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

The life of a blog has no certainty. In most cases, a blog has a lifespan better than that of a mayfly. A day. But most blogs do not make it longer than winter bees (six months). We have to-date survived through 26 winter bee seasons! So that’s amazing! Whatever is in the horizon, we are thankful to all of you who made these seasons possible. We are on the last few days of our eight-week annual fundraising. We are grateful to over 400 readers who pitched in since we launched a few weeks ago. If you care what we do here, and you are able to help, please see GFM: https://gofund.me/32671a27.  We could use your support.  ❤️❤️❤️ D!

 

 

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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@StateDept’s Passport Services Remain Open During Lapse of Appropriations

On January 2, Consular Affairs announced that its passport services remain open to process passport applications during the lapse of appropriations:

We continue to offer passport services during the lapse of appropriations for the federal government.

You can still apply for a U.S. passport book or passport card at all passport agencies and centers and acceptance facilities (such as U.S. post offices, libraries, or county clerk’s offices) during the lapse of appropriations. You can also renew your passport by mail. Our processing times remain the same: 4-6 weeks for routine service and 2-3 weeks for expedited service.

If you have a scheduled appointment at a U.S. Department of State passport agency or center, please plan on keeping your appointment. If you need to cancel your appointment, you may do so by visiting the Online Passport Appointment System or by calling 1-877-487-2778. If you have a scheduled appointment at a passport acceptance facility and need to cancel your appointment, please contact the facility directly.

We will update this notice if there is a change in passport services during the lapse in appropriations.


@StateDept Issues Guidance For Gender Change in U.S. Passports

Posted: 12:03 pm ET

 

We’ve seen reports about the revocation of U.S. passports of at least two transwomen. Revocation typically means the bearer of the passport is not a U.S. national, and that is permanent. Denial of passport applications on the other hand could mean new/additional documents are required before adjudication of the application is completed.  In any case, we’ve asked the State Department for comment about this news and we received the following response from an official, on background:

We have seen reports of a few transgender individuals having difficulty renewing their passports. The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  While we cannot comment on individual passport applications due to privacy concerns, the Department addresses cases individually, and strives to treat all applicants with dignity and respect. We have provided passport services to transgender individuals for many years, and have extensive instructions for such applications on our website. We cannot comment on individual cases, but are not aware of any revocations of passports for transgender individuals.

The State Department’s travel.state.gov page has a webpage for gender designation change here.

On June 27, 2018, the Bureau of Consular Affairs (CA/PPT/S/A) did issue a policy guidance on Gender Change that appears new with no superseding guidance as best we could tell. They are now now incorporated in the Foreign Affairs Manual under 8 FAM 403.3. So we asked the State Department if this is new guidance and we were told the following:

The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  The Department’s policy guidelines were introduced on June 10, 2010. Since that point, medical certification of final gender reassignment surgery was no longer a requirement for issuance of a passport in the changed gender. Certification from an attending medical physician stating that the applicant has undergone appropriate clinical treatment for gender transition is acceptable. If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.

Per 8 FAM 403.3 dated June 27, 2017 note the following:

a. This subchapter provides policy and procedures that passport specialists and consular officers (“you”) must follow when an applicant indicates a gender on the “sex” line on the passport application with information different from the one reflected on some or all of the submitted citizenship and/or identity evidence, including a prior passport.

b. This policy explains the need for medical certification from a licensed physician who has treated the applicant or reviewed and evaluated the medical history of the applicant regarding the change in gender, as well as the need for accurate identification and a photograph reflecting the applicants current appearance. It is based on standards and recommendations of the World Professional Association for Transgender Health (WPATH), recognized as the authority in this field by the American Medical Association (AMA).

c. A passport is defined by INA 101(a)(30) (Immigration and Nationality Act) (8 U.S.C. 1101(a)(30)) as “any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.” An individual’s gender is an integral part of that person’s identity.

d. Sex reassignment surgery is not a prerequisite for passport issuance based on gender change.

e. Medical certification of gender transition from a licensed physician as described in 8 FAM 403.3-2 is the only documentation of gender change required. Other medical records must not be requested.

f. A form DS-11 Application for U.S. Passport must be used the first time an applicant applies for a passport in reassigned gender, as personal appearance for execution is required, even if the applicant has a previous passport. A change in gender is a change in the identity of the applicant, and evidence of identity in the new name (if applicable) and gender must be presented. Subsequent applications in the same gender may be submitted on a form DS-82 if the applicant is eligible (see 8 FAM 702.2 regarding eligibility to apply on a form DS-82 and 8 FAM 403.3-3(D) regarding resumption of the birth gender).

The State Department official on background told us that If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.”

The June 27  guidance notes that “A full validity U.S. passport will be issued reflecting a new gender upon presentation of a signed, original certification or statement, on office letterhead, from a licensed physician who has treated the applicant for her/his gender-related care or reviewed and evaluated the gender-related medical history of the applicant.” It does not mention the requirement for full transition. When we seek clarification, the same State Department official on background told us the following:

If an applicant is in the beginning stages of transition, a limited passport will be issued to the individual. This can be replaced within two years from the date of issuance for a full validity passport at no-cost to the applicant once CA receives medical certification of the appropriate clinical treatment for gender transition.

The June 27 guidance also says that “The applicant is not required to obtain an amended birth record, amended Consular Report of Birth (CRBA), or to request that the U.S. Citizenship and Immigration Services (USCIS) issue a replacement Certificate of Naturalization/Citizenship reflecting the change of gender.”   But also that “State law in the United States and the laws of other countries vary on whether an amended birth certificate may be issued reflecting a gender change”.  

Applicants are required to provide primary and secondary IDs in their new gender. Th guidance says “Some form of photographic ID must be presented; You cannot use the doctor’s certification as the only evidence to identify an applicant.”

Medical certifications from persons who are not licensed physicians (e.g. psychologists; physician assistants; nurse practitioners; and others) are not/not acceptable.

8 FAM 403.3-8  has the sample letter for licensed physicians certifying to the applicant’s gender change/transition.

The guidance also includes a section on “conversations with passport applicants seeking to document gender change/transition”, for passport adjudicators:

1) As with all passport applicants, you must be sensitive and respectful at all times;
2) Refer to the applicant by the pronoun appropriate to her/his new gender even if the transition is not complete.
3) Ask only appropriate questions regarding information necessary to determine citizenship and identity of the applicant.

Read more here.

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U.S. Passport Identifiers For Registered Sex Offenders Went Into Effect on Oct 31, 2017

Posted: 1:34 pm PT

 

Via State/CA:

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.

According to DHS/ICE, its Homeland Security Investigations (HSI), Operation Angel Watch was initially created in 2007 and is managed by the Child Exploitation Investigations Unit of the ICE Cyber Crimes Center and is a joint effort with U.S. Customs and Border Protection (CBP) and the U.S. Marshals Service. Operation Angel Watch targets individuals who have been previously convicted of sexual crimes against a child and who may pose a potential new threat: traveling overseas for the purpose of sexually abusing or exploiting minors, a crime known as “child sex tourism.”

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.

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All U.S. Passports Invalid for Travel to North Korea Without Special Validation Effective 9/1/17

Posted: 11:37 am PT
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On July 21, the Department of State declared that all U.S. passports are invalid for travel to the Democratic People’s Republic of Korea (North Korea) unless the travel meets certain criteria.

The Department of State has determined that the serious risk to United States nationals of arrest and long-term detention represents imminent danger to the physical safety of United States nationals traveling to and within the Democratic People’s Republic of Korea (DPRK), within the meaning of 22 CFR 51.63(a)(3). Therefore, pursuant to the authority of 22 U.S.C. 211a and Executive Order 11295 (31 FR 10603), and in accordance with 22 CFR 51.63(a)(3), all United States passports are declared invalid for travel to, in, or through the DPRK unless specially validated for such travel, as specified at 22 CFR 51.64. The restriction on travel to the DPRK shall be effective 30 days after publication of this Notice, and shall remain in effect for one year unless extended or sooner revoked by the Secretary of State.

The notice was published in the Federal Register on August 2, 2017.

photo from travel.state.gov

Per 22 CFR 51.63 Passports invalid for travel into or through restricted areas; 

(a) The Secretary may restrict the use of a passport for travel to or use in a country or area which the Secretary has determined is:

(1) A country with which the United States is at war; or

(2) A country or area where armed hostilities are in progress; or

(3) A country or area in which there is imminent danger to the public health or physical safety of United States travelers.

(b) Any determination made and restriction imposed under paragraph

(a) of this section, or any extension or revocation of the restriction, shall be published in the Federal Register.

Per 22 CFR 51.64 Special validation of passports for travel to restricted areas.

(a) A U.S. national may apply to the Department for a special validation of his or passport to permit its use for travel to, or use in, a restricted country or area. The application must be accompanied by evidence that the applicant falls within one of the categories in paragraph (c) of this section.

(b) The Department may grant a special validation if it determines that the validation is in the national interest of the United States.

(c) A special validation may be determined to be in the national interest if:

(1) The applicant is a professional reporter or journalist, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or

(2) The applicant is a representative of the International Committee of the Red Cross or the American Red Cross traveling pursuant to an officially-sponsored Red Cross mission; or

(3) The applicant’s trip is justified by compelling humanitarian considerations; or

(4) The applicant’s request is otherwise in the national interest.

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An Embarrassing Renewal Mix-Up? Which Passport Still Has The Points Guy’s Photograph?

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.

Read more:

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?

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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
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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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Why Are Court Cases Related to US Passports and Immigrant Visas in Yemen and Pakistan Sealed?

Posted: 2:51 am EDT
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This past October, we blogged that 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).

While researching another court case, we discovered the Hasan v. State Department case. This is a case where the petitioner asked for judicial review of a US Embassy Yemen consular official’s decision of ineligibility for an immigrant visa on behalf of a minor child. Following the filing of this case and the closure of the US Embassy in Sanaa, the US Embassy in Cairo apparently became the post designated to handle visa applications from Yemen. US Embassy Cairo reviewed the prior ineligibility, reversed US Embassy Sana’a’s decision and issued the immigrant visa. The parties subsequently agreed to dismissed this case with prejudice at no cost to Mr. Hasan or the State Department.  Except for the court ruling stipulating the dismissal of the case, all other files related to this case are sealed in court.

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1:15-cv-04312-GHW | Hasan v. U.S. Department of State et al.

A closer look at other cases filed in the New York District Court indicates several other court cases against the State Department, US Embassy Yemen, US Embassy Pakistan, Ambassador Matthew Tueller, Ambassador Richard Olson and related federal agencies have also been sealed.

We suspect that these are cases related either to U.S. passport revocations, non-issuance of U.S. passports or immigrant visas in Yemen and Pakistan.

Following the federal court decision ordering the State Department to return the passport improperly revoked by the State Department, we asked State/OIG about this trend and we’re 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 CA 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.

Which brings us to the question as to why these court files are sealed in court. It is possible that these cases all relate to minor children, could that be the reason for sealing the court records? Or is it something else?

Below are some of the cases we’ve located; all sealed unless noted otherwise:

1:15-cv-06425-NGG  | Abdu v. U.S. Department of State et al — filed on 11/10/2015. Defendants include Secretary Kerry  and US Ambassador to Yemen Matthew Tueller.

1:15-cv-05684-FB | Alzonkary et al v. Holder et al — filed on 10/02/2015. Defendants include Secretary Kerry, US Embassy Yemen’s Ambassador Tueller and CA’s Michelle Bond.

1:15-cv-05587-JG | Mansour Fadhil et al (on behalf of minor children). Defendants include Secretary Kerry.

1:15-cv-06436-FM | Al Zokary v. United States Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller

1:15-cv-04312-GHW  | Hasan v. U.S. Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller. The case was dismissed in August 2015 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files except the Stipulation are sealed.

1:15-cv-01767-ILG  | Hasan et al v. U.S. Department of State et al. Defendants include Secretary Kerry and US Ambassador to Pakistan Richard Olson.

1:14-cv-07093-PAC | Issa et al v. Holder et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller.

1:14-cv-02584-ER | Alsaidi v. U.S. Department of State et al. Defendants include Secretary Kerry and Karen H. Sasahara in her official capacity as charge d’affaires ad interime of the U.S. embassy in Sana’a, Yemen.  The case was dismissed in 2014 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files remained sealed.

1:13-cv-06872-PKC  | Mohammad et al v. Beers et al. Defendants include Secretary Kerry. The case was voluntarily dismissed in July 2014, all files remained sealed.

2:13-cv-04178-ADS  | Arif et al v. Kerry et al. Defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was dismissed with prejudice in September 2013, with each party bearing its own costs, fees, including attorney’s fees, and disbursements. The files remained sealed.

One passport case from November 2013, 1:13-cv-08299-AJP Kassim v. Kerry is not sealed.  The case was dismissed in March 2014 with a court order for issuance of U.S. passport to plaintiff. “Within 30 days of the entry of this order, Plaintiff will submit to the Department of State a new un-executed but signed passport application (Form DS-11) with passport photos and a copy of the front and back of a valid government identification card. The Department of State will issue Plaintiff a U.S. passport book and a U.S. passport card within 30 days of receipt of Plaintiffs passport application and supporting documentation (described above in subsection 2(a)). This action is hereby withdrawn and dismissed with prejudice and without costs or attorney’s fees.”

One immigrant visa case from 2014, 1:14-cv-03748-KAM | Chaudhry et al v. Holder et al. is also not sealed. The defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was voluntarily dismissed with prejudice in light of the State Department granting of an immigrant visa to Plaintiff.

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