpova v. Snow, 497 F.3d
262, 268 (2d Cir. 2007).
When we apply the arbitrary-and-capricious standard to
determine whether the outcome of an agency adjudication had
“needed factual support”—which the majority claims was lacking
here—“there is no substantive difference between what it requires
and what would be required by the substantial evidence test.” Ass’n
of Data Processing Serv. Orgs. v. Bd. of Governors of Fed. Rsrv. Sys., 745
F.2d 677, 683-84 (D.C. Cir. 1984) (emphasis omitted). We may vacate
the agency decision only if the factual support was so lacking as to
justify the equivalent of a directed verdict—that is, the evidence was
“not ‘enough to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn is one of fact for the

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4
jury.’” Id. at 684 (alteration omitted) (quoting Ill. Cent. R.R. Co. v.
Norfolk & W. Ry. Co., 385 U.S. 57, 66 (1966)).
Under this deferential standard of review, the district court did
not err in holding that the State Department’s revocation decision was
neither arbitrary nor capricious. Far from “entirely fail[ing] to
consider an important aspect of the problem,” State Farm, 463 U.S. at
43, the hearing officer directly considered Hadwan’s argument that
he did not sign the statement knowingly and voluntarily. She rejected
the argument based on the character and content of the signed
statement—which was the only evidence in the record—and
provided a reasoned explanation supported by the evidence.
A
The majority concludes that the State Department “entirely
fail[ed] to answer th[e] question” of whether Hadwan’s signed
statement was “accurate or whether Mr. Hadwan actually knew what
he signed.” Ante at 25. That is wrong. Both the hearing transcript and
the hearing officer’s written decision show that the hearing officer
considered Hadwan’s argument and rejected the argument based on
the evidence in the record.
Start with the hearing. Hadwan’s administrative counsel,
Howard Baker, raised the issue of voluntariness at the outset of the
hearing when he said “[t]he first issue essentially relates to this
allegedly voluntary statement. … [T]here’s a major question here of
whether or not Mr. Hadwan knows the content of this paper that he
signed, allegedly, voluntarily.” App’x 110-11. Baker further argued
that Hadwan “was intimidated and he had no idea what he
signed …. That’s basically the issue in this case, … a question of
whether or not this so-called voluntary statement was voluntarily
given and knowingly giv[en], and I’m putting that in … question.” Id.

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5
at 114; see also id. at 118 (“I’m putting into question the allegedly
voluntary statement.”).
The hearing officer responded to this argument. She asked
Baker whether he had any “information from [Hadwan] on what
transpired that day or from his perspective what happened.” Id. at
118. Baker conceded that “from him, directly, no.” Id.; see also id. at 119
(the hearing officer asking Baker if he “kn[ew] with whom” Hadwan
“communicated … at the Embassy”).
The majority attempts to minimize the hearing officer’s focus
on the knowing and voluntary character of the statement by stating
that she “asked only a few follow-up questions.” Ante at 25. But the
inquiry focused on these initial questions not because the hearing
officer was uninterested in the issue but because Baker offered no
evidence to cast doubt on the record evidence showing that the
statement was knowing and voluntary. The hearing officer pressed
him repeatedly to provide an alternative account of the statement
from Hadwan’s perspective, but Baker did not even introduce an
affidavit from Hadwan stating that he did not knowingly and
voluntarily sign. The hearing officer asked Baker for information
regarding how and why Hadwan signed the statement, and Baker
had nothing to offer. When the State Department’s counsel asked
whether Baker planned to submit any documents, Baker responded
that not only did he “have no documents” but a DNA test was “the
only thing [he]’d like to introduce.” App’x 124. (emphasis added).
Baker even admitted to the hearing officer that he did not know
whether Hadwan had made the statement knowingly and
voluntarily. “I don’t know if it was voluntary or if he was under
duress, under coercion, under fear or if he was just tricked,” he said,
making clear that Baker offered only speculation about why Hadwan
signed it. Id. at 118.

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6
The State Department, by contrast, responded to that
speculation with concrete reasons for the hearing officer to find the
statement to be legitimate. The State Department noted that
“Mr. Howell, the special agent, does not have the authority to decide
to revoke a passport” and that “the decision is made by the Office of
Legal Affairs, within Passport Services, wh[ich] reviews evidence that
a special agent [presents] or any other evidence that may be
presented.” Id. at 120. And the State Department rebutted Hadwan’s
argument about voluntariness by identifying characteristics of the
statement that supported its authenticity. The State Department
noted that the document identifies his relatives not only by name but
also by photograph, and it “states that this document was read to me
in Arabic and I understood the contents completely” and that “I asked
Special Agent Howell to prepare this document [for] me.” Id. at 109-
10, 120-21. The State Department addressed Baker’s argument that the
statement lacked a separate affidavit explaining that it had been
translated into Arabic. The State Department observed that a special
agent signed the last page of the statement, and “the fact that someone
signed this would suggest that they are admitting that they prepared
the document, as it says, within the confession itself.” Id. at 121.
The hearing officer later issued a written decision resolving
Hadwan’s challenge—which further demonstrates that she
considered the arguments raised at the hearing. The very first line of
the written decision acknowledges that “[d]uring the hearing,
Mr. Baker stated ‘So, there’s a major question here of whether or not
Mr. Hadwan knows the content of this paper that he signed,
allegedly, voluntarily.’” Id. at 144. The hearing officer rejected that
argument because of the specific language and characteristics of the
statement and because, as the hearing officer emphasized, “Petitioner
did not submit any additional evidence or statement.” Id.

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7
The hearing officer did not “entirely fail[] to consider an
important aspect of the problem.” State Farm, 463 U.S. at 43. She
considered Hadwan’s argument but upheld the revocation based on
the evidence before her. She “examine[d] the relevant data” and set
out “a rational connection between the facts found and the choice
made.” Karpova, 497 F.3d at 268.
B
The majority faults the hearing officer for relying on the content
of the signed statement to uphold the revocation decision. According
to the court, “an argument that a statement in a foreign language was
not signed knowingly is not disproven merely by pointing to the
content of the statement.” Ante at 26.
But that does not describe what the hearing officer did. The
hearing officer’s written decision—as well as the hearing transcript—
establish that the hearing officer relied both on the characteristics of
the statement and on the absence of evidence from Hadwan that the
statement was fraudulently obtained. See App’x 118, 144. Imagine that
we were considering a breach of contract case in which the contract
had been introduced into evidence. No one doubts that to survive
summary judgment, the plaintiff would need to “do more than
simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “[R]ather than merely ‘deny the moving party’s
allegations in a general way,’ the party opposing summary judgment
‘must present competent evidence that creates a genuine issue of
material fact.’” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d
Cir. 2022) (quoting FEC v. Toledano, 317 F.3d 939, 950 (9th Cir. 2002)).
If the plaintiff introduced no evidence to dispute the authenticity of
the contract, a court would properly conclude that there was no

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8
genuine dispute as to whether the contract was valid. “[U]nsupported
allegations”—especially such inconsistent speculation as Baker
offered at the hearing—“do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
That familiar scenario is what happened here. The hearing
officer and the government each asked whether Baker had anything to
substantiate his speculation that the statement was involuntary.
Hadwan failed to provide any such evidence, and even now—more
than a decade later—Hadwan has still failed to introduce so much as
an affidavit supporting his argument that he signed the statement
unknowingly or involuntarily. He has not even provided the DNA
test that Baker said he wanted to introduce in 2014—even though the
State Department has repeatedly said it would consider such
evidence if Hadwan ever gets around to producing it.1
Because Hadwan submitted no evidence, the hearing officer
appropriately evaluated the authenticity of the statement based on
the only evidence in the record: the statement itself. In evaluating the
statement, the hearing officer did not, as the majority claims, point
only to the sentence asserting that the statement had been translated
into Arabic. Ante at 26. The hearing officer also identified specific
1 See App’x 650 (the government stating in its memorandum in support of
the motion for summary judgment that “the Department of State remains
willing to facilitate and review a properly submitted DNA sample at any
time”); Appellee’s Br. 38 n.6 (“As the government informed Hadwan when
this action was before the district court, the government is willing to
facilitate and review a properly submitted DNA sample at any time.”); Oral
Argument Audio Recording at 22:32 (the government agreeing during oral
argument in this appeal that “it is willing to facilitate and consider a DNA
test at any time” but “is not aware of any attempts” on Hadwan’s part to
submit such a test).

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9
characteristics of the statement—such as the level of detail the
statement contained about Hadwan’s applications for other persons
and the true identities of his parents—and concluded that such
characteristics supported the conclusion that the statement was
authentic.
That is a sensible and familiar way of determining the
authenticity of a statement. Factfinders often rely on the content of a
statement to determine whether it is credible, and courts have said
that it is appropriate to do so. See, e.g., Shunfu Li v. Mukasey, 529 F.3d
141, 147 (2d Cir. 2008) (“A fact finder may understandably find
detailed testimony more convincing than vague testimony.”); Mitchell
v. City of Tulsa, 90 F. App’x 273, 275 (10th Cir. 2003) (identifying “the
detail of the report” among “indicia that the report was credible”);
United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000) (including “the
degree of detail given” among “indicia of reliability”); Ray v. Turner,
587 F.2d 1187, 1195 (D.C. Cir. 1978) (“Reasonable specificity in
affidavits connotes a quality of reliability.”); see also Strickler v. Greene,
527 U.S. 263, 304 (1999) (Souter, J., concurring in part and dissenting
in part) (describing testimony that “recalled detail after detail” as
bearing “one of the inherent hallmarks of reliability”). In fact, Baker
himself urged the hearing officer to consider the content of the
statement when he argued that, given that content, it would not have
made sense for Hadwan to sign it voluntarily. See App’x 121-22. That
argument—in which the content of the statement calls into question
its authenticity—is coherent. It is just as coherent as the argument that
the hearing officer adopted: the level of detail the statement contained
suggests that it was authentic.2
2 The majority suggests that the reasoning of the hearing officer was
“circular[].” Ante at 26. Circular reasoning occurs when, in support of a

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10
Because the hearing officer reasonably determined that the
statement was authentic, she could rely on the statement to address
the “material, undisputed facts” that the majority incorrectly claims
were ignored. Ante at 24. The statement notes that Hadwan could not
read or write well in English, but it also says that it was translated into
Arabic for Hadwan to understand. The State Department did not
provide a separate certification of the translation, but the statement
includes the signature of a special agent “admitting that they
prepared the document.” App’x 121. Such an attestation serves the
same function as a certification.
The majority additionally claims that the State Department
never addressed “facial discrepancies” in the statement—namely,
that Hadwan’s signature on the last page does not match the initials
on the first three pages because the handwriting is “obviously very
different.” Ante at 27. The majority opinion does not explain what
distinctive features of the handwriting it has identified. Nothing
about the handwriting on the signature page appears to be obviously
different from the first three pages—except to the extent that a
signature written in cursive would be expected to differ from initials
rendered in block-lettered print. Nor is there anything obviously
implausible about Hadwan using the initials “H.H.” The statement
refers to him as “Hadwan Mansour Abbas Hadwan aka Mansour
Hamoud Hadwan” on every page. App’x 39-42.
Perhaps some expert in handwriting analysis might be able to
explain what the majority is thinking, but there is no expert report in
challenged premise, the argument invokes the premise itself. Here, the
challenged premise was that Hadwan was aware of the content of the
statement when he signed it, and it was in no way circular for the hearing
officer to rely on the content and characteristics of the statement to evaluate
that premise.

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11
the record. Hadwan’s actual lawyer never raised anything resembling
the majority’s new handwriting argument to the hearing officer.
Baker argued that Hadwan had not signed the statement knowingly
and voluntarily, but he never suggested that someone other than
Hadwan had initialed the pages. And he did not introduce any
evidence—such as the handwriting analysis the majority has now
performed for the first time on appeal—to support that claim.
We do not normally address arguments that a party failed to
raise during an administrative proceeding. See Ry. Lab. Execs.’ Ass’n v.
United States, 791 F.2d 994, 1000 (2d Cir. 1986) (“It is beyond cavil that
a petitioner’s failure to assert an argument before an administrative
agency bars it from asserting that argument for the first time before a
reviewing court.”).3 In any event, the hearing officer could not have
acted arbitrarily and capriciously by failing to consider a purported
discrepancy that Hadwan never identified and that is not, in fact,
obvious from the face of the statement.
The majority acknowledges that “an agency might take into
account the specificity of evidence before it to assess [its] reliability.”
Ante at 29 n.10. And the majority’s own argument relies on the
“facial” characteristics of the statement to question its authenticity,
which itself is an acknowledgment that the authenticity of the
statement may be evaluated with reference to such characteristics. So
there is no real disagreement that the statement itself was evidence
3 See also Sims v. Apfel, 530 U.S. 103, 110 (2000) (stating that “the rationale
for requiring issue exhaustion is at its greatest” in cases “involv[ing] an
adversarial proceeding”); United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 37 (1952) (“Simple fairness … requires as a general rule that
courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against objection
made at the time appropriate under its practice.”).

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12
that Hadwan knowingly and voluntarily admitted that he
fraudulently obtained his passport and CRBA. The majority weighs
the evidence differently than the hearing officer did, but that is
precisely what a reviewing court “may not” do when evaluating
agency action under the arbitrary-and-capricious standard. Const.
Pipeline Co., 868 F.3d at 102.
The majority incorrectly suggests that this dissent “flips our
task on its head” by observing that Hadwan offered no evidence to
support his position. Ante at 28. In fact, when the record contains
substantial evidence to support the agency’s decision—as the record
did here, in the form of a detailed and signed statement that
purported to have been translated—it is fatal that the challenger “did
not offer any evidence to undermine the [agency’s] findings” during
the adjudication. Kaljaj v. DHS, 206 F. App’x 87, 89 (2d Cir. 2006).
The “truth,” as the district court correctly concluded, “is that
[Hadwan’s] Administrative Counsel argued a limited number of
unsupported reasons why Plaintiff’s statement was involuntary, the
agency rejected them, and nothing now compels a different result.”
Hadwan v. U.S. Dep’t of State, No. 17-CV-578, 2022 WL 1720397, at *5
(S.D.N.Y. May 27, 2022). Hadwan received the revocation letter on
March 24, 2014; the hearing took place on August 27, 2014; and the
hearing officer’s decision was issued on April 9, 2015. At no point
during this year-long process did Hadwan submit any evidence to
substantiate his claim that the statement he apparently signed, with
all its detail, was not made knowingly and voluntarily. The record
before the hearing officer included (1) the signed statement on which
the State Department had relied in revoking Hadwan’s passport and
CRBA, which included the signature of a special agent, and
(2) concerns that Hadwan’s counsel raised at the hearing, without any
supporting evidence, that Hadwan may not have understood the

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13
statement. The hearing officer reasonably decided to credit the signed
statement and to uphold the revocation. That decision was neither
arbitrary nor capricious.
II
Perhaps dissatisfied with reliance on the more mundane
arbitrary-and-capricious standard, the majority goes on to hold that
the State Department additionally violated the Constitution of the
United States. 4 The majority explains that the State Department
violated the Constitution in some mysterious way that does not “call
into question the constitutionality of any specific aspect of the State
Department’s adjudication process” but that nevertheless “failed to
protect Hadwan’s rights” based on a purportedly “unusual and
confounding” confluence of events. Ante at 19-20. Its holding makes
no sense.
The APA provides that a court will hold unlawful and set aside
agency action that is “contrary to constitutional right.” 5 U.S.C.
§ 706(2)(B). The Due Process Clause of the Fifth Amendment provides
that “[n]o person shall be … deprived of life, liberty, or property,
without due process of law.” U.S. Const. amend. V. To determine
whether a hearing satisfied the guarantees of the Clause, a court will
balance (1) the private interest at stake,5 (2) the risk of an erroneous
4 But see Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,
J., concurring) (“[I]f a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter.”).
5 The majority describes the right to travel as a “substantial liberty
interest,” ante at 36, but the Supreme Court has emphasized that while the
“constitutional right of interstate travel is virtually unqualified,” the “‘right’
of international travel has been considered to be no more than an aspect of
the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment”

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14
deprivation of that interest, and (3) the government’s interest.
Mathews v. Eldrige, 424 U.S. 319, 335 (1976). The majority
acknowledges that the government has a significant interest in
passport revocations due to national security and foreign policy
considerations. See ante at 32-33. And the majority recognizes that
“State Department regulations and policies establish a carefully
constructed adjudication system that, in most situations, adequately
balances” the private and public interests. Id. at 32.
In this case, Hadwan received notice of the reasons for the
revocation and a hearing at which he could contest the revocation,
was represented by counsel, and had the opportunity to present
evidence. Despite all this process, the majority somehow concludes
that the State Department “never offered a hearing at which he could
be present and plead his case in a meaningful manner.” Id. at 40. That
is wrong again.
A
“The essence of due process is the requirement that ‘a person
in jeopardy of serious loss be given notice of the case against him and
opportunity to meet it.’” Mathews, 424 U.S. at 348 (alteration omitted)
(quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72
(1951) (Frankfurter, J., concurring)). The “fundamental requirement
of due process is ‘the opportunity to be heard’ … at a meaningful time
and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552
and may “be regulated within the bounds of due process.” Haig v. Agee,
453 U.S. 280, 307 (1981) (emphasis added) (quoting Califano v. Aznavorian,
439 U.S. 170, 176 (1978)). Accordingly, the Supreme Court has warned that
courts should not treat the “right to travel within the United States and the
right to travel abroad … indiscriminately.” Regan v. Wald, 468 U.S. 222, 241
n.25 (1984).

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15
(1965) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). As applied
to a person whose passport has been revoked, “[t]he Constitution’s
due process guarantees call for no more than … a statement of
reasons and an opportunity for a prompt postrevocation hearing.”
Haig, 453 U.S. at 310.
The question here is whether the State Department provided
Hadwan with a statement of its reasons and a meaningful
opportunity to contest the revocation at a postrevocation hearing. The
answer is obviously yes.
First, the State Department notified Hadwan in writing of its
reasons for revoking his passport and CRBA. Five months before the
hearing, the State Department sent Hadwan a letter explaining its
revocation decision. The State Department also provided Baker with
the brief and exhibits that it submitted to the hearing officer.6 These
documents explain that based on Hadwan’s signed statement, the
State Department believed that “Hadwan’s passport and CRBA were
obtained illegally, fraudulently or erroneously, based on false
statements of material fact.” App’x 46. The State Department thereby
provided a statement of reasons.
Second, Hadwan had a meaningful opportunity to respond to
the State Department’s revocation decision before, during, and after
the hearing. Before the hearing, Hadwan could have submitted
evidence in support of his arguments. Baker requested a hearing on
April 21, 2014—four months before the hearing occurred. On May 29,
2014, the State Department notified Baker of the original hearing date,
instructed him to submit any brief in support of Hadwan by June 23,
6 The exhibits included Hadwan’s passport and CRBA applications, the
revocation letter, and Hadwan’s signed statement.

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16
2014, and provided instructions for submitting the brief. When Baker
requested a continuance to allow him more time to obtain evidence,
the State Department postponed the hearing by eight weeks and
extended the deadline to submit Hadwan’s brief to August 13, 2014.
The hearing officer then invited Baker during the hearing to
provide additional information. See id. at 118 (hearing officer asking
Baker whether he had “information from [Hadwan] on what
transpired that day or from his perspective what happened”); id. at
119 (hearing officer asking Baker “who [Hadwan] got that
information from [and] who he communicated with at the Embassy”).
The State Department’s counsel also asked whether Baker intended
to submit any documentation.
Even after the hearing, Baker could have sought to supplement
the record before the hearing officer issued her decision. More than
six months passed between the hearing and the issuance of the
decision. In fact, Baker asked during the hearing whether he could
submit a DNA test “before a decision is reached.” Id. at 124. But
Hadwan never did so—and he still has not.
All told, the State Department provided Hadwan with (1) a
clear statement of reasons for revoking his passport and CRBA, (2) an
opportunity for him and his counsel to obtain evidence in support of
his arguments, and (3) a hearing during which he was represented by
counsel and invited to present evidence. Because Hadwan received
“the opportunity to be heard at a meaningful time and in a
meaningful manner,” Mathews, 424 U.S. at 333 (internal quotation
marks omitted), the State Department did not deprive Hadwan of his
constitutional right to due process.

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17
B
The majority nevertheless insists that the hearing was
constitutionally inadequate because Hadwan could not attend in
person. The majority says that “[h]ad Hadwan been able to keep his
CRBA while the formal revocation decision was pending, he could
have used the CRBA to obtain a limited validity passport to attend
the hearing.” Ante at 38. But the State Department believed Hadwan’s
CRBA application contained “false statements of material fact.”
App’x 14. The Constitution did not require the State Department to
allow Hadwan to retain a document that it determined was
fraudulently obtained and to use that fraudulent document to obtain
a limited validity passport. If Hadwan were entitled to retain the
fraudulently obtained CRBA until the conclusion of his hearing, he
would effectively have the right to a prerevocation hearing—and even
the majority recognizes that the Constitution does not require that. See
ante at 32-33. The Due Process Clause required that Hadwan receive
“no more than … a statement of reasons and an opportunity for a
prompt postrevocation hearing.” Haig, 453 U.S. at 310 (emphasis
added). And the Supreme Court has declined to hold that even “these
procedures are constitutionally required.” Id. at 310 n.62.
The State Department regulations provided that Hadwan could
request a hearing and that he could attend in person “or with or by
his designated attorney.” 22 C.F.R. § 51.71(b) (2008). Hadwan
retained Baker to represent him, and Baker had four months from the
date he requested a hearing to obtain evidence, to submit a brief on
behalf of Hadwan, and to prepare arguments for the hearing. At the
hearing, Baker had the opportunity to argue that Hadwan had not
signed the statement knowingly and voluntarily, and both the
hearing officer and the State Department asked whether he had any
other evidence to introduce. Hadwan thus had a meaningful

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18
opportunity to present his case to the State Department through
counsel.
Hadwan has made no showing that the lack of his physical
presence deprived him of such an opportunity. We generally “require
parties to give the agency an opportunity to address an issue before
seeking judicial review of that question.” Carr v. Saul, 593 U.S. 83, 88
(2021). At no point before or during the hearing did Baker raise the
issue of Hadwan’s physical attendance.7 Baker never mentioned that
Hadwan had applied for a limited validity passport or asked the State
Department to delay the hearing until Hadwan could attend. In fact,
when Baker first requested a continuance until August or September,
he told the State Department that “any date you choose should be fine
with us.” App’x 62. The State Department had no reason to believe
7 The majority excuses Hadwan from the requirement to raise his due
process argument to the agency. See ante at 36. We normally “decide
whether to require issue exhaustion based on ‘an analogy to the rule that
appellate courts will not consider arguments not raised before trial courts.’”
Carr, 593 U.S. at 88 (quoting Sims, 530 U.S. at 108-09); see also Sandoz Inc. v.
Becerra, 57 F.4th 272, 278-79 (D.C. Cir. 2023). This is not a case in which the
constitutional challenge “fall[s] outside the adjudicators’ areas of technical
expertise.” Carr, 593 U.S. at 92. To the contrary, the agency “will be in a
better position than federal courts or Congress itself to design procedural
rules adapted to … the tasks of the agency involved.” Vt. Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 525 (1978) (quoting FCC v. Schreiber,
381 U.S. 279, 290 (1965)). It would not have been futile for Hadwan to raise
his due process claim before the State Department because it had the
authority to implement additional procedures. See, e.g., 22 C.F.R. § 51.71(e)
(2008) (providing that the hearing officer “may, in his or her discretion,
accept an affidavit from or order a deposition of [a] witness” who “is unable
to appear in person”). And the hearing in this case resembled “an
adversarial suit in which parties are expected to identify, argue, and
preserve all issues.” Carr, 593 U.S. at 96 (Thomas, J., concurring in part and
concurring in the judgment).

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19
that allowing Hadwan to present arguments through counsel would
render the proceeding constitutionally inadequate. A reviewing court
must “review[] the agency’s choice of procedures … on the basis of
the information available to the agency when it made the decision to
structure the proceedings in a certain way.” Vt. Yankee, 435 U.S. at 547.
We do not engage in “Monday morning quarterbacking” by
examining in hindsight “the record actually produced at the
hearing.” Id.
Even so, the record here reveals that Hadwan’s physical
presence would not have made a difference. Hadwan did not even
submit an affidavit in his own defense; in no way did the outcome of
the hearing turn on Hadwan’s physical absence. We have held that
“[a] litigant has ‘no constitutional right to be present, or to testify, at
his own civil trial,’” Davidson v. Desai, 964 F.3d 122, 129 (2d Cir. 2020)
(quoting Latiolais v. Whitley, 93 F.3d 205, 208 (5th Cir. 1996)), because
the “constitutional right of ‘access to the courts’ … is satisfied by an
‘opportunity to consult with counsel and to present his case to the
court,’ which typically can be accomplished even when the litigant is
not physically present at the courthouse,” id. (quoting Perotti v.
Quinones, 790 F.3d 712, 721 (7th Cir. 2015)). Given that holding, it is
anomalous for our court now to declare that the Constitution requires
the physical presence of a litigant at his administrative passport
revocation hearing.
“The requirements of due process are ‘flexible and call for such
procedural protections as the particular situation demands.’”
Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (alteration omitted)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The majority in
this case recognizes that “the State Department’s adjudication system
adequately protects due process rights in most situations.” Ante at 34.
That amounts to a concession that Hadwan has not shown that the

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20
procedures the agency followed created an “unacceptably high” risk
of an erroneous deprivation. Francis v. Fiacco, 942 F.3d 126, 143 (2d
Cir. 2019). Nor has Hadwan shown the “probable value, if any,” of
his presence at the hearing. Mathews, 424 U.S. at 335; see also Doolen v.
Wormuth, 5 F.4th 125, 134 (2d Cir. 2021) (rejecting a due process claim
because the “value of requiring” the proposed procedure was
“minimal”).
It has been more than a decade since the hearing, and Hadwan
still has not submitted any evidence supporting his claims. “[W]e
cannot uncritically assume without proof that [the proposed
procedure] would be more advantageous to the accused.” DeMichele
v. Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 792 (2d Cir. 1999).
But that is what the majority does today.
C
The majority suggests that—to facilitate Hadwan’s
participation in the hearing—the State Department could have issued
him a limited validity passport, granted another continuance, or
collected evidence on Hadwan’s behalf. See ante at 38-39. Perhaps the
State Department had the discretion to do such things, but no law
required it.8 There is no justification for this court to micromanage
the hearing procedures of the State Department by requiring it to take
8 See 22 C.F.R. § 51.62(a)(2) (2008) (providing that the State Department
may “limit a passport,” instead of revoking it, when “[t]he passport has
been obtained illegally, fraudulently or erroneously”); id. § 51.70(c)
(providing that a hearing will be held within sixty days after the State
Department receives a request for a hearing “unless the person requesting
the hearing asks for a later date and the department and the hearing officer
agree”); id. § 51.71(e) (providing that a hearing officer “may, in his or her
discretion, accept an affidavit from or order a deposition of the witness”
when that “witness is unable to appear in person”).

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21
actions that the law makes discretionary. “Agencies are free to grant
additional procedural rights in the exercise of their discretion, but
reviewing courts are generally not free to impose them if the agencies
have not chosen to grant them.” Vt. Yankee, 435 U.S. at 524. “[I]t is long
since settled that a reviewing court is ‘generally not free to impose’
additional judge-made procedural requirements on agencies that
Congress has not prescribed and the Constitution does not compel.”
Garland v. Ming Dai, 593 U.S. 357, 365 (2021) (quoting Vt. Yankee, 435
U.S. at 524).
The majority claims that it has prescribed “no particular
process that the State Department must follow.” Ante at 39 (citing Vt.
Yankee, 435 U.S. at 548-49). But a reader could be forgiven for
understanding the majority to hold that the State Department was
required to issue Hadwan a limited validity passport for him to
attend the hearing in person.9 After all, the majority concludes that
the “adjudication process in Hadwan’s case was constitutionally
inadequate because he was never offered a hearing at which he could
be present and plead his case in a meaningful manner.” Ante at 40
(emphasis added). But even if the majority has prescribed the choice
9 See, e.g., ante at 10 (“Hadwan states that he filed three separate
applications for a limited validity passport to return to the United States to
attend his hearing, all of which were denied. It is unclear from the record
why Hadwan was unable to obtain a limited validity passport.”) (citation
omitted); id. at 35 (“[T]he State Department was able to facilitate passport
holders’ ability to attend their hearings in person by issuing limited validity
passports for direct return to the United States.”); id. at 37 (“For reasons not
well-explained in the administrative record, Hadwan’s three separate
requests for a limited validity passport to return to the United States for his
hearing were denied.”); id. at 38 (“Had Hadwan been able to keep his CRBA
while the formal revocation decision was pending, he could have used the
CRBA to obtain a limited validity passport to attend the hearing.”).

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22
of one of three discretionary procedures,10 it would represent the
same sort of lawless imposition on the agency.
The majority speculates that Hadwan may have been denied a
limited validity passport “[b]ecause of an unusual and confounding
interaction among statutes, regulations, and written and unwritten
State Department policies.” Ante at 19. The purportedly unexpected
result, as the majority explains it, is that “bearers of revoked passports
who held valid citizenship evidence, i.e., naturalization certificates, …
might obtain limited validity passports” based on that evidence of
citizenship. Id. at 37-38. Hadwan, however, could not rely on a
naturalization certificate because his evidence of citizenship was his
CRBA, which the State Department confiscated because it determined
that Hadwan had fraudulently obtained it. 11 “Had Hadwan been
10 See ante at 38-39 (“The State Department could have granted him a
limited validity passport, granted his attorney’s request for a second
continuance, or made use of any of the discovery tools from 22 C.F.R.
§ 51.71(f) to request a deposition or affidavit from Howell, the purported
witness ‘Mohammed,’ or Hadwan himself.”).
11 The majority describes Hadwan as a “natural-born citizen,” relying on
the decision of the Supreme Court in United States v. Wong Kim Ark, 169 U.S.
649 (1898). See ante at 5-6 & n.5. Wong Kim Ark, however, held that a “person
born out of the jurisdiction of the United States” who obtains citizenship
based on “the enactments conferring citizenship upon foreign-born
children of citizens” has “become a citizen by being naturalized.” Wong Kim
Ark, 169 U.S. at 702-03; see also Rogers v. Bellei, 401 U.S. 815, 839-41 (1971)
(Black, J., dissenting) (“Although those Americans who acquire their
citizenship under statutes conferring citizenship on the foreign-born
children of citizens are not popularly thought of as naturalized citizens, the
use of the word ‘naturalize’ in this way has a considerable constitutional
history. … All means of obtaining American citizenship which are
dependent upon a congressional enactment are forms of naturalization.”).
Perhaps Wong Kim Ark was wrong on this point, see, e.g., Paul Clement &

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23
able to keep his CRBA while the formal revocation decision was
pending,” the majority says, “he could have used the CRBA to obtain
a limited validity passport to attend the hearing.” Ante at 38. The
majority suggests that—by invalidating the decision of the State
Department and holding that it was required to exercise its
discretionary authority in this case—it is fixing this purported
oversight in the regulatory framework.
That sort of regulatory policymaking is not this court’s
business. See Ming Dai, 593 U.S. at 365; Vt. Yankee, 435 U.S. at 524. Not
only is there no legal justification for it, but it is simply not
“confounding” that the State Department would confiscate a CRBA it
has determined was fraudulently obtained. Congress has authorized
the State Department to do precisely that. See 8 U.S.C. § 1504(a)
(authorizing the Secretary of State to cancel a CRBA “if it appears that
such document was illegally, fraudulently, or erroneously obtained”
and providing the CRBA holder with a postrevocation hearing); see
also 22 C.F.R. § 51.62(c)(1). Congress has placed oversight of a
fraudulently obtained naturalization certificate in a different agency.
See 8 U.S.C. § 1453 (authorizing the cancellation of a naturalization
certificate “if it shall appear to the Attorney General’s satisfaction that
such document … was illegally or fraudulently obtained” and
providing the certificate holder “at least sixty days in which to show
cause why such document or record should not be canceled”);
8 C.F.R. § 342.1.12
Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. F.
161 (2015); 8 U.S.C. § 1101(a)(23), but that is what it said.
12 But see 22 C.F.R. § 51.46 (authorizing the State Department to “retain
evidence” of U.S. citizenship “submitted in connection with an application

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These statutes are not unconstitutional. 13 Contrary to the
majority opinion, the Due Process Clause does not override § 1504(a)
to require the State Department to allow a bearer to retain a
fraudulently obtained CRBA in order to acquire still more official
documents from the United States. In this context, “the [g]overnment
is not required to hold a prerevocation hearing” that leaves the
document in the bearer’s hands but may instead adjudicate
entitlement to the document after it is revoked. Haig, 453 U.S. at 309.
As it was, Hadwan received notice and an opportunity to be
heard. He received a statement of the State Department’s reasons for
revoking his passport and CRBA, several months to prepare
arguments and evidence, and a hearing during which his counsel
could present arguments and evidence to challenge the revocation.
Hadwan—and, apparently, the majority—may not like the outcome
of that hearing. But “[t]he Constitution’s due process guarantees call
for no more than what has been accorded here.” Id. at 310.
* * *
The majority relies on extra-record evidence—including an
investigation by the inspector general of the State Department that
occurred years after Hadwan’s hearing—to suggest that the outcome
of the hearing might be different if it were held today. But these
subsequent developments have no bearing on whether the State
Department, given the record before it, acted arbitrarily and
for a passport … when it deems it necessary for anti-fraud or law
enforcement or other similar purposes”).
13 Cf. L. Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017) (“Because the
administrative actions plaintiffs challenged were incapable of vitiating
citizenship, plaintiffs were not entitled to denaturalization’s pre-
deprivation judicial process.”).

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25
capriciously or denied Hadwan due process. “This sort of Monday
morning quarterbacking” exceeds the scope of our review. Vt. Yankee,
435 U.S. at 547.
As it happens, it is not even necessary to distort the applicable
law in order to provide Hadwan with a new opportunity to establish
his entitlement to a passport or a CRBA. He may simply apply for a
new passport. His administrative counsel raised this possibility
during the hearing when he said he “wanted to have … on the
record” that Hadwan could “come back and make an application.”
App’x 125. The hearing officer responded “[t]hat’s absolutely
correct.” Id. And the government has maintained that position a
decade later in this appeal. The government stated at oral argument
that Hadwan may file a “new application,” and the State Department
would “look to it with fresh eyes” such that “the prior affidavit is not
preclusive.” 14 Perhaps if he submits a new application Hadwan
might finally identify evidence supporting his claim that the signed
statement was involuntary. Or maybe he will produce the DNA test
that he promised a decade ago.
This case, however, concerns whether the State Department
acted arbitrarily, capriciously, or unconstitutionally when it upheld
the revocation of Hadwan’s passport and CRBA based on the record
before it. There is no serious argument that it did. Accordingly, I
dissent.
14 Oral Argument Audio Recording at 25:20.

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