State/OIG: Accountability of Official and Diplomatic Passports Needs Improvement

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State/OIG issued its Management Assistance Report: Accountability of Official and Diplomatic Passports of Separating Employees Needs Improvement this week.
According to the OIG, in December 2020, after it announced an audit of official and diplomatic passport records, the Office of Inspector General (OIG) was alerted that a former Department of State employee, a political appointee, allegedly kept their diplomatic passport after separating from the Department and wanted to use it in their new role with another U.S. Government organization.

Specifically: “A politically appointed Senior Advisor separated from the Department in November 2019. In 2020, President Trump appointed the former advisor to a role with another U.S. government organization. A representative from the new organization contacted the appointee’s former Department bureau because the political appointee was in possession of a diplomatic passport. The representative wanted to know whether the appointee could travel on behalf of the new organization using this diplomatic passport. The representative was informed by a bureau official that the appointee should not use the diplomatic passport.”

Excerpt from the MAR:

(U) During an audit of CA’s official and diplomatic passport records, OIG was alerted that a former Department employee had allegedly not surrendered their diplomatic passport upon separation from the Department and wanted to use it in a new role with another U.S. Government organization.24 According to the FAM, entitlement to an official or diplomatic passport ends when the employee separates from the Department, and the passport must be surrendered for cancellation.25

U) OIG found that the former employee’s diplomatic passport was listed as “issued” in ACRQ and had not been electronically cancelled by SIA. Based on that information, OIG performed additional steps to determine whether SIA had cancelled other employees’ official and diplomatic passports once separated from the Department. Specifically, OIG selected a sample of 134 official and diplomatic passports issued to employees who subsequently separated from the Department between November 2017 and September 2020. OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA after the employee separated. Moreover, of the 57 that had not been electronically cancelled, 47 (82 percent) of the passports had not expired as of February 1, 2021, meaning they could still be valid.

(U) One reason for the deficiencies identified is that Department bureaus and offices did not always maintain proper accountability of passports and could not confirm whether separating employees had surrendered their passports for cancellation. When an employee’s entitlement to an official or diplomatic passport ends, but the passport is not surrendered or cancelled, the individual could misuse the passport, such as misrepresenting themselves as a representative of the U.S. Government. Doing so is a criminal offense.26

(U) Separated Employees’ Official and Diplomatic Passports

(U) Based upon a Bureau of Global Talent Management list of employees who had separated from the Department between November 2017 and September 2020, OIG identified 4,714 official and diplomatic passports associated with those employees. OIG selected a sample of 134 passports to test. 27 OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA. In addition, of those 57 passports, 47 (82 percent) had not expired, as of February 1, 2021, meaning they could stil l be valid. 28 For example, one employee separated from the Department in December 2017, but the employee’s diplomatic passport was not scheduled to expire until April 2022- more than 4 years after separating from the Department.

OIG apparently followed up with 3 bureaus and 1 office to determine whether 17 former Department employees had surrendered their passport(s) and whether the bureaus or office had requested that SIA cancel the passports in accordance with the FAM. The follow-up revealed the following:

Two former CA employees:  “OIG identified two former CA employees who had diplomatic passports listed as “issued” in ACRQ. According to CA’s employee check-out list, employees are required to return special-issuance passports to SIA that were issued to them and to their family members upon separation and obtain the signature of an SIA staff member. SIA has no record of either of these two passports being returned for cancellation after the employees separated.”

Two former Office of the Secretary employees: “OIG identified two former Office of the Secretary employees who had diplomatic passports listed as “issued” in ACRQ. These two individuals had four passports issued to them. The Office of the Secretary’s employee check-out form requires departing employees to return their special-issuance passports and have the form initialed by the Office of the Secretary’s budget and travel office staff. An Office of the Secretary official stated that the office would have been in possession of three of the identified passports because the office maintains the diplomatic passports of people who travel with the Secretary of State. Because the three passports could not be found in the office, the official assumed that they were physically cancelled and returned to the individual. The Office of the Secretary could not provide information on the fourth passport. The Office of the Secretary official stated that a memorandum would have accompanied each passport to SIA for cancellation, but copies of the memoranda were not maintained .”(what the what? italics added).

Eleven former DS employees:  “OIG identified 11 former Bureau of Diplomatic Security (DS) employees who had diplomatic passports listed as “issued” in ACRQ. These 11 individuals had 16 passports issued to them, including 2 that were issued to a former Assistant Secretary. DS’s employee check-out form requires employees to return to the Employee Services Center or contact SIA about special-issuance passports that were issued to them and to their family members upon separation. A DS official stated that the two passports issued to the former Assistant Secretary were collected before he separated from the Department, but DS had not returned them to SIA. The DS official stated that a former employee, who returned as a PSC, claimed to have lost one passport but there was no comment on her second passport and another employee’s passport had been returned to CA. Three former DS employees had returned four passports in total to their DS offices; however, DS could not locate an additional passport for one of these individuals and an additional two passports for another of these individuals. The DS official further stated that DS did not have records for two of the people associated with two passports. DS may have facilitated the issuance of these passports, but they were not DS employees. DS did not provide information on the remaining 2 of 16 passports.”

OIG recommends that the Bureau of Consular Affairs “improve accountability over special-issuance passports by updating the Foreign Affairs Manual and any other relevant policy documents to require that (a) all Department of State bureaus and offices that participate in the Special Issuance Passport Program either (1) physically cancel special-issuance passports (including secondary passports) issued to a separating employee and email the Special Issuance Agency (SIA) a copy of the physically cancelled data page requesting that the passport(s) be electronically cancelled (along with returning the passport to SIA for destruction if not returned to the separating employee) or (2) if appropriate, file the special-issuance passport with SIA and (b) the Special Issuance Agency confirm that all special-issuance passports issued to the separating employee have been included in the cancellation request and electronically cancel all additional passport(s) as appropriate.”
Consular Affairs concurred with the recommendation, stating that it “will propose updates to the FAM and to the Special Issuance Passport Program.”  The bureau will also “update SIA’s cancellation and destruction SOP to confirm that all special-issuance passports issued to a separating employee have been included in the cancellation request and electronically cancel all additional passports as appropriate.”

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Overseas Americans May Use Their Expired Passports to Return to the U.S. Until 12/31/21

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On May 24, the State Department announced that overseas Americans may be able to return to the United States on their expired passports until December 31, 2021 under certain circumstances:

If you are overseas and your passport expired on or after January 1, 2020, you may be able to use your expired passport to return directly to the United States until December 31, 2021.

You qualify for this exception if all the following are true:

    • You are a U.S. citizen.
    • You are currently abroad seeking direct return to the United States.
    • You are flying directly to the United States, a United States territory, or have only short-term transit (“connecting flights”) through a foreign country on your direct return to the United States or to a United States Territory.
    • Your expired passport was originally valid for 10 years. Or, if you were 15 years of age or younger when the passport was issued, your expired passport was valid for 5 years.
    • Your expired passport is undamaged.
    • Your expired passport is unaltered.
    • Your expired passport is in your possession.

You do not qualify for this exception if:

    • You wish to depart from the United States to an international destination.
    • You are currently abroad seeking to travel to a foreign country for any length of stay longer than an airport connection en route to the United States or to a United States territory.
    • Your expired passport was limited in validity.
    • Your expired passport is a special issuance passport (such as a diplomatic, official, service, or no-fee regular passport).
    • Your expired passport is damaged.
    • Your expired passport is altered.
    • Your expired passport is not in your possession.

All other passport rules and regulations remain in effect. The Department of Homeland Security maintains discretion to reject any bearer in accordance with 22 CFR 53.2(b)(7) and 8 CFR 235.1(b).

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Abdo Luftu Ali v. U.S. Department of State: U.S. Passport Revocation After Almost 30 Years

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Excerpt from Abdo Luftu Ali v. U.S. Department of State/Memorandum of Opinion March 17, 2021:

Plaintiff Abdo Ali (“plaintiff’ or “Ali’”) brings this action under the Administrative Procedure Act (“APA”) against the U.S. Department of State (“State Department” or “defendant”), seeking an order setting aside defendant’s revocation of Ali’s U.S. passport.
[…]
Ali currently resides in Oxford, Mississippi, but he was born in Yemen in 1979. At the time, Ali’s father was a U.S. citizen, having naturalized approximately ten and a half years earlier in January 1969. Compl. 4 8. In 1990, Ali was first issued a U.S. passport under Section 301(g) of the INA on the grounds that he was a child of a U.S. citizen, who, prior to Ali’s birth, had been present in the U.S. for at least ten years, including at least five while he was older than fourteen. Jd. 410. Ali entered the United States in 1994 and was issued passport renewals in 1999 and 2009. Id. § 13. Because passports “may be issued only to a U.S. national,” 22 C.F.R. § 51.2(a), the initial issuance of Ali’s passport and the subsequent renewals necessarily constituted findings that Ali was a U.S. national. See Compl. ff 14, 19. On January 8, 2019, however, the State Department revoked Ali’s passport on the ground that he was not a U.S. national. Id. ¥ 15; see also 22 C.F.R. § 51.62(b) (“The Department may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national.”). In a letter to Ali, the State Department explained its decision by noting that sometime after the 2009 renewal, “[a]n investigation .. . revealed that [Ali’s] father was not physically present in the United States for ten years before [Ali’s] birth,” as was then required by Section 301(g) of the INA. See Ex. A to Pl.’s Opp. to Def.’s Mot. to Dismiss (“PI.’s Opp.’””) [Dkt. #9-1] at 1.! The letter cited documentation supporting its position but lacked any explanation as to why the State Department had initially issued Ali a passport and subsequently renewed it twice. Jd.; Compl. 418.

On May 30, 2020, Ali filed this suit under the APA, 5 U.S.C. § 701 et seq., seeking to set aside the revocation decision. See Compl. at 8. The complaint alleges that, “to the best of his knowledge,” Ali is a citizen and national of the United States, id. { 3, and that the State Department’s decision to revoke his passport was “arbitrary . . . as well as not being in accordance with law.” Id. § 1. In the alternative, the complaint states that “even if [Ali] is not a national of the United States,” the revocation should still be set aside because the State Department “is estopped by laches and equitable estoppel from revoking [] Ali’s passport.” Jd. § 2.
[…]
In an attempt to avoid the preclusive effect of § 1503(a), Ali argues in the alternative that he is permitted to proceed with this suit under the APA regardless of whether he is, in fact, a U.S. national. See Pl.’s Opp. at 3 (invoking this Court’s equitable powers under the doctrines of laches and estoppel). Under this theory, plaintiff would have the Court set aside defendant’s revocation of Ali’s passport even though he fails to allege that he meets the necessary precondition for a U.S. passport—being a U.S. national, 22 C.F.R. § 51.2(a). See Pl.’s Mot. at 4—5 n.2 (stating that Ali does not “claim unequivocally” that he is a U.S. national, but “maintains that .. . even if he is not a U.S. national, the [State] Department should be estopped from denying it”). Unfortunately for plaintiff, this I cannot do.

The power to issue passports rests solely in the Secretary of State or a designee. 22 U.S.C. § 211a (providing that the Secretary possesses the authority to “grant and issue passports .. . and no other person shall grant, issue, or verify such passports”). Passports may only be issued to U.S. nationals, see 22 C.F.R. § 51.2(a), and the State Department may revoke those passports when it determines that the bearer of the passport is not a U.S. national. 22 C.F.R. § 51.62(b); see also 22 U.S.C. § 212 (“No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.”’).

The Court’s power to craft equitable remedies, while broad, does not permit it to interfere with this statutory and regulatory scheme. See INS v. Pangilinan, 486 U.S. 875, 883-84 (1988) (holding courts’ equitable authority does not extend to crafting remedies contrary to Congressional statutes). Especially in the immigration context, the Court may not rely on the doctrine of laches or the doctrine of equitable estoppel to override public policy as established by Congress. See id. at 885 (“Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of [statutory limitations].”).

Congress has established that only U.S. nationals may receive a passport. See 22 U.S.C. § 212. It has also provided, through 8 U.S.C. § 1503(a), a mechanism to challenge agency determinations that an individual is not a U.S. national. But where a _ plaintiff refuses to pursue this avenue of relief, courts may not grant through alternative equitable means what is effectively the same result—a determination that the State Department must treat plaintiff as if he is a U.S. national. See Pangilinan, 486 U.S. at 883-84.

Accordingly, no matter how plaintiff frames his complaint, it fails to state a claim under the APA.
[…] the Court GRANTS defendant’s motion to dismiss and DISMISSES the action in its entirety.

In footnote 7, the Court talks about what must be “exceedingly frustrating”:

The Court appreciates that the State Department’s conduct in recognizing Ali as a U.S. national for almost thirty years, only to reverse that determination with minimal explanation, must be exceedingly frustrating. But plaintiffs recourse nonetheless lies under Section 360(a) of the INA, not the APA. See Hassan, 793 F. Supp. 2d at 443 (noting that although multiple inconsistent decisions from the government over a span of many years created an understandable frustration, no action was cognizable under the APA with respect to the revocation of plaintiff’s passport).

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Amb. Rena Bitter to be Asst Secretary of State for Consular Affairs

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On April 21, President Biden announced his intent to nominate SFSO and former Ambassador Rena Bitter to be the next Assistant Secretary of State for Consular Affairs. The WH released the following brief bio:
Rena Bitter, Nominee for Assistant Secretary of State, Consular Affairs, Department of State
Rena Bitter, a career member of the Senior Foreign Service, class of Minister-Counselor, is Dean of the Leadership and Management School at the State Department’s Foreign Service Institute and a former U.S. Ambassador to the Lao People’s Democratic Republic.  Previously, she was the U.S. Consul General in Ho Chi Minh City, Vietnam, and chief of the consular section in Amman, Jordan.  She also served in London, Bogota, and Mexico City.  In Washington, she was Director of the State Department’s Operations Center, and a Special Assistant to the Secretary of State.  Bitter has a Bachelor’s Degree from Northwestern University, and a J.D. from Southern Methodist University.  She is a recipient of American Citizens Abroad’s Thomas Jefferson Award for outstanding service to the American community abroad.  She speaks Spanish, Arabic and Vietnamese.

CG Rena Bitter with Ambassador Ted Osius | Via FB (2016)

The Immigration and Nationality Act of 1952 (Jun 27, 1952; P.L. 82-414; 66 Stat. 174) established within the Department of State a Bureau of Security and Consular Affairs, headed by an Administrator designated by the Secretary of State with rank equal to that of an Assistant Secretary. In 1962, this position became a Presidential appointee subject to the advice and consent of the Senate. In 1977, the Foreign Relations Authorization Act for Fiscal Year 1978 changed the Administrator’s title to “Assistant Secretary of State for Consular Affairs.”
All appointees to the Consular Affairs bureau from 1953 to 1980 were non-career appointees. This trend was interrupted by the appointments of career FSOs Diego Asencio in 1980, and again in 1983 with  Joan Clark. Political appointees assumed charged of the bureau in 1989 when Elizabeth Tamposi was appointed, and more recently in 2017 with Carl Risch’s appointment. If confirmed Ambassador Bitter would only be the seventh career FSO to lead the most public facing bureau of the State Department.

Related posts:

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Snapshot: Visas Issued at Foreign Service Posts (FY 2016-2020)

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Via state.gov

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@StateDept Expands Interview Waiver Eligibility For Visas

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On March 11, the State Department announced in a brief statement the expansion of visa interview waiver eligibility:
Secretary Blinken, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.  Previously, only those applicants whose nonimmigrant visa expired within 24 months were eligible for an interview waiver.  The Secretary has temporarily extended the expiration period to 48 months.  This policy is in effect until December 31, 2021.  This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.  Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview. 
The original announcement is available here.

via travel.state.gov

 


 

Snapshot: Top Five Bureaus & Posts With the Highest Number of Sexual Harassment Complaints (2014-2017)

Via State/OIG:

Related post:
State/OIG Releases Long-Awaited Report on @StateDept Handling of Sexual Harassment Reports

 

 

 

@StateDept Projects Over $1.4Billion Loss in Consular Fees This Fiscal Year, Plus Comparable Losses Next FYs

HFAC/Oversight and Investigations Committee
July 212020 10:00 AM
Witnesses

Ian Brownlee
Principal Deputy Assistant Secretary, Bureau of Consular Affairs
U.S. Department of State

Karin King
Deputy Assistant Secretary, Overseas Citizen Services
U.S. Department of State

The State Department projected a $1.4 billion loss which is about 50 percent of Consular Affair’s revenue this fiscal year (ending September 30, 2020). It is also facing comparable losses in FY2021 and FY2022.
This is a big deal.
PDAS Brownlee told the committee that CA is looking at $359M savings from FY2020  — he talked about significant reduction in this year’s spending but only cited contractors in visa waiting rooms, and a number other unspecified projects domestic and overseas that would be impacted. He did say that services for American citizens “will not be put out of business.”
Where are we going to see funding cuts?
The reality though is consular fees do not just fund visa operations overseas but also passport operations domestic and overseas. It also funds various parts of the State Department. And most notably, it funds 4,859 U.S. Direct Hire personnel under Consular Affairs and “partner bureau positions.” A $1.4 billion loss this fiscal year and in each of FY2021 and FY2022 will have a cascading effect in various parts of the organization.
Revenues from Department-retained consular fees and surcharges fund Consular and Border Security Program (CBSP) activities. The State Department’s congressional justification in FY 2020 for CBSP funding includes the following:
  • Consular Systems and Technology: $453.4 million
  • Domestic Executive Support: $34.3 million
  • Fraud Prevention Programs: $5.4 million
  • Visa Processing: $237.5 million
  • Passport Directorate: $810.3 million
  • American Citizen Services: $16.2 million
  • Consular Affairs Overseas Support: $964.6 million
  • FSN Separation Liability Trust Fund: $4.9 million

CBSP SUPPORT/DEPARTMENT OF STATE PARTNERS: $524.3 million

  • Bureau of Administration: $53.8 million
  • Bureau of Diplomatic Security: $66.3 million
  • Foreign Service Institute: $25.9 million
  • Bureau of Information Resource Management: $58.3 million
  • Office of the Legal Advisor: $0.3 million
  • Bureau of Overseas Building Operations: $264.4 million
  • Repatriation Loans: $0.8 million
  • Comptroller and Global Financial Services (CGFS): $1.0 million
  • Confidential Investigations: $0.2 million
  • Post Assignment Travel: $39.1 million
  • Bureau of Human Resources: $13.9 million
CBSP STAFF / AMERICAN SALARIES: $703.5 million

Human resources are a vital component of CBSP activities. The Department devotes a significant amount of effort and resources towards increasing efficiency and capacity in the visa and passport processes, ensuring adequate staffing levels both domestically and overseas. The FY 2020 Request of $703.5 million, a $58.7 million increase from the FY 2019 Request, supports 4,859 U.S. Direct Hire personnel. These positions are primarily in the Bureau of Consular Affairs but also include CBSP-funded partner bureau positions. This increase restores the eight percent reduction included in the FY 2019 President’s Budget Request and annualizes costs associated with the Department’s FY 2018 and proposed FY 2019 Strategic Hiring Plans.

 

 

 

@StateDept Announces “National Interest Exceptions” for Certain Travelers from the Schengen Area, United Kingdom, and Ireland

Via State/CA:
National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland
Last Updated: July 16, 2020

Certain business travelers, investors, treaty traders, academics, and students may qualify for National Interest Exceptions under Presidential Proclamations (PPs) 9993 (Schengen Area) and 9996 (United Kingdom and Ireland). Qualified business and student travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even as PPs 9993 and 9996 remain in effect.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas, do not need to seek a national interest exception to travel. Students from those areas who are traveling on a J-1 may contact the nearest embassy or consulate to initiate an exception request.The Department of State also continues to grant National Interest Exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.

We appreciate the transparency and concerted efforts of our European partners and allies to combat this pandemic and welcome the EU’s reciprocal action to allow key categories of essential travel to continue.

Also see: Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak
Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak