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Ali Salem v. Pompeo

United States District Court, E.D. New York

January 8, 2020

HASSAN MOHAMED ALI SALEM, et al Plaintiffs,
v.
MICHAEL R. POMPEO, Secretary of State, et al, Defendants.

          MEMORANDUM AND ORDER

          Stefliiigfohnson, Jr., U.S.D.J.

         Plaintiffs are United States ("U.S.") citizen children and U.S. citizen parents of children seeking U.S. passports and Consular Reports of Birth Abroad ("CRBA") at the U.S. Embassy in Djibouti ("Embassy Djibouti"). Plaintiffs move for a preliminary injunction against Secretary of State Michael Pompeo, Ambassador Larry Edward Andre Jr., Section Chief Devin Kennington, Consular Officer Chapman Godbey, Consular Officer Ryan Nolan, Embassy Djibouti, and the Department of State (collectively "The Government" or "Defendants") seeking, inter alia, to enjoin Embassy Djibouti from restricting the right to counsel in passport and CRBA interviews. The Government moves to dismiss Plaintiffs' complaint for lack of jurisdiction and failure to state a claim. Because of significant overlap of issues, both motions are addressed here. Based on the reasons stated below, the parties' submissions, and arguments made on the record, the motion for a preliminary injunction is DENIED and the motion to dismiss is GRANTED IN PART and DENIED IN PART.

         I. RELEVANT BACKGROUND[1]

         The U.S. Embassy in Sana7a, Yemen ("Embassy Sana'a") suspended operations in February 2015 in response to escalating civil unrest and "the deteriorating security situation." Press Release, U.S. Department of State, Emergency Message for U.S. Citizens (Feb. 8, 2015), https:// ye.usembassy.gov/ emergency-message-u-s-citizens-february-8-2015/, (last visited Oct. 10, 2019). The State Department warned that, "U.S. citizens in Yemen remain vulnerable to kidnappings and terrorist attacks." (Id.) Once Embassy Sana'a suspended operations, Yemen-based U.S. citizens were required to apply for passports and CRBAs at other embassies in the region. All Plaintiffs in this case applied for their respective documents at the next closest U.S. Embassy, which is located in Djibouti across the Bab al-Mandab Strait on the African continent.

         After Plaintiffs requested passport and CRBA interviews at Embassy Djibouti, a notice was posted in November 2018 (the "November Policy") on the Embassy website stating that attorneys were no longer permitted to attend interviews-a break from the typical procedure. Plaintiffs' interviews were scheduled but they chose not to attend in light of the November Policy. On January 17th, 2019, Plaintiffs brought suit in this Court and requested a preliminary injunction seeking inter alia, to enjoin Embassy Djibouti, "from denying U.S. citizens the right to legal representation during U.S. passport and/ or CRBA interviews..." (Dkt. No. 1, ¶ 32.). On February 8, 2019, the day the Government filed its opposition to the preliminary injunction, the Embassy rescinded its notice and replaced it with a new notice permitting attorney presence but severely circumscribing their roles (the "February Policy"). Plaintiffs continue to seek a preliminary injunction enjoining the government from enforcing either the November or February policy.

         A. Passport and CRBA Procedures

         At issue are the procedures in place for first-time passport applicants living abroad. (Docket Number ("Dkt. No.") 1, ¶ 56.) State Department Deputy Assistant Secretary Karin King provided an affidavit describing these procedures and the justifications for them. (Dkt. No. 30-1.) First-time passport applicants living abroad must appear at a U.S. embassy or consulate and submit to an interview to" assess their credibility, verify their identity, and determine the reliability of the documents they submit by eliciting facts necessary to assess the citizenship claim”' (Id. at ¶ 7.) "While all first-time applicants for a U.S. passport are required to appear in person by law (22 U.S.C. § 213) to submit their application and to take the requisite oath, a personal interview generally is not required domestically." (Id.) King stated that this is because, unlike international applicants, domestic applicants usually have "U.S.-issued identity and citizenship documents, which are presumptively valid absent fraud indicators”' (Id.)

         The State Department also issues CRBAs, a report documenting the birth of a citizen born abroad and serving as an official determination of the applicants U.S. citizenship. (Id. at ¶ 8-9.) CRBAs are issued when certain statutory requirements are met, including that one or both parents are U.S. citizens and that a U.S. citizen parent lived in the U.S. for a requisite amount of time prior to the birth. (Id. at ¶ 8.) Consular officers abroad are responsible for making these determinations through in-person interviews with applicants or parents of applicants. (Id. at ¶ 9.)

         B. U.S. Embassy Sana'a

         The Plaintiffs allege that abuses from Embassy Sana'a, which closed down in 2015, have carried over to Embassy Djibouti under the supervision of Consular Section Chief Kennington. (Dkt. No. 1, ¶ 23.) Plaintiffs allege that at Embassy Sana'a, United States citizens would routinely have their passports and CRBAs wrongfully confiscated without proper documentation and would be detained for hours without food, water, or their required medication. (Id. at ¶ 24-25.) Plaintiffs provide instances of illiterate and non-English speaking passport applicants that were provided forms that were in English that, in effect, were false confessions that renounced their right to citizenship. (Id. at ¶ 25-31.)

         In October 2018, the Office of the Inspector General conducted a review of Embassy Sana'a after receiving a complaint (Dkt. No. 1, ¶ 25); U.S. Dep't of State Office of Inspector General, Review of Allegation of Improper Passport Seizures at Embassy Sana'a, Yemen (2018), https:// www.oversight.gov/ sites/ default/ files/ oig-reports/ ESP-19-Ol.pdf. The review found that in confiscating passports, "the Department did not follow relevant standards," and that "[t]he Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined." (Id.)

         C. U.S. Embassy Djibouti

         In 2015, Embassy Djibouti began processing Yemini immigrant visa applications as well as passport and CRBA applications for children born in Yemen to U.S. citizen parents. (Dkt. No. 30-1, ¶ 3.) Plaintiffs state that from March 2015 to April 2018, the two Consular Affairs Section Chiefs that served in that time were "dedicated to preserving the rights of U.S. citizen[s] and took great measures to ensure that laws were followed and U.S. citizens were protected”' (Dkt. No. 1, ¶ 33.) However, Plaintiffs claim that under the new leadership of Section Chief Kennington, reports of verbal abuse, false accusations of wrongdoing, and denials of interpreters began to surface. (Id. at ¶ 38.) The degrading behavior described by Plaintiffs was alleged to have been perpetrated by Defendants Godbey and Nolan specifically and supported by affidavits by nonparties. (Id. at ¶ 39.)

         Kennington took over as Section Chief in August 2018 and instituted a number of changes to "improve the efficiency and conduct of consular interviews." (Dkt. No. 30-1, ¶ 8.) For at least three years prior to his appointment, Kennington's predecessors accommoDated:torney participation in passport and CRBA interviews. (Id. at ¶ 11.) However, on November 19, 2018, Kennington posted a notice on the Embassy website that stated, "attorneys are not permitted to [be] present during their clients' passport/CRBA interviews." (Id. at ¶ 12.) Kennington also confirmed this policy directly to Plaintiffs' attorney, Julie Goldberg, by email. (Id.) Kennington claims that attorney participation, "had often interfered with the ability of consular officers to elicit the information they needed to adjudicate applications, ” (Id. at ¶ 11.) Kennington found this problematic due to the" prevalence of fraudulent citizenship and visa applications'7 attributed to the "unreliability of vital records documents from Yemen”' (Id. at ¶ 3.) In response to this restriction of counsel, Plaintiffs chose to not attend their interviews and brought the instant action. Plaintiffs found the policy particularly concerning due to "numerous accounts from U.S. citizens and beneficiaries detailing racism and abuse from U.S. Embassy officials in Djibouti...since Defendant Devin Kennington...took over." (Dkt. No. 1, ¶ 54.)

         As stated supra, Defendants reversed course and issued a new policy allowing attorneys to attend interviews, seemingly in response to this lawsuit. (See Dkt. No. 40-4.) However, per the February Policy, "[a]ttorneys may not engage in any form of legal argumentation before the consular officer," "object to or insist on the participation of an interpreter in the interview, to the qualification of any interpreter, or to the manner or substance of any translation," "object to a consular officer's question on any ground (including that the attorney regards the question to be inappropriate, irrelevant, or adversarial)," "summarize, correct, or attempt to clarify an applicant's response, or interrupt or interfere with an applicant's responses to a consular officer's questions," or "instruct the applicant not to answer a consular officer's questions," among other restrictions. (Id.)

         II. Procedural History and Preliminary Injunction Hearing

         On February 12th, 2019, this Court held a hearing on Plaintiff's motion for preliminary injunction, where Plaintiffs had witnesses testify as to their experiences at Embassy Djibouti, including: Yousof Alrobye, Saddam Ali Alradai, Houssein Ahmed, and Sami Munassar.[2]

         Yousof Alrobye ("Alrobye") is a nonparty U.S. citizen that went to Embassy Djibouti to interview for a visa for his wife and passports for his children. (Transcript of 2/12/19 Hearing ("Tr.") at 32.) Alrobye was a client of Attorney Goldberg at this time and attended the interview with her. At the interview, the consular officer "refused to take a look at" his application materials, apparently believing Alrobye was engaged in passport fraud. (Tr. at 35.) Alrobye had an older passport previously confiscated by the State Department because it was damaged. He brought a copy of his old passport along with his new passport, that included a notation that his prior passport had been seized. (Tr. at 36-38.) Nevertheless, the officer found this suspicious and refused to consider his explanation and denied his application without full review. (Id.) Alrobye testified that the officer then stated that "all Yemini commit fraud," (Tr. at 44.) As a result of the denial, Mr. Alrobye's wife remained in Djibouti. (Tr. at 40.)

         Sami Munassar ("Munassar") is a nonparty U.S. citizen who previously went to Embassy Djibouti to support his wife in her visa application. (Tr. at 53.) Munassar provided testimony consistent with the affidavit previously submitted in this case. (See Dkt. No. 25-1, Ex. G3.) Munassar testified that Defendant Officer Nolan was both rude to them in questioning the validity of their marriage and not proficient enough in Arabic to properly conduct his wife's interview. (Tr. at 55-57.) Nolan also questioned the authenticity of a certified copy of Munassar's Michigan birth certificate, before requesting to keep it. (Tr. at 58.) Munassar testified he did not want to give up the birth certificate but felt "nervous because the way [Nolan] treated [him] and talked down to [him]," so acquiesced. (Id.) Ultimately, Officer Nolan denied the visa but it was later approved and Munassar's wife joined him in the U.S. (Tr. at 63-64.)

         Saddam Ali Alradai ("Alradai") is a U.S. citizen plaintiff in this case. Alradai testified that his wife and five children fled Yemen and live in Djibouti awaiting U.S. Passports. He scheduled a passport interview in order to bring them to the U.S. (Tr. at 95.) He further testified about the difficult conditions his family faces in Djibouti, including: high costs of living, lack of healthcare, extreme heat, and infections transmitted by mosquitos that three of his children had developed. (Tr. at 97-99.) Alradai explained that despite these difficult conditions, he decided the family should not attend their passport interview without a lawyer following the November Policy because of his fear that they would be treated unfairly and have their applications denied without a lawyer present. (Tr. at 100.) His fear is predicated on information shared in the Yemeni community regarding embassy interviews and the experience of Alradai's brother-a U.S. citizen who did not have a lawyer and was unable to obtain visas or passports for his children to come to the U.S. for four years. (Tr. at 104.)

         Houssein Ahmed ("Ahmed7') is another U.S. citizen plaintiff in this case. He testified on direct that following the November Policy, he chose to set up and attend his son's passport interview without the presence of an attorney and was approved without incident. (Tr. at 111-12.) He further testified that he would have preferred to have attended his appointment with his attorney but that the costs of financially supporting his family in Djibouti were so high, he was almost forced to sell his house and car to keep up the payments on their essential living costs. (Id.) Plaintiffs seek a preliminary injunction to enjoin the Government from restricting their right to counsel during U.S. passport and CRBA interviews. Plaintiffs initially challenged the November Policy for barring attorney attendance altogether but maintain that the updated policy fails to remedy the denial of their right to counsel. The Government argues that the motion for preliminary injunction is procedurally improper because it seeks the equivalent of the final judgment on the merits. The Government also makes several procedural arguments in both its opposition to the preliminary injunction and its motion to dismiss. The Government argues that the November Policy is now moot since it has been superseded by the February Policy, which it further argues cannot be litigated because it is not ripe. The Government also argues that the plaintiffs lack standing and have failed to state a claim.

         III. DISCUSSION

         Before turning to the merits of the preliminary injunction, the Court must find it has jurisdiction. Am. Atheists, Inc. v. Port Auth. of N.Y. & N.T.,760 F.3d 227, 237 nil (2d Cir. 2014). Because the government raises substantially similar jurisdictional arguments in its preliminary ...


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