The IRS has now posted a notice on its website indicating that it has began sending certifications of unpaid tax debt to the State Department in February 2018. Americans with seriously delinquent tax debt (totaling more than $51,000 (including interest and penalties) , per IRC § 7345 will be certified as such to the State Department for action. The State Department reportedly will not issue passports to to individuals after receipt of certification from the IRS.
Back in December 2015, we first reported in this blog about the “Fixing America’s Surface Transportation Act,” or “FAST Act” which includes Section 7345 that provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. That law was passed and the IRS was supposed to start certifying in early 2017 but that did not happen.
According to the recent IRS notice, upon receiving certification, the State Department shall deny the tax delinquent individual’s passport application and/or may revoke his/her current passport. If the passport application is denied or the passport is revoked while said individual is overseas, the State Department may issue a limited validity passport but only for direct return to the United States. Read more here via IRS.gov
Note that the guidance also says that the State Department is held harmless in these matters and cannot be sued for any erroneous notification or failed decertification under IRC § 7345. Affected individuals can file suit in the U.S. Tax Court or a U.S. District Court to have the court determine whether the certification is erroneous or the IRS failed to reverse the certification when it was required to do so. “If the court determines the certification is erroneous or should be reversed, it can order the IRS to notify the State Department that the certification was in error.”
The State Department’s statement on this issue is available here with IRS contact details.
Posted: 1:34 pm PT
The passport identifier provision of International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (IML) (Public Law 114-119) went into effect on October 31, 2017.
The IML prohibits the Department of State from issuing a passport to a covered sex offender without a unique identifier, and it allows for the revocation of passports previously issued to these individuals that do not contain the identifier (22 USC 212b).
The identifier is a passport endorsement, currently printed inside the back cover of the passport book, which reads: “The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” Since endorsements cannot be printed on passport cards, covered sex offenders cannot be issued passport cards.
Only the DHS/ICE Angel Watch Center (AWC) can certify an individual as a “covered sex offender.” Therefore, any questions by the applicant about such status must be directed to and resolved by AWC.
Applicants who have questions for AWC regarding their status or believe they have been wrongly identified as a covered sex offender as defined in Title 22 United States Code 212b(c)(1) should contact AWC at DHSintermeganslaw@ice.dhs.gov.
On February 08, 2016, President Obama signed into law H.R. 515, the “International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders,” which (1) authorizes the Department of Homeland Security’s Angel Watch Center and the Department of Justice’s National Sex Offender Targeting Center to send and receive notifications to or from foreign countries regarding international travel by registered sex offenders; and (2) requires the Department of State to include unique identifiers on passports issued to registered sex offenders.
Through Operation Angel Watch, HSI uses publicly available sex offender registry information and passenger travel data to strategically alert foreign law enforcement partners through its HSI attaché offices of a convicted child predator’s intent to travel to their country. In Fiscal Year 2015, HSI made over 2,100 notifications to more than 90 countries.
Posted: 1:52 am EDT
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This story via The Points Guy:
[O]n the bright side, I did need to get my passport renewed anyway so no big loss, right? Wrong. A few weeks later, my passport is delivered. Wait, let me rephrase that: My information is displayed on my passport, but not my face. I may be blond haired and blue eyed, but this girl in the picture was not me.
I spent the next few days calling and calling the National Passport Information Center trying to reach an operator that will take my story seriously. No one has ever heard of this happening before, no one believes me and asking “Are you sure?” really doesn’t do much good. Am I sure that this photo is not of my face? Yes I am.
After a week, I ended up going to speak to someone in person at the Connecticut Passport Agency in the hopes that someone there would be able to understand the situation and help me correct it. After going through an airport-like security system and having to explain why I was there, I was finally sent upstairs and eventually passed off from one employee to another since, spoiler alert, they don’t believe me either, even with passport in hand. The last woman looked on the computer, found not a single trace of this other girl’s face and called her supervisor, then her supervisor’s supervisor — all while looking at me like I had five heads.
Passport processing is done by people so human error is part of a system where mistakes can be minimized but cannot be completely eliminated. However, there has to be a better way to respond when something like this happens. We’ve been to one of these domestic passport agencies last year and it actually reminds us of the DMV. It was clear to us, at least at the site that we visited, that no one thought through the customer flow. You get an appointment via telephone, and then you show up and fall in line to go into the building, fall in line to get through the door, check with the guard (like every single one before you) on where to go next, fall in line again to get a priority number, sit (if you can find a chair, otherwise stand) and wait, and a couple hours later your name is called to the window where you write a $90 check for expeditious processing (state.gov says expedited fee is $60).
In any case, we’re wondering, which passport still has The Points Guy’s photograph?
Posted: 1:01 am EDT
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The Asian Americans Advancing Justice-Asian Law Caucus and Creating Law Enforcement Accountability & Responsibility (CLEAR) Project of CUNY School of Law have submitted Stranded Abroad: Americans Stripped of Their Passports in Yemen to the State Department Office of Inspector General requesting that the OIG investigate the State Department and U.S. Embassy Yemen “for confiscating and revoking U.S. passports contrary to regulations, policies, and guidelines.”
The groups alleged confiscation and revocation without notice, failure to provide direct return passports upon confiscation, collateral attacks on citizenship/proxy denaturalization, coercive interrogations and inadequate investigations prior to passport revocation. The complaint named seven officials who were then assigned to the US Embassy Yemen and at the State Department who the groups say are aware of the pattern of revocation and “likely to have information that can assist the OIG’s investigation.” The complaint says that the “inclusion of their names in this report is not intended to imply that they have engaged in any wrongdoing.” (see appendices)
The letter (PDF) addressed to IG Steve Linick was sent by civil rights and civil liberties groups that include the American Arab Anti-Discrimination Committee, American Civil Liberties Union, Arab American Institute, Arab Resource & Organizing Center, Asian Americans Advancing Justice, Center for Constitutional Rights, Council on American-Islamic Relations, Creating Law Enforcement Accountability and Responsibility at CUNY Law School, Muslim Advocates, and the Northwest Immigrant Rights Project.
Read the 44-page complaint below:
A related note, we must have missed this one, Al Jazeera did a piece on this back in January 2014 (See Yemeni-Americans cry foul over passport revocations). Below is an excerpt from that piece with an unnamed State Department official:
State Department official familiar with the issue — and who spoke on condition of anonymity — told Al Jazeera that a majority of the passport revocations in Sana’a follow a similar pattern. “Virtually all of the statements say that the individual naturalized under a false identity,” he said. “They appear to be involuntary.”
According to the official, an internal investigation determined that the statements those revocations were based on were obtained under “confrontational” circumstances, with individuals alone in an interview room with an investigative officer and an interpreter who, the official said, treated their subjects “aggressively.”
“We’re talking about an inherently coercive and intimidating environment, without any independent supervision of the interrogator and his translator,” said the official.
A sample of the alleged involuntary statement is included in the complaint (see Appendix B). If the voluntary statements in these revocation cases are anything like those exhibited in Mosed Shaye Omar v. John Kerry, et.al. this would be a great mess.
Back in November, following the federal court decision in Omar v. Kerry ordering the State Department to return the passport improperly revoked by the State Department, we asked State/OIG about this trend and we were told that the OIG does not have “anything on this issue on which it can comment.” It was suggested that we check with Consular Affairs. And of course, we have previously asked the bureau about this, but we do not really expect them to address this in terms of oversight.
The court documents in the Omar case suggest that Consular Affairs is revoking U.S. passports contrary to the rules in the Foreign Affairs Manual. But this is not the only case. If all similar cases have the same threshold as the Omar case, it is deeply troubling not only because the revocation appears not to follow State Department’s written guidance, State also never seek to denaturalized the plaintiff. Which basically leaves the plaintiff still a citizen of this country but unable to travel anywhere.
We have been troubled by this practice but particularly by the allegations of coercion. We have had a difficult time understanding why Yemeni-Americans would incriminate themselves voluntarily and admit to something that obviously is detrimental not only to their welfare but also their future. That defies human nature.
And no, we don’t believe that Consular Affairs is the right entity to review its own practices when it comes to these allegations. We’re hoping that State/OIG will look into this as part of its oversight responsibility of the State Department.
Posted: 2:21 am EDT
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Back in April, 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.”
We suspected that the State Department would use its ace in a hole, which is Haig v. Agee, a ruling that 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, and it did. But the court was not persuaded.
This is not the only passport revocation we’ve heard out of US Embassy Sana’a. But this is one of the most troubling cases. What kind of rules book was used there? It does not appear to be the Foreign Affairs Manual. And what’s the purpose of the Office of Adjudication if there is no stated burden of proof, and there are no rules governing the hearing itself? We understand that there are/were approximately a hundred cases of passport revocation done at the US Embassy in Yemen. We don’t know if the Yemeni-Americans with revoked U.S. passports were issued single return passports to the United States, or were left stranded in Yemen. A hundred cases are not isolated cases. Frankly, we hope to see the Office of Inspector General look into this.
(d) Questionable Certificates of Naturalization and Citizenship.
(1) (SBU) By law, 8 U.S.C. 1443(e), Certificates of Naturalization or Citizenship are proof of United States citizenship. Accordingly, an individual remains eligible for a U.S. passport until his/her Certificate of Naturalization or Certificate of Citizenship is revoked by U.S. Citizenship and Immigration Services (USCIS) or a U.S. District court, or unless he/she is ineligible for passport services for reasons other than non-citizenship.
7 FAM § 1381.2(d) 6 (Dkt. No. 14-20 at 2). Thus, the government’s own guidelines provide that the proper course under circumstances similar to those present here is to move to revoke the applicant’s Certificate of Naturalization, not to withhold the applicant’s passport as was done here.
The Court notes that the USG admitted that the above quoted provision was in effect between January 2013 and December 2013. (Dkt. No. 19 ¶ 31.) The government contends that “Plaintiff has selectively quoted from the Manual in a way that distorts its meaning,” but according to the Court’s footnotes, the USG did not “submit any other Manual provisions or explain how the above quoted provision means anything other than what it says.”
For the record, the State Department considers the section on passport revocation in the Foreign Affairs Manual as Sensitive But Unclassified material and this section of the FAM including the part cited above in court documents are not available for the reading public (also see US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?).
The Court’s decision:
The government revoked Plaintiff’s passport based solely on a written statement that Plaintiff signed without reading or understanding, and only after he had been deprived of food, water, and medication for hours and was desperate for return of his passport so he could travel to the United States to obtain medical care. Plaintiff has therefore established a likelihood of success on his claim that the revocation violated his right to due process and was therefore arbitrary and capricious. See Choy, 279 F.2d at 647. He has also raised at least serious questions as to whether Defendants applied the appropriate standard of review to his passport revocation and whether the revocation is an improper and incomplete collateral challenge to his citizenship. As the balance of hardships and the public interest tip sharply in Plaintiff’s favor, his motion for a preliminary injunction is GRANTED. Defendants shall return Plaintiff’s passport to him within 10 days of this Order.
This case is ongoing with a hearing scheduled for December 10, 2015 at 9:00 a.m.