Category Archives: Court Cases

US Embassy Ottawa: Canadian Court Sets Aside FSN Sandra McDonald’s $240K Default Judgment For Now

– Domani Spero

Via Ottawa Citizen, a wrongful dismissal case filed by Sandra McDonald, a former Foreign Service National (local employee) of the U.S. Embassy in Ottawa.

Sandra McDonald, now in her early 60s, worked at the embassy for nearly 30 years as one of its locally engaged staff. She sued for wrongful dismissal after she was fired in early 2011 while on long-term disability with complex regional pain syndrome.

McDonald’s lawyer, Bijon Roy, said she was “very disappointed” with the judge’s decision and that it might force her to fight the case all over again.

In July 2012, Ontario Superior Court Justice Heidi Polowin issued a default judgment in McDonald’s favour after U.S. officials failed to file a statement of defence or contest the case in court. The embassy had been served notice of the case through Canada’s Department of Foreign Affairs and International Trade, and was kept informed of the matter on a regular basis. McDonald’s story also received high-profile coverage from Ottawa media, including the Citizen.

In court this week, embassy officials, seeking to overturn the default judgment, said they had “explicable and plausible” reasons for not having responded to McDonald’s lawsuit, and a “good defence” to be made against it. According to court documents, the Americans claimed that they’d “lost the documentation”, “could not open the email attachment”, that the documentation was “inadvertently directed to the wrong office at the State Department”, and that it was “not indexed correctly”.

Superior Court Justice Timothy Ray questioned how U.S. State Department officials could claim not to have been aware of McDonald’s default judgment. “Its embassy apparently failed to see the front page of the Ottawa Citizen (on) Sept. 11, 2012,” the judge commented.
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Ray said he would set aside Polowin’s default judgment on conditions the embassy pay McDonald’s legal costs and put the $240,000 award in a court trust within the next 60 days.

Read in full: U.S. Embassy wins bid to set aside wrongful dismissal judgment.

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Michael T. Sestak Visa Scandal: Two Co-Conspirators Sentenced to 10 Months and 16 Months

– Domani Spero

On November 6, 2013, USDOJ announced that Michael T. Sestak, the former Nonimmigrant Visa Section Chief at the US Consulate General in Ho Chi Minh City had pleaded guilty to “receiving more than $3 million in bribes” in exchange for U.S. visas.  Two women were also charged in the visa fraud-bribery conspiracy:  Hong Vo, 27, an American citizen, and Truc Tranh Huynh, 29, a Vietnamese citizen.  On September 24, 2013, US authorities arrested Binh Vo, a U.S. citizen and another of the remaining alleged co-conspirators at the Washington Dulles International Airport.  The last one of the alleged co-conspirators, Anhdao Thuy Nguyen, 30, a Vietnamese citizen, and Bihn Vo’s wife remains at large.

On Febraury 4, 2014, court records indicate that the case of ANHDAO T. NGUYEN was “directly reassigned to Calendar Committee as she has been a fugitive for more than 90 days.”

On March 7, 2014, BINH TANG VO was arraigned on Counts 1ss,2ss-14ss,15ss-27ss, and 28ss before Judge John D. Bates. Plea of NOT GUILTY was entered by BINH TANG VO as to all Counts of the Superseding Information.

In the case of  Vietnamese national Truc Tranh Huynh, court records indicate that sentencing was held onFebruary 21, 2014 before Judge John D. Bates as to Ms. Huynh (5) on Count 23s. Defendant was sentenced to Sixteen (16) months of incarceration and Twelve (12) months of Supervised Release; Special Assessment of $100. Defendant committed; commitment issued.  She previously entered a plea agreement in October last year.

According to court records, defendant Hong Vo also pleaded guilty to one count of a criminal information arising out of her participation in a wide spread visa fraud scheme.  The Government’s memorandum in aid of sentencing filed by U.S. Attorney Ronald C. Machen, Jr. on the case of Ms. Vo says in part:

 The defendant’s participation in this multi-million dollar scheme implicated both the national security and foreign policy interests of the United States and, thus, warrants an appropriately strong sentence. The need for proper deterrence is especially important where, as here, individuals could be drawn into a scheme in the hope of procuring a financial windfall. A 16 month sentence would have a real deterrent effect and will serve as a clear warning to anyone tempted to defraud the U.S. State Department’s visa-issuing procedures for financial gain.

Court records indicate that this case had also been resolved:

Sentencing held on 3/7/2014 as to HONG CHAU VO (4), before Judge John D. Bates on Count 1ss: Defendant sentenced to Ten (10) months split sentence: Seven (7) and a half months of incarceration and Two (2) and a half months of Home Detention; Thirty (30) months of Supervised Release. Special Assessment of $100.00. All counts of Indictment and the Superseding Indictment are dismissed as to this defendant. Defendant remains in 3rd Party custody.

On March 10, 2014, defendant Michael T. Sestak submitted a status report on the disposition of his real properties in Phuket and Bangkok, Thailand as part of his plea agreement:

Since the last report filed on January 24, 2014, Mr. Sestak has engaged Mulvana, DeAngeli & Associates, to act as his agent in Thailand. Mr. Sestak is in the process of authorizing this firm to act on his behalf. [...] Attorneys at Mulvana, DeAngeli & Associates in Thailand have met with potential appraisers for the Phuket and Bangkok properties. Attorneys at Mulvana, DeAngeli & Associates have also spoken with potential brokers in Phuket and have several meetings planned this week with several additional brokers.

Case title: USA v. SESTAK et al; Magistrate judge case number: 1:13-mj-00463-AK

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US Consulate Ciudad Juárez Murder Trial Now On Going in El Paso

– Domani Spero

We’ve blogged previously about the US Consulate -related slayings in Ciudad Juarez in 2010.  The victims of that tragic incident were El Paso County sheriff’s detention officer Arthur Redelfs, his wife Lesley Ann Enriquez Redelfs, who worked at the U.S. Consulate in Juárez, and Jorge Salcido Ceniceros, husband of Hilda Salcido who also worked at the consulate.

El Paso Times’ Diana Washington Valdez has covered this case from the beginning. According to EPT, the jury was selected on January 31, 2014:

Jury selection gets underway today in the trial of an alleged drug cartel enforcer accused of taking part in the slayings of three people associated with the U.S. Consulate in Juárez in 2010.

Arturo “Benny” Gallegos Castrellon, who pleaded not guilty, claims in court filings that he confessed to the crime because he was tortured and his wife raped by Mexican police before he was extradited to the United States in 2012.
[…]
U.S. officials have not offered a clear motive for the three slayings in 2010, except to suggest that the killers might have confused the victims for rivals. Evidence from the trial may shed light on why the trio was attacked.

The three victims had left a children’s party in Juárez attended by consulate employees and their families, and were in two separate vehicles, Redelfs and his wife in one, and Salcido in the second vehicle. Both vehicles were white in color.

Shooters, who were also in separate vehicles, followed the two white cars and shot them up in Juárez near the Stanton Street bridge.

Read more here.

Catch up on the trial below — see links to the El Paso Times coverage:

Juarez consulate killings: Opening statements begin
02/03/2014 – The government presented opening statements this morning in the trial of Arturo “Benny” Gallegos Castrellon, an alleged drug cartel enforcer accused of taking part in the slayings of three people associated with the U.S. Consulate in Juarez in 2010.

US Consulate trial: Barrio Azteca gang member recounts killings during Juarez cartel war
02/04/2014 - A Barrio Azteca gang member gave bone-chilling testimony Monday about his role in the violence that ignited Juarez during the drug cartel wars and left among its victims a U.S.

Juarez consulate trial: FBI agent says the accused never told him he was tortured in Mexico
02/05/2014 - The defendant in a federal trial accused of conspiring to kill three people linked to the U.S. Consulate in Juarez in 2010 did not tell FBI agents that Mexican police tortured him…

Juarez consulate killings: Witness says Barrio Aztecas were trained by Zetas cartel
02/05/2014 - A Barrio Azteca gang member turned government witness testified Tuesday that his gang had received training on how to become better killers from the notorious Zetas drug cartel.

Juarez consulate trial: Relative of kingpin Vicente Carrillo Fuentes testifies
02/07/2014 – A relative of Mexican drug kingpin Vicente Carrillo Fuentes testified Thursday as a government witness in the federal trial of Arturo Gallegos Castrellon, an alleged Barrio Azteca leader accused of conspiring to kill three people with links to the U.S. Consulate in Juarez.

El Paso Barrio Azteca gang helped arm counterparts in Juarez
02/08/2014 – Barrio Azteca gang members in El Paso provided firearms and ammunition to counterparts in Juarez and used women as drug mules to smuggle heroin into the United States, said former gang members

US Consulate trial: DEA source set up secure network for Juarez cartel
02/11/2014 – A telecommunications specialist from Mexico testified Monday that he helped set up a secure radio network for the Barrio Azteca and La Linea members in 2010 that was used to relay orders to kill …

US Consulate killings trial: Witness says defendant ordered the slayings
02/12/2014 – A Barrio Azteca member who admitted taking part in the March 2010 slaying of three people with ties to the U.S. Consulate in Juarez testified Tuesday that Arturo Gallegos Castrellon gave the order…

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Joan Wadelton: Time To Fix The State Department (via WhirledView)

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– Domani Spero

We have previously posted about the case of FSO Joan Wadelton. (See Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to CongressGAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain). She is now on her tenth year of a legal dispute with the Department of State’s Bureau of Human Resources (HR). She recently guest posted at WhirledView and put her views on the record  “about how to correct the systemic failings that I have encountered over the last 10 years in the Bureau of Human Resources, the Office of Inspector General (OIG) and the Office of the Legal Advisor.” Quick excerpt below:

The pervasive lack of oversight has led to near total impunity for those guilty of incompetence, cronyism and corruption within State.  A small group of career officials has taken advantage of this to gain control of the bureaucracy’s administrative functions.  Their pernicious influence has persisted for years.

The longevity of the group has been made possible by its control of the personnel system.  Senior managers at State stay in place for years – and when they do retire, they are rehired in a lucrative pay status, allowing them to remain in senior positions for more years.   Thus, the same people turn up repeatedly in ambassadorships and assistant secretary and deputy assistant secretary jobs.

Not only does this discourage fresh thinking, it has bottled up the personnel system at the top.  With the jobs at the higher ranks endlessly filled by the same people, the cohort five or 10 years behind them in the career service cannot move up to become the next generation of leaders.  And as a consequence, many FSOs are forced to retire at the peak of their expertise.

Members of this inner circle have used their control of HR to give themselves and their friends promotions, prestigious assignments, cash bonuses and jobs for family members.  Conversely, they have used HR as a weapon against employees they dislike – including removing them from promotion lists and blocking plum assignments and cash bonuses – no matter how qualified those disfavored people might be.

Ms. Wadelton  was a Foreign Service Officer from 1980-2011.  She served in Africa, Latin America, Russia and Iraq.  In addition to assignments in the State Department, she was an advisor to the Senate Foreign Relations Committee and a director of the Office of the US Trade Representative.

Continue reading Time to Fix the State Department.

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US Embassy Greece: What Happened to Sgt Laloup’s Heart? Parents Seeking Answers File Suit

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– Domani Spero

According to a lawsuit filed by his parents, U.S. Marine Sgt. Brian LaLoup, 21, died after he attended an off-duty embassy party, on August 12, 2012. Sgt. LaLoup served as part of the Marine Corps Security Group assigned to the American Embassy in Athens, Greece. During the party, Sgt. LaLoup reportedly told a fellow service member that he was thinking about suicide and was reported to the Detachment Commander.  The lawsuit alleged that the Detachment Commander “failed to follow appropriate protocols and procedures, which required him to obtain supervision and medical treatment for Sgt. LaLoup, and instead decided to take him out for more drinking. Prior to leaving and despite being visibly intoxicated and distraught, Sgt. LaLoup was allowed to pass the guard at the entry to the chancery and enter the response room. The chancery, which had been left unsecured, is where weapons were stored. Thereafter, according to military reports, Sgt. LaLoup shot himself in the head with an embassy service weapon.”

Sergeant LaLoup enlisted in the United States Marine Corps on May 8, 2008 and was on continuous active duty from February 9, 2009 until the date of his death.  Prior to his assignment in Greece, Sgt. Laloup was posted at the US Embassy in Pretoria, South Africa.  Sgt. LaLoup reported for embassy security duty at Embassy Athens on May 20, 2012, On August 12, 2012, the United States Marne Corps informed Beverly and Craig LaLoup that their son had passed away.

The lawsuit alleged that at the time his body was returned to the United States, Plaintiffs, Sgt. LaLoup’s parents, Craig and Beverly LaLoup, were given knowingly false information about Sgt. LaLoup’s remains and as a result, “the LaLoups unwittingly buried their son without his heart.” According to Mrs. LaLoup:

1St SGT Dixon was at our home at 106 Lloyd Avenue, Downingtown, PA to have us sign more papers. During this visit, I asked him what would happen if more of Brian’s scalp was recovered. Would it be returned to us? He looked at me funny as he started to go thru his folder and said “Ma’am, what are you talking about?” I replied, the missing scalp parts. What would be done if more was recovered. He replied to me, as he was still searching for something in his folder, that the scalp is not what was missing. He even stated that he had just gone thru the folder before he came to make sure he was familiar with everything and did not recall seeing anything about missing scalp parts. We all sat there for a few moments as he continued to go thru his folder. Finally, he found what he was looking for and said, “Ma’am, that is not what was missing.” “I stated, what do you mean?” He extended to me a piece of paper as he stated it was his heart that was missing asked him why were we told it was parts of his scalp. His reply was, “that they were not going to tell us because that is not something you tell a grieving mother.” I read the document he had handed me and sure enough, it was a letter from the Dover Mortuary to Marines Casualty Office informing them “remains of the above individual are incomplete. Please obtain subsequent recovery instructions from the next of kin. Remains Summary: Non-intact body. Embalmed and autopsied in Greece. Missing heart”. It was validated by Jairo E. Fortalatin, Investigator and Authorized by AbuBakr Marzouuk, Col USAF, MC, FS.

The complaint further alleges that “in an attempt to pacify” the Laloups, the defendants and the Greek government “had a heart shipped to Dover claiming that it was Sgt. LaLoup’s missing heart” but that DNA testing revealed that the heart was not Sgt. LaLoup’s heart.

Philadelphia’s Metro reports that a letter shared through U.S. Sen. Patrick Toomey’s office quotes the then U.S. Ambassador to Greece Daniel Smith about the efforts made to prevent an autopsy.

Smith told the hospital not to autopsy LaLoup’s body, and also notified the Greek Ministry of Foreign Affairs, according to the letter. When Smith’s staff requested the hospital release LaLoup’s body on Aug. 16, they declined and said they would autopsy the body. Smith says he called the Secretary General of the Ministry of Foreign Affairs and the Chief of Staff of the Foreign Minister insisting there be no autopsy, and on Aug. 17 called again to say that an autopsy would violate the Vienna Convention.

The autopsy took place on Aug. 18. After the LaLoups told Smith on Sept. 18 that Sgt. LaLoup’s body was missing its heart, his staff interviewed the physician who performed the autopsy.

Ambassador Daniel Smith was appointed chief of mission to the U.S. Embassy in Athens in 2010.  In October last year, President Obama nominated him to be the next Assistant Secretary of State for the Bureau of Intelligence and Research (State/INR). He is currently awaiting Senate confirmation.

Last month, the Laloups reportedly added the Greek government and the Athens hospital that conducted the autopsy to the list of defendants to their lawsuit. Philly.com’s report here includes a quote from the spokesman of the  Armed Forces Medical Examiner System:

“Remains of most U.S. service members who die overseas are sent to the United States for autopsy, said Paul Stone, a spokesman for the Armed Forces Medical Examiner System. However, some countries – including Greece – maintain the right in formal agreements with the U.S. military to investigate such deaths using their own medical staff.”

The complaint is  LALOUP et al v. UNITED STATES DEPT. OF DEFENSE et al, Pennsylvania Eastern District Court, 2:2013cv07124.

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Howard v. Kerry: USCG Naples EEO Case Now a Civil Lawsuit in Federal Court

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– Domani Spero

Kerry Howard’s allegations against the former Consul General in Naples made the news last year (see NYPost – State Department swept sex scandals under the rug and Whistleblower accuses consul general of trysts with subordinates and hookers).

Kerry Howard’s LinkedIn profile indicates that she has been in Naples, Italy since January 2008.  The court document also says that she is the spouse of an FSO who was employed as Consulate General Naples’ Community Liaison Officer from February 2010 to May 2012.  Ms. Howard has now filed a lawsuit against Secretary of State John Kerry in the Eastern District of New York (Case 2:14-cv-00194-ADS-AKT):

“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion,  sex or national origin. (42 USC 2000e-2(a)  and its anti retaliation provision forbids discrimination against an employee or job applicant who inter alia has “made a charge,  assisted or participated in a Title VII proceeding or investigation. Section 2000e-3(a)

An employer which creates or tolerates a work environment  permeated with discriminatory intimidation,  ridicule and insult that is sufficiently severe or pervasive to alter the terms and conditions of an individual’s employment and which creates an abusive work environment is in violation of Title VII.”

Screen Shot 2014-01-14 at 10.36.20 PM

The NYPost currently has a screaming headline that runs, American diplomat ran consulate like party pad: suit. The report says that the official “has since been reassigned from the Italian post to a position at the Air War College in Montgomery, Alabama, which is also administered by the State Department.” Huh?

While the lawsuit is against Secretary Kerry as head of the agency, if this go to trial, there presumably will be a long list of witnesses from the who’s who at USCG Naples and US Embassy Rome a the time when this incident is alleged to have occured.  The court filing includes the names and positions of several officers in Naples, Rome and the State Department, including the then Deputy Chief of Mission in Rome, the then FLO director, and an FS couple who was alleged to have been “blacklisted” for services at post and alleged to have been subsequently “involuntarily curtailed” from Naples.

Remember last summer’s CBS scoop on allegations by OIG investigator Aurelia Fedenisn over interference of politically delicate investigations at the State Department?  According to NYT,   that report became public as a result of  … that’s right, another civil suit, this one filed in 2011 by Richard P. Higbie, a diplomatic security agent who accused the State Department of blocking his career. “His lawyers sought the department’s internal documents after Aurelia Fedenisn, a former investigator who worked on the inspector general’s report, complained that the final draft had been toned down.”   We can’t imagine what stuff will come out of this case which includes allegation that the State Department “indifference” to a senior official’s misconduct  “gave consent to the creation of working conditions for women which could be so difficult, unpleasant or intolerable that a reasonable person would feel compelled to resign.”  

In a 19-page complaint demanding jury trial, Ms. Howard asks for reinstatement, full value of compensation and provide the retroactive benefits including those incident to full year service rights to other government positions she would have received had she not been the victim of unlawful discrimination,” compensatory and liquidated damages in the amount of $300,000, and the costs and expenses of litigation including reasonable attorney’s fees and witness fees.

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US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?

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– Domani Spero

Back in August 2013, Yemen Post reported of “more than 20 known cases” of U.S. passports revoked by U.S. Embassy Sana’a in Yemen:

More than 20 known cases of Yemeni-Americans who have tried to renew their passports in Yemen have surfaced in the last four months. The Yemeni American News has learned that the usual scenario is that American citizens of Yemeni descent have had their passports taken away when they go to the American Embassy in Sana’a to either renew their passports or get a visa for an immediate relative. Not only is it common for the embassy to decline a passport renewal or disallow a visa but, in addition, citizens are having their passports confiscated.

Peter Van Buren previously blogged about the U.S. passport revocations at the U.S. Embassy in Sana’a, Yemen here and here. WaPo’s  In the Loop has a Jan.9  item about the rights groups’ warning to U.S. passports applicants visiting the embassy.

Here is what state.gov says about passport revocation:

Passport revocation may be effected when the person obtained the passport fraudulently, when the passport was issued in error, when the person’s certificate of naturalization was cancelled by a federal court, or when the person would not be entitled to a new passport under 22 C.F.R. §§ 51.60, 51.61, or 51.62.

The State Department revokes passports in accordance with Title 22 of the Code of Federal Regulations (CFR) sections 51.60-62, and 51.65. There are also several statutes under which passports may be revoked and that are incorporated into DOS’s regulations, including: 8 U.S.C. 1504 (the passport was illegally, fraudulently or erroneously obtained); 42 U.S.C. 652(k) (for non-payment of child support); 22 U.S.C. 2714 (for certain drug traffickers); 22 U.S.C. 2671(d)(3) (non-repayment of repatriation loan); and 22 U.S.C. 212a (adds authority to revoke passports of persons convicted of sex tourism). Via

You may click here for 22 CFR on the denial and restriction of passports.

There had been talks alleging “500 seized/revoked passport cases.” Our own inside source who is not authorized to speak about this matter tells us that “at least 100 passports were taken” so far in Sana’a.  We were told that most of the individuals concerned were naturalized U.S. citizens.  According to State Department rules which are not published online, individuals remain eligible for U.S. passports until their Certificate of Naturalizations are revoked.

Naturalization certificates are supposed to stand on its own and cannot be questioned.  If the State Department has negative information, it is supposed to send the information to DHS/USCIS for action. But unlike most other immigration proceedings that USCIS handles in an administrative setting, revocation of naturalization can only occur in federal court.

Here is what USCIS says on revocation of naturalization:

If a court revokes a person’s U.S. citizenship obtained through naturalization, the court enters an order revoking the persons naturalization and cancelling the person’s Certificate of Naturalization. In such cases, the person must surrender his or her Certificate of Naturalization. Once USCIS obtains the court’s order revoking citizenship and cancelling the certificate, USCIS updates its records, including electronic records, and notifies the Department of State of the person’s revocation of naturalization. 

So — if true that most of the revocation cases concerned naturalized Yemeni-Americans, is the US Embassy in Yemen performing passport revocations without prior action from the U.S. Citizenship and Immigration Service (USCIS)?  Is this a case of a new policy?  Or is this a case of a Consular Section running “wild” with “minimal supervision” an allegation made by a State Department insider to this blog?

We asked around for an official comment and could only get one from a State Department official speaking on background:

“This Department is aware of the reports concerning these passports, and the situation has been reviewed.  Regarding the Department’s policy for passport revocation, the Department may revoke a passport, regardless of location, for reasons set forth in federal law and in federal regulations.  U.S. passports are the property of the United States Government and upon revocation must be returned to the Department of State.  A passport bearer is notified of the revocation and the reasons for revocation and must surrender the passport.  Depending upon the circumstances, the bearer may be provided with a limited validity passport for a direct return to the United States.”

The State Department refused to confirm or deny the number of passport revocations to date.

In response to reports that the U.S. Embassy in Sanaa has been taking U.S. passports away from a large number of U.S. citizens in Yemen, civil rights and community organizations like the ACLU, ALC, AROC, CAIR and CLEAR have published a booklet to raise awareness about the constitutional rights of people whose passports have been taken away, or who are interviewed or “interrogated” at the U.S. Embassy in Sanaa.

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Click on image to view the PDF document

A little more digging around indicates a few court cases involving the US Embassy in Sana’a.

Abdo Hizam v. Hillary Clinton

Plaintiff Abdo Hizam brought action against defendants Hillary Clinton, the United States Department of State, and the United States of America (collectively the “State Department”) seeking a judgment declaring that he is a citizen of the United States and an order compelling the defendants to re-issue his Consular Report of Birth Abroad for a Citizen of the United States (“CRBA”) and passport.

On April 18, 2011, the State Department informed Mr. Hizam by letter of its opinion that it had committed an error in calculating the physical presence requirement for his acquisition of citizenship at birth. Subsequently, the State Department informed Mr. Hizam that his CRBA had been canceled and his passport revoked and requested the return of those documents. On May 19, 2011, he complied.

The July 27 Order found that the State Department did not have the authority to revoke Mr. Hizam’s citizenship documents and ordered the return of Mr. Hizam’s CRBA. The State Department contended that absent a stay it will suffer irreparable injury because the July 27 Order undermines its “sole discretion” to withhold passports. The Court says that “being required to comply with a court order is insufficient in and of itself to constitute irreparable harm.” In September 2012, the Court ruled that the stay is denied on the condition that Mr. Hizam not seek derivative status for his family members until an appeal, if lodged, is resolved.” The appeal is ongoing on this case.

The Hizam case was covered by NYT in 2012 here. This case bears watching as no fraud is alleged here; instead, the CRBA was issued due to the error of the adjudicating officer.

 Nashwan Ahmed Qassem v. Holder et. al. | CIVIL DOCKET FOR CASE #: 6:13-cv-06041-DGL

Complaint for writ of mandamus & declaratory judgment against Department of State, Bureau of Consular Affairs, Consular General, US Embassy, Sana’a Yemen, and Chief, Immigrant Visa Branch, US Embassy, Sana’a Yemen, Eric Holder, The United States Department of Justice, filed by Nashwan Ahmed Qassem. In October 2013, the Clerk of the Court was directed to close the case by Hon. David G. Larimer.  This case reportedly involved Embassy Sana’as  revocation of a passport and was settled by issuing the passport.

All documents sealed except for order granting motion to withdraw.

Alarir et al v. Holder et al.|  CIVIL DOCKET FOR CASE #: 1:12-cv-07781-AKH

Complaint in the nature of mandamus against Gerald Michael Feierstein, Eric H. Holder, Janice L. Jacobs, Alejandro Mayorkas, Janet Napolitano, Hillary Rodham Clinton by Abdallah Alarir aka Aiyahs, Nasser A. On or about October 18, 2012, seeks order compelling Defendants to (a) issue an immigrant visa to plaintiff Abdallah Alarir and (b) issue United States passports and Consular Records of Birth Abroad to plaintiffs Alaa AJarir and Rawan Alarir.  After a sixth request for an extension, on 10/31/2013, the Clerk was directed to close the case by Judge Alvin K. Hellerstein. The case endorsement says “A suggestion of settlement having been made, this case is dismissed, subject to restoration by either party within 30 days on notice. All pending court dates are cancelled.”

The case was settled with issuance of an immigrant visa to Abdallah Alarir and United States passports and Consular Records of Birth Abroad to Alaa Alarir and Rawan Alarir according to the dismissal order dated November 2013.

Mousa v. United States of America et. al.| CIVIL DOCKET FOR CASE #: 3:13-cv-05958-BHS

COMPLAINT filed (sealed) on November 2013 against defendant(s) United States of America, U.S. Consulate for the Country of Yemen, David Doe, John Doe by Hashed Naji Mohamed Mousa, Fekriah Abdulwahab and minor children, A.H.M., B.H.M. As of 12/05/2013, this case reportedly involving the passport applications of minor children is ongoing. Some files are sealed.

Passport Applications Pending at Post

According to 7 FAM 1368 — “If the passport applicant does not have sufficient evidence to establish a claim to U.S. citizenship, post must provide the applicant with written notification that his/her application has been denied, but will be held by post for 90 days pending submission of additional evidence. If an applicant requests additional time to submit evidence within the 90 day period, posts may grant an additional 90 days or other reasonable period of time based upon the circumstances. In general, passport applications may not remain pending at a post for more than six months.”

If passport applications have been pending at post for six months or even longer (WaPo says that some cases are pending for two years), and American citizens had to get lawyers, and go to court to compel the embassy to decide on their cases, then there is something problematic with the process. Absent an official explanation from the CA Bureau, we can only speculate on what is going on here: 1) Is there is a new policy on passport applications/revocations that the State Department is using without appropriate announcement? 2)  Is there is a new policy on passport applications/revocation that State is using specific to Yemeni-American passport applications? 3) Are there Citizenship/Passport/Fraud staffing issues at Embassy Sana’a that impacts this trend? 4) Is the lengthy waiting time and backlog due to fraud overload at post?

Isolated Cases or a New Trend?

We could not locate any new guidance publicly available on U.S. passport revocations. Is there one available  that supersedes 7 FAM 1368?  If there is one, it would have been published in the Federal Register, not just the changes but the propose changes to the rules. There appears to be several proposals for information collection related to passport applications published on the Federal Register but nothing on passport revocations.

If true that over 100 passports were taken away, revoked or pending revocation, these are no longer isolated cases but  may now constitute a trend.  In 2010, a State/OIG report on Yemen includes this:

“The failed attempt by a Yemeni-trained Nigerian terrorist to blow up a Detroit-bound jet on Christmas Eve 2009 and the Yemeni links to the U.S. Army major who, in November 2009, allegedly killed 13 of his countrymen in Fort Hood, Texas, have raised the public consciousness of Yemen as a center for terrorism. This awareness has underscored the importance to homeland security of all consular activities. Issuing a passport or visa to a terrorist is a real risk, and Embassy Sanaa works hard to make sure that their product is free of fraud.”

But if that’s the basis for this “new” trend in passport processing at post, how about  the fact that 15 of the 19 hijackers who perpetrated the 9/11 attacks were from Saudi Arabia, Egypt, Lebanon, and the UAE?  Are U.S. embassies in those countries also revoking passports of Americans of local origins? The Times Square plot involved Faisal Shahzad, an American of Pakistani origin. Shoe bomber and self-proclaimed Al Qaeda member Richard Reid is a British citizen. If there is a new passport policy, is it universally applied to every country where there were terrorist plots hatched or where the attackers trained or originated?  (A side note — A couple of years ago, the UK stripped British citizenship from 16 individuals who had dual nationality because they were considered to pose a threat to the UK. In 2011, more than 50 Australians have had their passports revoked or refused to prevent them from going overseas for “terrorist training holidays).”

But — that does not seem to be the case here or we would have heard more about this. So what is it? Why Yemen in particular? And how come this appears to be happening only in the last year or so?

Fraud Overload?

In 2010, the State Department estimated the number of U.S. citizens in Yemen at  over 55,000. According to State/OIG, U.S. citizenship is highly valued in Yemen. “Fathers can receive up to $50,000 (45 times the per capita Gross Domestic Product) as a bride price for a U.S.-citizen daughter. As a result, parents often claim children as their own who are in fact from other families, in order to fraudulently document the children as U.S. citizens and use them as a potential source of income.”

A 2009 Fraud Summary floating around the net describes Yemen as having a “pervasive fraud environment.” At that time, the embassy estimated that two-thirds of  its immigrant visa cases (IV) were fraudulent and  that the embassy considered all cases fraudulent until proven otherwise.  Post also used DNA testing and bone age testing to ensure that only qualified children of U.S.citizens receive passport benefits.  So is the passport processing time, lengthly and complicated in Yemen exacerbated by fraud overload?

Muckrock.com, by the way, has filed an FOIA of the Fraud Summary for Sanaa last year and we’re still waiting for that to show up online.

Staffing Shortages?

The American Citizen Services Unit of an embassy handles among other things Emergency Services to U.S. Citizens Abroad, and Citizenship and Nationality cases.  Due to the more complicated nature of these cases, the unit is typically staff by a mid-level officer and local employees.  The unit, almost always, depending on the workload include one entry level officer who is typically on a 3-6 month job rotation in the ACS unit.  Another component of the consular operation is the Fraud Manager, who often times, is also a first or second tour officer, complemented by local staff and in some cases a Regional Security Officer-Investigator (RSO-I). At the time of the IG inspection, the Fraud Unit was staffed by two LE staff members, a part time ARSO-I, a part-time, first-tour vice consul, and no full-time Fraud Manager.

The State/OIG 2010 report on Yemen especially noted that “staffing shortages and backlogs increase the risk to U.S. homeland security caused by pervasive fraud and the threat of terrorism.” Subsequent to the inspection, we understand that the embassy hired an eligible family member as a Fraud Manager and also hired a local fraud analyst.  The situation in Yemen has progressively become more difficult in the last several years. Sana’a has been designated a 30% danger post since 2008.  In 2013, it became a 30% hardship post.  Under the circumstances, can you imagine the staffing shortages improving significantly?

Anyway, we don’t know exactly what’s going on here except that the “situation has been reviewed.” It is doubtful that the Bureau of Consular Affairs will provide some clarity on what’s going on with passport revocations in Yemen but we think it should.  It ought to also provide guidance on how to file an appeal in revocation cases.  Embassy Yemen does not provide any instruction online on this regard.  If limited staffing at post has exascerbated  the processing backlog, perhaps CA who has tons of consular funds should consider additional temporary staffing at a nearby post to help address the problem.

Maybe State’s ace in a hole is  Haig v. Agee, (1981) which upheld the right of the executive branch to revoke a citizen’s passport for reasons of national security and the foreign policy interests of the U.S. under the Passport Act of 1926.  But – if these revocation are only happening in Yemen, might not all this end up in court as individual lawsuits or as a potential class action depending on actual number of people impacted?  

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Filed under Americans Abroad, Consular Work, Court Cases, Foreign Service, Govt Reports/Documents, Peter Van Buren, Staffing the FS, State Department, Trends, U.S. Missions

U.S. Grand Jury Indicts Indian Diplomat Devyani Khobragade (See Documents)

– Domani Spero

On January 9, a U.S. Grandy Jury indicted Indian diplomat, Devyani Khobragade for visa fraud (count one) and for false statements (count two). The U.S. Attorney’s Office for the Southern District of New York has now posted copies of the indictment and the exhibits (includes the alleged fake employment contract and alleged real employment contract).

INDICTMENT, EXHIBITS & RELATED LETTER: U.S. v. Devyani Khobragade

A U.S. government official told Reuters that the State Department accepted India’s request to accredit Ms. Khobragade at the Indian Mission to the United Nations and then asked India to waive her diplomatic immunity that the status conferred.  India reportedly denied the request which resulted in Washington asking for Ms. Khobragade’s departure from the United States.

Apparently, one of Ms. Khobragade’s attorneys told CNN late Thursday afternoon that she was still in the United States, but declined to say whether she planned to leave later. The U.S. Attorney’s Office for the Southern District of New York subsequently released the following statement:

“This Office had been advised by the State Department that, pursuant to their request, Devyani Khobragade was to have left the United States this afternoon. In a letter sent to the Court upon the filing of the Indictment of Ms. Khobragade, we stated our understanding that she had left the country. Subsequent to the filing of the letter, Ms. Khobragade’s lawyer advised that she has not, in fact, departed the U.S.”

This may end the contentious U.S.-India row but this is not the end of the case against Ms. Khobragade.  In a filing to the New York court, Manhattan US attorney Preet Bharara writes that “the charges will remain pending until such time as she can be brought to Court to face the charges, either through a waiver of immunity or the defendant’s return to the United States in a non-immune status.”

Pending charges could complicate future plans of visiting or residing in the United States as Ms. Khobragade is reportedly married to a U.S. citizen.

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Balwinder Singh aka ‘Happy’ Charged with Conspiring to Provide Material Support to Terrorism Groups in India and Pakistan

– Domani Spero

The day after Preet Bharara, the United States Attorney for the Southern District of New York, announced the arrest of  Indian diplomat Devyani Khobragade for visa fraud and false statements and caused a diplomatic row, another arrest in Reno, Nevada of Indian national  and U.S. legal resident, Balwinder Singh for conspiring to provide material support to terrorism groups in India and Pakistan barely made the news.

Below via USDOJ:

Reno Man Charged with Conspiring to Provide Material Support to Terrorism Groups in India and Pakistan | December 13, 2013

A Reno, Nev. man has been charged with providing material support to terrorism groups in India and Pakistan in order to intimidate the Indian government and to harm persons that were not supporting their cause, announced John Carlin, Acting Assistant Attorney General for National Security, Daniel G. Bogden, U.S. Attorney for the District of Nevada, and Laura A. Bucheit, Special Agent in Charge of the FBI for Nevada.

“A thorough investigation and cooperation among agencies led to these charges,” said U.S. Attorney Bogden.  “Investigating and prosecuting matters of national security is the top priority of the U.S. Department of Justice.”

Balwinder Singh, aka Jhajj, aka, Happy, aka Possi, aka Baljit Singh, 39, of Reno, is charged in an indictment with one count of conspiracy to murder, kidnap, and maim persons in a foreign country, one count of conspiracy to provide material support to terrorists, one count of making a false statement on an immigration document, two counts of use of an immigration document procured by fraud, and one count of unlawful production of an identification document.   Singh was arrested on Tuesday, Dec. 17, 2013, in Reno, and is scheduled to appear before a U.S. Magistrate Judge on Friday, Dec. 20, 2013, for an initial appearance and arraignment.

“After an extensive investigation, the FBI-led Joint Terrorism Task Force (JTTF) of Northern Nevada has disrupted an individual’s involvement in facilitation activities in support of a foreign terrorist organization, targeting an ally of the United States,” said FBI Special Agent in Charge Bucheit. “We will continue to work with our international partners to prevent acts of terrorism on U.S. soil or, as in this case, on that of an ally. This investigation demonstrates the importance of law enforcement coordination and collaboration here and around the world.”

According to the indictment, Singh was a citizen of India who fled to the United States and claimed asylum.  Singh lived in the United States where he eventually obtained a permanent resident card from the United States.  The indictment alleges that Singh is a member of two terrorist organizations, Babbar Khalsa International (BKI) and Khalistan Zindabad Force (KZF), whose members aim to establish an independent Sikh state in part of the Punjab region of India known as Khalistan. These groups engage in bombings, kidnappings and murders in India to intimidate and compel the Indian government to create the state of Khalistan.  These groups also target for assassination persons they consider traitors to the Sikh religion and government officials who they consider responsible for atrocities against the Sikhs.

The indictment alleges that the object of the conspiracy was to advance the goals of BKI and KZF by raising money and obtaining weapons to support acts of terrorism in India.  It is alleged that the conspiracy began on a date unknown but no later than Nov. 30, 1997.  It is alleged that Singh used a false identity and obtained false identification documents in the United States so that he could travel back to India without being apprehended by the Indian authorities.  It is alleged that Singh communicated with other coconspirators by telephone while he was in the United States to discuss acts of terrorism to be carried out in India.  It is alleged that Singh sent money from Reno, Nev., to co-conspirators in India for the purchase of weapons that would be provided to members of the BKI and KZF to support acts of terrorism in India. It is alleged that Singh traveled from the United States to Pakistan, India, and other countries to meet with coconspirators to assist in the planning of terrorism in India, and that Singh provided advice to coconspirators about how to carry out acts of terrorism.

If convicted, Singh faces up to life in prison and fines of up to $250,000 on each count.

The case is being investigated by the FBI-led Joint Terrorism Task Force in northern Nevada, and prosecuted by Assistant U.S. Attorneys Sue Fahami and Brian L. Sullivan, and Trial Attorney Mara M. Kohn of the U.S. Department of Justice Counterterrorism Section.

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In related news, on December 18, in a widely reported retaliation for the treatment of its diplomat in New York, the Indian government removed the security barriers at the U.S. Embassy in New Delhi.

On December 25, Hindustan Times  writes about the “rumblings” in the U.S. Congress over the removal of the security barriers:  “We can understand the anger and the other measures,” said a senior congressional aide on condition of anonymity, “but removing the barriers has raised security concerns.

On December 29, the Times of India says that Indian officials speaking on background refuted “the US suggestion that they were being vengeful towards the US diplomatic corps and endangering the US embassy.” Seriously.  That’s why there was full press court and cameras when it took the muscular response of dismantling the concrete security barricades and spike strips around Embassy Delhi.  So apparently, the security barriers now have its own mini-drama. The TOI report says  that “A decision to remove the barriers was taken several weeks back when the US side removed a diplomatic parking lane in front of the Indian embassy in Washington DC (that also served as security perimeter) and turned it into public parking.”

Coincidences bumping into each other on the dark side of the moon.

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Filed under Americans Abroad, Congress, Court Cases, Diplomacy, Foreign Service, Govt Reports/Documents, India, Leaks|Controversies, Politics, Protests, Realities of the FS, State Department, Terrorism, U.S. Missions, Visas

No Publicity Zone — 2012 Judicial Actions Involving Foreign Service Grievance Board Rulings

– Domani Spero

We’ve  heard from the FS grapevine about an agreement that there will be no publicity of grievance results.  If that’s true, well, that’s a terribly bad agreement, right?

So if you want to keep up with Foreign Service grievance cases that went to court, you can check FSGB’s annual report to Congress which details judicial actions related to Board cases during the year.   We have listed them below from the 2012 report and have included the links to PDF files for all the court rulings but one.  In he future, most of the cases should be available via the GPO but if not available there, you can also try looking them up using pacer.gov (requires registration and payment for document view/download).

Karl Hampton v. Tom Vilsack | PDF

Karl Hampton is a former Foreign Service Officer with the Department of Agriculture who was terminated for cause after a hearing before the Board in 2007. He subsequently filed a Title VII suit against USDA, claiming discrimination on the basis of race, retaliation for engaging in protected activity, and a hostile work environment. Last year the District Court for D.C. granted USDA’s motion for summary judgment on nine of the ten counts alleged, and later dismissed the tenth count. Karl Hampton v. Tom Vilsack, 760 F. Supp. 2d 38 (D. D.C. 2011). Hampton appealed that decision. In a de novo review, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court’s ruling. Karl Hampton, Appellant v. Tom Vilsack, Secretary, United States Department Of Agriculture, Appellee, 685 F.3d 1096; (U.S. App. D.C. 2012).

Richard Lubow, et al., v. United States Department of State, et al., | PDF

The plaintiffs in Richard Lubow, et al., v. United States Department of State, et al., 2013 U.S. Dist. LEXIS 10780, (D.D.C. 2013) were five Diplomatic Security Agents who had served in Iraq in 2004. They grieved the Department’s application of a cap on their premium pay and its decision not to grant them a waiver of repayment of the amounts that the Department had paid them in excess of that cap. The FSGB concluded that, contrary to the Department’s findings, the grievants were not at fault in incurring the overpayments and thus were eligible for a waiver of their debts. However, the Board also found that it was within the Department’s discretion to decline to grant the waivers, and that the Department had appropriately considered the relevant factors and had not abused its discretion in denying the waivers. The District Court affirmed those findings and granted summary judgment in favor of the Department.

Jeffrey Glassman v. the U.S. Department of State (unable to locate this case. See this article from WaPo: Disabled but determined, U.S. diplomat Jeffrey Glassman sues over forced retirement)

In an order dated September 25, 2012, Judge Rosemary Collyer of the District Court of D.C. dismissed three counts of the plaintiff’s claims in Jeffrey Glassman v. the U.S. Department of State, et. al., Civil Action No. 10-1729, as well as both the Department of State and the Foreign Service Grievance Board as defendants, on procedural grounds. Glassman is a former officer of the Department of State who grieved his involuntary retirement, claiming it was a result of his disability and therefore illegal. The Board denied Glassman’s claim. Glassman appealed that decision to the district court, while also independently claiming a violation of the Rehabilitation Act. While dismissing three counts and two defendants, the court ordered the case to proceed on Glassman’s remaining claim, that the Foreign Service precepts have a disparate impact on him and others with disabilities because of their emphasis on unusually difficult or dangerous assignments, in violation of the Rehabilitation Act. The Secretary of State, as head of the agency, remained as the sole defendant.

Richard Baltimore, III v. Hillary Clinton | PDF

In Richard Baltimore, III v. Hillary Clinton, 2012 U.S. Dist. LEXIS 153253 (D.D.C. 2012), former Ambassador Baltimore appealed a decision by the FSGB sustaining charges by the Department of State involving misuse of an official vehicle and failure to report the gift of a rug, that resulted in a 45-day suspension without pay. Baltimore challenged the Board’s decision as arbitrary and capricious. The D.C. District Court upheld the Board’s reasoning and decision.

Yamin v. United States Department of State | PDF

On November 19, 2012, Jeremy Yamin petitioned the D.C. District Court to review the FSGB’s May 23, 2012 order denying in part his request for attorney fees incurred in a grievance appeal. Yamin is a Department of State officer who had received a one-day suspension in a disciplinary action. In his appeal to the FSGB, the Board upheld the charge, but found the one-day suspension to be excessive and reduced the penalty to an admonishment. Yamin requested attorney fees and expenses in the amount of $71,645.48. The Board approved $12,385.03, denying the rest. Yamin requested a review of this decision.

 

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