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 Re-Issues Level 2 Travel Advisory For Saudi Arabia Over Threat of Missile and Drone Attacks on Civilian Targets

 

On September 17, the State Department issued a Level 2 Travel Advisory (Exercised Increased Caution) for Saudi Arabia due to “terrorism and the threat of missile and drone attacks on civilian targets.” It previously issued a Level 2 Travel Advisory on June 26, 2019 but the advisory was reissued “with updates to security information.”
Via travel.state.gov:

Exercise increased caution in Saudi Arabia due to terrorism and the threat of missile and drone attacks on civilian targets.

Do not travel to:

Within 50 miles of the border with Yemen due to terrorism and armed conflict.

Terrorist groups continue plotting possible attacks in Saudi Arabia. Terrorists may attack with little or no warning, targeting tourist locations, transportation hubs, markets/shopping malls, and local government facilities. Terrorists have targeted both Saudi and Western government interests, mosques and other religious sites (both Sunni and Shia), and places frequented by U.S. citizens and other Westerners.

Regional actors hostile to Saudi Arabia have conducted destructive and sometimes lethal attacks against a variety of targets including critical infrastructure, military facilities, airports, and energy facilities throughout the country, as well as vessels in Red Sea shipping lanes. Riyadh, Yanbu, areas in proximity to Jeddah, the civilian airport in Abha, military installations in the south, and specific oil and gas facilities are examples of recent targets. The Islamic Republic of Iran has supplied Yemen-based Houthis and other regional proxy groups with weapons, including drones, missiles, and rockets. Houthi militants continue to plan and conduct attacks against locations in Saudi Arabia. Violence associated with Iran-supported groups represents a significant threat. U.S. citizens living and working near military bases and critical civilian infrastructure, particularly in the Eastern Province and areas near the border with Yemen, are at heightened risk of missile and drone attack.

The U.S. government has limited ability to provide emergency services to U.S. citizens in the following locations, as U.S. Mission personnel and their families are restricted from travel to:

    • Within 50 miles of the Saudi-Yemen border, including the cities of Jizan and Najran, and
    • Qatif in the Eastern province and its suburbs, including Awamiyah.

U.S. Mission personnel and their families are not permitted to use the airport in Abha without Chief of Mission approval.

Due to risks to civil aviation operating within the Persian Gulf and the Gulf of Oman region, including Saudi Arabia, the Federal Aviation Administration (FAA) has issued an advisory Notice to Airmen (NOTAM). For more information U.S. citizens should consult the Federal Aviation Administration’s Prohibitions, Restrictions and Notices.

Read the Safety and Security section on the country information page.

If you decide to travel to Saudi Arabia:

    • Stay alert in locations frequented by Westerners.
    • Obtain comprehensive medical insurance that includes medical evacuation.
    • Enroll in the Smart Traveler Enrollment Program (STEP) to receive Alerts and make it easier to locate you in an emergency.
    • Follow the Department of State on Facebook and Twitter.
    • Review the Crime and Safety Reports for Saudi Arabia.
    • U.S. citizens who travel abroad should always have a contingency plan for emergency situations. Review the Traveler’s Checklist.

Yemen Border

Violence in Yemen has spilled over into Saudi Arabia on a number of occasions. Rebel forces in Yemen fire artillery at Saudi border towns and launch cross-border attacks against Saudi military personnel. Civilians who are near the border with Yemen are at risk.

The U.S. government has limited ability to provide emergency services to U.S. citizens within 50 miles of the Saudi-Yemen border as U.S. government personnel and their families are restricted from travel to this area.

Visit our website for information on travel to high-risk areas.

 

ALSO THIS:  Who’s going to do it, and what kind of props will he/she bring to the United Nations? The last time one of our guys did it, he brought a vial he said could contain anthrax as he presents evidence of Iraq’s alleged weapons programs to the United Nations Security Council in 2003.

Related items:

 

Miles With Mike: Child Soldiers, CENTCOM Visit, Silliness, Plus Some Word Salad With That Chardonnay

Help Fund the Blog | Diplopundit 2019 — 60-Day Campaign from June 5, 2019 – August 5, 2019

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Billy Goat  with Washington piece of silliness

Some word salad to go with that Chardonnay:

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@StateDept’s Level 4 “Do Not Travel” Countries For 2019

The State Department’s Level 4 – Do Not Travel advisory category is the highest advisory level due to greater likelihood of life-threatening risks. During an emergency, the U.S. government may have very limited ability to provide assistance. The Department of State advises that U.S. citizens not travel to the country or to leave as soon as it is safe to do so.

As of January 4, 2019, there are eleven countries designated as Level 4 “do not travel” countries.

In Somalia, the U.S. government has limited ability to provide emergency services to U.S. citizens due to the lack of permanent consular presence in the country.

In North Korea, the State Department says that the U.S. government is unable to provide emergency services to U.S. citizens in North Korea as it does not have diplomatic or consular relations with North Korea. Sweden serves as the protecting power for the United States in North Korea, providing limited emergency services. However, the North Korean government routinely delays or denies Swedish officials access to detained U.S. citizens.

In South Sudan, U.S. government personnel are under a strict curfew. The advisory says personnel “must use armored vehicles for nearly all movements in the city, and official travel outside Juba is limited. Due to the critical crime threat in Juba, walking is also restricted; when allowed, it is limited to a small area in the immediate vicinity of the Embassy and must usually be conducted in groups of two or more during daylight hours. Family members cannot accompany U.S. government employees who work in South Sudan.”

In Iraq, the U.S. government’s ability to provide routine and emergency services to U.S. citizens is “extremely limited.”  On October 18, 2018, the Department of State ordered the temporary suspension of operations at the U.S. Consulate General in Basrah.

Secretary Kerry's Helicopter Flies Over Baghdad En Route to Airport
Baghdad, Iraq | State Department Photo

In Iran, the U.S. government does not have diplomatic or consular relations. “The U.S. government is unable to provide emergency services to U.S. citizens in Iran. Switzerland serves as the protecting power for U.S. citizens in Iran, providing limited emergency services.”

In CAR, the U.S. government has limited ability to provide emergency services to U.S. citizens as U.S. government employees must obtain special authorization to travel outside the Embassy compound.

The U.S. Embassy in Damascus in Syria suspended its operations in February 2012. “The U.S. government does not have diplomatic or consular relations with Syria. The Czech Republic serves as the protecting power for the United States in Syria. The range of consular services that the Czech Republic provides to U.S. citizens is extremely limited, and the U.S. government is unable to provide emergency services to U.S. citizens in Syria.”

In Mali, the U.S. government is unable to provide emergency services to U.S. citizens in the northern and central regions of Mali as U.S. government employees travel to these regions is restricted due to security concerns. 

In Libya, the U.S. government is unable to provide emergency or routine assistance to U.S. citizens as the U.S. Embassy in Tripoli suspended its operations in July 2014.

In Afghanistan: The U.S. Embassy’s ability to provide routine and emergency services to U.S. citizens in Afghanistan is severely limited, particularly outside of Kabul. Evacuation options from Afghanistan are extremely limited due to the lack of infrastructure, geographic constraints, and the volatile security situation. Family members cannot accompany U.S. government employees who work in Afghanistan. Unofficial travel to Afghanistan by U.S. government employees and their family members is restricted and requires prior approval from the Department of State. U.S. Embassy personnel are restricted from traveling to all locations in Kabul except the U.S. Embassy and other U.S. government facilities unless there is a compelling U.S. government interest in permitting such travel that outweighs the risk.  Additional security measures are needed for any U.S. government employee travel and movement through Afghanistan.

The U.S. Embassy in Sana’a suspended its operations in February 2015. The U.S. government is unable to provide emergency services to U.S. citizens in Yemen.

Somalia Travel Advisory | AFLevel 4: Do
Not Travel
December
26, 2018
North Korea (Democratic People’s Republic of Korea) Travel Advisory | EAPLevel 4: Do
Not Travel
December
19, 2018
South Sudan Travel Advisory | AF

Level 4: Do
Not Travel
December
11, 2018
Iraq Travel Advisory | NEALevel 4: Do
Not Travel
October 18, 2018
Iran Travel Advisory | NEALevel 4: Do
Not Travel
October 10, 2018
Central African Republic Travel Advisory |
AF
Level 4: Do
Not Travel
October 3,
2018
Syria Travel Advisory | NEALevel 4: Do
Not Travel
September 10, 2018
Mali Travel Advisory | AFLevel 4: Do
Not Travel
August 13, 2018
Libya Travel Advisory | NEALevel 4: Do
Not Travel
August 8,
2018
Afghanistan Travel Advisory | SCALevel 4: Do
Not Travel
July 9, 2018
Yemen Travel Advisory | NEALevel 4: Do Not TravelJuly 5, 2018

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Netflix Caves In to Saudi Arabia, Removes ‘Patriot Act’ Episode on MBS and Yemen

Visa for Yemeni mother with dying son: Why does it take a public outcry?

Via state.gov, Daily (not-daily, now dubbed Department) Press Briefing with Deputy Spox Palladino:

QUESTION: I want to ask you just briefly – and I know you won’t be able to say a lot – but about this woman, this Yemeni woman who was trying to get here to see her dying son out on the west coast. I understand visa records are confidential, but my question about this is: Why does it always seem to take a public outcry for you guys to do what a lot of people think is the right thing, the humanitarian thing to do?

MR PALLADINO: What I’d say, Matt, is – I mean, I’ve read these reports, and it is a very sad case, and our thoughts go out to this family in this time, this trying time. But I would also add we – that we are governed by the Immigration and Nationality Act, and visa records are confidential. For the latest, they could share information as they see fit, and that’s not something that we’re going to be able to do here from the State Department.

QUESTION: No, I’m not asking you – I’m not – we know what the – that the decision has been made and that she has gotten a waiver, at least according to the family’s lawyers. My question is: Why does it always seem to be – and this is not just this administration. This goes back previous administrations as well, is that in cases like this, it always seems that you guys don’t do what most people think would be the right and humane and humanitarian thing to do until there’s a public outcry about it. What is it about the visa process that makes it so harsh when it comes to situations like this?

MR PALLADINO: These are decided on a case-by-case basis, and we are committed to following United States administration law and ensuring the integrity and security of our country’s borders, and at the same time making every effort to facilitate legitimate travel to the United States. These are not easy questions. These are – we’ve got a lot of Foreign Service officers deployed all over the world that are making these decisions on a daily basis, and they’re trying very hard to do the right thing at all times. 

U.S. Senate votes to end U.S. support for #SaudiWar in #Yemen, condemns #KhashoggiMurder

Pompeo Talks Up Saudi “Investment” in Yemen, and USG’s “Additional” $131M Assistance #ExcludingArms

 

On November 28, the Secretary of State told the world that “Saudi Arabia has invested billions to relive suffering in Yemen.” Pretty soon,  Saudi Arabia’s spokesman would not have a job anymore.

The Guardian reported that in 2017, the Yemen appeal for $2.5bn was only 73% funded, but that the needs have intensified in a country battered since 2015 by a Saudi-led military offensive aimed at repelling Iran-backed Houthi rebels who control the capital. In April this year, during a UN donor conference for people affected by war in Yemen – labelled as the “world’s worst humanitarian crisis” – has received pledges of more than $2bn, close to half of which is promised by Saudi Arabia and the United Arab Emirates, two key protagonists in the conflict, according to the same report. Click here for the OCHA page for pledges and paid contributions for Yemen.

On October 24, 2017, U.S. Ambassador Matthew H. Tueller re-issued a disaster declaration for the ongoing complex emergency in Yemen for FY 2018 due to “continued humanitarian needs resulting from the complex emergency and the impact of the country’s political and economic crises on vulnerable populations.”  USAID’s November 9, 2018 Factsheet on Yemen Disaster Assistance indicates that the United States humanitarian funding for the Yemen response in FY2018 is $566,273,269 (includes funding through the Office of U.S. Foreign Disaster Assistance (USAID/OFDA), the Office of Food for Peace (USAID/FFP), and the Bureau of Population, Refugees, and Migration (State/PRM)).  Secretary Pompeo’s tweet on November 28 says that the United States is providing an “additional” $131 million in food assistance to Yemen.

According to the CRS, since March 2015, the U.S.-trained Saudi military has used U.S.-origin weaponry, U.S. logistical assistance, and shared intelligence in support of military operations in Yemen. Excerpt:

In May 2017, President Trump signaled a continuation and deepening of bilateral defense cooperation, announcing completed and proposed defense sales during his visit to Riyadh with a potential value of more than $110 billion. The sales include cases that the Obama Administration had proposed and notified to Congress, cases developed under the Obama Administration on which Congress had been preliminarily consulted, and new sales that remain under development.
[…]
The United States’ role in supporting the Saudi-led coalition’s military operations in Yemen has evolved over time. 65 At present, it consists of some intelligence sharing, aerial refueling, and the deployment of advisers to Saudi Arabia for border security and anti-ballistic missile purposes.66 In his latest biannual War Powers letters to Congress on the deployment of U.S. forces abroad in combat operations (P.L. 93-148), President Trump informed Congress about ongoing U.S. counterterrorism operations in Yemen and stated that U.S. forces in noncombat roles were providing “military advice and limited information, logistics, and other support to regional forces combatting the Houthi insurgency.”

So, on one hand, we’re supporting the side that’s indiscriminately bombing hospitals, school buses and children, and on the other hand, we’re spending millions of dollars for food and humanitarian assistance to help those who are bombed and starved.  Also, our Secretary of Swagger did not just announced the additional millions in food assistance but also cited “our generous example” in “galvanizing humanitarian assistance.” When is this going up on Instagram, people?

By the way, the most recent USAID/OFDA official said “no amount of aid money can prevent this famine” and that absent massive political pressure on the Saudi, this is just “window dressing.” 

Related item: Saudi Arabia: Background and U.S. Relations (PDF) | Updated September 21, 2018 (Congressional Research Service).

ALSO THIS:

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Halloween 2018: A Great Day For Scaring Kids, Also a Frightful Time For All Else

 

ALSO IN FRIGHTFUL NEWS: The United States could deploy 7,000 armed troops to the US-Mexican border a week before Election Day. It could go up to 15,000, roughly what we have in Afghanistan and three times what the United States deployed to Iraq. Since Mexico refused to fund that wall, the President of the United States now says “”We have to have a wall of people”. Presumably, our friends to the south are not going to pay for this “wall of people” either, so U.S. taxpayers are already saddled with this tab. And since the deployment to the border number will likely kept growing the next few days, the Pentagon probably should ask how deep is this “wall of people” the Commander-in-Chief is talking about.

Meanwhile in Yemen, people have been dying the last three years. Now 14 million people face starvation as the U.S. government continue its military support of Saudi Arabia’s war (see Secretary Pompeo Saves $2Billion Weapons Sales From Jeopardy). USG is now seeking a cease-fire over there. Why now? Is it because half of Yemen’s population is on the brink of famine? Or is it because the world is finally paying attention to US-support of the war in Yemen after the Khashoggi murder?  Former USNATO Ambassador Robert Hunter writes that “blanket U.S. support for the Saudi air campaign means that it cannot escape its own share of responsibility.”

Also back in 2010, a State/OIG report estimated that the Yemeni-American community in that country was about 55,000. There were no USG-organized evacuations when war broke out. For those covering Yemen, please ask the Secretary of State his department’s estimate on how many Yemeni-Americans were killed in this war.

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Secretary Pompeo Saves $2Billion Weapons Sales From Jeopardy

 

AND NOW THIS, the English version though the original one requires no translation:

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