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Omar v. Kerry, et.al: Passport Revocation “Arbitrary and Capricious,” New Hearing Ordered Within 60 Days

Posted: 3:51 am EDT

 

Back in April 2015, a San Francisco man sued the State Department in federal court, claiming that American embassy officials in Yemen illegally revoked his passport and left him stranded in that country for more than a year. This passport revocation case was just one in a string of lawsuits alleging improper revocation of passports by the U.S. Embassy in Yemen.

On October 13, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.” (See Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport).

On February 16, the U.S. District Court of the Northern District of California issued a cross motions for summary judgment:

This lawsuit presents the question of whether the United States government may revoke a United States citizen’s passport based solely on a purported “confession” that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.

Plaintiff Mosed Shaye Omar, a United States citizen, challenges the revocation of his passport following his interrogation and detention at the U.S. Embassy in Sana’a, Yemen. Plaintiff was stranded in Yemen for 13 months before he was provided written notice of the basis for his passport revocation and granted a temporary passport to return home to the United States. Plaintiff challenges the passport revocation and the constitutionality of the post-revocation proceedings wherein he sought return of his passport. The Court previously granted Plaintiff’s motion for a preliminary injunction and ordered the government to return Plaintiff’s passport. The now pending cross-motions for summary judgment followed. Having considered the parties’ submissions, including their supplemental briefs, and having had the benefit of oral argument on December 17, 2015, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES the government’s cross-motion. The government’s revocation of Plaintiff’s passport predicated solely on his “confession” was arbitrary and capricious. The matter is therefore REMANDED for a new hearing within 60 days.
[…]
[T]he only evidence in the record regarding the statement—other than the statement itself—is Plaintiff’s declaration attesting that he had no knowledge of what he was signing and that he was coerced into signing the statement based on the government’s false representation that if he did so he would obtain his and his daughter’s passports. The government does not offer any other evidence, including any evidence as to how the statement came about. On this record the statement itself is not substantial evidence supporting the government’s revocation decision.

Judge Jacqueline Scott Corley further writes:

It is inconceivable that Plaintiff would bear the burden of proving that he did not use a false name in obtaining his passport where he had no right to know the evidence against him in advance. Such a practice would run afoul of the fundamental nature of our system of justice. 

The court record notes that “Plaintiff, through his counsel, repeatedly asked for a copy of the statement upon which his passport revocation was based; however, the government refused to provide it until the parties exchanged simultaneous briefs seven days before the hearing. (AR 83-90.) The government similarly declined counsel’s request for a continuance of the hearing to allow counsel to prepare as they were only retained a month before the hearing. (AR 52-55.)”

The court has remanded the case to the State Department for a new hearing within 60 days:

The Court thus remands for a new hearing within 60 days. 22 C.F.R. § 51.70(c). As noted above, the government shall bear the burden of establishing that Plaintiff’s passport was properly revoked pursuant to 22 C.F.R. § 51.62(a)(2). Both parties agree, and indeed request, that the Court retain jurisdiction following remand. Because it is within the Court’s discretion to do so, the Court agrees to retain jurisdiction pending the remand.

For the reasons stated above, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES Defendant’s motion for summary judgment. This matter is remanded to the State Department for proceedings consistent with this Order, including a new hearing within 60 days under 22 C.F.R. § 51.70(c). The Court’s preliminary injunction remains in effect and Plaintiff shall retain possession of his passport during these administrative proceedings, and until he is afforded a full and fair hearing regarding the government’s allegation that Plaintiff’s passport is subject to revocation under 22 C.F.R. § 51.62(a)(2).8 Within 30 days of the conclusion of the administrative proceedings, the parties shall provide a joint status report detailing how they wish to proceed.

Read the full document below or see the  original post here.

 

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