@StateDept Updates Guidance For Recovery and Seizure of Passports 3 Years After OIG Review

 

 

In October 2018, State/OIG issued a Review of Allegations of Improper Passport Seizures at Embassy Sana’a, Yemen. The report indicates that the “Department did not follow relevant standards” and that ” officials did not comply fully with required procedures.”  OIG said that “Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined:

The Department does not have a central system to track passport confiscations or retentions. As a result, OIG could not determine the number of passport seizures that occurred at Embassy Sana’a from 2012 to 2014, and the total number remains uncertain. However, because one document provided by the Department contained a list of 31 names with dates on which the passports were taken, OIG focused on these cases.

There are two bases in Department regulations that govern its authority to take passports from U.S. citizens: “retention” and “confiscation.” Regardless of the authority by which the Department took the passports at issue here, the Department did not follow relevant standards. If the Department “retained” the passports, officials did not comply fully with required procedures. Furthermore, although the Department acknowledged that retentions are temporary measures, it held many of the passports in question for months (and in some cases, over a year), suggesting that the Department effectively confiscated these documents. Confiscation is permitted only after revocation or pursuant to an arrest. Revocation is the formal process by which the Department invalidates an individual’s passport. Neither an arrest nor revocation occurred before any of the passports were taken.

The Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined. Although the Department must notify the holders in writing of the reason for revocation and their right to appeal, OIG could not confirm that these notices were sent in every case. Even if notices were sent, the affected individuals remained uninformed about the status of their passports for lengthy periods (in one case, almost 2 years). OIG also identified instances where individuals contacted the Department with questions and received limited information or no response at all.

OIG also identified other concerns. First, the lack of a single legal authority within the Department led to significant difficulties in resolving key legal issues. Second, although the Department has updated its policies, issues remain unresolved, including conflicting interpretations of the Department’s authority to seize passports and uncertainty regarding eligibility for limited validity passports.

On October 20, 2021 — that’s right, three years later this month — the State Department/Diplomatic Security finally updated 12 FAM 220 of the Foreign Affairs Manual on the  recovery and seizure of U.S. passports. The notation on the change transmittal says “Updated as a result of the Office of the Inspector General report on Yemen Passport Seizures”.  The bold parts are highlighted in the FAM.

12 FAM 224.1-5  Recovery and Seizure of Passports
(CT:DS-368;   10-20-2021)
a. 22 CFR 51.7 (a) states that a passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.
b. CA/FPP or CA/PPT may request DS confiscate a passport that CA/PPT issued.  See 12 FAH-4 H-124.2.  The Department’s authorized representative (usually the case agent) is authorized to confiscate a revoked passport.  If the bearer refuses to do so, CA/PPT may invalidate the passport by notifying the bearer in writing of the invalidation (22 CFR 51.4).4
c.  Only CA/PPT/S/A may revoke U.S. passports.  DS agents may lawfully seize a U.S. passport pursuant to:
(1)  A search warrant;
(2)  An arrest warrant;
(3)  A lawful, warrantless seizure pursuant to a warrant exception when robable cause exists that the U.S. passport itself is evidence of a crime;
(4)  The express consent of the subject; or
(5)  A court order.
If CA intends to revoke the passport of a subject of a DS investigation, and DS has presented the case to DOJ for prosecution, the DS special agent must inform the prosecutor about the passport revocation.
d. All property acquired by DS will be collected and treated as though it were evidence to ensure proper handling until such determination is made.  Special agents may only acquire property in accordance with the law as it relates to searches and seizures, judicial forfeiture, and by voluntary delivery by the owner.  Occasionally, items may be seized or taken into custody for safekeeping (i.e., high value items, illegal drugs, firearms and weapons, etc.).  Special agents are not authorized to acquire property in any other manner other than by direction of CA to recover U.S. passports.
e. The procedural aspects of passport seizure by a DS special agent are contained in 12 FAH-4 H-120. That section contains important information as well as relevant timelines for notification to the Department of the seizure.
f.  For more information on passport revocations, see 8 FAM 804, Revocation.
g. DS may receive recovered U.S. passports from different sources, such as local law enforcement, local governments, airlines, and transportation centers.  To maintain the integrity of the U.S. passport as a secure travel document, CA/PPT makes every effort to account for the final disposition of all U.S. passports.  Therefore, DS should mail all found or recovered (not seized or confiscated) U.S. passports to CA/PPT at …

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Related item:

12 FAM 220 Investigations

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DOJ: Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud

 

Via USDOJ/September 13, 2021
Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud
ALEXANDRIA, Va. – A federal jury convicted a California woman and Russian-born man on Friday on charges of conspiracy and obtaining U.S. citizenship by fraud.
According to court records and evidence presented at trial, Laura Gallagher, 32, a Foreign Service Officer with the U.S. Department of State, and Andrey Kalugin, 36, originally of Russia, conspired together to obtain lawful permanent residence and U.S. citizenship for Kalugin through his marriage to Gallagher. 
“The jury’s verdict holds these two defendants accountable for orchestrating a scheme to defraud the United States and obtain unlawful citizenship and passports,” said Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia. “Gallagher disregarded her responsibilities to the public as a federal government employee and licensed attorney when she engaged in this fraudulent scheme with Kalugin. Thanks to the dedication of the trial team and our partners at the State Department, these defendants have been brought to justice.”
Evidence presented at trial demonstrated that the defendants met in law school in 2013. Kalugin was in the United States on a student visa that was due to expire in July 2015. The defendants married in June 2015 and submitted applications for Kalugin to obtain his “green card.” The defendants moved from California to Virginia in March 2016, but split up soon thereafter. However, they continued with the immigration process.
“The Diplomatic Security Service is firmly committed to working with the U.S. Attorney’s Office to investigate allegations of crime related to naturalization fraud and to bring those who commit these crimes to justice,” said Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service. “When a Department employee in a position of trust is alleged to have committed a federal felony involving naturalization fraud by exploiting their status, we vigorously investigate claims of corruption.” 
Gallagher, who is also a California-licensed attorney, then prepared for Kalugin an application for 319(b) expeditious naturalization, which is a benefit available to spouses of citizens who are regularly stationed abroad for their employment. The defendants provided materially false responses in the application, including that Kalugin was still in a good-faith marriage and intended to reside with Gallagher abroad and return with her to the United States. Kalugin appeared for an interview on Feb. 5, 2018 with U.S. Citizenship and Immigration Services (USCIS) in Fairfax, where he repeated the false statements to the adjudicating officer. After USCIS approved the application and he received his citizenship, Kalugin fraudulently obtained U.S. Diplomatic and tourist passports. Shortly thereafter, Gallagher filed for divorce.
Gallagher and Kalugin each face a maximum penalty of 10 years in prison when sentenced on Feb. 4, 2022. Actual sentences for federal crimes are typically less than the maximum penalties. Kalugin additionally faces mandatory revocation of his U.S. citizenship. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors.
Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia, and Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service, made the announcement after Senior U.S. District Judge T. S. Ellis, III accepted the verdict.
Assistant U.S. Attorneys Raizza K. Ty and Morris R. Parker, Jr. are prosecuting the case.
A copy of this press release is located on the website of the U.S. Attorney’s Office for the Eastern District of Virginia. Related court documents and information are located on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1:21-cr-43.

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